Gin and Hing (No 2) - [2011] FamCA 61

FAMILY COURT OF AUSTRALIA

GIN & HING (NO. 2)

[2011] FamCA 61

FAMILY LAW – STAY

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681
Line and Line (1997) FLC 92-729
Stephens and Stephens [2010] FamCAFC 20

APPLICANT:

Mr Gin

RESPONDENT:

Ms Hing

FILE NUMBER:

MLC

4582

2010

DATE DELIVERED:

27 January 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 January 2011

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

Schetzer Constantinou

SOLICITOR FOR THE RESPONDENT:

Mr Staindl, Clancy & Triado

Orders

That the application in a case filed 21 January 2011 by the husband is dismissed.
That the husband pay the wife’s costs fixed in the sum of $3500 within one month.

IT IS NOTED that publication of this judgment under the pseudonym Gin & Hing is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4582 of 2010

MR GIN

Applicant

And

MS HING

Respondent

REASONS FOR JUDGMENT

Stay applications are always a difficult exercise of discretion but more so, and particularly so, in cases involving children. In this case, R is a very young baby and were that not the case there would not be a problem.
I have just heard from the father that the child could live with him but that has not been the basis upon which his application nor this stay application was conducted, and it was certainly not the way in which the case was conducted before me in December. It was never suggested to me that the child was to live with anybody other than her mother.
Judicial discretion is often guided by principles set out in various authorities. In this case the principle is that set out in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681, where at page 681, Brennan J, as he then was, said:
The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.
This application is different, but only marginally, from a special application. It is different in the sense that I am dealing with the welfare of a child. In the Burgundy Royale case, his Honour went on to say:
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider - first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
The Full Court of this court acknowledged the importance of that principle in Stephens and Stephens [2010] FamCAFC 20. The stay application is an extraordinary jurisdiction. It is agreed by the respondent to the application that the jurisdiction arises because a failure to grant a stay would render the husband’s appeal nugatory. It is the other factors in this case that warrant me exercising my discretion against the husband.
It is also always difficult to deal with a stay application against one’s own decision, particularly where it has been made based on facts provided in very limited circumstances. However, to a very large degree in this case, what the husband is now submitting are facts that were put together after the hearing; they are matters that were not previously raised before me.
On 18 January 2011, after a limited hearing which was dealt with on submissions relating to the affidavit material in December, I ordered that the wife be permitted to go to China for 16 days with the child. On 21 January 2011, the husband lodged his notice of appeal.
In December 2010, the wife sought orders that she be able to go to China for the Chinese New Year, which I understand is in February of this year. The husband opposed that application at the time.
It must also be said that an application was made by the wife in July 2010 based on her desire to see her dying grandfather, which I then granted. In July, the husband appealed and applied for a stay which was subsequently compromised with orders that the wife’s parents remain in Australia for the duration of the wife’s absence in China. It is noted that the wife returned after her trip, but in this particular case, the wife’s parents are presently living in China.
Very recently, I am now told by the wife, in evidence in-chief upon which the husband did cross-examine, her grandfather died. She produced a death certificate which the husband said he was not able to concede or verify. Having heard the wife’s evidence I am satisfied that the grandfather has died and his funeral, in whatever form that may take, is on 29 January. That particular issue added some complexity to the problem.
The husband says that the wife is not to be trusted or believed, but he has always maintained that. Nothing new arises out of it. He said that he has examples of her untruthfulness. That was not the way the case was argued before me in December. He said I should exercise caution and compassion, but that applies to both parties.
I bear in mind this case is about a child and her best interest. The husband says that if the wife does not return, the damage will be irreversible. The husband pointed to evidence drawn from the internet and another lawyer’s opinion saying there is no access that he could have to the Chinese courts if the wife did not return.
I am not convinced that that evidence says there is no access but rather it would be a difficult exercise. It would be made more difficult, probably in this case, by virtue of the fact that the wife is an Australian citizen. Just exactly how she would renounce her Australian citizenship and become a Chinese citizen is not clear.
The husband put a submission to me that I made an error in my judgment in presuming that the parties had access to the Chinese courts in circumstances where that nation is not a signatory to the Hague Convention.
In the hearing in December, I raised that subject and no party pointed to any evidence that they had provided to me about it. However, in the reasons for judgment in July 2010, I found there was a basis to say that there was access to the Chinese courts. In the December hearing no one challenged the statement or finding that I had made in July.
The respondent argues in this case, that once the jurisdiction is enlivened in relation to the stay, there were three or four things that needed to be considered. In this case it is three rather than four.
The first of those things is whether or not there is a substantial prospect that the husband’s appeal will be successful. The husband’s notice of appeal was prepared by his lawyers. It sets out there were specific errors of law and fact that I made predominately in an interpretation of the decision in Line and Line (1997) FLC 92-729. The notice of appeal refers to the fact that I had taken the fourth of the factors in Line to the extent that I required a finding about whether or not there was access to the foreign courts.
Over the lunch break I have had an opportunity to have a look at the decision in Line. What the Full Court said was that one of the considerations was whether or not the foreign country was a signatory to the Hague Convention, but went on to say that that was not a significant issue because it was well known that parties could change countries for the purposes of circumventing the Hague Convention requirements.
At no stage in the judgment did the Full Court refer to anything about courts having to look at access to justice in courts in countries that were not signatories to the Hague Convention. I agree that a consideration of matters goes to the question of risk.
The respondent relied on a decision of O’Ryan J in August 2009 of Ayres. This was a stay application from a decision of his Honour relating to an appeal from a Federal Magistrates decision allowing a woman to travel to Turkey.
I propose not to take a lot of notice of that decision for a number of reasons. The first is that Turkey is a signatory to the international convention on child abduction.
The second is that his Honour did not have the benefit, even in draft form, of a special leave application to the High Court. I do have the benefit of the notice of appeal of the husband.
I am satisfied in the circumstances that the question of merit does not favour the husband in this case. Many of the matters pleaded in the notice of appeal seem to me to be complaints about the exercise of discretion. As I pointed out in discussion, the appellant will have to overcome the difficulties that he faces in House v The King (1936) 55 CLR 499.
The next particular factor set out in the Burgandy Royale decision relates to whether or not the grant of a stay would cause loss to the respondent.
The basis of the application in December and the subject of the orders was to enable the wife to go to China to spend the Chinese New Year. That has now, as I have said, expanded to include the death of her grandfather, and the consequent funeral. If I was to refuse the wife the right to travel, she would not be able to go to China for the New Year, nor attend the funeral. I have to consider both sides when I make the decision about whether a stay would cause a loss to either party.
The fourth factor, or relevantly, the third in this case set out by Brennan J, was the balance of convenience. The balance of convenience in this case must support the wife. I say that because the decision I made was in her favour, and she was entitled to the fruits of that judgment. In addition, she has a proven record of returning to Australia, and for the reasons I set out in the judgment, there was every reason for me to have confidence that she had a reason to return, and the risk that she would not is extremely low.
In the circumstances, to deprive the wife of the fruits of her judgment seems to me to tip the balance of convenience in her favour. In those circumstances, I could not be satisfied that the husband’s application should be granted.
The application filed on 21 December 2011 is dismissed.

RECORDED : NOT TRANSCRIBED

An application has been made that the husband pay the wife’s costs of this particular application in the sum of $5,950. Section 117 provides that each party bears their own costs unless there are circumstances justifying the situation to the contrary. If I decide that there are justifying circumstances, then I need to take into consideration the matters set out in section 117(2A) of the Act.
The orders were made some days ago. The husband has lodged a notice of appeal against those orders. He sought a stay today. He has been unsuccessful in the stay. There are therefore circumstances justifying a departure from the rule that each party pays their costs. Costs are not intended as a punishment. They are intended to compensate the party who has had to participate in the proceedings.
In relation to the matters in section 117(2A), I take into account that whilst the husband may have what he says is a limited income, which is disputed by the wife, and he says the wife has vast wealth, there is, I am told, some $700,000 in cash sitting in a trust account from the sale of a home. It seems to me that both parties are in a reasonable financial position. I take into account also that there is no argument in this case about Legal Aid nor about the fact that the parties have not complied with court orders. I do not propose to fix costs at $5,950, but rather, to exercise my discretion and make an overall costs order of $3,500, to be paid within one month.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 January 2011.

Associate:

Date: 15 February 2011