HAO & LAN

This matter came before Loughnan J concerning orders made on 30 March 2015 between the Husband and the Wife. The dispute involved the recognition of the parties' marriage and divorce in China, and the subsequent division of matrimonial property located in both Australia and China. The court was required to determine a series of complex legal issues relating to Chinese law and its interaction with Australian legal principles concerning property settlement and the recognition of foreign judgments.

The court was tasked with determining whether Chinese courts would recognise the parties' Australian marriage and divorce, given the Husband's Australian citizenship and the Wife's Chinese citizenship. Further, the court needed to ascertain if such recognition was a prerequisite for Chinese courts to determine the settlement of matrimonial property situated in both jurisdictions. The court also had to consider the legal principles Chinese courts would apply if they were willing to determine property settlements, and whether Chinese courts possessed jurisdiction over Australian property. Additionally, the court was asked to determine how Chinese courts would approach Australian property if they were unable or unwilling to make binding orders regarding it, and under what circumstances a Chinese court would recognise an Australian judgment concerning property division.

In addressing these issues, Loughnan J varied the previous orders to facilitate the appointment of a single expert pursuant to rule 15.45 of the Family Law Rules 2004. The Husband was directed to select an expert within 14 days, who would then be appointed to prepare a report on the applicable Chinese legal principles. The parties were to jointly instruct the expert, with the Wife's lawyer preparing a draft letter of instruction within 21 days, followed by the Husband's solicitor proposing amendments within a further 14 days. The costs of the expert report were to be shared equally between the parties. Leave was granted for parties to apply regarding the progress of proceedings or other matters, with substantive applications requiring an Application in a Case supported by an affidavit. The question of costs for the current proceedings was reserved.