Cheng & Mong - [2022] FedCFamC1F 260

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).

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 Cheng & Mong

Details

AGLC: Cheng & Mong [2022] FedCFamC1F 260
Case: [2022] FedCFamC1F 260
Decision Date: 2 May 2022

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Cheng & Mong involved a dispute concerning property and parenting matters following the separation of Mr Cheng and Ms Mong. Ms Mong, who was required to leave Australia, returned to Country B while Mr Cheng and their child remained in Australia. Ms Mong initiated property proceedings in Country B and sought a stay of the Australian property proceedings, arguing that they were oppressive or vexatious and that Australia was an inappropriate forum. The court was required to decide whether the Australian property proceedings should be stayed on the grounds that they were oppressive or vexatious, and whether Australia was a clearly inappropriate forum for those proceedings.

The court considered the submissions and material presented, acknowledging the relative disadvantage faced by Ms Mong. However, the court concluded that the continuation of the Australian property proceedings would not be oppressive or vexatious, and that Australia was not a clearly inappropriate forum. The court found that the Australian Judgments could be enforced in Country B, allowing the court to deal with all of the parties' property in these proceedings. Consequently, the court dismissed Ms Mong's application for a stay of the Australian property proceedings and reserved the question of costs. A copy of the reasons for judgment was to be provided to the parties' legal representatives in Country B and to the Family Court of the City C Court of Country B.

The court also confirmed a mention on 6 July 2022 before another Justice of the Court to consider both the parenting proceedings and the Australian property proceedings. The orders included dismissing the wife’s application for a stay of the property proceedings, granting leave to provide a copy of the reasons for judgment to the parties' lawyers in Country B and to the Family Court of the City C Court of Country B, reserving the costs of the stay application and the vacated undefended property application hearing, and confirming the mention on 6 July 2022.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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