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Kwok & Beng (No 3)

Kwok & Beng (No 3)

Case [2022] FedCFamC1F 327 13 May 2022

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kwok & Beng (No 3) [2022] FedCFamC1F 327

File number(s): SYC 1577 of 2021

Judgment of: SCHONELL J

Date of judgment: 13 May 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where the wife sought a stay of an interim order that restrained her from continuing proceedings in China – Where the interim orders are the subject of an appeal – Where the husband opposed the stay – Where the wife’s contention that her appeal would be rendered nugatory if the stay is not granted was an overstatement – Where the wife contended that discontinuing proceedings in China would mean that she could not file again for six months and would lose the legal fees paid – Where it was agreed that commencing proceedings again in six months would be beyond the date of the appeal and costs relating to that could be considered in the Australian proceedings – Limited stay ordered for the wife’s Chinese lawyer to adjourn the proceedings to a date after the appeal.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12

Cases cited:
Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kelly and Kelly (1981) FLC 91-007

Kwok & Beng [2022] FedCFamC1F 263

Samaras & Allen [2021] FedCFamC1F 20

Trahn & Long (No. 2) [2008] FamCAFC 194

Division: Division 1 First Instance

Number of paragraphs: 26

Date of hearing: 9 May 2022

Place: Sydney

Solicitor for the Applicant: Kammoun Sukari Lawyers Pty Ltd

Counsel for the Respondent: Ms Spain

Solicitor for the Respondent: Luminous Legal
ORDERS

SYC 1577 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KWOK

Applicant

AND:
MS BENG

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
1.Order 2 made 22 April 2022 be varied such as to permit the wife to instruct her Chinese lawyer, Mr Kwok, to adjourn the proceedings before the People’s Court District B to a date after the hearing of the appeal filed 4 May 2022, such order being made upon the wife undertaking to this Court to inform this Court and the husband of any orders that are made by the People’s Court District B today.
2.Reasons for judgment reserved to a date to be fixed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kwok & Beng (No 3)

Details

AGLC: Kwok & Beng (No 3) [2022] FedCFamC1F 327
Case: [2022] FedCFamC1F 327
Decision Date: 13 May 2022

CaseChat Overview and Summary

In the case of Kwok & Beng, the wife, Ms Beng, sought a stay of an interim order that restrained her from continuing proceedings in China. The husband, Mr Kwok, opposed the application. The case was heard in the Family Court of Australia. The wife’s contention that her appeal against the interim orders would be rendered nugatory if the stay was not granted was deemed an overstatement. However, she argued that discontinuing the proceedings in China would mean she could not file again for six months and would lose the legal fees paid. The court acknowledged that commencing proceedings again in six months would be beyond the date of the appeal and that costs relating to that could be considered in the Australian proceedings.

The court ordered a limited stay, permitting the wife to instruct her Chinese lawyer to adjourn the proceedings to a date after the appeal hearing. This order was made on the condition that the wife undertook to inform the Court and the husband of any orders made by the People’s Court District B. The court's decision was based on the need to balance the wife's right to appeal the interim orders and the husband's opposition to the stay. The reasons for the judgment were reserved for a later date.

The court's order permitted the wife to instruct her Chinese lawyer to adjourn the proceedings before the People’s Court District B to a date after the hearing of the appeal. This limited stay was granted upon the wife undertaking to inform the Court and the husband of any orders made by the People’s Court District B. The form of the order was subject to review to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders

Orders of the court

SYC 1577 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KWOK

Applicant

AND:

MS BENG

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:

1. Order 2 made 22 April 2022 be varied such as to permit the wife to instruct her Chinese lawyer, Mr Kwok, to adjourn the proceedings before the People’s Court District B to a date after the hearing of the appeal filed 4 May 2022, such order being made upon the wife undertaking to this Court to inform this Court and the husband of any orders that are made by the People’s Court District B today.

2. Reasons for judgment reserved to a date to be fixed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kwok & Beng (No 3) [2022] FedCFamC1F 327

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

Kwok & Beng (No 2)
[2022] FedCFamC1F 263 Para 18

…ccount the inability of the wife to enforce any orders made in an Australian court in China. It is clear at [83]–[86] of the reasons in Kwok & Beng [2022] FedCFamC1F 263 that the Court was cognisant of the difficulties of enforcement and recorded the expert evidence that a Chinese court would not recognise orders of an…
Samaras & Allen
[2021] FedCFamC1F 20 Para 23

…ranted. With respect, that is an overstatement of the facts as clearly disclosed in the affidavit in support. As Harper J observed in Samaras & Allen [2021] FedCFamC1F 20: 39.… The High Court has several times indicated that the enjoyment of a right is rendered “nugatory” if it is rendered worthless or seriously underm…
Trahn & Long (No. 2)
[2008] FamCAFC 194 Para 10

…The principles governing a stay pending appeal are well settled. The Full Court in Trahn & Long (No. 2) [2008] FamCAFC 194 said: 38.These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Lim…
Byrne v Australian Airlines Ltd
[1995] HCA 24 Para 23

…cated that the enjoyment of a right is rendered “nugatory” if it is rendered worthless or seriously undermined: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, referring to Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 647-648, 659.…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 10

…160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the ap…
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1)
[1986] HCA 13 Para 10

…and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161…
Gronow v Gronow
[1979] HCA 63

…ited: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kelly and Kelly (1981) FLC 91-007 Kwok & Beng [2022] FedCFamC1F 263 Samaras & Allen [2021] FedCFamC1F 20 Trahn & Long (No…
House v R
[1936] HCA 40

…(Receivers appointed) (1985) 2 NSWLR 685 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kelly and Kelly (1981) FLC 91-007 Kwok & Beng [2022] FedCFamC1F 263 Samaras & Allen [2021] FedCFamC1F 20 Trahn & Long (No. 2) [2008] FamCAFC 194 Division: Division 1 First…
Nullagine Investments Pty Ltd v Western Australian Club Incorporated
[1993] HCA 45 Para 23

…undermined: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, referring to Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 647-648, 659.…
House v The King
63 WN 176

…r v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kelly and Kelly (1981) FLC 91-007 Kwok & Beng [2022] FedCFamC1F 263 Samaras & Allen [2021] FedCFamC1F 20 Trahn & Long (No. 2) [2008] FamCAFC 194…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 8

…s to establish that the circumstances warrant a departure from the general rule that a judgment is presumed to be correct and liable to be enforced ( Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 693–694).…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention

File number(s):	SYC 1577 of 2021
Judgment of:	SCHONELL J
Date of judgment:	13 May 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – Where the wife sought a stay of an interim order that restrained her from continuing proceedings in China – Where the interim orders are the subject of an appeal – Where the husband opposed the stay – Where the wife’s contention that her appeal would be rendered nugatory if the stay is not granted was an overstatement – Where the wife contended that discontinuing proceedings in China would mean that she could not file again for six months and would lose the legal fees paid – Where it was agreed that commencing proceedings again in six months would be beyond the date of the appeal and costs relating to that could be considered in the Australian proceedings – Limited stay ordered for the wife’s Chinese lawyer to adjourn the proceedings to a date after the appeal.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited:	Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kelly and Kelly (1981) FLC 91-007 Kwok & Beng [2022] FedCFamC1F 263 Samaras & Allen [2021] FedCFamC1F 20 Trahn & Long (No. 2) [2008] FamCAFC 194
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	9 May 2022
Place:	Sydney
Solicitor for the Applicant:	Kammoun Sukari Lawyers Pty Ltd
Counsel for the Respondent:	Ms Spain
Solicitor for the Respondent:	Luminous Legal

SYC 1577 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KWOK Applicant
AND:	MS BENG Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	13 MAY 2022