ZAU & UONG - [2015] FamCAFC 73

FAMILY COURT OF AUSTRALIA

ZAU & UONG

[2015] FamCAFC 73

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Appeal Registrar – Where the applicant roamed far and wide in her submissions and did not focus on the application brought by her – Where the applicant did not appreciate the purpose and nature of a supplementary appeal book – Where orders were made not sought by the applicant in the interests of moving the matter along and ensuring it remained listed for hearing before the Full Court – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks costs on a party/party basis – Where the applicant’s actions in bringing the application have resulted in the respondent incurring costs – Where the application had no chance of success – Where impecuniosity is no bar to an order for costs where there are circumstances justifying such an order – Where this is such a case – Costs ordered.

Family Law Act 1975 (Cth) – s 117

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Zau

RESPONDENT:

Mr Uong

FILE NUMBER:

MLC

3931

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

9 April 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

9 April 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Order of Southern Appeal Registrar

LOWER COURT MNC:

REPRESENTATION

THE APPLICANT:

In person with interpreter

COUNSEL FOR THE RESPONDENT:

Mr Peppin

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

Paragraph 2 of the order made by Registrar Marrone on 11 February 2015 be amended such that it only requires the filing and serving of the appeal book without any transcript on or before 17 April 2015.
The applicant be at liberty to arrange with Auscript to attend at their offices to listen to the audio of the hearing before Justice Cronin on 2 April 2013 for the purposes of the applicant identifying those parts of the transcript of that hearing on which she intends to rely for the purposes of this appeal and the applicant obtain those parts of the transcript and provide copies to the Court and to the respondent by the close of business on Friday 8 May 2015.
Upon receipt of the applicant’s summary of argument and any list of authorities, the respondent file and serve a summary of argument and any list of authorities within 14 days thereafter.
Paragraph 3 of the order made by Registrar Marrone on 16 March 2013 and paragraph 4(b) of that order as subsequently amended by order made on 28 February 2014 be discharged.
The application in an appeal filed on 11 March 2015 be otherwise dismissed.
The applicant pay the costs of the respondent of and incidental to the hearing today such costs in default of agreement to be assessed on a party/party basis.

IT IS NOTED

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 ZAU & UONG

Details

AGLC: ZAU & UONG [2015] FamCAFC 73
Case: [2015] FamCAFC 73
Decision Date: 9 April 2015

CaseChat Overview and Summary

The applicant, ZAU, appealed against orders made in family law proceedings, and UONG sought costs on a party/party basis. The appeal was heard by the court, which had to decide on several issues, including the appropriateness of the application filed by the applicant and the merits of the respondent’s application for costs. The applicant's application was wide-ranging and lacked focus, which led to the court questioning the necessity of the supplementary appeal book and the purpose of the application. The court found that the applicant's actions had resulted in the respondent incurring costs and that the application had no chance of success. The court determined that the respondent's impecuniosity did not preclude an order for costs where the circumstances justified such an order, and it was such a case.

The court dismissed the applicant's application and ordered the amendment of the registrar’s order to only require the filing and serving of the appeal book without a transcript by a specified date. The applicant was granted liberty to arrange with Auscript to listen to the audio of the hearing and identify relevant parts of the transcript, which they were required to provide to the court and the respondent by a certain date. The respondent was also instructed to file and serve a summary of argument and any list of authorities within 14 days of receiving the applicant’s summary of argument and list of authorities. Certain paragraphs of previous orders were discharged, and the application in the appeal was otherwise dismissed. Finally, the applicant was ordered to pay the respondent's costs of and incidental to the hearing, with costs to be assessed on a party/party basis in default of agreement.

Orders

Orders of the court

Paragraph 2 of the order made by Registrar Marrone on 11 February 2015 be amended such that it only requires the filing and serving of the appeal book without any transcript on or before 17 April 2015.

The applicant be at liberty to arrange with Auscript to attend at their offices to listen to the audio of the hearing before Justice Cronin on 2 April 2013 for the purposes of the applicant identifying those parts of the transcript of that hearing on which she intends to rely for the purposes of this appeal and the applicant obtain those parts of the transcript and provide copies to the Court and to the respondent by the close of business on Friday 8 May 2015.

Upon receipt of the applicant’s summary of argument and any list of authorities, the respondent file and serve a summary of argument and any list of authorities within 14 days thereafter.

Paragraph 3 of the order made by Registrar Marrone on 16 March 2013 and paragraph 4(b) of that order as subsequently amended by order made on 28 February 2014 be discharged.

The application in an appeal filed on 11 March 2015 be otherwise dismissed.

The applicant pay the costs of the respondent of and incidental to the hearing today such costs in default of agreement to be assessed on a party/party basis.

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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