Zhai and Juan - [2013] FamCA 637

FAMILY COURT OF AUSTRALIA

ZHAI & JUAN

[2013] FamCA 637

FAMILY LAW – PROPERTY – Where husband sought orders pursuant to s79A – Where wife sought summary dismissal of husband’s application – Where the husband seeks to traverse issues raised by him either at trial or before the Full Court, and in some instances, in both venues in which the husband was wholly unsuccessful – Where husband’s application is summarily dismissed.

Family Law Act 1975 (Cth)

Friar & Friar (2011) Fam CAFC 71
Linden & Commonwealth of Australia (2) (1996) 136 ALR 251

APPLICANT:

Mr Zhai

RESPONDENT:

Ms Juan

FILE NUMBER:

SYC

5092

2007

DATE DELIVERED:

28 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

7 June 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Zhai appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:

Monaco Lawyers

Orders

That the husband’s application filed on 1 February 2013 and his amended application filed on 17 April 2013 are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Juan 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 SYDNEY

FILE NUMBER: SYC 5092 of 2007

Mr Zhai

Applicant

And

Ms Juan

Respondent

REASONS FOR JUDGMENT

the proceedings

On 20 December 2006 the applicant husband, Mr Zhai, filed an Application for Alteration of Property Interests in the Family Court of Australia. These proceedings were transferred to the then Federal Magistrates Court and, on 17 July 2009, Altobelli FM granted to the husband leave to apply out of time. On 19 April 2010 Altobelli FM dismissed the husband’s application, after a three day trial which had commenced on 1 March 2010.
On 21 September 2011 the Full Court heard the husband’s appeal against the orders of Altobelli FM. This appeal was dismissed on 29 March 2012. The Full Court also dismissed the husband’s application in an appeal filed on 16 August 2010, by which he sought leave to adduce further evidence.
On 1 February 2013 the husband filed an application in the then Federal Magistrates Court, which was transferred to the Family Court of Australia on 27 March 2013. On 17 April 2013 he filed an amended application by which he sought the following orders:
1.That pursuant to s.79A of the Family Law Act 1975 the judgment made by Federal Magistrate Altobelli on 19 April 2010 be set aside and the following new orders be made.
2.That the Respondent [Juan’s] criminal acts of perverting course of justice through subornation of significant perjuries and false affidavits throughout the two trials at Federal Magistrate Court Sydney on 24 September 2008 and on 1-3 March 2010 shall be referred to the Commonwealth DPP for prosecution under s43, s34 and s35 of the federal Crimes Act 1914.
3.That the Court shall declare that there was no financial contribution made by the Respondent Wife to…

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 Zhai and Juan

Details

AGLC: Zhai and Juan [2013] FamCA 637
Case: [2013] FamCA 637
Decision Date: 28 June 2013

CaseChat Overview and Summary

In the matter of *Zhai and Juan*, heard before Stevenson J, the husband sought to vary certain final orders made in family law proceedings. The wife opposed this application.

The central legal issue before the Court was whether the husband had established sufficient grounds to warrant a variation of the existing final orders. This required the Court to consider the nature of the applications made by the husband and the legal threshold for varying final orders in family law matters.

Stevenson J dismissed the husband's applications, finding that he had not met the necessary legal standard to justify a variation of the final orders. The Court applied established principles regarding the finality of orders in family law, particularly where no new circumstances of a significant nature had arisen since the original orders were made. The husband's applications were therefore unsuccessful.

Orders

Orders of the court

That the husband’s application filed on 1 February 2013 and his amended application filed on 17 April 2013 are dismissed.

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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