Fong and Yang

[2016] FamCA 639

FAMILY COURT OF AUSTRALIA

FONG & YANG [2016] FamCA 639

FAMILY LAW – Alleged jurisdictional point — no issue

APPLICANT: Ms Fong

RESPONDENT: Mr Yang

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5956 of 2014

DATE DELIVERED: 8 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr G Combes

SOLICITOR FOR THE RESPONDENT: Chiodo Maddaferi Solicitors

Orders

IT IS ORDERED THAT:

1.The Initiating Application of the wife filed 7 July 2014 and the husband’s Response filed 4 December 2014 be referred to the list of cases awaiting allocation to a judicial docket.

IT IS DIRECTED:

2.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5956 of 2014

Ms Fong

Applicant

And

Mr Yang

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me in the judicial duty list having been referred by Registrar Moser on the basis that jurisdictional issues required for determination. It appears that the matter was before the Registrar on 27 May 2016 and her notes of the conference indicate that the husband stated that he had no assets here in Australia. The home in which he and his parents live, and the family formerly lived, and other assets are in Australia but are the property of his parents (not him).

2. The husband says that the wife claims that there is property in China to which he is entitled and he says that she has assets in China. The wife, on the other hand, says that there were transactions entered into either prior to separation, or shortly after separation, pursuant to which the husband divested himself of some $200,000 in favour of his mother because the moneys were the property of his mother.

3. The parties married in 2010 and separated on 7 June 2014. The wife is 29 years old and a health professional, having obtained qualifications in Australia.

4. The husband is 37 years of age. His occupation is given in court documents as a “manager”. Although he does not earn an income, he manages his parents’ property and investments and is wholly supported by his parents. His parents provide him with a place to live (at their home in Suburb B) and they have paid his legal costs in these proceedings. The husband does not pay any form of child support notwithstanding it appears that he has, by community standards, a handsome income-earning capacity.

5. There is one child of the marriage whose Australian name is C (the child). He was born in 2011 and he is five years old. He is a student in Preparatory grade at D School, near Suburb E. The husband has face-to-face time with the child each alternate weekend. 

6. The proceedings reached a final hearing stage before Jones J in the Federal Circuit Court and were then transferred to this court.

7. By way of preparation of the matter for trial in the Federal Circuit Court, a family report was obtained and is on the court file. In the report, Mr F, Family Consultant recommends that the parents have joint parental responsibility for the child, that the husband’s time with the child be unsupervised and that the child eventually spend alternate weekend time with the husband. That is what is happening. There were recommendations in relation to the parents going to post-separation parenting programs and I do not know whether that has been done.

8. The position of the parties today is somewhat unclear save obviously the child proceedings need to be dealt with in due course. In relation to the financial matters, Mr Combes, Counsel for the husband, seeks that the wife’s property financial application be dismissed on the basis that the court should decline to exercise any jurisdiction that it has. Mr Combes acknowledges that this court’s jurisdiction for alteration of property interests has extra-territorial effect and this court can make orders in relation to property situated outside Australia. He says, however, that he doubts that property orders in this court would be readily enforceable in China and in that respect cites evidence referred to by Stevenson J in the recent case of Lan & Hao [2015] FamCA 1149. That being evidence of a matter of fact before another judge is not binding on me.

9. Mr Combes says the only party to the marriage who owns any property whatsoever is the wife and her property is situated in China. The wife, on the other hand, seeks that the court undo various and unspecified transactions entered into by the husband either immediately prior to separation or post-separation in which he transferred moneys to his mother and perhaps shareholding to his mother. She has not made any application, though, pursuant to section 106B of the Family Law Act 1975 (Cth) (“the Act”) notwithstanding that in earlier affidavit material, she acknowledge that that is something she would have to do if that’s the relief that she sought.

10. The wife also seeks to rely on documents which she says are extracts from judgments, or judgments made by a court in China which froze money which was the property of the husband and that those funds remain frozen. It appears to be a matter with some complexity.

11. The wife, if she is going to take proceedings under s 106 of the Act has to do so and she will need to serve any person whose interests are going to be affected by the orders that she seeks. It would be a difficult course for her to take as an unrepresented litigant, although not impossible.

12. Providing it can be linked to certain financial proceedings in this court, the wife may file an application for child support. The husband is paying nothing by way of child support notwithstanding that it would appear that he has an income-earning capacity which, arguably, he is not exercising.

13. If the wife fails in finding any property to adjust, it may be that there be no alteration of property interests and that her action can be adjourned pending some change in the husband’s financial situation. He is the sole child of his parents who are aged 64 and 65 years and have resided in Australia for the last 12 years. I wish everyone a long life but, one day it would appear that his financial situation will change significantly.

14. I have discussed with Mr Combes the likelihood of the parties being able to reach some amicable ex-curial resolution of the matter and he does not see that that is likely at this stage. Private mediation has very many advantages including convenience, timeliness and confidentiality. It is a pity that the parties express no interest in private mediation because in a matter such as this, the parties have it within their control to arrange matters so that nearly everybody could get most of what they wanted in a result which might not be otherwise obtainable from the court.

15. I refuse Mr Combes application to dismiss the wife’s application for alteration of property interests. That said, there is an enormous amount of work for the wife to do. She is going to have to file an amended application in due course. In my view it is preferable that the judicial officer before whom the application will be heard make the necessary procedural orders after the matter comes into his/her docket.

16. In the meantime, there is no “jurisdictional issue” for me to determine so I will make no order other than to put it into the list of cases awaiting allocation to a docket for final hearing.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 July 2016.

Legal Associate:

Date: 8 August 2016.