FAMILY LAW – APPEAL – RECUSAL APPLICATION – Where one of the judges of the Full Court hearing the appeal previously heard an ex parte application from the appellant wife and granted a series of freezing orders preserving assets pending the appeal – Where the orders were subsequently extended by consent – Where the respondent husband makes a recusal application on the basis of apprehended bias – Whether comments made by the judge in the ex parte hearing amounted to an acceptance of the wife’s allegations of fraud against the husband – Where the judge was identifying and testing the case being put – Where there is no logical connection between the purported finding of fraud and the proper disposition of the appeal – Application dismissed.
FAMILY LAW – APPEAL – PROPERTY – Large asset pool – Significant non-disclosure by the respondent husband at trial – Where the appellant wife contends the property adjustment should have been significantly larger due to the non-disclosure – Where the primary judge found a company was the husband’s alter ego – Where the wife contends the inclusion of the value of the company in the asset pool was mere fact-finding as opposed to a consequence of non-disclosure – Adequacy of reasons as to consideration of non-disclosure – Held the primary judge’s attribution of the company’s value to the husband was an appropriate response to non-disclosure – Where the property adjustment was just and equitable – Where the reasoning process is clear – Dispute as to ownership of property – Whether the primary judge erred by not finding the husband to be the beneficial owner of two properties via resulting trust – Where the factual findings precluded such a conclusion – Where the wife concedes there is no direct evidence to support her claim – Disputed balance sheet – Where the wife asserts the primary judge erred by not attributing a value to various assets of the husband – Findings open on the facts – Where one factual error was de minimis relative to the total asset pool – Appeal dismissed.
[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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AGLC
Zha & Wun (No 2) [2025] FedCFamC1A 101
Case
[2025] FedCFamC1A 101
Decision Date
CaseChat Overview and Summary
In the matter of Zha & Wun (No 2), the appellant, Ms. Zha, appealed against the decision of the Family Court concerning the distribution of assets between herself and the respondent, Mr. Wun. The appeal was heard by the Full Court of the Federal Circuit and Family Court of Australia, Appellate Division. Ms. Zha contested various aspects of the primary judge’s decision, including the alleged bias of one of the judges, the adequacy of the property adjustment, and the determination of ownership of specific properties.
The court considered the recusal application by Mr. Wun, who argued that the judge had shown bias in a previous ex parte hearing. The court found that the judge’s comments during the ex parte hearing were merely an identification and testing of the case presented and did not amount to an acceptance of the wife’s allegations. There was no logical connection between these comments and the proper disposition of the appeal. Consequently, the recusal application was dismissed. Additionally, the court examined the primary judge’s findings concerning non-disclosure by Mr. Wun, concluding that the judge’s approach to the property adjustment was appropriate and the reasons provided were clear. The court also rejected Ms. Zha’s contention that the primary judge erred in not attributing ownership of two properties to Mr. Wun, finding that the factual findings precluded such a conclusion.
The court addressed the wife’s assertion that the primary judge erred in not attributing a value to various assets. It found that some findings were open on the evidence, while others, though in error, were immaterial in the context of the overall asset pool. The court concluded that the primary judge’s determination of the asset pool and the property adjustment was just and equitable. The appeal was dismissed, and the orders made by the primary judge were affirmed. The court also discharged certain orders that had been continued by consent.
Orders
Orders of the court
NAA 277 of 2024
SYC 4269 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS ZHA
Appellant
AND:
MR WUN
First Respondent
MR A WUN
Second Respondent
MS YANG (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
ALDRIDGE, GILL & CHRISTIE JJ
DATE OF ORDER:
13 JUNE 2025
ON 4 MARCH 2025, THE COURT ORDERED THAT:
1. The Application in Appeal filed 28 February 2025 seeking the recusal of Justice Aldridge is dismissed.
…
THE COURT ORDERS THAT:
1. The Applications in an Appeal filed 17 February 2025 are dismissed.
2. Appeal NAA 277 of 2024 is dismissed.
3. Orders 3 and 4 of the Orders of 14 February 2025, as continued on 4 April 2025, are discharged.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Having examined each of the asserted errors they fall into two categories:(1)The primary judge’s finding was open on the evidence; and(2)The primary judge’s finding was in error but in the context of this case was immaterial.Open on the evidence The wife asserted that the husband had an interest in FF Pty Ltd. The husband agreed that he had a shareholding in that entity which was equivalent to 3.22 per cent of the shares. The primary judge had no expert evidence about the value (if any) of the shareholding and the husband asserted it had no value. In 2015 the husband acquired his interest in the entity for the sum of $1,850,000. In the Financial Statement upon which the husband relied at trial the value of his interest was recorded as nil. The primary judge said “[t]here is no evidence to support the wife’s contention as to value” of item 45 (the shareholding). In that regard the primary judge was correct. The wife made no submissions on the topic. It was also open to the primary to judge to conclude that, to the extent that the husband may have previously had an interest in a loan to the CX Company, at the time of trial there was no evidence before the Court sufficient to establish a present interest. No error is demonstrated. In 2015 the husband invested $1 million in an entity described as CZ Business. In evidence he described the project as “frozen” albeit he expected he may be somewhat compensated in the future if the project were to be revived. It was open to the primary judge to treat that investment as having a present value of nil on the evidence.Error not material The husband accepts that the primary judge was in error when he recorded the value of the husband’s interest in BY Street, Town BZ, City R at nil. The husband’s Financial Statement recorded his interest as being a half interest. The agreed value of the property was $3,857,446, and accordingly the husband’s interest ought to have been recorded by the primary judge as $1,928,723. Given the primary judge’s finding as to the extent of the pool and the approach of ordering a fixed sum – the exclusion of the husband’s interest in this piece of real property in China was de minimis in the context of a pool of assets which exceeded $565,988,500 and a relationship of just over seven years where it was not in contest that the husband had made the overwhelming financial contribution. Ground 9 is not established.Ground 10 The tenth ground is as follows:10.On the facts as determined by his Honour the order made was manifestly unjust and plainly wrong. We have addressed this more specifically above as it was raised in the context of Grounds 2, 4 and 5. We understand the wife to be contending that, having regard to the magnitude of the husband’s non-disclosure and the extent of the husband’s wealth (including the existence of wealth beyond that which the was able to be the subject of a finding), the resulting order was manifestly unjust and plainly wrong. It is worthwhile repeating the observations of the High Court in Stanford at [36]:The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds…(Footnotes omitted)