Federal Circuit and Family Court of Australia
(DIVISION 1)
Lishi & Fenge (No 2) [2022] FedCFamC1F 587
File number(s): SYC 2088 of 2022 Judgment of: CAMPTON J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – PROPERTY – Interim applications – Where the wife seeks an interim distribution of $4.5 million from monies held on trust for two corporate entities that are wholly owned and controlled by the husband – Where it is agreed that the nett value of the property available for distribution is in excess of $100 million – Where the husband seeks an interim distribution from the same source of funds of $8 million – Where the Court is unable to determine that it is in the interests of justice for a partial interim property distribution to be ordered – Where the wife additionally seeks orders for the exclusive occupation of the property in which she and the children presently reside, and for the husband to meet the mortgage repayments and outgoings on that property – Where the orders sought by the wife reflect the status quo – Where the wife has not adduced evidence to satisfy the Court that such orders would be proper, or just and convenient – Each of the wife and the husband’s interim applications dismissed. Legislation: Family Law Act 1975 (Cth) ss 44, 79, 80, 114 114
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 43, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, r 1.04
Cases cited: Cardile v LED Builders Pty Limited (1999) CLR 380; [1999] HCA 18
Lishi & Fenge [2022] FedCFamC1F 292
Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Strahan & Strahan (2011) FLC 93-466; [2011] FamCAFC 126
Swift & Swift [2020] FamCA 991
Townsend & Townsend (1995) FLC 92-569
Division: Division 1 First Instance Number of paragraphs: 89 Date of hearing: 9 August 2022 Place: Sydney Counsel for the Applicant: Mr Maddox Solicitor for the Applicant: Lexsons Law Firm Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Legal Point Lawyers & Attorneys 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:
12 AUGUST 2022
By Consent It is ordered That Pending further order:
1.The wife shall have, as against the husband, exclusive use and occupation of the property at BB Street, Suburb N (“the Suburb N property”).
2.The husband be restrained from doing any act or thing so as to cause, or prevent, or fail to facilitate the wife receiving the rental income from the property jointly owned by the husband and the wife at J Street, Suburb W (“the J Street property”).
3.The husband be retrained from transferring his right, title and interest in the property located at CC…
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Details
- AGLC
- Lishi & Fenge (No 2) [2022] FedCFamC1F 587
- Case
- [2022] FedCFamC1F 587
- Decision Date
CaseChat Overview and Summary
In the matter of Lishi & Fenge, the parties were involved in a dispute concerning interim and partial property adjustments, specifically regarding the net proceeds of sale from the Suburb K property. The dispute was heard in the Family Court of Australia. Both parties agreed that any exercise of an interim or partial property power should be in their favor and on their terms, opposing any discretion to make adjustments in favor of the other. The husband conceded that the net proceeds from the sale of the Suburb K property represented matrimonial property under the Family Law Act 1975 (Cth), despite his contention that his contribution to the acquisition of the property interest was made post-separation. Both parties also agreed that if their sought partial or interim property relief was not achieved, the balance of the injuncted funds should continue to be held and regulated by injunction, transferred to a controlled monies account.
The legal issues before the court included whether the net proceeds of sale from the Suburb K property constituted matrimonial property, and if so, how these funds should be managed and allocated between the parties. The court had to consider the agreement between the parties on the terms of any interim or partial property adjustments and the implications of the husband's concession regarding the characterization of the proceeds as matrimonial property. Additionally, the court needed to address the parties' agreement on the default position for the management of the funds if their specific relief was not granted.
In its reasoning, the court noted the agreement between the parties on the characterization of the net proceeds of sale as matrimonial property. The court also considered the implications of the husband's concession on this point and the parties' agreement on the default management of the funds. The court refined the relief sought by the wife, who agreed to withdraw certain relief concerning the City E property, including her exclusive occupation and receipt of rental income. The court accepted the terms of this agreement, which was documented as Exhibit 7. The outcome was that the court dismissed the husband's application for an anti-suit injunction regarding the litigation initiated by the wife in City E, Country EE, without prejudice and reserved the capacity for the husband to bring such an application in the future.
The final orders included the dismissal of the husband's anti-suit injunction application without prejudice, the acceptance of the agreement between the parties concerning the City E property, and the terms of the management of the net proceeds of sale from the Suburb K property as outlined in Exhibit 7. The court's decision reflected the parties' agreement on the terms of interim and partial property adjustments and the characterization of the proceeds as matrimonial property.
The legal issues before the court included whether the net proceeds of sale from the Suburb K property constituted matrimonial property, and if so, how these funds should be managed and allocated between the parties. The court had to consider the agreement between the parties on the terms of any interim or partial property adjustments and the implications of the husband's concession regarding the characterization of the proceeds as matrimonial property. Additionally, the court needed to address the parties' agreement on the default position for the management of the funds if their specific relief was not granted.
In its reasoning, the court noted the agreement between the parties on the characterization of the net proceeds of sale as matrimonial property. The court also considered the implications of the husband's concession on this point and the parties' agreement on the default management of the funds. The court refined the relief sought by the wife, who agreed to withdraw certain relief concerning the City E property, including her exclusive occupation and receipt of rental income. The court accepted the terms of this agreement, which was documented as Exhibit 7. The outcome was that the court dismissed the husband's application for an anti-suit injunction regarding the litigation initiated by the wife in City E, Country EE, without prejudice and reserved the capacity for the husband to bring such an application in the future.
The final orders included the dismissal of the husband's anti-suit injunction application without prejudice, the acceptance of the agreement between the parties concerning the City E property, and the terms of the management of the net proceeds of sale from the Suburb K property as outlined in Exhibit 7. The court's decision reflected the parties' agreement on the terms of interim and partial property adjustments and the characterization of the proceeds as matrimonial property.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Remarkably, the parties agreed that:(i)An exercise of an interim or partial property power ought to only occur in their favour and on their terms as sought, and opposed the exercise of any discretion to make any interim or partial property adjustment from the said funds in favour of the other; and(ii)The husband conceded that the net proceeds of sale held by F Company and C Company from the Suburb K disposal “represents for the purposes of the Family Law Act 1975 (Cth) …matrimonial property”, notwithstanding his contention that he in reality made the direct contribution towards the acquisition of the interest in that real property subsequent to separation; and(iii)While each was seeking to access the funds injuncted by way of the orders made on 29 April 2022, being held on trust for C Company and F Company from the proceeds of sale of the Suburb K property, they each had a default position that in the event their partial or interim property relief as sought was not achieved, either in whole or in part, the whole or any balance of the injuncted funds ought to continue to be held and regulated by injunction save that they be transferred to a controlled monies account broadly in accordance with the intention identified in a minute that became Exhibit 6. The evidence The wife read and relied on the following documents:(a)Her Initiating Application filed on 29 March 2022; (b)Her Amended Application in a Proceeding filed on 13 July 2022; (c)Her Affidavit filed on 29 March 2022; (d)Her Affidavit filed on 5 August 2022;(e)Her affidavit filed on 9 August 2022; (f)Her Financial Statement filed on 29 March 2022; (g)Her Case Outline document filed on 5 August 2022, being Exhibit 1; (h)Wife’s Financial Questionnaire filed on 29 March 2022, being Exhibit 2. The husband read and relied on the following documents: (a)A Response to an Initiating Application filed on 22 July 2022; (b)His affidavit filed on 22 July 2022;(c)His Financial Statement filed on 22 July 2022; (d)His affidavit filed on 8 August 2022;(e)His Case Outline document filed on 6 August 2022, being Exhibit 3;(a)His Financial Questionnaire filed on 21 July 2022, being Exhibit 4; and(b)Exhibit 5 being a document entitled “Enforcement Verdict” against the husband and others in the FF Court, dated late 2020. It was agreed during the course of the hearing that I would not have regard to any document in the tender bundles of each party or exhibits to any affidavit for the purpose of this interim determination unless that document had been identified in submissions.The refinement of each party’s relief The relief prosecuted by each party was refined during the course of the hearing. The wife agreed to withdraw her relief as to: (a)The husband paying the mortgages and outgoings on the City E property; and (a)She having the exclusive occupation of the City E property; and(b)She receiving rental income from the City E property (if it is rented); and The wife did not oppose an injunctive order being made restraining the husband from transferring his interest in that City E property, and on that basis his application for an anti-suit injunction as to the litigation initiated by the wife in City E, Country EE being dismissed without prejudice and absent any determination on the merits, reserving a capacity for the husband to bring such antisuit injunction at a future time should he be so advised. The terms of this agreement was reduced in part to writing a document which became Exhibit 7.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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