Kwok & Beng (No 3)
[2022] FedCFamC1F 327
•13 May 2022
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 (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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kwok & Beng has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 22 April 2022, the Court delivered judgment in proceedings between the parties where the issue was which forum the proceedings as to parenting matters and property settlement should be determined. The wife sought that the proceedings be determined in China whilst the husband sought the proceedings be determined in Australia. The Court made orders dismissing the wife’s application for a stay of the Australian proceedings and ordered that the wife be restrained from continuing proceedings before the People’s Court District B (“the Chinese Court”).
On 4 May 2022, the wife filed a Notice of Appeal as well as an Application in a Proceeding seeking a stay of Order 2, being the order that restrained the wife from continuing the proceedings in China.
The husband opposed the grant of a stay.
In the wife’s supporting affidavit filed 4 May 2022, it was asserted that there was some urgency as the matter was next before the Chinese Court on 9 May 2022. Due to the contended urgency, the matter was heard on 9 May 2022 and the Court granted a partial stay and reserved judgement.
These are the reasons arising from the application for a stay.
APPLICABLE LAW
The Court’s power to grant a stay pending an appeal is found in r 13.12(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
A stay is not ordered as a matter of right. The power to order a stay is incidental to the right of appeal.
In order to justify a stay, the party seeking the stay bears the onus 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).
A court should not deprive a successful litigant of the fruits of litigation without just cause (Kelly and Kelly (1981) FLC 91-007).
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 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 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 application which should be determined on its merits. Principles relevant to this matter included the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•the person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to ground a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
•some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
•the best interests of the child the subject of the proceedings.
It is not suggested by the Notice of Appeal that the matter was determined by an incorrect application of principle nor does it raise any considerations of a question of law or any conflict in relevant authority.
The grounds of the appeal appear to fall into two broad categories:
(1)A failure to properly take into account various matters; and
(2)Errors as to weight.
The principle governing appeals from discretionary judgments on grounds as to weight are well established and need not be stated (House v The King (1996) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513).
I accept that the appeal is bona fide and is not a delaying tactic.
I accept that the appeal and stay have been brought promptly.
Dealing with the grounds of appeal, Grounds 1 and 2 are no more than a submission.
Ground 3 contends that the Court did not take into account that the 2018 Agreement and the 2019 Agreement (“the Agreements”) entered into between the parties were binding under Chinese law and that any dispute should be heard exclusively in China. Contrary to the ground, the Court clearly identified in the reasons that there was a juridical advantage to the wife if the proceedings were in China in relation to enforcement of the Agreements. The contention that the Agreements provided an exclusive jurisdiction clause is to put a gloss on the Agreements that is not immediately apparent. The Agreements provide that if there is a dispute in relation to the terms of the agreement the parties would bring a lawsuit in China rather than in relation to any matrimonial proceedings generally.
Ground 4 contends that the Court did not take into account 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 Australian court.
Ground 5 contends error as to weight in relation to the husband’s contention that he could not afford to litigate in China. It is contended that the Court did not expose in the reasons any reference to the husband’s interests in property in Australia. The Court identified the husband’s contention that his financial position was meagre. The husband identifies in his Summary of Argument on the stay that:
6. …
e. …
ii. The ground is misconceived, if the respondent wife was successful in the interim hearing before the primary judge the husband would be left with nothing as a consequence of the Chinese Family Law agreements and could not pursue litigation in China.
There is some force to this proposition.
Ground 6 contends that the Court did not take into account in the reasons the husband’s significant assets in China and the need to investigate these through the Chinese judicial system, while Ground 7 contends that the Court erred in failing to take into account the incapacity of the Australia judicial system to investigate the husband’s financial position in China.
The reasons clearly record that this Court could appoint experts to value property outside Australia, that this Court could resolve factual issues in relation to ownership of property, and that the Court has power to draw inferences and conclusions if a party does not comply with their obligations of disclosure. The grounds ignore what the Court recorded at [91] of the reasons, wherein it was said:
91. However, issues of valuation can be addressed in this Court by the appointment of a single expert to value property outside Australia. Likewise, this Court can hear and resolve factual issues in relation to the ownership of assets wherever they are located. This Court can make orders for disclosure. The jurisprudence of this Court is settled in relation to the consequences that may flow if a party does not comply with their obligation of disclosure.
Notwithstanding my observations as to the grounds, I accept that the appeal may be arguable.
The wife contends that her appeal would be rendered nugatory in the event that a stay were not granted. 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 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.
The wife contends that if she had to withdraw or discontinue the proceedings in China she could not file again for six months and she would lose the legal fees that she had paid. I note that in the event that the wife is required to withdraw the proceedings in China and in the event that the Chinese Court will not adjourn the proceedings to a date after the hearing of the Full Court appeal, her counsel agreed that the prejudice to bring proceedings in a further six months would more than likely be beyond the date of a further appeal and that if she incurred any costs then that may be something that could be taken into account in the proceedings in Australia
It is well settled that the Court may grant a stay on terms and on grounds that are fair to both parties. Weighting the balance of convenience and the rights of both parties, I am satisfied that a limited stay of the type ordered was appropriate.
A stay in those terms as ordered does not prejudice the husband.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 13 May 2022
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