Zhai and Juan - [2012] FamCAFC 50

FAMILY COURT OF AUSTRALIA

ZHAI & JUAN

[2012] FamCAFC 50

FAMILY LAW – APPEAL – Appeal from the decision of the Federal Magistrate dismissing the husband’s application for property settlement – Whether his Honour erred in his credibility findings concerning the husband and the wife – Whether the Federal Magistrate erred in finding that the parties made equal financial contributions – Whether his Honour erred in placing weight on some evidence and excluding other evidence – No merit found in any of the complaints – Appeal dismissed.

Evidence Act 2005 (Cth)
Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
SSHontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588
Weir and Weir [1993] FLC 92-338

APPELLANT:

Mr Zhai

RESPONDENT:

Ms Juan

FILE NUMBER:

SYC

5092

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

29 March 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, May and Thackray JJ

HEARING DATE:

21 September 2011 and written supplementary submissions received 27 September and 27 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 April 2010

LOWER COURT MNC:

[2010] FMCAfam 373

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

Self-represented litigant

COUNSEL FOR THE RESPONDENT:

Ms Reynolds

SOLICITOR FOR THE RESPONDENT:

Monaco Lawyers

Orders

The husband’s appeal against the orders of Federal Magistrate Altobelli made on 19 April 2010 be dismissed.
The husband’s application in an appeal filed on 16 August 2010 be dismissed.
The wife’s application for costs be 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 62 of 2010
File Number: SYC 5092 of 2007

Mr Zhai

Appellant

And

Ms Juan

Respondent

REASONS FOR JUDGMENT

Introduction

The husband has appealed against the order of Federal Magistrate Altobelli made on 19 April 2010 dismissing his property settlement application.
The Federal Magistrate found he could not make an order altering interests in property, nor could he make an order dismissing an application seeking such relief, unless he was satisfied the order was just and equitable. He decided the only order that satisfied the test was one dismissing the application.
His Honour reasoned that he could not make an order altering property interests because neither party had told him what had “really happened in a financial sense”, both during and after their relationship. He nevertheless considered he could make the order dismissing the husband’s application because the wife’s evidence was more reliable than that of the husband. He found those parts of her evidence which could be believed were sufficient to establish that the dismissal of the application brought about a just and equitable outcome.
The husband challenges…

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 [2012] FamCAFC 50
Case: [2012] FamCAFC 50
Decision Date: 29 March 2012

CaseChat Overview and Summary

Zhai and Juan dealt with an appeal against a decision made by the Federal Magistrate in relation to a property settlement. The husband sought to introduce additional evidence during the appeal process, which the wife opposed. The key issue before the court was whether the husband was permitted to adduce new evidence that was not presented at the initial trial, and if so, under what circumstances. The court needed to determine the appropriate weight to give to the failure of a party to present evidence that was available at the time of the trial.

The court held that the failure to present available evidence at the time of the trial is a variable factor, with its significance depending on various other factors pertinent to the case. The court emphasised that there is no invariable rule governing the failure to call evidence, as the wide discretion conferred on the court by the relevant section precludes such a rule. In this case, the court found that the husband's submissions did not warrant the introduction of the additional evidence, as the Federal Magistrate had already accepted the wife's evidence regarding her employment history. Furthermore, the court held that the failure to call the evidence, even if it could have been discovered through reasonable diligence, might be of little significance in certain cases. Ultimately, the court dismissed the husband's appeal and his application in the appeal, as well as the wife's application for costs.

Orders

Orders of the court

The husband’s appeal against the orders of Federal Magistrate Altobelli made on 19 April 2010 be dismissed.

The husband’s application in an appeal filed on 16 August 2010 be dismissed.

The wife’s application for costs be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Importantly, their Honours then discussed the significance of failure of a party to adduce evidence which was available at the date of the trial (our emphasis): 116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. The first set of documents the husband sought to introduce as further evidence were translations of extracts from the wife’s personal diary and “family letters”. The husband submitted that these documents would demonstrate error in the findings concerning the income earned by the wife when she was in China. Before considering the documents, it will be useful to record relevant findings made by the Federal Magistrate concerning this topic:·“both parties worked, it would seem, between cohabitation and 1996 in the case of the wife…”; (Reasons, paragraph 9);·after the wife came to Australia in 1996 she returned to China from time to time; (Reasons, paragraph 9); and ·the wife’s evidence about her working history had been detailed in paragraph 18 of the wife’s affidavit, which his Honour accepted, “not necessarily because of the Chinese documents which she annexes to her affidavit, but because the court prefers her evidence to that of the husband”; (Reasons, paragraph 54). In order to provide context for the last of these findings, it is necessary to recite what the wife said in paragraph 18 of her affidavit, sworn 8 February 2010, concerning her employment history, both before she same to Australia in 1996 and when she returned to China from time to time in the years following. 18. My working history is as follows:(a) From late 1993 until June 1994, a part time fashion designer at [C Studio], Shanghai;(b)From April 1993 until December 1995, fashion and pattern designer with [D Company], earning 6,000 yuan every month plus annual bonus;(c) From January 1995 to February 1996, as a part time fashion designer with [J Company], earning 1,000 yuan per month;(d) From January 1996 until August 1998, I earned consultancy fees of about 170,000 yuan from [Y Company] when I returned to China for different periods from Australia. … To bolster these assertions, the wife annexed to her affidavit, inter alia, two documents purporting to be English translations of documents said to have been provided by her Chinese employers. The first (“Annexure A”) certified that the wife had worked as a senior administrator for D Company from 1993 to 1995 and that her monthly income was “RMB 6,000 yuan”. The second (“Annexure B”) certified that the wife had been appointed by Y Company as a design consultant from 1996 to 1998, during which period she had been paid a total of “RMB 170,000 yuan”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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