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.…

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 Cun & Zhihui (No 3)

Details

AGLC: Cun & Zhihui (No 3) [2023] FedCFamC1F 346
Case: [2023] FedCFamC1F 346
Decision Date

CaseChat Overview and Summary

The case of Cun & Zhihui (No 3) involves property proceedings under the Family Law Act 1975 (Cth) concerning the modest asset pool of a married couple who separated in 2012. The proceedings have been ongoing since 2015, with the wife seeking orders to set aside property transfers made shortly before separation, or alternatively, declarations that the properties are held on trust for her and the husband. The husband, who is self-represented along with the two adult children from his previous relationship, has made numerous applications and submissions throughout the proceedings, including an application for summary dismissal which was dismissed in an earlier judgment. On 4 April 2023, the husband filed an amended Application in a Proceeding seeking numerous orders, many of which were based on specious allegations of judicial misconduct, bias, and other irregularities. The wife applied to delay the final hearing date due to her counsel being unavailable, and the husband opposed this application. The court had to decide whether to grant the husband's application for summary dismissal and the wife's application to delay the final hearing.

The court found that the husband's application for summary dismissal was baseless and fanciful, with no evidence to support his numerous allegations of judicial misconduct, bias, or other irregularities. The court held that the husband's repeated allegations went close to constituting an abuse of process. The court also found that the wife's application to delay the final hearing should be dismissed, as there were no exceptional circumstances to warrant an adjournment, and the trial was unlikely to conclude in the time available if it commenced on 3 May 2023. The court dismissed both applications and ordered that the final hearing proceed as listed on 1 May 2023.

In summary, the court dismissed the husband's application for summary dismissal and the wife's application to delay the final hearing. The court found that the husband's allegations of judicial misconduct, bias, and other irregularities were baseless and fanciful, and that there were no exceptional circumstances to warrant an adjournment of the final hearing. The final hearing proceeded as listed on 1 May 2023.

Orders