Biscan & Pinyin
[2021] FedCFamC1F 274
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Biscan & Pinyin [2021] FedCFamC1F 274
File number(s): BRC 11988 of 2019 Judgment of: JARRETT J Date of judgment: 24 November 2021 Catchwords: FAMILY LAW – INTERIM PARENTING & PROPERTY – anti-suit injunction – where the husband has commenced family law proceedings in Australia and the wife has commenced family law proceedings in the People’s Republic of China Legislation: Family Law Act 1975 (Cth) Cases cited: Henry v Henry (1996) 185 CLR 571
Lan & Hao (No 2) [2017] FLC 93
Oceanic Sun Line Special Shipping Company Inc v Fay (1986) 165 CLR 197
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 24 November 2021 Place: Brisbane ORDERS
BRC 11988 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BISCAN
ApplicantAND: MS GEI & MS PINYIN
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
24 NOVEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The first respondent be and is hereby restrained whether by herself, her servants or agents in howsoever otherwise from continuing to prosecute proceedings commenced by her in the foreign Court, C City (the foreign Court) in the People’s Republic of China in or about January, 2021:
(a)in a suit for the petition of divorce and division of property (real and personal, including monies held on deposit in bank accounts maintained in the name of the first respondent) as instituted in the foreign Court; and
(b)for relief in respect of any property of the parties to this proceeding (the foreign proceeding).
2.The first respondent be and is hereby restrained whether by herself, her servants or agents or howsoever otherwise from doing anything or taking any step or steps to enforce, or to give effect to, or otherwise to obtain any advantage or benefit from, any order or decree made by the foreign Court in the foreign proceeding.
THE COURT FURTHER ORDERS THAT:
3.The application in a proceeding filed by the first respondent on 26 March, 2021 be dismissed.
4.The first respondent must file an amended response setting out in precise terms the final orders she seeks the Court to make by no later than 4.00pm on 3 December, 2021.
5.If she seeks any orders different to those sought in her response filed 3 November, 2019, the second respondent must file an amended response setting out in precise terms the final she seeks the Court to make by no later than 4.00pm on 3 December, 2021.
6.By no later than 4pm on 8 December, 2021 the parties must settle a document that sets out:
(a)a list of agreed assets and any agreed value for those assets;
(b)a list of assets contended for by each party which is not the subject of agreement, if any; and
(c)a list of assets in respect of which there is no agreement as to value.
7.The application be adjourned to 9.30 am on 9 December, 2021 for case management hearing in the Federal Circuit and Family Court of Australia (Division 1)
8.The application for divorce filed by the applicant on 23 July, 2021, which appears in the Court’s records as BRC9679/2021, be adjourned to 9.30 am on 9 December, 2021 for hearing in the Federal Circuit and Family Court of Australia (Division 1).
9.The costs of the applicant in relation to 24 November, 2021 are reserved with certification for counsel.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 pseudonyms Biscan & Pinyin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
There are cross-applications before me. The applications are contained within applications in a case, one filed by the applicant husband and the other filed by the first respondent wife, both on 22 March, 2021. In his application, the husband seeks a procedural order that the respondents file responses that comply with the rules. Secondly, he seeks that there be an anti-suit injunction which prevents the first respondent from prosecuting proceedings that she has commenced in China. He also seeks an order restraining the first respondent from departing the Commonwealth of Australia, although, that relief is no longer pressed. He seeks some orders about a mediation. I have not heard counsel on that yet and will do so, in due course.
In her application in a case, the respondent wife seeks an order that:
1.The family assets located in China be severed from the matrimonial assets pool and be reserved for the foreign Court, C City.
2.Alternatively, the proceedings be stayed until the Chinese proceedings is finalised.
She also seeks an order for costs.
The background for the proceedings are conveniently summarised by counsel for the applicant husband in his written submissions. It seems uncontentious that the parties met in or about February, 2000 and married in China in 2001. Neither the applicant nor the first respondent – or the second respondent for that matter – were born in Australia. The applicant was born in the United Kingdom, the first respondent in China. But both are entitled to reside in the country. The applicant is a permanent resident of Australia. The first respondent is an Australian citizen. The parties separated in March, 2016. They lived under the same roof for some time and then physically separated in 2019.
They jointly purchased a property at D Town just east of B City during the course of their relationship. That seems to be uncontroversial. It is also uncontroversial, I think, that the applicant carried on a business of sorts during the course of the parties’ relationship here in Australia. The nature and extent and, indeed, value of that business has been the subject of contention between the parties in previous applications before me, from my recollection and there have been orders made about that. It is also uncontentious that the wife owns an apartment in C City, in the People’s Republic of China. It is not clear whether there is a dispute about it, but it seems that that property has now been valued.
The wife contends that there might be other property in China that belongs to the husband – undisclosed bank accounts or other assets that were derived from the sale of shares in certain companies or a company operated by the applicant in China. That seems to be part of her case. These proceedings were commenced in late 2019 and were, I regret to say, managed by me in the Federal Circuit Court until they were transferred to this Court earlier this year. Earlier this year, in January, the first respondent commenced proceedings in the foreign Court in C City. She did that through a petition for divorce and for a division of real and personal property.
I will deal with the wife’s application first. The first order she seeks is that the family assets located in China – I’m not sure what that means, but I assume that its assets owned by the applicant and the first respondent – or either of them – located in China, be severed from the matrimonial assets. Again, I’m not sure what matrimonial assets means. The Full Court as long ago as about 1982 and 1983 said that practitioners in this Court should avoid using the terms “matrimonial assets” and “matrimonial debt” because those terms do not appear in the Family Law Act. As the High Court has recently said in Stanford, the Court’s task is to identify the parties’ property. That is, the property owned by them jointly and owned by each of them, individually. It is really not to the point when identifying their property, to determine when they acquired it. Certainly that is relevant to questions of contribution and the like. But in terms of identification of the parties’ property, it is all of it, whether it is acquired before, during or after the parties’ relationship. And so, the phrase “matrimonial property” or “matrimonial property pool” or “matrimonial debt”, really, has no place in the family law lexicon other than as perhaps convenient labels, but with uncertain meaning.
Although counsel for the wife was unable to direct me to any case where relief such as that sought in order 1 here of his client’s application in the case, has been granted by the Court, the mere existence of simultaneous proceedings in two different jurisdictions is not of itself vexatious or oppressive conduct: Henry v Henry (1996) 185 CLR 571 at 590 to 591. The proper question is whether two sets of proceedings would be “productive of serious and unjustifiable trouble and harassment or seriously burdensome, prejudicial or damaging”: Oceanic Sun Line Special Shipping Company Inc v Fay (1986) 165 CLR 197 at [247] as cited in Lan & Hao (No 2) [2017] FLC 93 at [37].
The argument made in support of the application for order 1 is that it is only the courts in China that have jurisdiction over real property. I accept that and it is hardly a remarkable proposition, but it needs to be understood in the context of this case. Here, belatedly, the husband has filed a further amended initiating application where it seems, for the first time, he has set out the orders that he seeks to be made on a final basis. Curiously, he seeks a declaration that the property in China is part of the divisible property. I do not know why he seeks that declaration. It is hard to see what the good reason for such a declaration would be.
The applicant seeks no relief against the property in China. The orders he seeks in the further amended application would see a transfer of her interest in the D Town property to him, something over which the Court has jurisdiction and power. He seeks an order that reflects that the wife would remain the owner of the property in China. So, properly analysed, the relief sought by the husband in this case would require this Court to make no orders about the property in China. Certainly, no orders that would require a change in the beneficial or legal ownership of that property.
As to the relief sought by the first respondent, it is entirely illusory because she has not yet told anybody what she wants. She filed a response a long time ago on 3 November, 2019 but she does not set out the final relief she seeks in that document – or anywhere else. Perhaps she asks for the Court to make an order that she transfer some of her property in China to the husband, but I doubt it and in any event
, if she asked for that order, then the Court could make it, because as Mr Cameron, counsel for the husband, points out, the orders of this Court operate in personam rather than in rem so that there would be an obligation on an Australian citizen to cause something to happen. That it might require her to cause something to happen in respect of overseas property is really neither here nor there and does not affect the Court’s power to make an order that she do a particular act that has a particular effect. So put shortly, the justification for the making of the order sought in paragraph 1 of the application in a case advanced by the wife does not justify the making of the order. Just because the courts in China have exclusive jurisdiction over real property there does not mean that this Court is robbed of any efficacy in terms of the relief it can grant to these parties in the context of this case.
The alternative relief sought by the wife is, essentially, an anti-suit injunction, just as the husband does, although in argument, it seemed to be pared back a little so that the injunction would operate against the husband such that he could not pursue the proceedings here against the Chinese property only. But for reasons that I have already given, there is no merit in that argument. The real question is whether, having regard to the two sets of proceedings, the relief sought by the husband in this case should be made. There is no doubt, it seems to me, that the Australian courts and this Court is not a clearly inappropriate forum. All of the witnesses reside here; these proceedings were commenced first and they are well-advanced; there is real property situated in Australia and it is the only property in respect of which property adjustment orders are sought. There would be real difficulty in advancing a case in China given that all of the witnesses are here. The evidence would either be given by video link or in person, which would require the parties to travel to China. Neither is an attractive proposition when the alternative is a face-to-face hearing in an Australian court. There may be questions of valuation involved, particularly of the Australian properties and those valuers will be here.
Counsel for the wife argues that because there are undisclosed assets in China - bank accounts and the like that the husband might have an interest in - it is necessary to litigate in China, but I do not accept that. There is no evidence that would suggest that there is any real difficulty with proof in the sense that, first, the wife, being the person alleging the nondisclosure, must prove it and secondly, the way in which she goes about proving that is a matter entirely for her. There does not seem to be any real impediment to her proving what it is that she wishes to prove, simply because the proceedings are here. Nothing was drawn to my attention which would mean that she would be prevented from proving the non-disclosure that she agitates, just because the proceedings are in Australia. Proof might be easier in China, but that is just one matter to take into account.
I am entirely satisfied that the relief sought by the wife in her application in a case ought to be refused.
The anti-suit injunction sought by the husband ought to be granted. The power to make the order sought by applicant is not in dispute. Australia is not a clearly inappropriate forum for the resolution of the justiciable issues between the parties. It is entirely appropriate for these proceedings to be determined by the Federal Circuit and Family Court of Australia (Division 1), sitting in Brisbane.
I propose to make some directions, because despite my best endeavours, the case has not advanced. The first direction will be that the first respondent must file an amended response that sets out in precise terms the final orders that she asks the Court to make in these proceedings and she must do that by no later than 4 pm on 3 December. The second respondent must, if she seeks any orders that are different to those set out in her response, file an amended response by 4 pm on 3 December.
By 4 pm on 8 December the parties must settle a balance sheet that sets out:
(a)a list of agreed assets and any agreed values for those assets;
(b)a list of assets contended for by each party that are not the subject of agreement;
(c)a list of assets in respect of which there is no agreement as to value.
I will conduct a further case management hearing at 9.30 am on 9 December, at which point I will look to set the matter down for trial and make some trial directions. That is assuming that by and large the relief sought by each of the parties is tolerably clear and there is something resembling a balance sheet.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 24 November 2021
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