Hong and Cao (No. 2)

[2018] FamCA 41

FAMILY COURT OF AUSTRALIA

HONG & CAO (NO. 2) [2018] FamCA 41

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to reopen – Application granted.

Family Law Act 1975 (Cth)

EB v CT (No 2) [2008] QSC 306
Reid v Brett [2005] VSC 18
Summitt v Summitt and Ors (Re-Opening) [2009] FamCA 365

APPLICANT:  Mr Hong

RESPONDENT: Ms Cao

FILE NUMBER: BRC 5044 of 2015

DATE DELIVERED: 2 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson QC

SOLICITOR FOR THE APPLICANT: Hillhouse Burrough McKeown

COUNSEL FOR THE RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Accuro Legal (Sydney)

ORDERS

IT IS ORDERED THAT

1. Mr Hong has leave to re-open the application by which he seeks an order staying the proceedings commenced by Ms Cao on 4 June 2015.

AND IT IS FURTHER ORDERED THAT

1. The question of costs arising out of or incidental to Mr Hong’s Application in a Case filed 14 November 2017 is reserved for determination.

2. In the event either party seeks an order that the other pay the costs of and incidental to Mr Hong’s Application in a Case filed 14 November 2017:

   (a)each party has leave to file one affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavit is filed within fourteen (14) days of the date of this Order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall, within a further seven (7) days thereafter, file and serve any further written submissions, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Hong & Cao (No. 2) 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 BRISBANE

FILE NUMBER: BRC 5044 of 2015

Mr Hong

Applicant

And

Ms Cao

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 14 November 2017, Mr Hong sought leave to re-open the hearing of his application for a stay of the property settlement proceedings commenced by Ms Cao or, alternatively, the making of an anti-suit injunction against her.

2. Ms Cao opposes the grant of such leave.

3. It is clear that the grant of leave to re-open a case is discretionary, the prime question being whether the Court is more able to do justice in the circumstances of a particular case if leave is granted: that is, the overriding principle is whether in the circumstances of the particular case the interests of justice would be better served by allowing the case to be re-opened.[1]

   [1]See:  Summitt v Summitt and Ors (Re-Opening) [2009] FamCA 365 per Murphy J; EB v CT (No 2) [2008] QSC 306; Reid v Brett [2005] VSC 18 at [41].

4. Whilst others may disagree, I am persuaded that, in this particular case, the interests of justice will be better served by allowing the case to be re-opened because I consider that the further relevant evidence is so material that the interests of justice require its admission.

5. I have reached this conclusion because the further relevant evidence seems to me to establish that Ms Cao’s attempt to take issue with the registration and recognition in Taiwan of the divorce order granted in the Federal Circuit Court has been unsuccessful – at least at first instance – with the consequence that it appears that such order will be recognised as valid in Taiwan.

6. That this seems to be more likely than not is, to me, a matter which is relevant to the overall assessment of the issue of the recognition in Taiwan of orders made in Australia arising from, about and connected to the former marriage of the parties.

7. For these short reasons then, Mr Hong has leave to re-open the Application in a Case filed 23 December 2016 in the manner sought by him in the Application in a Case filed 14 November 2017.

Costs

1. In the event that either party seeks an order for the costs of and incidental to Mr Hong’s Application in a Case filed 14 November 2017, I propose to determine any such application in Chambers following the receipt of written submissions in support of the same.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 February 2018.

Associate: 

Date:    2 February 2018