Lishi & Fenge

Case [2022] FedCFamC1F 292

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lishi & Fenge [2022] FedCFamC1F 292

File number(s): SYC 2088 of 2022
Judgment of: CAMPTON J
Date of judgment: 29 April 2022
Catchwords: FAMILY LAW – PROPERTY – Urgent application for interim relief restraining the husband from dealing with anticipated proceeds of sale of a commercial property – Jurisdiction – Where the husband is located in China and did not participate in the interim hearing – Where an injunction is appropriate to preserve the status quo pending resolution of the controversy.   
Legislation: Family Law Act 1975 (Cth) ss 44, 72, 79, 112AD, 114
Cases cited:

Anderson & McIntosh (2013) 49 Fam LR 316

Tsiang & Wu & Ors [2019] FamCAFC 128.
Division: Division 1 First Instance
Number of paragraphs: 81
Date of hearing: 29 April 2022
Place: Sydney
Counsel for the Applicant: David Maddox
Solicitor for the Applicant: Lexsons
Respondent: Did not participate

ORDERS

SYC 2088 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS LISHI

Applicant
AND:

MR FENGE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

29 APRIL 2022

THE COURT ORDERS THAT:

1.On the wife’s undertaking as to damages, pending further order:

(a)That the husband be restrained in his own capacity and his capacity as a director and/or shareholder and/or member of C Company and F Company (CR No. …) from doing any act or thing so as to cause, direct, facilitate or otherwise enable D Pty Ltd (ACN …) from distributing or paying or repaying a sum of $8,175,910.96 from the proceeds of sale of the property at G Street, Suburb K NSW, scheduled to complete on or about 2 May 2022 as due to C Company and/or F Company (CR No. …) from the said proceeds by way of repayment of shareholder loan or by way of dividend, save and except to cause such funds to be paid to the wife’s solicitors, Lexsons Law Firm, on trust for C Company and/or F Company (CR No. …), such trust account details being:

Bank: Australian and New Zealand Banking Group Limited

BSB: …

Account Number: …31; and …

(b)That the husband shall by way of injunction in his personal capacity and his capacity as a director of D Pty Ltd (ACN …) do all such things as are necessary to facilitate D Pty Ltd (ACN …) complying with Order 1(a) above.

2.That the husband and any other party to these proceedings, including but not limited as to F Company (CR No. …) or C Company or D Pty Ltd (ACN …) should they elect to intervene in these proceedings have liberty to apply on 48 hours’ notice, by email to my chambers (…@fcfcoa.gov.au) to vary or set aside Order 1 hereof, such liberty and email to be accompanied by a Minute of Order sought and a document identifying the evidence to be relied upon in support of such application.

3.That these proceedings be adjourned for further interim hearing by…

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Lishi & Fenge [2022] FedCFamC1F 292
Case
[2022] FedCFamC1F 292
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Ms Lishi, sought an urgent interim application to restrain the husband, Mr Fenge, from dealing with anticipated proceeds of the sale of a commercial property. The parties, who married in 2020, have three children. The husband is located in China and did not participate in the interim hearing. The wife contended that an injunction was appropriate to preserve the status quo pending resolution of the controversy. The central issue before the court was whether it had jurisdiction to grant the relief sought by the wife, given the husband's absence and location in China. The court considered whether it was appropriate to grant an injunction to restrain the husband from dealing with the proceeds of the sale of a commercial property, pending the resolution of the broader property dispute. In assessing this, the court took into account the urgency of the application, the husband's awareness of the relief sought, and his capacity to have legal representation appear on his behalf. The court concluded that it had jurisdiction to grant the relief sought by the wife, as the husband was aware of the proceedings and had the capacity to have legal representation appear on his behalf. The court found that an injunction was appropriate to preserve the status quo pending the resolution of the broader property dispute. The court granted the wife's application for interim relief, restraining the husband from dealing with the anticipated proceeds of the sale of the commercial property. The court also ordered that the husband and any other party to the proceedings had liberty to apply to vary or set aside the order. The court further adjourned the proceedings for a further interim hearing and directed the husband to file a Notice of Address for Service in Australia and a Response to an Initiating Application, affidavit evidence, and a Financial Statement by specified dates.

The court reserved the wife's costs of the interim hearing. This decision highlights the importance of preserving the status quo in urgent family law matters and the court's willingness to exercise its jurisdiction to grant interim relief in appropriate circumstances.

Orders

Orders of the court

SYC 2088 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS LISHI

Applicant

AND:

MR FENGE

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

29 APRIL 2022

THE COURT ORDERS THAT:

1. On the wife’s undertaking as to damages, pending further order:

(a) That the husband be restrained in his own capacity and his capacity as a director and/or shareholder and/or member of C Company and F Company (CR No. …) from doing any act or thing so as to cause, direct, facilitate or otherwise enable D Pty Ltd (ACN …) from distributing or paying or repaying a sum of $8,175,910.96 from the proceeds of sale of the property at G Street, Suburb K NSW, scheduled to complete on or about 2 May 2022 as due to C Company and/or F Company (CR No. …) from the said proceeds by way of repayment of shareholder loan or by way of dividend, save and except to cause such funds to be paid to the wife’s solicitors, Lexsons Law Firm, on trust for C Company and/or F Company (CR No. …), such trust account details being:

Bank: Australian and New Zealand Banking Group Limited

BSB: …

Account Number: …31; and …

(b) That the husband shall by way of injunction in his personal capacity and his capacity as a director of D Pty Ltd (ACN …) do all such things as are necessary to facilitate D Pty Ltd (ACN …) complying with Order 1(a) above.

2. That the husband and any other party to these proceedings, including but not limited as to F Company (CR No. …) or C Company or D Pty Ltd (ACN …) should they elect to intervene in these proceedings have liberty to apply on 48 hours’ notice, by email to my chambers (…@fcfcoa.gov.au) to vary or set aside Order 1 hereof, such liberty and email to be accompanied by a Minute of Order sought and a document identifying the evidence to be relied upon in support of such application.

3. That these proceedings be adjourned for further interim hearing by Microsoft Teams format at 2:15 pm on 10 June 2022 and in the event an interpreter is required by any party, an interpreter to be requested by email to my chambers no less than 7 days prior to that 4.

4. That the wife cause a sealed copy of these orders to be served as soon as possible by email to both the registered offices and to the legal representatives, if known, of each of the following:

(a) The husband, and in this regard, such orders be served upon B Lawyers, with a request that the solicitor forward a sealed copy of the orders to the husband;

(b) D Pty Ltd (ACN …), including upon its solicitors, M Lawyers;

(c) C Company;

(d) F Company (CR No. …).

5. I direct the husband within seven (7) days to file a Notice of Address for Service in Australia in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

6. The husband file such Response to an Initiating Application, affidavit evidence upon which he seeks to rely, and a Financial Statement on or before 27 May 2022;

7. I reserve the wife’s costs of today.

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.

Background

Background to the litigation

In the circumstances of urgency identified in these reasons, the husband being aware of the nature of the relief sought by the wife today, the contents of the documents now tendered by way of exhibits and the husband’s capacity to have lawyers appear on his behalf today, I grant such oral application for further amendment. THE BACKGROUND The husband was born in 1954 and is aged 67. The wife was born in 1971 and is aged 50. The parties commenced cohabitation in China in November 1997 and married in 2020 in City E, China. There are three children from the marriage: (a)Ms X, born in 1999, currently 23 years of age (“Ms X”); (b)Mr Y, born in 2003, currently 18 years of age (“Mr Y”); and (c)Z, born in 2007, currently 14 years of age (“Z”). In or about 2005, the family was granted a visa and obtained permanent residence in Australia. The wife gives evidence as to she and the children permanently migrating to Australia and commencing to attend school in Australia in August 2009. The wife gives extensive evidence that prior to the family migrating to Australia, she and the husband or by way of corporate entities in which they held interests in China, purchased at least eight pieces of real property and engaged in significant and substantial projects by way of a number of corporations in China. The husband’s affidavit, being Exhibit 5, records that at the time the parties married neither party had any substantial assets. He gives evidence as to the parties undertaking work and other endeavours to generate income in China, including starting with what he described as his own business in the building industry by way of a corporation, T Company, in or about 2000 and making significant profits through those enterprises. He gives evidence as to the parties migrating to Australia in 2005, and both parties working full time prior to that. As part of his evidence, as contained in Exhibit W5, he also records that from or about 2005, the parties agreed that he would spend about half of the year in Australia and the balance in China. He gives evidence that between 2010 and significantly 2018 (the later being after the date of separation) that the parties hired nannies to assist in caring for the children. He says that his sister and the applicant’s parents (who also migrated to Australia) also assisted in caring for the children. I pause there to note that a number of aspects of the husband’s affidavit evidence, as contained in Exhibit W5, records continuing contributions by each of the parties subsequent to what I will identify later in these reasons as a divorce obtained in China, in 2015, and a contention as to the parties separating in either 2015 or 2016. The husband gives evidence in Exhibit W5 that the parties, in 2009 and 2010, looked at properties in Australia and inspected the Suburb N property, which they acquired jointly. His evidence was that the monies used to fund its purchased were sourced from what he describes as “the earnings of my businesses”. The husband further gives evidence in his affidavit as to asking to see the children after the parties had separated whenever he was in Australia, and applicant refusing these requests.

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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