Zhihui & Cun

Case [2023] FedCFamC1A 140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Zhihui & Cun [2023] FedCFamC1A 140

Appeal from: Cun & Zhihui (No 4) [2023] FedCFamC1F 581
Appeal number: NAA 209 of 2023
File number: SYC 3261 of 2015
Judgment of: AUSTIN J
Date of judgment: 18 August 2023
Catchwords: FAMILY LAW – APPEAL – Property – Practice and Procedure – Where the appellant was invited to show cause why the appeal should not be summarily dismissed – Where several of the husband’s grounds declare his denial of the contents of paragraphs in the reasons for judgment – Where these grounds are rejected as being incompetent – Where the husband makes specious allegations against the primary judge – Where these grounds are summarily rejected – Where the husband’s complaints of judicial bias does not enjoy any reasonable prospect of success – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 75 and s106B

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46

Cases cited:

Cun & Zhihui (No.3) [2023] FedCFamC1F 346

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27
Number of paragraphs: 31
Date of hearing: 18 August 2023
Place: Newcastle (via video link)
Solicitor for the Appellant: Litigant in person
Solicitor for the Respondent: Litigant in person

ORDERS

NAA 209 of 2023
SYC 3261 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ZHIHUI

Appellant
AND:

MS CUN

First Respondent

order made by:

AUSTIN J

DATE OF ORDER:

18 august 2023

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 10 August 2023 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhihui & Cun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. By a Notice of Appeal filed on 10 August 2023, the husband appeals from property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) on 13 July 2023.

  2. The grounds of appeal appeared to lack any reasonable prospect of success and so the appeal was listed to afford the husband the opportunity to be heard as to why the appeal should not be summarily dismissed pursuant to s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).

  3. Both parties lacked legal representation and both were assisted…

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Zhihui & Cun [2023] FedCFamC1A 140
Case
[2023] FedCFamC1A 140
Decision Date

CaseChat Overview and Summary

In the matter of Zhihui & Cun, the Federal Circuit and Family Court of Australia was called upon to adjudicate an appeal brought by the husband, Cun, against the property settlement proceedings initiated by the wife, Zhihui. The appeal sought to challenge the primary judge’s refusal to repatriate two properties transferred by a corporation controlled by Cun to his adult children from a previous relationship, and to disqualify the primary judge for alleged misconduct. The husband, who represented himself, failed to provide evidence regarding his financial circumstances or the disposition of the $870,000 received from the sale of the properties, resulting in a finding by the primary judge that he possessed undisclosed property worth at least that amount.

The court was tasked with determining whether the appeal had reasonable prospects of success. The primary issues revolved around the adequacy of the grounds of appeal, the husband’s failure to provide evidence of his financial situation, and the validity of the primary judge’s decision to treat the $870,000 as money had and received by Cun. The court needed to assess if the appeal grounds were sufficient and if there was any merit in the husband's arguments concerning the primary judge's disqualification and the alleged misconduct. The court also had to consider whether the husband’s failure to disclose his financial circumstances justified the primary judge’s findings regarding his undisclosed assets.

The court found that the appeal did not have reasonable prospects of success because the husband failed to articulate how the appeal might succeed. The court emphasised that the husband's submissions were largely peripheral and did not address the core issues of the appeal. The husband’s failure to provide evidence regarding his financial circumstances undermined his arguments and reinforced the primary judge’s findings. The court concluded that the appeal was not grounded in any substantive legal or factual basis that could lead to a different outcome. Consequently, the appeal was summarily dismissed, and no reasonable prospects of success were identified.

The court dismissed the appeal and ordered that the husband pay the wife’s costs of the appeal, which were to be taxed if not agreed upon. The dismissal was made under the authority of sections 32(3)(b) and 32(5) of the Family Court of Australia Act, which allows a single judge to summarily dismiss an appeal if it lacks reasonable prospects of success.

Orders

Orders of the court

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Background

Background to the litigation

Both parties lacked legal representation and both were assisted by an interpreter. When given the chance, the husband could not articulate how the appeal enjoyed any reasonable prospect of success and so it is dismissed. The following reasons explain why.Background The spouses married in 2007 and separated in 2012. The wife commenced proceedings against the husband in 2015. The husband’s two adult children from a former relationship were joined to the proceedings as the second and third respondents respectively. The trial of the proceedings occurred over three days in early May 2023. The husband and the other respondents were all self-represented. Judgment was reserved and delivered in July 2023. The trial began by the husband applying for two things: first, the summary dismissal of the wife’s application for property settlement; and secondly, the primary judge’s disqualification for judicial misconduct (at [4]). Both applications were dismissed on 1 May 2023 and separate reasons were delivered to explain that result (Cun & Zhihui (No.3) [2023] FedCFamC1F 346). The trial then proceeded. The husband adduced no evidence at all in relation to the financial cause under Pt VIII of the Act, despite the invitation to do so (at [10]). He also refused the primary judge’s invitation to cross-examine the wife and her witnesses (at [11]). The evidence adduced by the wife was therefore unchallenged (at [13]). The only material assets of the spouses located within Australia were two parcels of real estate. Both properties were formerly owned by a corporation controlled by the husband (at [22] and [60]), but the corporation transferred the properties to the second and third respondents – one property to each respondent – in August 2012 (at [31] and [37]). The corporation received consideration of $870,000 for the transactions (at [43]), which the primary judge treated as money had and received by the husband (at [61]). The wife sought orders to repatriate the two properties to the matrimonial pool, either pursuant to the application of equitable principles or under s 106B of the Act (at [15] and [45]), but her application failed on both counts (at [56] and [78]–[79]). The second and third respondents’ ownership of the two properties was therefore not disturbed. Although the husband was found to have received $870,000 from the second and third respondents some 10 years ago, he gave no evidence about what he did with the funds (at [86]). As a consequence of the husband’s failure to disclose his financial circumstances, in reliance upon well-established authority, the primary judge found the husband possessed undisclosed property worth not less than $870,000 (at [88] and [114]). Aside from the two Australian properties, the evidence established the husband owned property in Country M, though it remained unclear whether he still owned the property at the time of trial (at [16]). The primary judge found the Country M property would not be susceptible to an order made under Pt VIII of the Act and his Honour therefore determined to take it into account as a financial resource under s 75(2)(o) of the Act (at [20]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The husband’s submissions did not canvass the competence of the grounds of appeal (aside from repeating them), but instead strayed to the importance of the rule of law, the supposed violation of various statutory instruments, the history of the proceedings, the wife’s failure to give full and frank disclosure, the wrongful failure of the primary judge to grant his disqualification application, judicial corruption, and the fabrication of evidence.Conclusion The appeal is summarily dismissed because it does not enjoy reasonable prospects of success. The dismissal order may be made by a single judge exercising appellate jurisdiction (s 32(3)(b) and s 32(5) of the FCFCA Act).

Ratio Decidendi

Legal Principle Established

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