Zhou and Wei (No 3) - [2018] FamCA 1148

FAMILY COURT OF AUSTRALIA

ZHOU & WEI (NO. 3)

[2018] FamCA 1148

INJUNCTION – anti-suit injunction – where the husband issued property proceedings in China and wants to continue those but only for the property in China whilst litigating in Australia over the Australian assets – China is an inappropriate forum – injunction granted.

Family Law Act 1975 (Cth)

Dobson & Van Londen [2005] FamCA 479; (2005) FLC 93-225
Henry v Henry [1996] HCA 51
Kumar & Gupta [2008] FamCA 885
Skinner & Alfonso-Skinner [2010] FamCA 329
Teo & Guan [2015] FamCAFC 94
Voth v Manildra Flour Mills Pty Ltd [1990 HCA 55

APPLICANT:

Ms Zhou

RESPONDENT:

Mr Wei

FILE NUMBER:

MLC

140

2018

DATE DELIVERED:

11 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

5, 6 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Teicher

SOLICITOR FOR THE APPLICANT:

Tao Jiang Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lam

SOLICITOR FOR THE RESPONDENT:

MA & Company, Solicitors

Orders

That the husband MR WEI be restrained by injunction from continuing the proceedings issued in China in respect of the property of the parties in that country.
That all proceedings as between the husband and the wife be litigated in the Family Court of Australia.
That save as to issues of costs, all interim applications between the parties be otherwise dismissed.
That all extant applications be adjourned to a date to be fixed for final hearing before a judge as soon as practicable.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 8 October 2018 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 22 October 2018 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 140 of 2018

MS ZHOU

Applicant

And

MR WEI

Respondent

REASONS FOR JUDGMENT

Ms Zhou (“the wife”) and Mr Wei (“the husband”) married in 2001 and from their relationship there is one child B otherwise known as B who was born in 2009.…

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 Zhou and Wei (No 3)

Details

AGLC: Zhou and Wei (No 3) [2018] FamCA 1148
Case: [2018] FamCA 1148
Decision Date

CaseChat Overview and Summary

In *Zhou & Wei (No 3)* [2018] FamCA 1148, the Family Court of Australia considered an application by the wife, Ms Zhou, for an anti-suit injunction against the husband, Mr Wei. The dispute arose from Mr Wei's initiation of property proceedings in China concerning real estate located there, while simultaneously litigating Australian assets in Australia. Mr Wei sought to have the Chinese property proceedings continue separately, whereas Ms Zhou contended that all property matters should be resolved within the Australian proceedings.

The primary legal issue before the court was whether to grant an anti-suit injunction restraining Mr Wei from continuing the Chinese proceedings. This required the court to determine if China was an inappropriate forum for the property dispute, and if the continuation of those proceedings would be vexatious or oppressive to Ms Zhou, considering the overarching objective of achieving a complete resolution of the parties' financial affairs. The court also had to assess the connection of the parties and their marriage to each jurisdiction, the stage of proceedings in each forum, and the potential for conflicting judgments.

Justice Cronin applied principles from cases such as *Voth v Manildra Flour Mills Pty Ltd* and *Henry v Henry*, focusing on whether Australia was a "clearly inappropriate" forum for the entire dispute. The court found that while Mr Wei had commenced proceedings in China first, the lack of formal service on Ms Zhou and the uncertainty surrounding the progress of those proceedings diminished the significance of the timing. Crucially, the court determined that Australia was not a clearly inappropriate forum, particularly given that both parties were Australian residents, their child resided in Australia, and their financial relationship was largely Australian-based. The court also considered that Chinese courts would not address Australian property, and that attempting to litigate the same financial matters in two separate jurisdictions would be seriously and unfairly burdensome to Ms Zhou, creating uncertainty and additional costs.

Consequently, the court ordered that Mr Wei be restrained by injunction from continuing the proceedings in China concerning the parties' property there. The court further ordered that all proceedings between the parties be litigated in the Family Court of Australia, with all interim applications dismissed and extant applications adjourned for final hearing.

Orders