Cun & Zhihui (No 3)
[2023] FedCFamC1F 346
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cun & Zhihui (No 3) [2023] FedCFamC1F 346
File number: SYC 3261 of 2015 Judgment of: HARPER J Date of judgment: 1 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the First to Third Respondents are self-represented – Where final hearing dates had previously been vacated – Where the wife applied to delay the commencement of the final hearing due to counsel being unavailable – Where the husband applied for the dismissal of trial judge on numerous specious grounds including judicial misconduct and bias – Allegations of obstruction of justice and manipulation – No evidence to support contentions – Both applications dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII Cases cited: Cun & Zhihui [2022] FedCFamC1F 597
Cun & Zhihui (No 2) [2022] FedCFamC1F 598
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 1 May 2023 Place: Sydney Solicitor for the Applicant: Goh Lawyers & Accountants The Respondents: Litigants in Person ORDERS
SYC 3261 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CUN
Applicant
AND: MR ZHIHUI
First Respondent
MR CHEN
Second Respondent
MS CHEN
Third Respondent
order made by:
HARPER J
DATE OF ORDER:
1 MAY 2023
THE COURT ORDERS THAT:
1.The first respondent husband’s Application in a Proceeding filed on 4 April 2023, as amended on 12 April 2023, be dismissed.
2.The applicant wife’s oral application for the final hearing to commence on 3 May 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cun & Zhihui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). They have been in this Court since 2015, although they originally included applications for parenting orders. The applicant is the wife. The first respondent is the husband. The second and third respondents are two adult children of the husband from a previous relationship.
The spouse parties were married in 2007 and separated in November 2012. The asset pool is modest. It is said to be comprised primarily of two parcels of real estate, H Street, Suburb E and G Street, Suburb D. The current registered proprietor of Suburb E is the third respondent, and of Suburb D, the second respondent.
At cohabitation between the spouse parties, both properties were owned by a company called J Pty Ltd, of which the husband was the sole director and shareholder. It appears uncontentious that shortly prior to separation, J Pty Ltd transferred both properties to their respective current registered proprietors. This is an area of material contest in the proceedings.
The wife as part of her relief seeks orders setting aside the transfers by J Pty Ltd pursuant to s 106B of the Act, or declarations that the second and third respondents hold their properties on trust for the wife and the husband.
J Pty Ltd was deregistered in late 2013, but reinstated by consent order of this Court on 1 November 2019.
On 21 October 2021, the proceedings were listed for final hearing to commence on 15 August 2022 with an estimate of 10 days. The estimate was based upon the fact that interpreters would be necessary for some or all of the witnesses and because of the likely self-representation by the respondents, which would combine to cause the hearing to take longer than it might otherwise. Detailed directions were also made for preparation for final hearing.
On 25 July 2022, the wife made application to vacate the hearing dates on the basis that her counsel, who had been in the matter for a considerable period of time, was undergoing surgery and would be unavailable for the hearing.
On 26 July 2022, the husband filed an amendment to his Application in a Proceeding originally filed on 25 July 2021.
The matter was listed for Mention on 28 July 2022 when the wife’s application to vacate the hearing dates was considered. I delivered judgment on that date, Cun & Zhihui [2022] FedCFamC1F 597, and made a number of orders and notations as follows:
THE COURT ORDERS THAT:
1.The Applications in a Proceeding filed on 25 July 2021 and 26 July 2022 by the First Respondent Husband, and Orders 3–6 of the Application in a Proceeding filed by the Applicant Wife on 25 July 2022 be stood over to 15 August 2022 for hearing.
2.The final hearing dates commencing on 15 August 2022 be vacated.
3.By no later than close of registry filing on 11 August 2022, the parties are to file and serve case outlines in respect of the applications outlined in Order 1.
4.The matter be stood over for final hearing of all outstanding applications, save for those referred to in Order 1, commencing on 1 May 2023 with an estimate of five days.
THE COURT NOTES THAT:
A.All parties have filed the affidavit material upon which they seek to rely for both the hearing of the outstanding Applications in a Proceeding and for final hearing.
B.The final hearing will be required to finish within the allocated time.
C.The parties are advised that the final hearing listed to commence on 1 May 2023 will not be adjourned unless there are exceptional circumstances.
The consequence was that although the final hearing listed to commence on 15 August 2022 was vacated, some of the hearing dates were to be used to deal with the interim applications that remained outstanding. Included in this were ancillary orders that had been sought by the wife in her application filed on 25 July 2022, and the orders sought by the husband.
On 15 August 2022, I heard evidence and argument concerning the matters the subject of interlocutory hearing on that date.
I delivered judgment on 19 August 2022, by which orders were made dismissing the husband’s application filed on 25 July 2021 and amended on 26 July 2022. Orders were made for the valuation of Suburb E and Suburb D, and the wife’s application filed on 26 July 2022 was otherwise dismissed. It is unnecessary to canvass in detail the reasons for judgment (Cun & Zhihui (No 2) [2022] FedCFamC1F 598 (“Cun (No 2)”). I will refer to those reasons as necessary in the course of this judgment, however, I note that among the orders sought by the husband was summary dismissal of the wife’s application for property settlement orders and for a certificate pursuant to s 102QB of the Act.
I refer back to the orders made on 28 July 2022, which listed the proceedings for final hearing to commence on 1 May 2023 with an estimate of five days, and the notation that there would be no adjournment unless there were exceptional circumstances. On 4 April 2023, the husband filed a further Application in a Proceeding which he amended on 12 April 2023, which sought the following orders:
(1)The Disqualification of the Justice Harper on the basis of judicial misconduct.
(2)That the court dismiss all of the case SYC3261/2015 on the basis of the Applicant’s consequences of non-disclosure, that it had no reasonable prospect of success.
(3)That the application for summary order on the basis that the Applicant's that it is frivolous, vexatious and abuse of process.
(4)That the court set aside on order on the 1 November 2019 on the basis it was obtained by fraud.
(5)That the court set aside an order on the 19 August 2022 basis it was made in the absence of all parties.
(6)That the case SYC3261/2015 seeking intervention by Attorney General or Delegation by Attorney General.
(7)That the lawyer to all bear all costs personally and indemnifies all respondents and their families (including mental injury and other damages)
(8)That the mediation to be without the Applicant's lawyer's [Mr K] and [Mr L].
(9)Seek a certificate of vexatious proceedings order from the Chief Executive Office of the court to issue a certificare under section 102Q of the Family Law Act to [Ms Cun], [Mr K], and [Mr L].
(10)That the court make an order dismissing all of any proceedings in the court already instituted by [Ms Cun].
(As per the original)
The husband filed an affidavit in support sworn on 29 March 2023. On 1 May 2023, the wife through her solicitor applied to delay the commencement of the final hearing until 3 May 2023 on the basis that her counsel was unavailable until then. I heard the husband’s amended application dated 12 April 2023 on the morning of 1 May 2023. This judgment deals with that application and the wife’s application to delay the commencement of the hearing.
The husband made submissions in support of his application, as did the wife’s solicitor. The second and third respondents made no submissions. The husband made his submissions through an interpreter. The husband also opposed the commencement of the trial on 3 May 2023.
I turn then to the husband’s application for the orders which I have set out above. His affidavit in support is repetitious, disorganised and often difficult to understand. Having listened carefully to his oral submissions, it is not unfair to comment that they did not really assist in clarifying his arguments. His affidavit runs to some 137 paragraphs with numerous subparagraphs and annexures, or exhibits numerous documents, all of which I have considered. Doing the best I can, I understand his arguments canvass the following range of allegations:
(1)Judicial misconduct, primarily by myself in the manner in which I have dealt with the proceedings thus far. This seemed to include the allegation of receiving secret communications from other parties. I return to this below.
(2)Considerable aggravation concerning the order reinstating J Pty Ltd made on 1 November 2019. The challenge to this order needs to be understood in the context that it was an order ultimately made by consent.
I point out here that the allegations in respect of the reinstatement order were the subject of submissions made by the husband in support of his earlier application for summary dismissal, which was the subject of my earlier judgment being Cun (No 2) at [17]. That paragraph records as follows:
His accusations then move to his former lawyer, who he accuses of fraudulent conduct by tricking him into agreeing to a dishonest document on 1 November 2019. This appears to be a reference to an order made reinstating [J Pty Ltd], pursuant to s 601AH(2) of the Corporations Act 2001 (Cth). The husband contends this order was made without any reasons being given, but of course, according to his own evidence, it was presented to the Court as an order by consent. The husband then contends that the solicitor for the wife deceived ASIC into reinstating [J Pty Ltd].
I then continued at [23] as follows:
The husband’s own evidence, in my view, shows that that his numerous allegations are unsupported and often fanciful. For example, his contentions about the reinstatement of [J Pty Ltd], his lawyer, and ASIC are countered by the emails annexed to his affidavit of 26 July 2022. These show that his solicitor emailed to him a copy of proposed orders for 1 November 2022, which he explicitly approved. These included orders for the reinstatement of [J Pty Ltd].
The husband contends at various points in his affidavit that the Court took instructions from the wife’s counsel, that her lawyer is in contempt of Court, and that there exists an “interest alliance” of parties who have combined, apparently, to do him wrong. This, again, is a matter which he appears to have relied upon in respect of his earlier application. As I recall, at [18] in Cun (No 2):
His assertions also broaden to include the claim that there is something described as a “mysterious interest group” which is operating in the case. This “interest group” is preventing important legal documents from being submitted to the court, including a balance sheet, a callover information document, and case outline. I note the husband makes these accusations despite failing to take the necessary steps to make himself ready for the final hearing which had been due to commence on 15 August 2022. He further contends that the “interest alliance” has colluded with ASIC to violate human rights and obstruct justice, and that they are attempting to insert false documents into his affidavit through his former lawyer, who he says then conceded that he was bowing to the interests of the “interest group”.
The husband also gave extensive evidence in his affidavit that he made complaints to the Chief Justice. He then accused the Chief Justice, LawAccess New South Wales, and Auscript of covering up judicial corruption, and impugned the complaints procedure, lawyers engaged by both the wife and himself in the past, and the Court, for participating in an endeavour to cover up the crime of abuse of judicial power.
He contended that the hearing on 15 August 2022 was a “secret hearing”, although he was himself present, and in that regard, surprisingly, refers to the notation on the judgment “not for publication”, apparently in support of his contention that there was a secret hearing.
He also contends that I bullied all the respondents under instruction from the wife’s counsel, and refused his previous applications in a “vexatious and hooligan manner”.
The husband recited extensively events which have taken place in the proceedings, in some instances reaching back to 2013.
The principles which apply in relation to actual or apprehended bias in a judicial officer are well known, and I have set them out in my earlier judgment: Cun (No 2) at [13]. In my view, there is no support given in the affidavit evidence supplied by the husband to support his allegations of judicial misconduct of any sort, or any of the other allegations he has made in support of the orders which he seeks. They are baseless, in my view, and in many instances, quite fanciful. To the extent he repeats allegations which have already been considered and rejected, as part of my earlier judgment in Cun (No 2), it could be said that these repeated allegations go close to constituting an abuse of process.
Consequently, there is no substance in the husband’s amended Application in a Proceeding, and no basis has been demonstrated to conclude there has been any judicial or other misconduct by the wife or her lawyers, nor any basis to conclude there is either actual or apprehended bias.
It remains then to comment on the balance of the orders sought by the husband apart from those seeking summary dismissal, which were Orders 2, 3 and 10.
Orders 4 and 5 seek to set aside earlier orders of the Court. The order of 1 November 2019 appears to be a reference to the reinstatement order, and I have rejected any suggestion that it was made by fraud.
Order 5 seeks the setting aside of the orders made on 19 August 2022, in respect of which I delivered detailed reasons. There is no basis demonstrated to set aside that order, and it is certainly untenable to contend it was made in the absence of all parties. Order 6, I think, is incomprehensible, and there is no basis to suggest there should be any intervention by an Attorney General. Order 7 is not supported by any of the evidence put forward by the husband. Order 8 could not be made without the consent of all parties. Order 9 is not an order that could be made in those terms, and in any event, no basis has been put forward for it.
In those circumstances, it is clear that the husband’s application filed on 4 April 2023, as amended on 12 April 2023, should be dismissed.
That leaves for consideration the wife’s application for the trial to commence on 3 May 2023. In my view, the matter will proceed as listed on 1 May 2023. It was made clear by the orders made on 28 July 2022 that there would be no adjournment unless there were exceptional circumstances. No exceptional circumstance has been pointed to. I am of the view that in the event the trial commenced on 3 May 2023, it would be unlikely to conclude in the time available. In those circumstances, the trial will commence at 2.15 pm on 1 May 2023.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 1 May 2023. Associate:
Dated: 5 May 2023
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