Yeh & Jyu - [2014] FamCA 162

FAMILY COURT OF AUSTRALIA

YEH & JYU

[2014] FamCA 162

FAMILY LAW – PROPERTY – Husband to pay wife interim distribution of property

Family Law Act 1975 (Cth)

Bing and Bing [2007] FamCA 418, (2007) FLC 93-318
Strahan and Strahan (interim property orders) [2009] FamCAFC 166

APPLICANT:

Ms Yeh

RESPONDENT:

Mr Jyu

FILE NUMBER:

MLC

8168

2009

DATE DELIVERED:

21 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North SC

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Brown SC with Mr Mcfarlane

SOLICITOR FOR THE RESPONDENT:

Oakfair Lawyers

Orders

That the husband pay to the wife $1.15 million by way of interim distribution of property.
That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.
That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That the application in a case filed 3 March 2014 and the response thereto filed 14 March 2014 are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeh & Jyu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8168 of 2009

Ms Yeh

Applicant

And

Mr Jyu

Respondent

REASONS FOR JUDGMENT

By application in a case filed 3 March 2014, Ms Yeh (the wife) sought a variety of interlocutory orders. The only one she pressed was for the payment to her of $1.150 million by way of partial property settlement.
In his response filed 14 March 2014, Mr Jyu (the husband) also sought a variety of orders one of which was to agree that the wife should have $150,000 but for that purpose, each of he and the wife borrow that sum from the National Australia Bank. In addition, he sought the sale of a property at B Street, Suburb F and that after the payment out of expenses and the mortgage, the proceeds be paid to the wife by way of interim property distribution.
Curiously, the issue remained contentious and required determination by the Court.
The substantive property proceedings were listed before Bennett J in February 2014 for a final hearing. Since an interim hearing in January 2011, there have been 13 hearings in this Court in various forms. It was therefore not surprising to hear the wife’s senior counsel indicate that the wife’s expenditure on legal fees has been about $500,000. It was therefore one of two reasons why the wife sought the orders she did to cover her forthcoming expenditure as she heads towards a final…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yeh & Jyu

Details

AGLC: Yeh & Jyu [2014] FamCA 162
Case: [2014] FamCA 162
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Yeh (the wife) sought interlocutory orders, primarily pressing for the payment of $1.15 million by way of partial property settlement. Mr Jyu (the husband) responded with his own set of proposed orders, including an agreement for the wife to receive $150,000 through joint borrowing, and the sale of a specific property with proceeds to be paid to the wife. Despite the husband's initial agreement to a portion of the wife's claim, the matter remained contentious and required judicial determination.

The central legal issue before the Court was whether to grant the wife's application for an interim distribution of property, specifically the sum of $1.15 million, and to determine the terms of any such order. This involved considering the principles governing interim property orders under the *Family Law Act 1975* (Cth), particularly in light of significant disagreements between the parties regarding the valuation of their combined assets, estimated by the husband to be around $21 million and by the wife to be around $32 million. The wife argued for the interim payment to cover anticipated legal expenses and to receive a portion of her ultimate entitlement, while the husband contended that such orders should not be based on mere desire or anticipation.

Justice Cronin applied the principles outlined in *Strahan and Strahan* [2009] FamCAFC 166, which established a two-step process for interim property orders. The first step requires the Court to consider whether it has jurisdiction to entertain the application, and the second requires the applicant to satisfy the necessary requirements for the exercise of power under s 79 of the Act. The Court found that while a final hearing was preferable, an interim distribution was justified where, as here, one party held significant control over assets and a fair distribution was not occurring, leading to potential injustice. The Court was satisfied that there was sufficient evidence of the wife's contributions and the factors under s 79(4) of the Act to make an order under s 79(2) to achieve a just and equitable outcome, noting that the source of funds was not a barrier to entitlement.

The Court ordered that the husband pay to the wife $1.15 million by way of interim distribution of property. The Court also noted that the husband had agreed to a consent order for the wife to receive $150,000, to be borrowed from the National Australia Bank, and directed that minutes of proposed orders be engrossed and delivered to the Court. The application in a case filed on 3 March 2014 and the response thereto filed on 14 March 2014 were otherwise dismissed. The Court certified for counsel and reserved the issue of costs to the trial judge.

Orders