FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jingyi & Chao [2023] FedCFamC1F 540
File number(s): SYC 3653 of 2021 Judgment of: AUSTIN J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – PROPERTY – Practice and procedure – Review of decision – Where the applicant sought injunctions against the respondents in respect of two parcels of real property – Where the registrar made ex parte orders restraining the respondents from further encumbering the first property – Where the registered proprietors of the first property are the second and fourth respondents – Where the applicant and first respondent husband have no registered proprietary interest in the first property – Where interference with the property rights of third parties should be minimised – Where the applicant has failed to plead her equitable claim against the second and fourth respondents in respect of the first property – Where restrictive and mandatory injunctions against the second and fourth respondents are not warranted – Where an order already exists restraining the respondents from further encumbering the second property – Where the second property was sold at auction in mid-2023 – Ex parte orders made by the registrar discharged – Application dismissed – Party/party costs awarded to the respondents in a fixed sum. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) Pts VII, VIIAB, ss 90SB, 114, 117, 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 190, 191
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04, 1.07, 12.17
Cases cited: Qian & Xue [2022] FedCFamC1A 93; (2022) 66 Fam LR 204 Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 3 July 2023 Place: Newcastle (via Microsoft Teams) Counsel for the Applicant: Mr Lloyd SC Solicitor for the Applicant: JC Legal Practice Counsel for the Respondents: Mr Condon SC Solicitor for the Respondents: Juris Cor Legal ORDERS
SYC 3653 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JINGYI
Applicant
AND: MR CHAO
First Respondent
MR B CHAO
Second Respondent
C PTY LTD (and another named in the Schedule)
Third Respondent
order made by:
AUSTIN J
DATE OF ORDER:
3 July 2023
THE COURT ORDERS THAT:
1.The orders made by the senior judicial registrar on 26 May 2023 are discharged.
2.The applicant shall pay the respondents’ party/party costs of and incidental to the review hearing, fixed in the sum of $15,000.
3.Otherwise:
(a)the Application in a Proceeding filed by the applicant on 25 May 2023 is dismissed;
(b)the Response to an Application in a Proceeding filed by the respondents on 31 May 2023 is dismissed; and
(c)the Application for Review filed by the first respondent on 31 May 2023 is dismissed.
NOTATION:
A.The parties agree the payment of costs by the applicant pursuant to Order 2 should be set-off against outstanding costs of $26,400 payable by the first respondent to the applicant pursuant to order made on 5 April…
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- AGLC
- Jingyi & Chao [2023] FedCFamC1F 540
- Case
- [2023] FedCFamC1F 540
- Decision Date
CaseChat Overview and Summary
The case of Jingyi & Chao, recently adjudicated by the Federal Circuit and Family Court of Australia (Division 2), revolves around an interim dispute concerning parenting and financial relief following the termination of a de facto relationship. The applicant initiated the proceedings on May 19, 2021, seeking only parenting orders under the Family Law Act 1975 (Cth). The first respondent, who joined issue in June 2021, expanded the dispute to include a claim for financial relief under the same Act. The applicant sought dismissal of the financial claim, which remained unresolved until both parties conceded the court's jurisdiction in September 2022. The financial dispute initially involved a claim for a share of proceeds from a sold property, but has since expanded to include multiple properties and other family entities.
The court had to determine several key legal issues, including the jurisdiction of the court to entertain the financial claims and the appropriateness of issuing interim orders to restrain the respondents from altering an encumbrance over a specific property, the Suburb Q property, and to compel the placement of net sale proceeds into a controlled monies account. The court had to balance the need to preserve property pending final determination against the potential interference with the property rights of third parties. The admissibility of certain documents submitted by both parties was also contested, with some being rejected under the Evidence Act 1995 (Cth).
The court, after reviewing the submissions and evidence, concluded that the financial jurisdiction was properly invoked due to the existence of a child from the relationship. However, the court found that the interim orders sought by the applicant were overly broad and potentially prejudicial to third parties. The court rejected the application to restrain the respondents from altering the encumbrance over the Suburb Q property and to compel the placement of its net sale proceeds into a controlled monies account. The court also dismissed the application for review, affirming the registrar's orders but noting the need for more disciplined litigation practices moving forward.
The court had to determine several key legal issues, including the jurisdiction of the court to entertain the financial claims and the appropriateness of issuing interim orders to restrain the respondents from altering an encumbrance over a specific property, the Suburb Q property, and to compel the placement of net sale proceeds into a controlled monies account. The court had to balance the need to preserve property pending final determination against the potential interference with the property rights of third parties. The admissibility of certain documents submitted by both parties was also contested, with some being rejected under the Evidence Act 1995 (Cth).
The court, after reviewing the submissions and evidence, concluded that the financial jurisdiction was properly invoked due to the existence of a child from the relationship. However, the court found that the interim orders sought by the applicant were overly broad and potentially prejudicial to third parties. The court rejected the application to restrain the respondents from altering the encumbrance over the Suburb Q property and to compel the placement of its net sale proceeds into a controlled monies account. The court also dismissed the application for review, affirming the registrar's orders but noting the need for more disciplined litigation practices moving forward.
Orders
Orders of the court
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Background
Background to the litigation
On occasion, leave has been sought to file more applications seeking interim relief but, in the main, the parties have blithely disregarded their procedural obligations. They can expect no more latitude. This particular interim dispute exposes the impulsive, indiscriminate, and superficial way in which the parties and their lawyers have been conducting this litigation.Background These proceedings were commenced by the applicant against the first respondent on 19 May 2021. She then sought only parenting orders in respect of their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The first respondent joined issue in the parenting dispute by filing his Response in June 2021, but he widened the dispute to encompass a claim for financial relief under Pt VIIIAB of the Act. The applicant replied in August 2021, seeking dismissal of the financial cause. For quite some time, the facts which would underpin the existence of the Court’s jurisdiction to entertain the first respondent’s financial claim were not pleaded by either party. The issue of jurisdiction was not raised until June 2022, at which time a judge of the Federal Circuit and Family Court of Australia (Division 2) enquired about it. On 13 September 2022, the applicant filed a Further Amended Initiating Application pleading the jurisdictional facts and then, in orders made on 16 September 2022, it was noted the applicant and the first respondent both conceded jurisdiction exists to entertain the financial cause. As things stand on the applicant’s pleadings, the applicant and the first respondent were in a de facto relationship which began in 2017 and ended in 2020, though it was subject to interruption of at least 15 months between mid-2019 and late 2020. It must follow that the aggregate period of the relationship was 22 months at most. That is less than the requisite period of 24 months (s 90SB(a)), so jurisdiction under Pt VIIIAB only exists because they have a child together (s 90SB(b)). The financial dispute between the applicant and the first respondent was originally confined to the first respondent’s claim to a share of a single parcel of real property at Suburb P, which has since been sold and the sale proceeds disbursed. By interim orders made in August 2021, the applicant was permitted to use the proceeds to buy another real property at Suburb O, but to otherwise spend as she pleased. However, as the litigation evolved, it expanded exponentially. The dispute now involves the first respondent’s parents and a family-related corporation (named as the second, third and fourth respondents). Far from the applicant’s initial position of seeking outright dismissal of the first respondent’s financial claim, she has since pressed claims to bring multiple parcels of real property into the matrimonial pool, from which enlarged pool she proposes taking the greatest share. The first respondent has not amended his proposal since June 2021, which is now redundant because he still seeks orders for one-half of the net proceeds realised on the sale of the Suburb P property (since disbursed) and mutual indemnities.
Evidence
Evidence Before The Court
In the meantime, the first respondent filed an Application for Review on 31 May 2023, seeking the discharge of all orders made by the registrar. Consequently, this hearing is an original hearing of the application entertained by the registrar, subject to additional consideration of the respondents’ Response to an Application in a Proceeding and the application of the first respondent within the Application for Review, both filed on 31 May 2023.Evidence The applicant relies upon:(a)her affidavit and her undertaking as to damages, both of which were filed on 26 May 2023; and(b)her affidavit filed on 30 June 2023. The applicant also sought to rely upon about 70 pages of other documents, contained within and forming part of an email attachment forwarded to chambers just in advance of the hearing. The tender was rejected pursuant to s 135(c) of the Evidence Act 1995 (Cth). The respondents rely upon:(a)the two affidavits filed by their solicitor, Ms Li, on 26 May 2023 and 29 May 2023;(b)paragraphs 42-47 inclusive of the first respondent’s historical affidavit filed on 21 October 2021;(c)paragraphs 23-28 of the first respondent’s historical affidavit filed on 17 January 2022;(d)an email dated 1 June 2023 concerning the then current payout figure of the mortgage registered over the Suburb Q property (Exhibit A); and(e)the Statement of Claim recently issued in the Supreme Court of NSW by the Suburb Q mortgagee seeking possession of the property (Exhibit B). The applicant’s objections to the admissibility of some of those documents were overruled.Adjournment or hearing? By their Response to an Application in a Proceeding filed on 31 May 2023, the respondents sought that the applicant’s application be adjourned until after the review hearing (Order 1). The meaning of this proposal is quite unclear because the review hearing necessarily entails re-consideration of the applicant’s application. By his Application for Review filed on 31 May 2023, the first respondent sought dismissal of the applicant’s application (Order 5). When quizzed about the respondents’ inconsistent proposals for both adjournment and dismissal of the applicant’s application, they confirmed the review hearing should proceed and the relief they sought was the discharge of the registrar’s orders and the dismissal of the applicant’s Application in a Proceedings filed on 25 May 2023.The Suburb Q property The applicant seeks orders that restrain the respondents from altering the encumbrance over the Suburb Q property, pending its sale (Orders 4, 5 and 12), and to compel the respondents to place the net sale proceeds of the Suburb Q property into a controlled monies account (Orders 10, 11, 13 and 14). The orders are opposed. Injunctions can be made to preserve property pending the final determination of competing claims upon such property, but interference with the property rights of third parties should be minimised (Qian & Xue [2022] FedCFamC1A 93 at [21], [22], [28] and [33]).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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