Zha & Wun (No 6)

Case [2024] FedCFamC1F 519

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Zha & Wun (No 6) [2024] FedCFamC1F 519   

File number(s): SYC4269 of 2020
Judgment of: SCHONELL J
Date of judgment: 5 August 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Injunction – Application by the wife to restrain the husband from leaving the jurisdiction until judgment is delivered – Where the wife contends that a $25 million surety should be paid into the Court – Where injunctions already in place for the quantum of the proposed surety – Timeframe of judgment for property proceedings uncertain – Application dismissed.  
Legislation:

Family Law Act (Cth)

Federal Circuit and Family Court of Australia Act (Cth)
Cases cited:

Fowles & Fowles (No. 2) [2019] FamCA 1027

Weir & Weir (1993) FLC 92-338

Xuen v Chao (Injunction in aide of enforcement) [2014] FamCA 798
Division: Division 1 First Instance
Number of paragraphs: 45
Date of hearing: 30 July 2024
Place: Sydney
Counsel for the Applicant: Mr Sirties SC and Mr Richardson
Solicitor for the Applicant: Pickering Pendleton
Counsel for the First Respondent: Mr Kelly KC
Solicitor for the First Respondent: York Law
Counsel for the Second, Third and Fourth Respondents: Ms Painter SC with Mr Turnbull (did not participate)
Solicitor for the Second, Third and Fourth Respondents: David H Cohen Co. (did not participate)

ORDERS

SYC4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ZHA

Applicant
AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 23 July 2024 is 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zha & Wun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. The husband and wife are parties to litigation which first commenced before this Court in June 2020, and which culminated in a final hearing which concluded with submissions on 23 July 2024. On the last day of submissions, the wife’s counsel sought to move on an unfiled application to restrain the husband from leaving the jurisdiction until the delivery of judgment. No prior notice had been given of the application.

  2. The Court…

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Details
AGLC
Zha & Wun (No 6) [2024] FedCFamC1F 519
Case
[2024] FedCFamC1F 519
Decision Date

CaseChat Overview and Summary

In the case of Zha & Wun, Ms Zha sought an injunction against Mr Wun, her estranged husband, to prevent him from leaving Australia while their property settlement proceedings were ongoing. The wife argued for a $25 million surety to be paid into the Court as a condition for the injunction to be lifted. This application was heard by the Federal Circuit and Family Court of Australia. The court had to determine whether it was appropriate to grant an injunction preventing the husband from leaving Australia and if the proposed surety was reasonable.

The court considered the wife's need to prevent the husband from potentially removing assets from the jurisdiction against the husband's right to freedom of movement. Given that there were already injunctions in place regarding the quantum of the proposed surety, the court weighed the urgency and necessity of the wife's application. The wife argued that the uncertainty of the timeframe for the judgment in the property proceedings justified her request, but the court did not find the circumstances to warrant the imposition of such a stringent measure. The court was also mindful of the husband's rights and the precedent that such far-reaching injunctions are only appropriate in exceptional cases.

Ultimately, the court dismissed the wife's application. The judge found that while the wife's concerns about the potential removal of assets were valid, the proposed surety and the accompanying restrictions on the husband's freedom of movement were not justified under the circumstances. The court emphasised the need to balance the rights of both parties and the principle that such drastic measures should only be employed when absolutely necessary. The court's decision reflected a careful consideration of the principles of family law and the rights of individuals involved in ongoing litigation.

Orders

Orders of the court

SYC4269 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ZHA

Applicant

AND:

MR WUN

First Respondent

MR A WUN

Second Respondent

MS YANG (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

5 AUGUST 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 23 July 2024 is 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

The husband relied upon:(1)Response to an Application in a Proceeding filed 29 July 2024;(2)Affidavit of husband filed 29 July 2024; and(3)Case Outline document. BACKGROUND The husband and wife are involved in litigation before this Court in which judgment has been reserved. In addition to the husband and wife, the husband’s brother, the brother’s wife and a company are the second, third and fourth respondents. The husband was born in China and is an Australian resident but not a citizen. The wife was also born in China is an Australian citizen but retains a Chinese passport. The parties were married IN 2012 and separated in June 2018. The parties are at issue as to when the relationship commenced; the wife contending about July 2009, the husband contending August 2012. The relationship is either approximately nine years or approximately seven years. There are no children of the relationship. The parties are at issue as to the identity of assets for division between them. The wife contends that a company registered in the Country WW is the property of the husband; asserting that it is either the husband’s alter ego or alternatively the shares in the company are held by the husband’s brother on trust for the husband. The wife makes similar contentions in relation to a number of assets held by the husband’s brother in Australia and in other locations outside of Australia. The wife contends that the pool of assets including the assets held by the husband’s brother is in excess of $674 million (Exhibit 1). The wife seeks orders for the payment to her of a sum of money in excess of $105 million together with the transfer to her of various funds in bank accounts and various parcels of real estate. The totality of her claim is said to be in excess of $130 million. The husband submits that no adjustive order should be made in favour of the wife. The husband denies the wife’s contention as to alter ego and or trust. He asserts in his financial statement that he has total net assets of approximately $36 million. Of that amount approximately $4.3 million is held in Australia (Paragraph 26 Wife’s written submission). The Court is yet to make a determination as to the contentions advanced by each of the parties in relation to the identity and quantum of the pool of assets. The wife seeks orders set out in her Amended Application in a Proceeding as follows:1.That this Application in a Proceeding be filed in Court, heard instanter and on an ex parte basis.2.That any times be abridged to enable the urgent hearing of this Application in a Proceeding.3.That the rules of service be dispensed with for the purposes of this Application in a Proceeding.RESTRAINTS4.That pending further order, the First Respondent Husband be restrained by injunction from removing or causing or permitting the removal of himself from the Commonwealth of Australia.5.That, to give effect to Order 4 herein, the Australian Federal Police are to place the name of the First Respondent Husband (i.e., [Mr Wun]) on the Family Law Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the First Respondent's name on the Family Law Watchlist, pending further Order.6.That by no later than 4 :00pm, 23 July 2024, the First Respondent Husband deliver up to the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) all of his passports, to be held pending further Order.7.That, to give effect to Order 5 herein, the Applicant Wife serve a sealed copy these Orders as soon as possible on the Australian Federal Police.8.That this Application in a Proceeding and supporting Affidavit be sealed by the Court and the Applicant Wife otherwise serve a copy of those documents together with these sealed Orders on the First Respondent Husband as soon as possible.9. That, in the alternative to Orders 4, 5. 6 and 7 herein:9.1that, pending the Husband's payment in accordance with Order 9.4 and provision of a receipt in accordance with Order 9.5 herein. the First Respondent Husband be restrained by injunction from removing or causing or permitting the removal of himself from the Commonwealth of Australia;9.2that, to give effect to Order 9.1 herein. the Australian Federal Police are to place the name of the First Respondent Husband (i.e., [Mr Wun]) on the Family Law Watch List in force at all points of arrival and departure by air or sea In the Commonwealth of Australia and maintain the First Respondent's name on the Family Law Watchlist;9.3that, to give effect to Order 9.2 herein,- the Applicant Wife serve a sealed copy of these Orders as soon as possible on the Australian Federal Police;9.4the First Respondent enter into a bond without surety. on the condition that the sum of AUD$25,000,000 by paid by the First Respondent Husband by no later than 4:00pm, 24 July 2024 to the Court, to be held pending further Order;9.5that, once the First Respondent Husband has made payment in accordance with Order 9.4 herein, the First Respondent must provide a receipt of payment to the Applicant Wife as soon as possible:9.6that, once the Applicant Wife has received the payment receipt from the First Respondent Husband in accordance with Order 9.5 herein:9.6.1the restraint by injunction granted in accordance with Order 9.1 herein be lifted:9.6.2that the Australian Federal Police remove the name of the First Respondent Husband from the Family Law Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia: and 9.6.3within 24 hours of the First Respondent Husband providing the receipt in accordance with Order 9.5 herein, to give effect to Order 9.6.2 herein. the Applicant Wife serve a copy of these Orders on the Australian Federal Police, seeking they remove the First Respondent Husband from the Family Law Watch List in accordance with Order 9.6.2.

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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