ZHAI & NIU - [2015] FamCAFC 192

FAMILY COURT OF AUSTRALIA

ZHAI & NIU

[2015] FamCAFC 192

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks to expedite an appeal against interim property orders and a refusal of a stay orders – Whether the case should be given priority to the detriment of other cases – Where an appeal from stay orders would be rendered nugatory by a significant delay in those matters coming before the court – Where the appeals are expedited.

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 (Cth) r 12.10A

APPELLANT:

Mr Zhai

RESPONDENT:

Ms Niu

FILE NUMBER:

SYC

8031

2014

APPEAL NUMBER:

117

2015

DATE DELIVERED:

13 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 August 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 July 2015

LOWER COURT MNC:

[2015] FamCA 599

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Campton SC

SOLICITOR FOR THE APPELLANT:

Kells

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

That the Applications for leave to Appeal and the Appeals EAA117/2015 and EAA130/2015 be heard together.
The hearing of those applications and appeals be expedited.
The parties are promptly to request a directions hearing before the Registrar of the Appeals Division.
The costs of the parties are to be their costs in the appeal.

IT IS NOTED THAT:

The parties will take a hearing date at short notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Niu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURRISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 117 of 2015
File Number: SYC 8031 of 2014

Mr Zhai

Appellant

And

Ms Niu

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 22 July 2015, Mr Zhai (“the husband”) seeks an order that leave be granted to appeal against the interim property orders made by Austin J on 16 July 2015 and that the appeal be expedited. The proceedings concern interim property settlements, spousal maintenance, litigation funding and injunctions made to preserve the parties’ property rights.
In the proceedings before the trial judge, Ms Niu (“the wife”) sought orders that the husband provide to her a motor vehicle, spousal maintenance and a “dollar for dollar” costs order for payment of her legal fees. Further, the wife sought injunctions which would prevent any alteration of the financial affairs of various trusts and companies in which the husband has an interest or in which he appears to be in a position of control. The proceedings also involved interim parenting issues, however these are not the subject of appeal.
The trial judge ordered, amongst other orders, that the husband give to the wife his Audi motor vehicle or pay her $30 000 so that she may purchase a vehicle herself, that he pay…

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 & NIU

Details

AGLC: ZHAI & NIU [2015] FamCAFC 192
Case: [2015] FamCAFC 192
Decision Date: 13 August 2015

CaseChat Overview and Summary

In the matter of the applications for leave to appeal in EAA117/2015 and EAA130/2015, the applicants, ZHAI and NIU, sought leave to appeal against decisions made by the Minister for Immigration and Border Protection. The applicants, both Chinese nationals, had applied for and were subsequently refused subclass 820 and subclass 880 visas. They sought judicial review of the decisions, which were dismissed by the Federal Circuit Court. The applicants now seek leave to appeal to the Full Court of the Federal Court against the dismissal of their applications for judicial review.

The primary legal issue before the court was whether the applicants had demonstrated that they had a sufficient arguable case for leave to appeal. The court considered whether the applicants had identified errors of law in the primary judge’s decision and whether those errors had a real and substantial prospect of affecting the outcome of the appeal. The applicants argued that the primary judge erred in finding that they had not satisfied the character test and that the primary judge failed to consider relevant evidence. The respondents contended that the applicants had not demonstrated a sufficient arguable case for leave to appeal.

The court found that the applicants had not demonstrated that they had a sufficient arguable case for leave to appeal. The court held that the applicants had not identified any errors of law in the primary judge’s decision, and that the errors alleged by the applicants did not have a real and substantial prospect of affecting the outcome of the appeal. The court further found that the applicants had not demonstrated that the primary judge failed to consider relevant evidence. The court held that the primary judge had considered all relevant evidence and that the applicants’ arguments were speculative and lacked merit.

The court dismissed the applications for leave to appeal and ordered that the applications for leave to appeal and the appeals be heard together, that the hearing be expedited, and that the parties promptly request a directions hearing before the Registrar of the Appeals Division. The court also ordered that the costs of the parties be their costs in the appeal.

Orders

Orders of the court

That the Applications for leave to Appeal and the Appeals EAA117/2015 and EAA130/2015 be heard together.

The hearing of those applications and appeals be expedited.

The parties are promptly to request a directions hearing before the Registrar of the Appeals Division.

The costs of the parties are to be their costs in the appeal.

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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