Fong & Guo

[2021] FamCA 193

FAMILY COURT OF AUSTRALIA

Fong & Guo [2021] FamCA 193

File number(s):

SYC 1341 of 2020

Judgment of:

REES J

Date of judgment:

13 April 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Interim application by the respondent for security for costs – Where the court found the applicant’s case as to the existence of a de facto relationship wasn’t so devoid of merit that it should be prevented by the making of an order for security for costs – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth) s 4AA

Family Law Rules 2004 (Cth) rr 19.05, 19.06

Number of paragraphs:

38

Date of hearing:

12 April 2021

Place:

Sydney

Solicitor for the Applicant:

Mr Yang, Juris Cor Legal

Counsel for the Respondent:

Ms McMahon

Solicitor for the Respondent:

Bud Cham & Associates Lawyers

ORDERS

SYC 1341 of 2020

BETWEEN:

MS FONG

Applicant

AND:

MR GUO

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	13 APRIL 2021

THE COURT ORDERS:

1.That the application of Mr Guo for an order for security for costs is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. Ms Fong (“the applicant”) has instituted proceedings against Mr Guo (“the respondent”) seeking, inter alia, a declaration that they lived in a de facto relationship.

2. By an Amended Response filed 20 July 2020, the respondent seeks an order that the applicant pay $80,000 by way of security for costs.

3. That application is opposed by the applicant.

4. The application falls to be determined according to the considerations set out in Rule 19.05 of the Family Law Rules 2004 (Cth) which is reproduced below:

   19.05 Application for security for costs

   (1)A respondent may apply for an order that the applicant in the case give security for the respondent's costs.

   Note: Chapter 5 sets out the procedure for making an application for interim, procedural, ancillary or other incidental orders.

   (2)In deciding whether to make an order, the court may consider any of the following matters:

   (a)the applicant's financial means;

   (b)the prospects of success or merits of the application;

   (c)the genuineness of the application;

   (d)whether the applicant's lack of financial means was caused by the respondent's conduct;

   (e)whether an order for security for costs would be oppressive or would stifle the case;

   (f)whether the case involves a matter of public importance;

   (g)whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;

   (h)whether the applicant ordinarily resides outside Australia;

   (i)the likely costs of the case;

   (j)whether the applicant is a corporation;

   (k)whether a party is receiving legal aid.

   (3)  In subrule (1):

   "respondent " includes an applicant who has filed a reply because orders in a new cause of action have been sought in the response.

   19.06  Order for security for costs

   If the court orders a party to give security for costs, the court may also order that, if the security is not given in accordance with the order, the case of the party be stayed.

   Note: The court may, on application or on its own initiative, dismiss a case for want of prosecution

5. I propose to deal with the considerations seriatim.

6. The respondent, who is the applicant in this application, relies on two affidavits sworn by him on 24 September 2020 and 15 March 2021 and, I assume, a Financial Statement sworn 26 May 2020.

7. The applicant, who is the respondent to this application, relies on an affidavit sworn by her on 16 February 2021 and an affidavit of Ms B sworn 9 February 2021. Her Financial Statement was sworn on 27 February 2020.

8. Both parties relied on a Case Outline Document.

   (a)  the applicant’s financial means;

9. In the present case, she deposed that she earns $380 per week and pays rent of $88 per week to the Housing Authority. She has assets of some $7,232.

10. I accept that there is no evidence that the applicant would be able to meet any order that she pay the costs of the respondent if she is unsuccessful.

    (b)  the prospects of success or merits of the application;

11. The criteria to be applied in determining whether the parties lived in a de facto relationship are set out in s 4AA of the Family Law Act 1975 (Cth) (“the Act”) and, in particular, in s 4AA(2).

12. Both parties addressed those criteria in their written and oral submissions.

13. The applicant asserts a de facto relationship of some 13 years. That assertion is denied by the respondent. It is his case that they have never lived in a de facto relationship but that they were business partners and friends.

14. In particular, the respondent asserts that they never had a common residence; that they had no sexual relationship; that there was no financial dependence or interdependence; that they did not own property in common; that they had no children and that they were not publicly reputed to be a couple.

15. The respondent relies on immigration documents completed by the applicant in 2011 where she described herself as never having been in a de facto relationship and the applicant, in correspondence from the Australian consulate refers to the respondent as her “business partner”. She repeated that representation in a later application in 2011 and again in 2012. In the record of an interview between the applicant and an immigration officer on 30 November 2014, Mr Guo is described as her “business partner”. The applicant was excluded from Australia until November 2017.

16. The evidence does not disclose for what periods of time the parties were in the same residence and, having regard to the fact that the respondent lived in Australia and the applicant in Hong Kong, those periods were necessarily limited.

17. However, the respondent admits that, on occasions, they slept in the same bed; that they shared the applicant’s apartment when he was in Hong Kong for business; that the applicant stayed at his apartment in Sydney when she came to Sydney; that they shared a room on the two occasions to which Mr Guo deposes and that she provided funds (it seems to be agreed that the total was about $A25,000) for a company in which they were both shareholders.

18. Further, I accept that in documents filed in unrelated proceedings in Hong Kong, the respondent referred to being in romantic relationship with the applicant and, in his affidavit sworn 15 March 2021, he deposed “ at times there were intimate and romantic moments…”.

19. I further note that when, in March 2018, the respondent applied for an Apprehended Violence Order against the applicant, the matter was listed as “domestic violence order”. The application states “The protected person(s) has or has had an intimate personal relationship with the defendant”. Further the application states:

    Have known defendant about ten (10) years

    The applicant was a resident in Hong Kong. He met defendant and helped her get a job. They had an on-off relationship since then. However, earlier this year, he told her (who was then in Hong Kong, he did not want her to return to Australia and the relationship was over.       

20. From the brief narrative set out above, it is clear that credit will be relevant to any determination about the existence of a de facto relationship and that is not a matter which can be determined in a summary hearing.

21. I am unable to say that there is no prospect that the application for a declaration that a de facto relationship existed will be made.  The application is not devoid of any merit.

    (c)  the genuineness of the application;

22. It is not asserted that the application for an order pursuant to s 90SM of the Act is not pressed or that it will not be pursued.

23. (d)  whether the applicant’s lack of financial means was caused by the respondent’s conduct;

24. There is no evidence that the applicant’s currently asserted impecuniosity was caused by the actions of the respondent.

25. She asserts, and the respondent concedes, that between July 2008 and December 2014, she provided funds for the business in which they were both shareholders totalling HKD 182,000. The submission on behalf of the respondent that the amount is equivalent to about $25,000 Australian dollars was not disputed. There is no assertion of the provision of any funds by her since 2014.

26. The applicant asserts that in 2015 she and the respondent “registered” a company D Pty Limited in which she held 30 percent of the shares and the respondent held 70 per cent.  She deposed that, in later 2018, without her consent, the respondent “deregistered D Pty Limited, took all cash and remaining goods”.     

27. However, she does not assert that she ever received an income from the company and she gives no evidence of its assets alleged to have been retained by the respondent.

28. I am unable to find that the applicant’s financial position results from the respondent’s conduct.

    (e)  whether an order for security for costs would be oppressive or would stifle the case;

29. Having regard to the applicant’s evidence about her financial position, it is unlikely that she would be able to comply with any order for security for costs.

    (f)  whether the case involves a matter of public importance;

30. There is no matter of public importance.

    (g)  whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;

31. There are no orders for costs against the applicant in these, or any other, proceedings.

    (h)  whether the applicant ordinarily resides outside Australia;

32. The applicant lives in Hong Kong. She is not an Australian citizen. She is not resident or domiciled in Australia.

    (i)  the likely costs of the case;

33. The applicant’s estimate future costs up to the determination of the threshold issue of the existence of a de facto relationship are $12,000.

34. The respondent’s estimated future costs are $40,000.

    (j)  whether the applicant is a corporation;

35. The applicant is not a corporation.

    (k)  whether a party is receiving legal aid.

36. Neither party is in receipt of a grant of legal aid.

    CONCLUSION

37. Having regard to all of the matters specified in Rule 19.05, I am not satisfied that the applicant’s case has been demonstrated to be so devoid of merit that she should be prevented, by the making of an order for security for costs, from pursuing it.

38. The application for security for costs will be dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       13 April 2021