Chen & Tan (No 3)

FAMILY COURT OF AUSTRALIA

CHEN & TAN (NO. 3)

[2012] FamCA 812

FAMILY LAW – PRACTICE AND PROCEDURE – Orders – Where the Husband’s application for a permanent stay of the proceedings was dismissed – Where the Husband has filed a Notice of Appeal – Where the Registrar has made Orders to progress the trial at first instance – The execution of the Order of the Registrar be returned to her following the publication of the Full Court judgment of the appeal

APPLICANT:

Ms Chen

RESPONDENT:

Mr Tan

FILE NUMBER:

BRC

7088

of

2011

DATE DELIVERED:

17 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

17 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McLennan of Counsel appearing by telephone for the Applicant Wife

SOLICITOR FOR THE APPLICANT:

Dante Chen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk of Senior Counsel appearing for the Respondent Husband

SOLICITOR FOR THE RESPONDENT:

Dixie Ann Middleton & Associates

Orders

Husband’s Application in a Case filed 19 July 2012

IT IS ORDERED THAT:

The execution of the Order of Registrar Coutts dated 21 June 2012, be returned to her within fourteen (14) days of the date of the publishing of the Full Court judgment of the appeal in this matter, for her to make all necessary amendments as required.

Costs reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7088 of 2011

Ms Chen

Applicant

And

Mr Tan

Respondent

REASONS FOR JUDGMENT

This is an application on the part of the husband in these proceedings in which he is seeking a stay of the proceedings pending the appeal from orders of Kent J made 12 April 2012. The husband submits, in all the circumstances, the parties should not be put to the expense of preparing for trial for a final hearing in circumstances where the appeal is unlikely to be determined until late 2012, or early 2013 at the worst. There being little chance of the Full Court hearing the appeal before those dates, let alone delivering judgment.
The order that the applicant husband is seeking is a stay of the order made by Registrar Coutts on 21 June 2012. This of course was subsequent to the date in which Kent J refused to stay the proceedings pursuant to the Husband’s application on the forum non conveniens ground; Kent J holding that this was a proper jurisdiction within which the wife may seek such order.
Inter alia, the order of Registrar Coutts at 21 June 2012 indicated that the wife – and I am only referring to part thereof – order 2:
2.The applicant wife file and serve an Amended Initiating Application (which sets out all final orders sought) by
10 July 2012.
And:
3.The respondent husband file and serve an Amended Response to Final Orders (which sets out all final orders) sought by
24 July 2012.
Thereafter, a subheading is Trial Affidavits:
4.The Applicant Wife and the Respondent Husband each file and serve by no later than 1 November 2012 the following:
(a)one affidavit setting out his/her evidence-in-chief;
(b)any affidavit setting out the evidence of any expert or lay witness that the parties propose to call at the trial;
(c)undertaking as to disclosure pursuant to Rule 13.15 of the Family Law Rules 2004;
(d)an updated Financial Statement;
(e)a Superannuation Information Form attached to an Affidavit;
(f)a Balance sheet which sets out the assets, liabilities and financial resources of the parties.
It does not appear to me to be in dispute that the husband either owns or is in control or has control of substantial assets, not only here in Australia, but in Taiwan. I refer to exhibit DC4 to the affidavit of Dante Chen Lawyers as solicitors for the respondent wife, and which at the first page thereof they refer to assets in Australia owned and/or controlled, but also, they say, on the second page:
Our client indicates that at all material times, your client owned and owns extensive assets in Taiwan that have yet to be fully and frankly disclosed by your client.
The respondent wife does complain of that through her counsel, McLennan. At the bottom of that annexure, the following appears:
Our client would therefore propose valuation be jointly obtained in relation to the above disputed items of property pursuant to the order of the court.
The disputed items of property, as I understand, are 1 to 7 on the first and second pages. I would also think that 1 to 3 on the second page would require some form of valuation in order to ascertain what the property of the applicant was and also, as is sought, there was valuation not only of the disputed items, I would have thought, but in compliance with Registrar Coutts’ order, it would be necessary to value those properties which the applicant husband has an interest in or owns in Taiwan.
It is clear, and is not cavilled with, as I understand, by counsel for the respondent, that this in itself, would be an expensive exercise. Not only would that be an expensive exercise, but in my view, it appears on the face of it that, at this stage, there has not been a single expert appointed, notwithstanding solicitors for the respondent have asked for a single valuation. I refer to order 4(b), wherein it says:
any affidavit setting out the evidence of any expert …
[my underlining]
And I underline “any expert”. This is a case which has, as I have said, a very large amount of money involved. The wife and husband married in 2008, was it, if my memory serves me correctly, and perhaps the marriage was not of much duration, but nevertheless, they are looking at how whatever assets there are, should be distributed in a just and equitable manner, between the parties.
The primary concern of the respondent wife is that this is only delaying the trial even further. That is the case. McLennan of Counsel also points to the fact that the application for, in effect, a stay of the orders of Registrar Coutts was filed some three weeks, or thereabouts, after the expiration of the time limited under the Rules. The time limited, as I was informed, is seven days, and not, as I thought, 14 days, and I note that that would have expired approximately three weeks before the application for stay was filed.