Hong & Cao

Case [2018] FamCA 40

FAMILY COURT OF AUSTRALIA

HONG & CAO [2018] FamCA 40

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Where both parties were born in Taiwan – Where the husband, an Australian citizen, has lived primarily in Taiwan since 1997/1998 and the wife, also an Australian citizen, has lived in both Australia and Taiwan – Where the wife initiated property settlement proceedings in Australia in June 2015 – Where the husband participated in the same without objection until December 2016 – Where the husband obtained a divorce order in Australia in July 2016 and applied to register the same in Taiwan in October 2016 – Where the wife objected to the registration of the divorce order in Taiwan in November 2016 – Where the husband subsequently applied for the dismissal or stay of the Australian proceedings – Where there are no proceedings the equivalent of property settlement proceedings on foot in Taiwan – Where the relevant Taiwanese Court has jurisdiction to determine any application, the equivalent of property settlement proceedings, brought by either party – Where the property of the parties is valued in the vicinity of $200,000,000.00, of which property valued at about $27,000,000.00 is situated in Australia and the remainder in Taiwan – where the Court is not persuaded that Australia is a clearly inappropriate forum.

FAMILY LAW – PRACTICE AND PROCEDURE – ANTI-SUIT INJUNCTION – Where, as an alternative, the husband seeks to restrain the wife from commencing and/or continuing proceedings in Taiwan – Whether an anti-suit injunction is necessary to protect the integrity of this Court’s processes – Application for anti-suit injunction granted – order made in a form more restricted than that sought by the husband.
Family Law Act 1975 (Cth)
Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulation 1992 (Cth)
Cao v Tan [2012] FamCA 225
CSR Ltd v Cigna Insurance Australia Ltd (1997)189 CLR 345
Henry v Henry (1996) 185 CLR 571
In the Marriage of Gilmore [1993] FLC 92-353
Kemeny v Kemeny [1998] FLC 92-806
Navarro v Jurado (2010) 44 Fam LR 310
Oceanic Sun Line Special Shipping Co Inc. v Fay (1988) 165 CLR 197
Puttick v Tenon Ltd (2008) 238 CLR 265
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Spiliada Maritime Corporation v Consulex Ltd [1987] AC 460
Teo v Guan [2015] FLC 93-653
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Kent & Kent [2017] FamCAFC 157
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: 9 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson QC with Mr Alexander
SOLICITOR FOR THE APPLICANT: Hillhouse Burrough McKeown
COUNSEL FOR THE RESPONDENT: Mr North SC with Mr  Hackett
SOLICITOR FOR THE RESPONDENT: Accuro Legal (Sydney)

ORDERS

IT IS ORDERED THAT

  1. The application by Mr Hong for a stay of the proceedings commenced by Ms Cao on 4 June 2015 (BRC5044/2015) is…

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Hong & Cao [2018] FamCA 40
Case
[2018] FamCA 40
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CaseChat Overview and Summary

In the matter of *Hong & Cao*, Hogan J of the Family Court of Australia considered an application by the husband, Mr Hong, for a stay of property settlement proceedings initiated by the wife, Ms Cao, in Australia. The parties, both Australian citizens, had significant connections to both Australia and Taiwan, with the majority of their substantial assets located in Taiwan. The husband had also obtained a divorce order in Australia, which he sought to register in Taiwan, a move that was opposed by the wife.

The court was required to determine two primary legal issues: firstly, whether Australia was a clearly inappropriate forum for the property settlement proceedings, thus warranting a stay of those proceedings; and secondly, whether an anti-suit injunction was necessary to protect the integrity of the Australian court's processes, specifically to restrain the wife from commencing or continuing proceedings in Taiwan.

Hogan J dismissed the husband's application for a stay, finding that Australia was not a clearly inappropriate forum. The court reasoned that the wife had initiated proceedings in Australia and the husband had participated without objection for a considerable period. Crucially, there were no equivalent property settlement proceedings on foot in Taiwan, despite the Taiwanese court having jurisdiction to hear such matters. However, the court granted an anti-suit injunction, albeit in a more restricted form than sought by the husband. This injunction restrained the wife from commencing specific types of legal proceedings in Taiwan related to the matrimonial property regime, separation of property, or financial support, thereby protecting the Australian court's jurisdiction over the property settlement.

The court ordered that the husband's application for a stay be dismissed. An injunction was issued restraining the wife from commencing certain proceedings in Taiwan. The question of costs arising from the husband's application was reserved for determination, with detailed directions provided for the filing of affidavits and submissions. Several other applications by the wife concerning financial statements and reinstatement as a statutory supervisor were adjourned, and an application by the husband to adduce evidence was dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

1.

The application by Mr Hong for a stay of the proceedings commenced by Ms Cao on 4 June 2015 (BRC5044/2015) is dismissed.

2.

Ms Cao is restrained and an injunction hereby issues restraining her from commencing any legal proceedings in Taiwan against Mr Hong in which she seeks:

(a) a change to the statutory property regime application to the matrimonial property and the property of each party pursuant to Article 1010 of the Civil Code of Taiwan (as amended); and/or

(b) to claim for separation of property pursuant to Article 1030-1 of the Civil Code of Taiwan (as amended); and/or

(c) an injunction or related proceedings/suits in respect of the apartment at M Street, Suburb N, City O, Taiwan or any other Taiwanese asset held by either party; and/or

(d) orders for the provision of financial support, whether by way of the provision of spousal maintenance or alimony.

AND IT IS FURTHER ORDERED THAT

3.

The question of costs arising out of or incidental to Mr Hong’s Application in a Case filed 23 December 2016 is reserved for determination.

4.

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 23 December 2016:

(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 file and serve within a further fourteen (14) days thereafter 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 file and serve any further written submissions within seven (7) days of its service, 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.

5.

The Application in a Case filed by Ms Cao on 23 December 2016 by which she seeks orders compelling Mr Hong to provide financial statements of those entities named within it to P Accountants Taiwan so as to facilitate the valuation of various entities is adjourned to the judicial duty list on a date to be advised.

6.

The Amended Application in a Case filed by Ms Cao on 2 May 2017 whereby she seeks orders to compel Mr Hong to reinstate her as a “statutory supervisor” of C Inc. is adjourned to the judicial duty list on a date to be advised.

7.

The Application in a Case, filed 28 April 2017, by which leave was sought for Mr Hong to adduce evidence from Ms Q and Mr W at the hearing on 9 May 2017 is dismissed.

NOTATION:

(A)

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