YING & LANG - [2018] FamCA 784

FAMILY COURT OF AUSTRALIA

YING & LANG [2018] FamCA 784

FAMILY LAW – DE FACTO RELATIONSHIPS – where the applicant seeks a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) – where the respondent denies the parties were in a de facto relationship – where the applicant alleges the parties were in a de facto relationship from 1998 to October 2014 – where the applicant has not discharged the onus of proof on the balance of probabilities that the parties were in a de facto relationship as defined by s 4AA of the Act – no jurisdiction to make the declaration the applicant seeks – where the respondent seeks a declaration that a de facto relationship never existed between the parties – where it is not necessary to consider making the respondent’s declaration.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Evidence Act 1995 (Cth) ss 91, 128, 140

Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT: Mr Ying

RESPONDENT: Ms Lang

FILE NUMBER: DGC 2474 of 2015

DATE DELIVERED: 1 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE:
7,8,13,14,15,18,19,20,21 & 22 December 2017

Final Submissions received 2 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hone

SOLICITOR FOR THE APPLICANT: Rose Chai Lawyers & Consultants

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Tao Jiang Lawyers
Orders

(1)The applicant’s Further, Further Amended Initiating Application filed 8 December 2017 is dismissed with the exception of paragraphs 2.1 (concerning the certificate granted pursuant to s128 of the Evidence Act 1995 (Cth)) and 6 (concerning costs);
(2)Paragraphs 2 and 4 of the respondent’s Further Amended Response filed 9 January 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ying & Lang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE
FILE NUMBER: DGC 2474 of 2015

Mr Ying
Applicant
And

Ms Lang
Respondent
REASONS FOR JUDGMENT
1.These reasons concern a ten day trial where Mr Ying (“the applicant”) unsuccessfully sought an adjournment on the first day of hearing after having previously confirmed that the trial was ready to proceed. The reasons for the refusal of the adjournment application were given that day.
2.Subsequently the applicant was granted leave to file a Further, Further Amended Application on 8 December 2017 which was not opposed by Ms Lang (“the respondent”).
3.The applicant brings an Application pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”)…

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 YING & LANG

Details

AGLC: YING & LANG [2018] FamCA 784
Case: [2018] FamCA 784
Decision Date: 1 October 2018

CaseChat Overview and Summary

In the matter of YING & LANG, Thornton J of the Federal Court of Australia considered an application and a response that had been significantly amended. The core of the dispute, as reflected in the court's orders, concerned a certificate granted under section 128 of the *Evidence Act 1995* (Cth) and the matter of costs.

The primary legal issue before the Court was the extent to which the applicant's claims, as articulated in their Further, Further Amended Initiating Application, and the respondent's counterarguments, as set out in their Further Amended Response, were to be upheld or dismissed. Specifically, the Court was required to determine the validity and scope of the section 128 certificate and to make orders regarding the costs of the proceedings.

Thornton J dismissed the majority of the applicant's claims, preserving only those relating to the section 128 certificate and costs. Concurrently, the Court dismissed specific paragraphs of the respondent's response, indicating a partial success for both parties on different aspects of their pleadings. The Court's decision on the substantive claims, other than the section 128 certificate, suggests that those claims were not substantiated to the Court's satisfaction.

The final orders reflect a mixed outcome, with the applicant's application largely dismissed but their claim concerning the section 128 certificate and costs preserved. The respondent also saw parts of their response dismissed. The formal entry of these orders in the Court's records was noted as being subject to the precise form of the orders.

Orders

Orders of the court

(1) The applicant’s Further, Further Amended Initiating Application filed 8 December 2017 is dismissed with the exception of paragraphs 2.1 (concerning the certificate granted pursuant to s128 of the Evidence Act 1995 (Cth)) and 6 (concerning costs);

(2) Paragraphs 2 and 4 of the respondent’s Further Amended Response filed 9 January 2017 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Sha & Cham [2017] FamCAFC 161 Sinclair & Whittaker (2013) FLC 93-551
APPLICANT:	Mr Ying

SOLICITOR FOR THE APPLICANT:	Rose Chai Lawyers & Consultants
COUNSEL FOR THE RESPONDENT:	Ms Swart