JIANG & AI

[2015] FCCA 1749

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIANG & AI [2015] FCCA 1749

Catchwords:
FAMILY LAW – Property – application for property orders – where respondent has left Australia and now resides in (country omitted) – contributions of the parties – where applicant seeks an order in respect of a business which is the only asset in Australia – where applicant has the care of the parties’ child – just and equitable.

CHILD SUPPORT – Application for payment of child support – where child resident in Australia – where respondent father resident in (country omitted) – where (country omitted) not a reciprocating jurisdiction under Child Support (Registration and Collection) Regulations 1988, Sch. 2

CHILD MAINTENANCE – Application for child maintenance.

COSTS – Application for costs – where respondent did not attend court.

PRACTICE AND PROCEDURE – Affidavit – where deponent has limited ability to read English – where deponent needed affidavit to be translated – where no interpreter’s certificate on affidavit – address for service – an address for service must be an address in Australia.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.117

Family Law Act 1975 (Cth), ss.66G, 75, 79, 106A

Child Support (Registration and Collection) Regulations 1988 (Cth), Schedule 2
Federal Circuit Court Rules 2001, rr.6.01, 13.03C, 15.27, Sch. 1, Part 1

Cases cited:
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518

Applicant: MS JIANG

Respondent: MR AI

File Number: SYC 7449 of 2014

Judgment of: Judge Scarlett

Hearing date: 23 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 23 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Moradshahi

Solicitors for the Applicant: Moradshahi Solicitors Pty Ltd

Solicitors for the Respondent: Kyu & Young Lawyers

ORDERS

1. The Respondent Husband is to do all such acts and things and sign all such documents and execute all such deeds and instruments as may be necessary to sell by private treaty the business known as (business omitted) situated (omitted) and pay the entire proceeds to the Applicant Wife.

2. If the Respondent refuses, fails or neglects to sign any document or execute any deed or instrument necessary to give effect to the above Order within fourteen (14) days of being called upon to do so then a Registrar or Deputy Registrar of the Court at Sydney is appointed to sign the document or execute the deed or instrument in the name of the Respondent and to do all such things necessary to give validity and operation to the document, deed or instrument. 

3. The Respondent is to pay to the Applicant the sum of $250.00 per week by way of child maintenance for the child of the marriage X born (omitted) 2006 the first payment to be made on Friday 10 July 2015 and weekly thereafter.

4. The Respondent is to pay the Applicant’s costs of these proceedings according to Schedule 1 Part 1 of the Federal Circuit Court Rules 2001 fixed in the sum of $2,730.00 within twenty-eight (28) days.  

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7449 of 2014

MS JIANG

Applicant

And

MR AI

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant is seeking property orders and an order for “child support” for her daughter. Her husband has left her and returned to the (country omitted), from where both parties originated. He has played a minimal role in these proceedings and did not attend Court on the hearing of the Application, which proceeded undefended. He filed a financial statement but has not filed a Response or any affidavit.

Order Sought

1. In her Amended Application filed on 26^th February 2015, the Applicant seeks these Orders:

   1. An order that the Respondent sell the business at (business omitted) at (omitted) and pay the whole sale proceeds to the Applicant Wife.

   2. An order [that] the Respondent Husband pay to the Applicant Wife $250.00 per week child support for the child of the marriage, X.

2. The Respondent has not filed a Response. 

Background

1. The parties were married on (omitted) 2001. There is one child of the marriage, X, who was born on (omitted) 2006. The parties separated on 17^th March 2014 and have remained apart ever since. The child X continues to reside with the Mother.

2. The Mother commenced proceedings by filing an Application on 27^th November 2014, seeking injunctive orders restraining the Husband from disposing of what appears to be the only matrimonial asset in Australia, a (omitted) business known as (business omitted).

3. The Application was returnable on 2^nd March 2015. The following day, the Respondent attended Court and orders were made until further order that:

   a)he should file and serve a Response, an affidavit and a Financial Statement within 28 days;

   b)the Respondent was restrained by injunction from disbursing or disposing of any of the proceeds of the sale of the business known as (business omitted);

   c)the Respondent was restrained from transferring his interest in the business know as (business omitted) to a third party without consent or leave of the Court; and

   d)the Respondent was to pay to the Applicant the sum of $250.00 per week by way of spousal maintenance.

4. The Application was adjourned to 5^th May 2015. On that occasion the Respondent was represented by a solicitor. The Respondent had not filed any documents and he was again ordered to file and serve a Response, an affidavit and a Financial Statement.

5. The application was then adjourned to 10^th June 2015 for further mention.

6. On 28^th May 2015 the Respondent filed a Financial Statement, giving an address in (country omitted). This address cannot be accepted as an Address for Service because Rule 6.01 provides that an address for service must be an address in Australia. The Respondent did not file any other documents.

7. There was no appearance by or on behalf of the Respondent when the matter returned to Court on 10^th June, nor was there any explanation given for his absence. The Application was then listed for an undefended final hearing on 23^rd June 2015.

8. There was no appearance by or on behalf of the Respondent on the date of the hearing.

Evidence

1. The Applicant relied on a further affidavit which she was given leave to file in Court. She gave oral evidence with the assistance of an interpreter in the (country omitted) language. A difficulty arose when it became clear that her affidavit did not bear the certificate of the translator required by sub-rule 15.27(2). Fortunately, the paralegal in the Applicant’s solicitor’s office, who is fluent in both English and (language omitted), was present in court and was able to give evidence that he had in fact translated the affidavit to the Applicant and she signified that she understood it before she signed the affidavit.

2. The Applicant also relied on her Financial Statement.

The proper approach to dealing with property applications

1. When dealing with an application for settlement of property, the Court must be mindful of the decision of the High Court of Australia in Stanford v Stanford[1] and the decision of the Full Court of the Family Court in Hickey & Hickey.[2] The court must be satisfied that it is just and equitable to embark on a property decision at all before considering the four-step process set out in Hickey.

   [1] [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518

   [2] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143

2. The decision in Hickey requires the Court to follow four steps, by:

   a)Identifying the parties’ property and liabilities;

   b)Ascertaining the parties’ contributions assessed on a percentage basis;

   c)Making any necessary adjustments by virtue of the matters referred to in s.75(2) of the Family Law Act 1975 (Cth); and

   d)Again, considering whether the proposed orders are just and equitable, as required by s.79(2) of the Act.

Conclusions

1. The parties are not divorced but it is clear that they have separated permanently. The Husband has left Australia and returned to (country omitted) permanently, leaving his wife and daughter behind him. I am satisfied that it is just and equitable to make orders for the settlement of  the parties’ property in Australia.

2. The only asset in Australia appears to be the business known as (business omitted), in (omitted). The Respondent’s Financial Statement shows that he has assets in (country omitted), namely the (business omitted) in (country omitted). He also has a small amount of superannuation.

3. The Applicant claims that she contributed towards the parties’ assets in Australia as a homemaker and mother of the parties’ daughter, X.

4. The only adjustment to be made in respect of the matters referred to in s.75(2) of the Family Law Act 1975 is that the Applicant has the full-time care of the parties’ daughter. At the moment she is not receiving anything by way of maintenance or child support for her.

5. The Applicant only seeks to claim against the business of (business omitted), which is the only asset in Australia. It is clear that the Respondent has some assets back in (country omitted). In the circumstances, I am satisfied that it is just and equitable to make an order for the Respondent to sell the business and pay the entire proceeds of sale to the Applicant.

6. The Applicant also seeks an order that the Respondent pays the sum of $250.00 per week to the Applicant by way of child support. The application is misconceived, as child support is essentially an administrative system, and the Court has no jurisdiction to make orders for ongoing child support. The Court cannot make a departure order under s.117 as there is no administrative assessment of child support in existence. The Applicant cannot now make an application to the Child Support Registrar for an administrative assessment of child support as the Respondent resides in the (country omitted), which is not a reciprocating jurisdiction under the Child Support (Registration and Collection) Regulations.

7. All the Applicant can do is apply for an order for child maintenance under s.66G of the Family Law Act 1975. The evidence is scant, to say the least, but I am prepared to make an order in the circumstances that the Respondent is to pay the sum of $250.00 per week by way of child maintenance.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  25 June 2015