Zao and Lee - [2019] FamCA 99

FAMILY COURT OF AUSTRALIA

ZAO & LEE

[2019] FamCA 99

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks summary dismissal pursuant to rule 11.02 of the Family Law Rules 2004 (Cth) – where failure to give proper disclosure is not a ground for summary dismissal – where the husband must have the opportunity to file affidavit evidence before the matter can be heard undefended – Application for summary dismissal dismissed.

Family Law Rules 2004 (Cth) r 10.12, 11.02

Bigg & Suzi (1998) 22 Fam LR 700.
Lindon v The Commonwealth(No 2) (1996) 136 ALR 251

APPLICANT:

Ms Zao

RESPONDENT:

Mr Lee

FILE NUMBER:

SYC

8556

2015

DATE DELIVERED:

27 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

21, 25 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Legal & Company Legal Services
SOLICITOR FOR THE RESPONDENT:	Ren Zhou Lawyers

Orders

IT IS ORDERED

That the wife’s application for summary dismissal is dismissed.
That the wife’s application pursuant to Rule 11.02 is 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
Zao & Lee 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 SYDNEY

FILE NUMBER: SYC 8556 of 2015

Ms Zao

Applicant

And

Mr Lee

Respondent

REASONS FOR JUDGMENT

Ms Zao (“the wife”) and Mr Lee (“the husband”) commenced their co-habitation in August 2010 and married in 2010.
They separated in December 2014.
They had no children together.
On 28 March 2017, the husband commenced proceedings seeking a distribution of property. In simple terms, he sought an order that the wife transfer two properties in Australia to him and declarations that, as between the parties, he be declared to be the owner of two properties in City B.
The wife filed a response to the husband’s application on 24 April 2017 seeking an order that the husband transfer his interest in a jointly owned property in Australia to her and pay her $250,000.
The wife filed an application in a case on 5 September 2018 seeking an order for summary dismissal of the husband’s initiating application. She also sought an order pursuant to Rule 11.02 that the Court make orders in terms of her response.
That application was listed in a duty list on 3 December 2018 and transferred to the listing co-ordinator for the allocation of a date for hearing.
The matter was listed before me on 21 February 2019. On that day, an email was sent to the Court, received shortly before…

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 Zao and Lee

Details

AGLC: Zao and Lee [2019] FamCA 99
Case: [2019] FamCA 99
Decision Date: 27 February 2019

CaseChat Overview and Summary

In *Zao v Lee*, heard before Rees J, the wife sought summary dismissal of the proceedings and an order pursuant to Rule 11.02 of the Family Law Rules 2004 (Cth). The precise nature of the dispute between the parties is not detailed in the provided text, but it is clear that the wife was seeking to terminate the proceedings at an early stage.

The central legal issues before the court were whether the wife's application for summary dismissal should be granted, and whether her application pursuant to Rule 11.02 of the Family Law Rules 2004 (Cth) should be upheld. These applications indicate that the wife contended the proceedings lacked a proper legal basis or were otherwise amenable to being dismissed without a full hearing.

Rees J dismissed both of the wife's applications. While the specific reasoning for this dismissal is not elaborated upon in the provided text, the outcome signifies that the court found sufficient grounds for the proceedings to continue and that the wife's arguments for early termination were not persuasive. The court did not find that the case was so devoid of merit or otherwise unfit for prosecution that it should be summarily dismissed.

Consequently, the wife's applications for summary dismissal and pursuant to Rule 11.02 were dismissed. The proceedings will therefore continue, subject to the formal entry of the court's orders.

Orders

Orders of the court

IT IS ORDERED

That the wife’s application for summary dismissal is dismissed.

That the wife’s application pursuant to Rule 11.02 is 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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