Zeng and Jing & Anor - [2018] FamCA 423

FAMILY COURT OF AUSTRALIA

ZENG & JING AND ANOR

[2018] FamCA 423

FAMILY LAW – CHILDREN – where the husband seeks a two stage approach to the contact orders for a child not quite three years of age, the second stage being that when he obtains appropriate accommodation, it be extended to overnight – where the court says that such an order is inappropriate without knowing what impact such an increase in time would have on the child – where the wife opposes the extensive nature of the first stage of the orders proposed but the court finds that having regard to the wife’s willingness to have had the child in her care at times immediately around separation, there is no foundation for such concern about the husband’s capacity – orders made.

FAMILY LAW – PROPERTY – where the husband seeks a partial property settlement on an urgency basis but the evidence from the wife and her mother as second respondent is either incomplete or not filed at all and the court is unable to discern who has what interests in what property – order for partial property settlement refused but the husband may bring further application when evidence is clear.

FAMILY LAW – PROPERTY – where the husband seeks injunctive relief relating to the disposal of assets including an application under s 106B of the Family Law Act 1975 (Cth) – where the evidence supports the granting of injunctions and to which both and second respondent consent but there is not sufficient evidence to find that the husband’s interests of claim may have been defeated because it may be that the property does not belong to the husband and the wife – application for s 106B orders is refused.

Family Law Act 1975 (Cth)

Bing and Bing (2007) FLC 93-318
Goode and Goode (2006 FLC 93-286

APPLICANT:

Mr Zeng

RESPONDENT:

Ms Jing

INTERVENOR:

Ms Lao

FILE NUMBER:

MLC

5795

2018

DATE DELIVERED:

12 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr O'Shannessy

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Pty Ltd

COUNSEL FOR THE INTERVENOR:

Mr Matta

SOLICITOR FOR THE INTERVENOR:

Sayer Jones

Orders

That the application of the husband for interim orders as contained in his application filed 4 June 2018 and the response of the wife seeking interim orders as contained in the document filed at court on 6 June 2018 are both adjourned to the Judicial Duty List at 10.00am on 31 July 2018.
That the application of the husband for interim relief by way of a partial property settlement or litigation funding in the sum of $250,000 is refused.
That paragraph (2) of the application for interim orders filed 4 June 2018 is dismissed.
That the wife and the second respondent are restrained by injunction from disposing of or encumbering the fixed assets of either of them…

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 Zeng and Jing & Anor

Details

AGLC: Zeng and Jing & Anor [2018] FamCA 423
Case: [2018] FamCA 423
Decision Date: 12 June 2018

CaseChat Overview and Summary

In the matter of *Zeng and Jing & Anor*, the husband sought interim orders concerning contact with a child under three years of age and a partial property settlement. The wife opposed the extent of the proposed contact arrangements, while the second respondent, the wife's mother, was involved in the property proceedings. The court, presided over by Cronin J, considered applications for both children's matters and property matters, including injunctive relief.

The primary legal issues before the court were the appropriate interim contact arrangements for the young child, the husband's entitlement to a partial property settlement on an urgent basis, and whether injunctive relief, including an application under section 106B of the *Family Law Act 1975* (Cth), should be granted to prevent the disposal of assets. The court also had to determine if there was sufficient evidence to support the husband's claim that his interests might be defeated by the disposal of property.

Regarding the children's matters, the court found that the husband's proposed two-stage approach to contact, which included overnight stays contingent on obtaining suitable accommodation, was inappropriate without understanding the potential impact on the child. However, the court did not find grounds for the wife's concerns about the husband's capacity to care for the child, given her willingness to have the child in her care shortly after separation. In relation to property, the court refused the husband's application for a partial property settlement due to incomplete or absent evidence from the wife and second respondent regarding property interests. While the court granted injunctions restraining the wife and second respondent from disposing of or encumbering fixed assets and from altering corporate or trust structures, it refused the application under section 106B of the *Family Law Act 1975* due to insufficient evidence that the husband's interests of claim might have been defeated.

The court made several orders, including adjourning the applications for interim orders concerning children and property, refusing the husband's application for a partial property settlement or litigation funding, and dismissing a specific paragraph of the husband's application. Injunctions were granted against the wife and second respondent concerning the disposal of assets and alteration of corporate structures. Leave was granted for the husband to apply to vary or extend parenting orders if no agreement was reached, and costs were reserved.

Orders

Orders of the court

That the application of the husband for interim orders as contained in his application filed 4 June 2018 and the response of the wife seeking interim orders as contained in the document filed at court on 6 June 2018 are both adjourned to the Judicial Duty List at 10.00am on 31 July 2018.

That the application of the husband for interim relief by way of a partial property settlement or litigation funding in the sum of $250,000 is refused.

That paragraph (2) of the application for interim orders filed 4 June 2018 is dismissed.

That the wife and the second respondent are restrained by injunction from disposing of or encumbering the fixed assets of either of them and/or all of the entities under which the mother and the wife have control save as may be agreed between the parties or by further order of the court.

That the wife and the second respondent are restrained by injunction from altering the existing corporate and/or trust structures including, altering the directorships, the shareholdings or, making decisions to alter the trustee of any trust by use of the appointor power under any such trust.

That the husband have leave to apply to the senior registrar’s list if there is no agreement in respect of any variation and/or extension of the parenting orders made on 6 June 2018 in respect of the child X born in 2015.

That the parties’ costs of the day are otherwise reserved to the return date.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

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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