Zhihui & Cun
[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 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN J:
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.
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”).
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]).
In assessing the spouses’ contributions, the primary judge acknowledged the husband’s “large initial contribution” of the two Australian properties (at [98]), but found the wife made a “far greater contribution” to the care of the spouses’ two children (at [101]). The spouses’ contributions were assessed at 15 per cent to the wife and 85 per cent to the husband (at [107]). However, an adjustment of 25 per cent in the wife’s favour resulted from consideration of the factors prescribed by s 75(2) of the Act (at [113]). The overall result was 40 per cent to the wife and 60 per cent to the husband (at [114]).
Of the assets worth no less than $870,000 found to be held by the husband, the wife’s 40 per cent share was calculated at $351,600 (at [114]). Orders were therefore made for the husband to pay that sum to the wife (Order 1) and all other applications were dismissed (Order 2).
The Appeal
The appeal comprises 28 grounds.
Grounds 13 to 28 inclusive can be immediately rejected as being incompetent because they do no more than declare the husband’s denial of the contents of various paragraphs in the reasons for judgment delivered by the primary judge. Mere disagreement with findings and observations does not signify appealable error.
Other grounds of appeal make specious allegations against the primary judge which should be summarily rejected. They include: the primary judge “broke the Judge’s oath” (Ground 1); the primary judge “intentionally violated the law” (Ground 3); the primary judge “deliberately delayed the case and attacked the respondent” (Ground 6); the primary judge “intentionally concealed…illegal and criminal acts” (Ground 7); the primary judge acted in contempt of orders made by the Chief Justice (Ground 8); the primary judge “set up an unjust court to hold the trial in secret” (Ground 9); and the primary judge “intentionally destroyed the case materials” (Ground 10).
Grounds 2, 4, 5, 11 and 12 require further explanation.
Ground 2 pleads as follows:
[The primary judge] offered to reinstate a company that had been deregistered under the company law and held a trial without notifying ASIC on 27/8/2019. [The primary judge] discussing the case with the [wife’s] lawyer and obstructing the [husband’s] statement and evidence at the court hearing.
(As per the original)
The corporation which was found to be the alter ego of the husband was de-registered in 2013, but re-instated by court order made in the proceedings in November 2019 with the parties’ consent (at [44]). This appeal is not from the order made in November 2019 and, even if it was, absent confined circumstances which must be proven by more than bare allegations, the husband could not appeal from an order to which he consented (Harvey v Phillips (1956) 95 CLR 235 at 244). This ground has no reasonable prospect of success.
Ground 4 pleads:
[The primary judge] exceeds the judicial jurisdiction and causes the wrong judgment result, which causes serious consequences. The court order by [a judge] on 1 June 202 was redacted and falsified.
(As per the original)
Although it asserts the judgment “exceeds…jurisdiction”, suggesting jurisdictional error, the orders made by the primary judge fall within the jurisdiction and power afforded by Pt VIII of the Act. This ground has no reasonable prospect of success.
Ground 5 pleads:
[The primary judge] abused judicial power and helped the parties disclose 1.2 million access, and wrongly assigned the burden of proof to me. It’s a violation of Family Law Act 1975 (Cth) ss 78, 79. The part of the property that refused to disclose was an important key factor in the case. It determines the cause of action in this case. Shows no reasonable prospect of success.
(As per the original)
The ground does not advance a recognisable ground of appeal. Its meaning is quite unclear and appears to merely be a complaint about the outcome. It has no reasonable prospect of success.
Ground 11 pleads:
Access to justice is important. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld. My access to justice rights disqualified, because I require the court to be fair an imprtial judicial process.
(As per the original)
It is not a recognisable ground of appeal but, to the extent that it can be construed as a complaint of judicial bias, it does not enjoy any reasonable prospect of success. That is because this appeal is brought from the substantive property settlement orders made by the primary judge on 13 July 2023, not from the order made on 1 May 2023 dismissing the husband’s disqualification application. The latter judgment was one from which an appeal separately lies (s 26(1)(h) of the FCFCA Act).
Ground 12 pleads:
The Judgment at Catchwords from first page the last sentence: “Where husband’s deficiencies of disclosure and …to second page line 27: Where the Court held the husband had been afforded procedural fairness.” It’s not real. It was [the primary Judge] who fabricated, imagined and slandered. It does not any evidenceto show [J Pty Ltd] received $870.000 prior to its deregistration in November 2013. On 3 May 2023, the Draft Joint Balance Sheet I submitted to the court was clear.
(As per the original)
Generously interpreted, the ground is a complaint about the finding made that the husband still possessed the sum of $870,000 paid by the other respondents to the corporation he controlled in 2012. The ground can only rationally be that the finding is wrong, but the finding must have been open when it correlated with the unchallenged evidence given by the wife and also the evidence led by the second and third respondents. It should also be noted that the ground is hard to reconcile with the remedial order sought by the husband if the appeal succeeds, namely that he pay the wife $277,386 instead of $351,600. Such a proposal must spring from an admission the husband has the resources to meet such an order. This ground has no reasonable prospect of success.
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).
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 August 2023
2
0