Cheng & Mong
[2022] FedCFamC1F 260
•2 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cheng & Mong [2022] FedCFamC1F 260
File number(s): SYC 2806 of 2020 Judgment of: SMITH J Date of judgment: 2 May 2022 Catchwords: FAMILY LAW – Forum Non Conveniens – property – parties in Australia at separation – husband commenced parenting proceedings – wife commenced property proceedings – wife required to leave Australia – wife returned to Country B - husband and child remain in Australia - property proceedings commenced in Country B by wife – wife seeks stay of Australian property proceedings – no stay sought in respect of Australian parenting proceedings – whether continuation of Australian property proceedings “oppressive” or “vexatious” - whether Australia is a “clearly inappropriate forum”. Held: Australia is not a clearly inappropriate forum. Wife’s stay application dismissed Legislation: Evidence Act 1995 ss 50, 174-175
Family Law Act 1975 Part VII, Part VIII, ss 4AB, 75(2)
Cases cited: Henry & Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Pascarl & Oxley (2013) FLC 93-536
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
ZP v PS (1994) 181 CLR 639
Division: Division 1 First Instance Number of paragraphs: 77 Date of hearing: 13-14 April 2022 Place: Sydney Counsel for the Applicant: Ms Carr Solicitor for the Applicant: Juris Cor Legal Solicitor for the Respondent: Ark Law Lawyers ORDERS
SYC 2806 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CHENG
Applicant
AND: MS MONG
Respondent
ORDER MADE BY:
SMITH J
DATE OF ORDER:
2 MAY 2022
THE COURT ORDERS THAT:
1.The Respondent’s Application for a stay of these property proceedings be dismissed.
2.Leave be granted to the parties to provide a copy of the Reasons for Judgment to lawyers acting for the parties in Country B and to the Family Court of the City C Court of Country B.
3.The costs of and incidental to the Respondent’s Application for a stay of the property proceedings be reserved.
4.The costs of and incidental to the Applicant’s vacated undefended property application hearing be reserved.
5.The mention at 9.00am on 6 July 2022 be confirmed.
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 pseudonym Cheng & Mong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
The sole issue for determination is whether the Commonwealth of Australia is a clearly inappropriate forum for property proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) currently on foot in the Federal Circuit and Family Court of Australia (Division 1) (“this Court” or “the Court”) between the Applicant husband Mr Cheng and the Respondent wife Ms Mong arising out of their marriage in Australia in 2013.
RELATIONSHIP AND PROPERTY
The husband was born in the Country B in 1979 and is presently 42. He remains a Country B citizen. He migrated with his parents to Australia in 1997 and later became a naturalised Australian citizen. He obtained a degree from D University in 2004. In about March 2005 he commenced working as a tradesman for his parents’ business in City E, People’s Republic of China (“China”). He presently resides in Australia.
The wife was born in Country B in 1983 and is presently 38. She is a citizen of Country B and presently resides in Country B.
The parties met in 2013. They married, in Sydney, a few months later in mid-2013. They then moved to China to live at, or near, the paternal families’ business.
The wife fell pregnant. She returned to Country B in early 2015. The parties’ child X was born in Country B in 2015. X holds Country B citizenship.
Between 2015 and mid-2017 the wife and X lived in Country B and the husband lived between China and Country B.
During late 2015 to early 2016 the husband purchased F Street, District G, City C, Country B (“the first Country B Property”). He says he obtained a loan from his aunt to assist with the purchase. He says that due to his aunt’s age she is unable to participate as a witness in these proceedings. He says the first Country B property is worth approximately AUD$750,000 subject to a mortgage of AUD$568,000. The parties and X lived in this property post purchase.
In late 2016 the husband purchased J Street, Suburb H, Australia (“the Suburb H property”) for $1,695,000. The husband says that his father lent him most of the deposit. That may be in contest. The husband’s father and mother may be witnesses. There was a $1,356,000 loan from the Commonwealth Bank of Australia (“CBA”) secured by mortgage over the Suburb H property. The Suburb H property was valued at $2,280,000 by a single expert as at 25 June 2021 [MFI 1 pg 1169]. The husband says the mortgage is currently about $1,216,118, leaving net equity of just over $1,000,000 in the Suburb H property in Australia.
In August 2017 the wife and X relocated to Australia with the husband. In early 2018 X gained Australian citizenship. X currently resides with the husband and his parents at the Suburb H property.
The wife alleges family violence within the meaning of s 4AB of the Act. It is common ground that the wife has a limited command of the English language. She alleges that she was isolated and subject to verbal, emotional, psychological and financial abuse, and coercion and control, by the husband, as well as by his parents with whom they lived. This is disputed by the husband.
The parties finally separated in early 2020. The wife says the husband withheld X from her.
The wife departed Australia in early 2020. She says this was as result of the husband and his family taking control of her migration account and of the husband informing the Australian Government that he withdrew his sponsorship for the wife’s partner visa (subclass 820). She submitted, in effect, that she was required to leave Australia by reason of the husband’s conduct and that this was a continuation of his family violence against her.
The wife does not have Australian citizenship or any permanent visa allowing residence or entry. She requires a visa each time she seeks to enter Australia. Her ability to enter Australia has also been affected by COVID-19 restrictions. She was able to return to Australia for a period later in 2020 to spend time with X, and last departed Australia in late 2020.
The husband says that the wife also owns real property in Country B in her name at K Street, L Town, District M, Country B” (“the second Country B property”). He says this is “a block of townhouses” and “rental properties”.
In addition to his disclosed real property in Country B and Australia the husband has disclosed minor personal property in Australia, including some funds in a bank, household contents and personal use items. He also has a small amount of superannuation.
The wife has failed to meet her obligations to make full and frank disclosure of the property she owns, wherever situated.
Each party alleges that the other party has failed to make full and frank disclosure of all of their property in Country B.
PROCEEDINGS
Australian Proceedings
There are two sets of proceedings pursuant to the Act presently on foot in this Court.
There are proceedings as to the appropriate parenting orders to make about X under Part VII of the Act (“the parenting proceedings”). The parenting proceedings were commenced by the husband by an Initiating Application filed 7 May 2020. The wife joined in the parenting proceedings by her Response filed 2 June 2020. There is no challenge to forum in the parenting proceedings as X presently resides in Australia with the husband. A private single expert report is presently being prepared. The parenting proceedings are listed for further mention on 6 July 2022.
There are also proceedings concerning the property of the parties under Part VIII of the Act (“the Australian property proceedings”). It is these proceedings the wife says should be stayed.
The Australian property proceedings were commenced by the wife on 2 July 2020 when she filed an Amended Response seeking both parenting and property orders pursuant to the Act.
On 27 July 2020, in the context of the wife having commenced the Australian property proceedings, Consent Orders were made by the Court restraining the husband from dealing with the Suburb H property. On 24 August 2020 the husband joined issue in the Australian property proceedings by filing a Reply to the wife’s Amended Response, in which he sought competing property orders.
On 17 September 2020 the wife left Australia and returned to Country B. She says she took advice concerning, amongst other things, property issues from a Country B lawyer and, on or after 28 September 2020, commenced legal proceedings relating to property issues between the parties (“the Country B property proceedings”) in the Family Court of the City C Court of Country B (“the Country B Court”).
On 10 December 2020 the wife filed an Application in a Case in this Court seeking orders “That the property matters be stayed pending the final order of the family court in [Country B]” (“forum application”).
On 11 January 2021 the wife filed a Notice of Discontinuance seeking to discontinue the property orders in her Amended Response filed 2 July 2020, although not the parenting orders sought in that Amended Response, and also to discontinue her Application in a Case filed 10 December 2020 seeking the stay of the Australian property proceedings.
On 14 January 2021 a Registrar of this Court made orders discontinuing the wife’s property application and her forum application. Those were the orders the wife had sought.
The wife was legally represented in both the parenting proceedings and the Australia property proceedings throughout the above process. On 20 January 2021 she filed a Notice of Address for Service nominating herself and became self-represented. She represented herself until 11 April 2022, when new solicitors came on the record pursuant to a grant of Legal Aid.
The wife’s discontinuance of her property application against the husband did not discontinue the husband’s property application against her, and did not have the effect of discontinuing the Australian property proceedings. The Australian property proceedings between the parties pursuant to the Act have continued throughout and remain on foot.
The Australian property proceedings encompass all of the property of each of the parties whenever acquired and wherever situated throughout the world. As discussed below, the parties agree that an Order of this Court is enforceable in Country B.
Country B Proceedings
The Country B property proceedings also remain on foot.
The husband submitted that the wife had falsely informed the Country B Court that the Australian property proceedings had been discontinued and were no longer on foot.
It is not clear to me what the wife has informed the Country B Court.
If the Country B Court has been informed that the Australian property proceedings are stayed or discontinued, then that Court has been misinformed
If that is the case, giving the wife the benefit of the doubt, it may be that she genuinely but mistakenly believed that the orders of 14 January 2021 entirely discontinued the Australian property proceedings.
HEARING
Setting Down
As the wife’s property application and her forum application to stay the Australian property proceedings were dismissed at her request, the husband applied for an undefended hearing of his property application.
Although the wife’s forum application was formally dismissed it is apparent that she has maintained her position throughout that Australia is a clearly inappropriate forum and that the property issues between the parties should be heard in the Country B Court.
On 30 March 2022 a Justice of this Court made orders that:
The property application
9. The matter is adjourned to 13 April 2022 at 10am before a Judge of Division 1 of the Federal Circuit and Family Court of Australia with regards to the following:
a. The Respondent’s forum application; and
b. The Applicant’s undefended property application (“the property application”).
Issues for Determination
At the commencement of the Hearing before me on 13 April 2022 the wife’s new solicitors, who had come onto the record on 11 April 2022, sought an adjournment on her behalf to allow them further time to prepare.
For short reasons delivered orally at the commencement of the hearing I vacated the husband’s undefended property application hearing, but declined to adjourn the forum application. I did stand the matter over for 24 hours to 10.00am on 14 April 2022 to allow the wife’ solicitors some additional time to prepare. The wife’s solicitors appeared for her on the forum application.
The husband waived the formal issues around the prior dismissal of the wife’s forum application and sensibly agreed that that the substance of this important forum issue should be heard and determined on the merits.
Accordingly, I proceeded and proceed on the basis that there is an oral application by the wife to permanently stay the Australian property proceedings on the grounds that Australia is a clearly inappropriate forum.
Material Relied Upon
The husband provided an electronic Court Book of 1192 pages [MFI 1] which contained the larger part of the material filed by both parties across the course of both proceedings. The husband also provided a 20 page Case Outline and Submissions document [MFI 2] which I treated as a submission [Aide-memoire 1].
The husband read his affidavit filed 24 August 2020 [MFI 1 pg 265] and his updated financial statement filed 5 April 2022 [MFI 1 pg 125]. The husband tendered the wife’s signed declarations on entering Australia [MFI 1 pg 1119 and seq.] in which she described her “usual occupation” as “businesswoman”, going to the issue of her true financial situation and lack of full and frank disclosure, as well as translations of some material from the Country B property proceedings.
The husband also tendered documents concerning the enforcement in Country B of Judgments and Orders of this Court [MFI 1 pg 1073 and seq.]. That material was not objected to, and I note ss 174-175 Evidence Act 1995 (Cth) (“Evidence Act)”. The wife conceded in oral submissions that Orders of this Court are enforceable in Country B. That is relevant to the forum application.
The Court Book also helpfully contained copies of the filed Applications, Responses, Replies, Application in a Case and Orders referred to in this Judgment.
The wife relied upon her “Case outline of the respondent mother” filed 25 June 2021, [MFI 1 pg 402 and seq.]. She sought to rely upon the contents of the chronology in that document as if a form of s.50 Evidence Act schedule summary of her evidence. This was a somewhat unusual course, however as I understand it, without conceding the truth of the chronology on any contentious issue, the husband did not object to me treating this as the wife’s evidence for the purpose of this application, in circumstances where neither party sought to cross-examine the other.
FORUM NON CONVENIENS - PRINCIPLES
The parties agreed on the relevant legal principles, which are well settled. (See Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (Oceanic Sun), in particular Deane J at 246-248; and, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (Voth), in particular the majority at 559 and 564-566; and, Henry & Henry (1996) 185 CLR 571 (Henry).
In Henry the majority said (at 587, footnotes omitted):
In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried 'suitably for the interests of all the parties and for the ends of justice'".
The wife relies upon the availability of Country B as an alternative forum in support of her stay application. However, while there are proceedings on foot in Country B which on their face are dealing with the parties’ property, or some of it, there is no expert or other evidence before me as to the applicable family or property law of Country B.
The husband says that the material from the Country B Court shows that the Country B property proceedings are not as advanced as the Australian property proceedings. I cannot determine from that material how far advanced those proceedings are in relative terms.
However, the test is whether Australia is a “clearly inappropriate forum” and not whether Country B is another available forum which is as, or more, appropriate than Australia.
DISCUSSION
The wife accepts that she bears the onus of establishing that the continuation of the Australian property proceedings would be objectively either “oppressive”, in terms of being “seriously and unfairly burdensome, prejudicial or damaging” to her, or else “vexatious” in terms of being “productive of serious and unjustified trouble and harassment" to her.
The parties married in Australia. They were living in Australia when they finally separated. The wife commenced the Australian property proceedings. She obtained, by consent, injunctive relief against the husband dealing with the Suburb H property. The husband joined issue and also sought property orders. There is property in the husband’s name, including real property, in both Australia and Country B. The husband and his parents, who may be witnesses, reside in Australia. The husband says that the wife also has real property in her name, and personal property, in Country B.
When the Australian property proceedings were commenced, by the wife, they were neither oppressive nor vexatious.
The wife commenced the Country B property proceedings after she departed Australia.
The wife submitted that she was unable to remain in Australia after the parties’ final separation, which she says arose from family violence, due to the husband’s actions. She submitted that allowing the continuation of the Australian property proceedings in circumstances where she has been effectively excluded from Australia by the husband, through his conduct in advising the Government that they had separated and he would no longer sponsor her, would be oppressive and vexatious.
I am not in a position to determine the contested allegations of family violence on the material before me and in the absence of cross examination. However, if accepted, this could be a basis on which it would be possible to find that the maintenance of the Australian property proceedings is oppressive and / or vexatious, and I take this into account in assessing the question of whether or not Australia is a clearly inappropriate forum.
This Court is able to hear evidence of family violence, including post separation family violence and to make findings on those issues in a final hearing, and to take any such findings into account in both the parenting proceeding the Australian property proceedings.
The essence of the wife’s further submissions were that as a non-English speaking Country B citizen in Country B who is dependent on each visa application to enter Australia, and with (she says) limited financial resources, the continuation of the Australian property proceedings would also be relevantly oppressive and vexatious.
On the other hand she says that as the husband and his parents have dual citizenship, are bi-lingual, and operate a business in China which they travel to on a regular basis, there are no similar issues for the husband if the Australian property proceedings are stayed and the property issues between the parties conducted in Country B.
In weighing the impact of these factors on the wife I take into account the fact that since early 2020, as a consequence of the measures put in place due to COVID-19, this Court has conducted many of its’ hearings including final hearings electronically by audio-visual means. The wife has been appearing electronically from Country B which is in a relatively similar time zone. The wife and other witnesses resident in Country B may be able to appear electronically from Country B in a final hearing.
I accept that the wife will need a translator, as may other witnesses she relies upon. However, the diverse nature of modern Australian society means that translators are a common feature of Court proceedings, including final hearings, even where all parties are Australian citizens and present in Australia.
There is a dispute as to the wife’s true financial position. I am not in a position to determine that issue on the material before me. I do note her self-description as a business woman, her alleged ownership of real property being rental townhouses in Country B, and her ability to instruct legal representatives in Australia until she became self-represented and since then in Country B. I also take into account the fact that the wife now has a grant of Legal Aid to pay for Australian solicitors specialising in family law to represent her in both the parenting proceedings and the Australian property proceedings. She says that the major dispute as to the existence of property is in Country B, and her ability to personally investigate the husband’s property in Country B is not impacted. However, if her financial position is as she says, then she will be at a relative disadvantage as Legal Aid is limited in its scope, and I take that into account.
The wife submitted that the Country B Court has greater power to investigate property in Country B and China. I accept that is likely to be so. In circumstances where the property in Australia is not significantly in dispute the wife submitted that the issue of the ascertainment of each parties’ property in Country B is intimately connected to, and so most properly dealt with, in Country B. The wife submitted that this was the real or major issue in dispute, so that the real factual issue is in Country B.
On that basis the wife then submitted that, as the real factual issue lies in Country B, the case is factually akin to Voth, and further that as the High Court granted a stay in Voth, a proper application of Voth would result in a stay here.
With respect to that submission, Voth was about events which occurred in the State of Missouri, in the United States of America, and to which the law of Missouri had to be applied to determine whether or not a wrong had occurred. While the ascertainment of the property of the parties in Country B is a significant issue, the facts here involve a substantial connection to Australia, and the Australian property proceedings are amenable to the application of Australian law. In my view this case is clearly distinguishable from Voth.
There are also parenting proceedings concerning X. The parenting proceedings are not challenged on forum grounds. That does not give rise to an inconsistency. X is currently residing in Australia and the applicable legal principles on forum in parenting are quite different (see ZP v PS (1994) 181 CLR 639; and, Pascarl & Oxley (2013) FLC 93-536.
However, the parenting proceedings are relevant as they will be heard in this Court. They involve significantly overlapping factual issues, particularly around the alleged family violence. The outcome of the parenting proceedings, and in particular with which parent and in which country X primarily lives is likely, under Australian law, to have an impact on the outcome of the Australian property proceedings by reason of s 75(2) of the Act. The two Australian proceedings could be, and in the usual course would generally be, heard and determined together in a single final hearing. Many of the disadvantages the wife raises with the property proceedings are ones she will in any event have to deal with in the parenting proceedings.
A Judgment and the Orders of this Court can be enforced in Country B, so this Court can deal with all of the property of the parties in these proceedings.
DECISION
Having considered all of the material and submissions and whilst acknowledging the relative disadvantage faced by the wife, on balance, I am not persuaded that the continuation of the Australian property proceedings would be relevantly oppressive or vexatious and I am not persuaded that Australia is a clearly inappropriate forum.
I therefore decline to grant a stay.
I dismiss the wife’s forum application.
I will reserve all questions of costs.
A copy of these Reasons for Judgment may be given to the parties’ Country B legal representatives and to the Country B Court, confirming that the Australian property proceedings have always been, and remain, on foot.```
While I vacated the husband’s undefended property application hearing, for the avoidance of doubt I note that I was not asked to, and have not, considered or determined the issue of whether or not that application should be heard at another time or whether the wife should be allowed back in to defend the Australian property proceedings given her discontinuance.
I confirm the mention on 6 July 2022 before another Justice of this Court with management of this matter, at which time the Court will consider both the parenting proceedings and the Australian property proceedings.
Those are my reasons. I enter orders accordingly.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 2 May 2022
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