By Craig Nicol and Keleigh Robinson
Property – Husband’s property adjustment proceedings were an abuse of process as they were “to acquire evidence about the wife’s financial transactions for collateral use in” ongoing Chinese litigation
In Peng & Zhang [2026] FedCFamC1A 83 (13 May 2026) the Full Court (Austin, Harper & Christie JJ) heard a husband’s appeal from orders of Hartnett J that dismissed his property adjustment application as an abuse of process.
The wife lived in Australia. The husband lived in China. They separated in 2019. The parties had been involved in matrimonial proceedings in China before the husband commenced proceedings in Australia in 2023 ([2]-[4]). Hartnett J dismissed the husband’s application, concluding that it was “not a bona fide attempt to invoke the jurisdiction of an Australian court to adjudicate the parties’ rights in respect of the wife’s Australian property”. The husband appealed.
The Full Court said (from [24]):
“The Australian proceedings were not ‘entirely calculated’ to secure property adjustment relief for the husband in respect of the wife’s Australian property because they were instead calculated to acquire evidence about the wife’s financial transactions for collateral use in the ongoing Chinese litigation …
[26] It is well accepted that, if a litigant would not have commenced or maintained a cause of action but for an ulterior or collateral purpose which is unrelated to the subject matter of the litigation, then an abuse of process is established. For that purpose, the ‘predominant’ purpose is the relevant criterion (Williams v Spautz [1992] HCA 34 …).
( … )
[29] Here… the husband did not institute the Australian proceedings to secure relief… He only did so to utilise the Australian forensic tool of interlocutory financial disclosure to obtain documents he could then hopefully use to his advantage as evidence in the ongoing Chinese proceedings. The husband’s predominant purpose was therefore not to prosecute the proceedings for their proper purpose, as the primary judge found…”
The appeal was dismissed and the husband was ordered to pay the wife’s costs on a party/party basis, fixed at $80,837.90.
