Shuren & Fang (No 4) - [2023] FedCFamC1F 934

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shuren & Fang (No 4) [2023] FedCFamC1F 934

File number MLC 3815 of 2023

Judgment of WILSON J

Date of judgment 27 October 2023

Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application made ore tenus on short notice for interlocutory injunction – husband ordered to return property and business records in his possession power and control

Legislation
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Shuren & Fang (No 3) [2023] FedCFamC1F 906

Division Division 1 First Instance

Number of paragraphs 11

Date of hearing 27 October 2023

Place Melbourne

Counsel for the applicant Mr L. Glick KC

Solicitor for the applicant Australian Legal Advisory Centre

Counsel for the first respondent Mr A. Baker

Solicitor for the first respondent Aston Legal Group

Counsel for the second respondent Mr L. Glick KC

Solicitor for the second respondent Australian Legal Advisory Centre

Solicitor for the third respondent No appearance
ORDERS

MLC 3815 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS SHUREN

Applicant

AND
MR FANG

First Respondent

B PTY LTD

Second Respondent

C PTY LTD

Third Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

27 OCTOBER 2023

THE COURT ORDERS THAT –
1.By 4pm today the husband must return to the second respondent Motor Vehicle 1 identification number ….
2.By 5pm today the husband must provide the keys to Motor Vehicle 2 identification number … to the husband’s solicitors for delivery by 5:30pm today to the wife’s solicitors.
3.By 5pm today the husband must return to the second respondent the computer as recorded in exhibit 9 tendered this day.
4.By 12pm on Monday 30 October 2023 the husband must produce to his solicitors for delivery to the wife’s solicitors all employment records including payroll, superannuation and PAYG tax returns for Mr V and Mr Y in the husband’s possession, power and control.
5.By 12pm on Monday 30 October 2023 the husband must produce all documents in his possession, power and control with respect of persons described as employees in the affidavit of Mr V made 7 June 2023 and at paragraph 10 of the husband’s affidavit made 27 September 2023 as well as in the affidavit of Mr Y made 7 June 2023 as referred to in exhibit 6 tendered this day and in exhibit 7 tendered this day.
6.The costs of and incidental to this application are reserved.

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)…

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.

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Details

Case: [2023] FedCFamC1F 934
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Shuren, the applicant, sought an interlocutory injunction against her husband, Mr Fang, and two companies in which he is a director. The court was asked to order the husband to return various items of property and documents, including motor vehicles, a computer, and business records, to the applicant. This application arose from an ongoing complex financial proceeding. The applicant alleged that the husband had hidden or destroyed various assets and records in an attempt to hinder the financial proceedings.

The court had to determine whether the applicant had established a serious issue to be tried in relation to the property and documents, and whether an interlocutory injunction was appropriate to prevent the destruction or concealment of the evidence. The court also considered whether the husband had any legitimate reason for withholding the property or documents. The judge examined the affidavits, exhibits, and the urgency of the application to decide whether to grant the relief sought.

The judge concluded that the applicant had demonstrated a serious issue to be tried and that the balance of convenience favoured granting the injunction. The court was persuaded by the evidence that the husband had attempted to conceal assets and records, and that this conduct would prejudice the outcome of the financial proceedings if not stopped. The judge ordered the husband to return the specified items of property and documents to the applicant or her solicitors by certain deadlines. The judge also noted that the costs of the application were reserved for further determination.

The orders of the court mandated that the husband return specific items of property and documents to the applicant or her solicitors by certain deadlines. The court ordered the husband to return two motor vehicles and a computer to the second respondent, and to deliver employment records and other documents to the applicant’s solicitors. The court did not award costs at this stage but reserved the question for further consideration.

Orders

Orders of the court

MLC 3815 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS SHUREN

Applicant

AND

MR FANG

First Respondent

B PTY LTD

Second Respondent

C PTY LTD

Third Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

27 OCTOBER 2023

THE COURT ORDERS THAT –

1. By 4pm today the husband must return to the second respondent Motor Vehicle 1 identification number ….

2. By 5pm today the husband must provide the keys to Motor Vehicle 2 identification number … to the husband’s solicitors for delivery by 5:30pm today to the wife’s solicitors.

3. By 5pm today the husband must return to the second respondent the computer as recorded in exhibit 9 tendered this day.

4. By 12pm on Monday 30 October 2023 the husband must produce to his solicitors for delivery to the wife’s solicitors all employment records including payroll, superannuation and PAYG tax returns for Mr V and Mr Y in the husband’s possession, power and control.

5. By 12pm on Monday 30 October 2023 the husband must produce all documents in his possession, power and control with respect of persons described as employees in the affidavit of Mr V made 7 June 2023 and at paragraph 10 of the husband’s affidavit made 27 September 2023 as well as in the affidavit of Mr Y made 7 June 2023 as referred to in exhibit 6 tendered this day and in exhibit 7 tendered this day.

6. The costs of and incidental to this application are reserved.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number	MLC 3815 of 2023
Judgment of	WILSON J
Date of judgment	27 October 2023
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application made ore tenus on short notice for interlocutory injunction – husband ordered to return property and business records in his possession power and control
Legislation	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited	Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Shuren & Fang (No 3) [2023] FedCFamC1F 906
Division	Division 1 First Instance
Number of paragraphs	11
Date of hearing	27 October 2023
Place	Melbourne
Counsel for the applicant	Mr L. Glick KC
Solicitor for the applicant	Australian Legal Advisory Centre
Counsel for the first respondent	Mr A. Baker
Solicitor for the first respondent	Aston Legal Group
Counsel for the second respondent	Mr L. Glick KC
Solicitor for the second respondent	Australian Legal Advisory Centre
Solicitor for the third respondent	No appearance

MLC 3815 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS SHUREN Applicant
AND	MR FANG First Respondent B PTY LTD Second Respondent C PTY LTD Third Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	27 OCTOBER 2023