FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ying & Qigang (No 3) [2024] FedCFamC2F 1482
File number(s): MLC 197 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – Property – said to be a “2 day” case that stretched over 9 days – final hearing elongated over 2 years – expert evidence taken on the courts own motion as to the law of Country F – section 277 of Country F legislation – witness/parties unable to lawfully give evidence electronically from Country F – parties in lockdown in Country F – matter adjourned until parties in Australia – accrued jurisdiction – duty to determine controversies if within jurisdiction – competing fraud allegations – lots of alleged “add backs” – chaotic conduct of the case – a party drafting witness and aligned party affidavits – party interpreting affidavits to witnesses/parties – effect on reliability of evidence – weight to be given to broad opinion and conclusionary evidence – allegations of substantial transfers of cash – dispute of ownership of dwelling in Country F – Dwelling in Country F registered in name of husband and wife-weight to be given to decision of courts of Country F – whether parties bound by decisions of courts of Country F – allegations of non-disclosure – allegations of “hidden” bank accounts – need for actual satisfaction of events or circumstances alleged – court satisfied of possibility of events alleged but does not have actual satisfaction of events alleged – effect of section 81 – effect of section 139 of the FCFCOA Act – section 139 does not command a lower standard of proof – whether court satisfied of events and circumstances that mean it is just and equitable to change recorded ownership of dwelling in Country F – accrued jurisdiction- claims of third parties against Husband not proven and dismissed – accrued jurisdiction claims of Husband against third parties not proven and dismissed – assurance of support lodged with Services Australia – just and equitable that one party transfer all right and title in those funds to the other spouse – save as to order relating to assurance of support, application to alter property interests dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79, 80 & 81
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139
Limitation of Actions Act 1958 (Vic) ss 5 & 27
Cases cited: Akbar & Gandega [2023] FedCFamC1A 174
Bambrick & Gorman [2023] FedCFamC1F 654
Bao v Qu; Tian (No2) [2020] NSWSC 588
Blass & Blass [2022] FedCFamC1A 63; (2022) FLC ¶94-085
Bosanac v Federal Commissioner of Taxation (2019) 267 FCR 169, [2019] FCAFC 116
Briginshaw v Briginshaw (1938) 60 CLR 336
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, [2005] NSWCA 110
Fox v Percy (2003) 214 CLR 118
Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143
Ibbott & Chaconas and…
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- AGLC
- Ying & Qigang (No 3) [2024] FedCFamC2F 1482
- Case
- [2024] FedCFamC2F 1482
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether it was just and equitable to alter the recorded ownership of a dwelling in Country F, despite the parties being bound by a previous decision of a court in that country. Additionally, the court had to assess the credibility of broad opinion and conclusionary evidence, particularly given the chaotic conduct of the case and allegations of drafting and interpreting affidavits by one party. The court also had to weigh the impact of alleged substantial transfers of cash and hidden bank accounts on the financial picture of the parties. Ultimately, the court found that while there was a possibility of the events alleged, it could not be fully satisfied of their occurrence. This uncertainty, coupled with the application of the relevant sections of the Family Law Act, influenced the court’s decision.
In its judgment, the court dismissed most of the property alteration applications, except for an order requiring Mr Qigang to transfer the assurance of support funds to Ms Ying. The court also dismissed claims of fraud and restitution brought by Mr Ying and Ms Jian against Mr Qigang, as well as Mr Qigang’s claim against them for rent. The court held that the allegations of fraud and hidden assets were not proven to the required standard. The final orders reflect the court’s determination that, aside from the assurance of support funds, the application for property alteration was not substantiated by the evidence presented.
Orders
Orders of the court
MLC 197 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS YING
Applicant
AND:
MR QIGANG
First Respondent
MR YING
Second Respondent
MS JIAN
Third Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1. Pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’), the applicant, Ms Ying and the first respondent, Mr Qigang do all acts and things and execute any necessary document to cause and ensure that the deposit or ‘assurance of support’ of AUD $10,000 paid in respect of the application for a visa concerning the residence of the Second Respondent, Mr Ying when no longer required, and is released, that such sum be paid to Ms Ying (‘the assurance of support order’).
2. Save as provided in the assurance of support order herein, the application of Ms Ying for property alteration orders pursuant to section 79 of the Act, be and is dismissed.
3. Save as provided in the assurance of support order herein, the response of Mr Qigang wherein he sought property alteration orders pursuant to section 79 of the Act, be and is dismissed.
4. The applications of the second respondent, Mr Ying, and of the third respondent, Ms Jian, seeking orders for restitution and/or the payment of money by Mr Qigang as damages for fraud and/or restitution and/or as money had and received, be and are dismissed.
5. The application of Mr Qigang seeking payment from Mr Ying and Ms Jian on account of rent of a dwelling situated in Country F (‘the City E property’) be and is dismissed.
6. All extant applications be and are otherwise dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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