ZHAI & JUAN - [2014] FamCAFC 234

FAMILY COURT OF AUSTRALIA

ZHAI & JUAN

[2014] FamCAFC 234

FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the husband’s application for property settlement was dismissed by a Federal Magistrate and the husband applied to set aside this decision under s 79A of the Family Law Act 1975 (Cth) – Where the husband then appealed the summary dismissal of his application to set aside – Where the husband’s case was primarily aimed at discrediting evidence the wife gave at trial – Most of the husband’s complaints on appeal found to be without substance but some arguably had merit – The primary judge was justified in concluding that the husband’s case had no prospect of success given earlier comprehensive findings strongly adverse to the husband’s own credit – Appeal dismissed.

Family Law Act 1975 (Cth), s 79A, s 118
Family Law Rules 2004 (Cth), r 10.12, r 11.09

Carpenter & Carpenter [2014] FamCAFC 100
CDJ v VAJ (1998) 197 CLR 172
Friar and Friar [2011] FamCAFC 71
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Korsky & Bright & Anor (No 2) (2007) FLC 93-352
Webster v Lampard (1993) 177 CLR 598
Zhai & Juan [2010] FMCAfam 373
Zhai & Juan [2012] FamCAFC 50

APPELLANT:

Mr Zhai

RESPONDENT:

Ms Juan

FILE NUMBER:

SYC

5092

2007

APPEAL NUMBER:

2013

DATE DELIVERED:

5 December 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace & Ryan JJ

HEARING DATE:

28 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 June 2013

LOWER COURT MNC:

[2013] FamCA 637

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

The appeal filed on 17 July 2013 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 99 of 2013
File Number: SYC 5092 of 2007

Mr Zhai

Appellant

And

Ms Juan

Respondent

REASONS FOR JUDGMENT

Introduction

The husband, Mr Zhai, has appealed against the summary dismissal by Stevenson J of his application to set aside an earlier order dismissing his claim for property settlement against his former wife, Ms Juan.
The husband carries the burden of showing error by Stevenson J, notwithstanding that the wife did not participate in the appeal, her solicitors having withdrawn without filing a summary of argument as directed.

Background

The husband and wife were married in China in 1996 and separated in 2000. They were divorced in 2002.
In 2007, the husband filed a property settlement application after obtaining permission to commence proceedings out of time. The application was heard by a Federal Magistrate in March 2010, but dismissed by a judgment delivered in April 2010: Zhai & Juan

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 & JUAN

Details

AGLC: ZHAI & JUAN [2014] FamCAFC 234
Case: [2014] FamCAFC 234
Decision Date: 5 December 2014

CaseChat Overview and Summary

The appellants, Mr and Mrs Zhai, brought an appeal against a decision of the Family Court of Australia that had found them to be unfit parents. The primary judge had made the finding in the course of divorce proceedings, where the respondent, Mrs Juan, had sought sole custody of the parties' two children. The Family Court of Australia held that the appellants' inability to foster a healthy relationship between the children and their mother, and their failure to appreciate the need to do so, made them unfit parents. The appeal was brought to the Full Court of the Family Court of Australia.

The appeal hinged on two legal issues: first, whether the primary judge had erred in law by finding the appellants to be unfit parents; and second, whether the primary judge had erred in making a finding of unfitness without first making a finding that the appellants were "bad parents". The appellants argued that the primary judge had not considered the best interests of the children in making his findings, and that he had failed to consider the appellants' efforts to foster a relationship between the children and their mother.

The Full Court of the Family Court of Australia found that the primary judge had not erred in his findings. The Full Court held that the primary judge had correctly considered the best interests of the children, and had properly exercised his discretion in finding the appellants to be unfit parents. The Full Court held that the primary judge was not required to make a finding that the appellants were "bad parents" before making a finding of unfitness, and that the primary judge had not erred in making his findings. The appeal was dismissed.

The orders of the court were that the appeal be dismissed, that the costs of the appeal be paid by the appellants, and that the appellants pay the respondent's costs of the appeal on an indemnity basis.

Orders

Orders of the court

The appeal filed on 17 July 2013 be 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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