Tsiang & Wu and ors - [2018] FamCA 1057

FAMILY COURT OF AUSTRALIA

Tsiang & Wu and ors

[2018] FamCA 1057

FAMILY LAW – PROPERTY – Where the husband seeks injunctive orders against the wife in relation to property taken by her in Consent Orders – Where the husband fails to establish an evidentiary basis for those injunctive orders – where the husband seeks injunctive orders against the second and third Respondents – where no evidence has been adduced in support of this application – where service has not been effected upon the third Respondent – Substituted Service of the third Respondent ordered.

Family Law Act 1975 (Cth), s 37A(1), 79A

Family Law Rules 2004 r. 1.14 , 7.18

Waugh and Waugh (2000) FLC 93-052

APPLICANT:

Mr Tsiang

1^STRESPONDENT:

Ms Wu

2^ND RESPONDENT:

Mr Wu

3^RD RESPONDENT:

Mr Cao

FILE NUMBER:

SYC

1529

of

2016

DATE DELIVERED:

11 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

26 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Kearney SC

SOLICiTOR FOR THE 1^ST RESPONDENT:

Somerville Legal

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE 2^ND RESPONDENT:

Juris Cor Legal

3^rd RESPONDENT:

Third respondent not served

Orders

(1) Pursuant to Rule 7.18 of the Family Law Rules 2004 (Cth), personal service of the Further Amended Initiating Application of the husband filed on 16 August 2018 ("the Application") upon the third Respondent is dispensed with.
(2)      Substituted service of the Application and the affidavits of Mr Tsiang affirmed on 8 August 2018 and 23 November 2018 will be effected upon the third Respondent by the following means:
2.1      by post to:
2.1.1   B Street, City C, China
2.1.2   C/o- Mr D, attorney at law of E Legal, F Street, City C, China.

(3) Paragraphs 2, 3 and 4 of the Application in a Case filed by the husband on 24 August 2018 are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsiang & Wu and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).Family Court of Australia at Sydney

FILE NUMBER: SYC 1529 of 2016

Mr Tsiang

Applicant

And

Ms Wu

1^st Respondent

And

Mr Wu

2^nd Respondent

And

Mr Cao

3^rd Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Tsiang and Ms Wu are parties to proceedings in relation to parenting orders for their daughter X, born in 2005, and financial issues. The second…

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 Tsiang & Wu and ors

Details

AGLC: Tsiang & Wu and ors [2018] FamCA 1057
Case: [2018] FamCA 1057
Decision Date: 11 December 2018

CaseChat Overview and Summary

In *Tsiang & Wu and ors*, the husband sought injunctive orders against the wife concerning property taken by her pursuant to Consent Orders, and also against the second and third respondents. The husband's application for injunctive relief against the wife failed due to a lack of evidentiary basis. Similarly, no evidence was adduced to support the application for injunctive orders against the second and third respondents, and service had not been effected upon the third respondent. The matter came before Stevenson J in the Family Court of Australia.

The primary legal issues before the court were whether the husband had established a sufficient evidentiary foundation to warrant injunctive orders against the wife and the second and third respondents, and how service should be effected upon the third respondent, given the absence of personal service. The court was also required to determine the fate of specific paragraphs within a separate application filed by the husband.

Stevenson J found that the husband had not adduced sufficient evidence to support his claims for injunctive relief against the wife or the second and third respondents. Consequently, the applications for injunctions against these parties were dismissed, save for the issue of service on the third respondent. The court ordered that personal service of the husband's Further Amended Initiating Application upon the third respondent be dispensed with, and that substituted service be effected by post to specified addresses in China, including an address for a legal representative. Additionally, paragraphs 2, 3, and 4 of a separate application filed by the husband were dismissed.

Orders

Orders of the court

(1) Pursuant to Rule 7.18 of the Family Law Rules 2004 (Cth), personal service of the Further Amended Initiating Application of the husband filed on 16 August 2018 ("the Application") upon the third Respondent is dispensed with.

(2) Substituted service of the Application and the affidavits of Mr Tsiang affirmed on 8 August 2018 and 23 November 2018 will be effected upon the third Respondent by the following means:

2.1 by post to:

2.1.1 B Street, City C, China

2.1.2 C/o- Mr D, attorney at law of E Legal, F Street, City C, China.

(3) Paragraphs 2, 3 and 4 of the Application in a Case filed by the husband on 24 August 2018 are dismissed.

Background

Background to the litigation

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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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