Federal Circuit and Family Court of Australia
(DIVISION 1)
Doon & Jing [2022] FedCFamC1F 665
File number(s): BRC 16456 of 2020 Judgment of: HOWARD J Date of judgment: 2 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR A STAY OF PROCEEDINGS – Conflict of laws – forum non conveniens – where both parties were born in Country B and reside in Australia – where there are ongoing property proceedings in Country B – where the husband seeks a stay of property proceedings in Australia – where the Court is not persuaded that Australia is a clearly inappropriate forum – where the stay application is dismissed. Legislation: Family Law Act 1975 (Cth) ss. 45, 79
Foreign Judgements Act 1991 (Cth)
Cases cited: British South Africa Co v Companhia de Mocambique [1893] AC 602
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460
Voth vManildra Flour Mills Pty Ltd (1990) 171 CLR 538
Whung & Whung [2011] FamCA 137
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 30 August 2022 Place: Brisbane Counsel for the Applicant: Ms McLennan Solicitor for the Applicant: Dante Chen Lawyers Counsel for the Respondent: Mr Gordon Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
BRC 16456 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DOON
Applicant
AND: MS JING
Respondent
order made by:
HOWARD J
DATE OF ORDER:
2 September 2022
THE COURT ORDERS:
1.That the husband’s Application in a Proceeding filed on 25 March 2022 be dismissed.
2.That this matter be listed for a Case Management Hearing before the Honourable Justice Howard at 10:00am on 13 October 2022.
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 Doon & Jing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
The applicant husband is Mr Doon. He was born in Country B in 1986.
The respondent wife is Ms Jing. The wife was born in Country B in 1991.
The husband is an Australian citizen and he is resident in Australia. The wife is living in Australia pursuant…
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CaseChat Overview and Summary
The primary legal issues before the court were whether the parties' property regime should transition from the statutory regime to the separation of property regime, as agreed upon by the parties on 16 September 2021, and whether the property estimates provided by the husband should be considered in the court's decision. Additionally, the court needed to take into account the ongoing property proceedings in Country B and the appeal by the wife against the property transfer decision. The court had to balance these factors and make a decision that was in the best interest of the parties and their children.
The Family Court of Australia considered the factors from previous cases and the specific circumstances of the Doon & Jing case. The court accepted that the parties had agreed to change their property regime from the statutory regime to the separation of property regime, as evidenced by the mediation transcript dated 16 September 2021. The court also took into account the property estimates provided by the husband and the ongoing property proceedings in Country B. The court found that it was in the best interest of the parties and their children to consider the agreed-upon change in the property regime and the ongoing proceedings in Country B. Therefore, the court decided to proceed with the agreed-upon change in the property regime and to monitor the ongoing proceedings in Country B.
The final orders of the Family Court of Australia in the Doon & Jing case included the transition of the parties' property regime from the statutory regime to the separation of property regime, effective from 16 September 2021. The court also ordered that the statutory regime would remain applicable to the property acquired by the parties during their marriage. The court directed the parties to continue monitoring the ongoing property proceedings in Country B and to provide updates to the court as necessary. Additionally, the court ordered the parties to maintain the parenting arrangements that were already in place and to continue with the parenting proceedings in the Family Court of Australia.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
In Spiliada (per Lord Goff at pages 477-478 and 482-484) and in Voth (at page 565) and in numerous cases in this Court[6] – the courts have provided a non-exhaustive list of matters for consideration in this type of application. I have had regard to those lists and, where relevant, I will be considering those matters in this application. It is not necessary to repeat such a list here.[6] Including Chen v Tan [2012] FamCA 225 per Kent J at [38] and Hong v Cao [2018] FamCA 40 per Hogan J at [88(j)].matters for consideration In the present case, both parties live in Australia. The children of the parties live in Australia. The parenting proceedings (by agreement between the parties) will remain on foot in this Court. The paternal grandparents live in Australia. As to the property of the parties, the husband owns a business named D Company. It is based in Brisbane and the husband has (at least at one stage) estimated its value as A$85,000. That figure was contained in a document entitled Joint Balance Sheet filed with the Court on 21 March 2022 and referred to in submissions by Ms McLennan, counsel on behalf of the husband. It is apparently a hospitality business in Suburb E, Brisbane. I should note that the business has not yet been valued professionally – but I do note the husband's estimate of its value. There is an apartment situated in City F. The estimated value (put forward by the husband) is A$1,350,000. The property was previously owned (as I understand the evidence) by the husband and the wife. Following a Court hearing in Country B, the Country B Court determined that the property should be transferred from the husband and the wife to the paternal grandparents. The wife has appealed that decision and this Court has been informed that the appeal will be heard in approximately October 2022. In respect of the property proceedings currently on foot in Country B, the estimate is that those proceedings will be finalised in late 2022. Both parties are represented by lawyers in Country B and both parties are represented by lawyers in Australia. There is an affidavit by a deponent named Mr G filed 19 August 2022. Mr G is the husband’s lawyer in Country B. He has stated at paragraph 8 of his affidavit (and referring to annexure G5 of his affidavit):“8.On or about 16 September 2021, the Respondent's acting lawyer, [Mr W] and I were instructed by our respective clients to agree by entering into a mediation transcript (I noted that this is similar to an Australian "consent order") to the effect that the parties' property regime have been effectively changed from the statutory regime to the separation of property regime. In other words, the separation of property regime will be applicable to the parties' respective property from the date 16 September 2021 (by the consent order) and the statutory regime remains applicable to the parties' property acquired in marriage. Annexed hereto and marked with the letters [G5] is a copy of the said mediation transcript in [Country B language] dated 16 September 2021 with its English translation by a NATTI 3 translator.”