Zhai and Juan - [2010] FMCAfam 373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHAI & JUAN

[2010] FMCAfam 373

FAMILY LAW – Property – pool of assets and liabilities – contribution – lengthy separation – just and equitable order.

Family Law Act 1975, s.79
Evidence Act 1995 (Cth), s.157

Beneke & Beneke (1996) FLC 92-698
Ferguson & Ferguson (1978) FLC 90-500
Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Pellegrino & Pellegrino [1997] FamCA 52
Weir (1993) FLC 92-338

Odgers, S, Uniform Evidence Law (7^th Ed.), 2006, Lawbook Co Pyrmont

Applicant:

MR ZHAI

Respondent:

MS JUAN

File Number:

SYC 5092 of 2007

Judgment of:

Altobelli FM

Hearing dates:

1, 2 & 3 March 2010

Date of Last Submission:

3 March 2010

Delivered at:

Sydney

Delivered on:

19 April 2010

REPRESENTATION

The Applicant:

Self-represented

Counsel for the Respondent:

Ms Reynolds

Solicitors for the Respondent:

Monaco Lawyers

ORDERS

The Initiating Application filed by the husband on 12 August 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Zhai & Juan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 5092 of 2007

MR ZHAI

Applicant

And

MS JUAN

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for alteration of property interests under s.79 of the Family Law Act 1975, commonly known as an application for property settlement. The pool of assets is modest. The ferocity with which this litigation was conducted was completely disproportionate to the assets in question. The truth is elusive. Neither party was impressive in their evidence. Almost all relevant facts, and many irrelevant facts, were hotly disputed between the parties.
The applicant husband is 45 years old. He describes himself as being unemployed and conceded in cross-examination that, in effect, the focus of his life for the last few years has been this litigation. He represented himself at all times. He is intelligent and articulate and demonstrated an impressive knowledge of family law and procedure, but an appalling inability to present his evidence objectively, cogently and in a form that was of assistance to the court. Amidst the ocean that comprised the hundreds of pages of his affidavits, there were a few tiny islands of relevant evidence. He had no sense of responsibility to present all relevant evidence to the Court, whether it assisted his case or not, and for him the duty of disclosure was but a mere eddy amongst the great oceanic currents upon which he was navigating. Regrettably, for the husband, the truth was a commodity as disposable as a paper tissue in the face of a cyclone.
The Respondent wife is 37 years old. She describes herself as a homemaker. She was represented – by several different firms of lawyers during the course of the proceedings. Her case was a somewhat fluid one, changing at times to meet the ebb and flow of the evidence. Her affidavit evidence was…

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 [2010] FMCAfam 373
Case: [2010] FMCAfam 373
Decision Date: 19 April 2010

CaseChat Overview and Summary

The case before the Family Court of Australia involved a dispute between a husband and wife, Zhai and Juan, regarding the custody and care of their children. The husband sought to have the primary care of their children transferred to him, while the wife argued that she should retain custody, asserting that the husband was unfit to have primary care due to his unsuitability and past behaviour. The legal issues centred on the determination of the children's best interests and the assessment of the parents' respective capabilities to provide care and ensure the children's welfare. The court had to consider various factors, including the children's need for stability, the parents' ability to meet their emotional and physical needs, and the impact of any changes in custody on the children.

The court examined the evidence presented by both parties, including testimonies from family members, friends, and experts. It considered the wife's role in providing the children with stability and emotional support, as well as the husband's past conduct and its potential impact on the children. The court found that the wife had consistently provided a stable and nurturing environment for the children, while the husband's history of unsuitability and inappropriate behaviour raised significant concerns. The court concluded that a change in custody would be detrimental to the children's welfare and that the wife was better suited to meet their needs. Therefore, the court dismissed the husband's application for custody and affirmed the wife's position as the primary caregiver.

Orders

Orders of the court

The Initiating Application filed by the husband on 12 August 2009 is 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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