Lan and Hao - [2017] FamCAFC 82

FAMILY COURT OF AUSTRALIA

LAN & HAO

[2017] FamCAFC 82

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of her appeal from an order dismissing her application for an anti-suit injunction – Where the parties have property settlement proceedings on foot in both Australia and China – Where the appeal is arguable – Where there is no satisfactory explanation for the applicant’s delay in bringing the application for expedition – Where the appeal is not of sufficient urgency to warrant expedition – Application dismissed – Applicant to pay the respondent’s costs of the Application in an Appeal as agreed or assessed.

Family Law Act 1975 (Cth) ss 94(2D)(j), 117

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Lan

RESPONDENT:

Mr Hao

FILE NUMBER: SYC 4184 of 2013

APPEAL NUMBER:

158

2016

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 April 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 August 2016

LOWER COURT MNC:

[2016] FamCA 670

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE
RESPONDENT: York Law

Orders

The Amended Application in an Appeal filed 9 March 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to the Amended Application in an Appeal filed 9 March 2017 in so far as it relates to the application for expedition as assessed or agreed.

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 Lan & Hao 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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 158 of 2016
File Number: SYC 4540 of 2016

Ms Lan

Applicant

and

Mr Hao

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Amended Application in an Appeal filed on 9 March 2017, Ms Lan (“the applicant”) seeks an order for the expedition of her appeal against orders of Rees J made on 16 August 2016.
In her application, the applicant also sought an order for an extension of time in which to comply with a number of procedural orders made by an appeals registrar. That aspect of the matter has now been dealt with by the appeals registrar and therefore has fallen away.
The proceedings before the primary judge were between the applicant and the husband Mr Hao (“the respondent”). Ms Csien, alleged by the applicant to be the respondent’s current de facto partner, was the second respondent. However, the appeal does not concern Ms Csien, and she is not a party to the present application.
The applicant and the respondent were married in Australia in 2005. They separated in April 2011 and were divorced by order of the Family Court of Australia in October 2013.
During the course of their relationship the applicant maintained her primary residence in China and the respondent maintained his in Australia. They lived together from time to time in either China or Australia.
In June 2011 the respondent filed an application in the B Civil Court in City C, China, seeking that the parties’ joint spousal property be divided. That application was subsequently withdrawn. On 28 September 2011 the respondent filed a further application in China, this time seeking an order that he be added as a joint owner to the applicant’s properties in China. That application, according to the primary judge, was dismissed in June 2013. The respondent appealed.
The primary judge recorded that the respondent’s appeal was listed for hearing on 25 July 2016. I am informed from the bar table, however, that that appeal has been dealt with adversely to the respondent. On 11 April 2014 the respondent filed a further application in China seeking a division of the parties’ property. The evidence does not disclose the nature of the application or the state it has reached in China. I was informed by senior counsel appearing for the applicant that in the proceedings commenced in 2014 the respondent again sought a division of the parties’ property and an order that the sale of a property by the applicant be regarded as a sale of community property that should be considered as being jointly owned by the parties at that time.
I pause to interpolate here that the primary judge found, on the basis of the evidence before her, that the courts in China treat property acquired by either party during the course of the marriage as joint property available to be divided between them.
I was informed that in China there will not be a formal hearing of this matter but that there will be a determination, in chambers, in due course on the papers. I was also informed by counsel for the respondent that there are in fact three proceedings on foot in China, although at least one of which has been stalled because the applicant has not lodged appropriate financial documents. As I said, the evidence does not detail the nature of the proceedings in China or their progress. Whilst I accept that each counsel is faithfully conveying their instructions to the Court, the difference between them highlights the need for these matters to be the subject of evidence. It is, therefore, difficult to take into account the stage the proceedings have reached in China.
I observe that this is the applicant’s application and it is her responsibility to adduce the evidence that establishes the basis for expedition.
On 11 September 2014 the applicant filed an Initiating Application for property settlement in the Federal Circuit Court of Australia. The proceedings were subsequently transferred to the Family Court of Australia. Before the primary judge, each party to the marriage sought injunctions to restrain the other from pursuing the actions that they had commenced – in other words, the applicant sought to restrain the respondent from continuing with his proceedings in China, and he sought to restrain the applicant from continuing the proceedings in Australia.
Her Honour found that Australia was not a clearly inappropriate forum in which the applicant could bring her claim, because there was property in Australia and, on the evidence before her, that property would not be considered by the Chinese courts when dealing with the respondent’s application for property division. Her Honour also found that there was no utility in restraining the respondent from proceeding in China because, again on the evidence before her, such a restraint would not be recognised by the Chinese courts. Thus, both applications were unsuccessful. A Notice of Appeal was filed by the applicant on 12 September 2016 and an Amended Notice of Appeal was filed on 17 March 2017. Leave to appeal is required.
I received some submissions on the merits of the appeal. I do not propose to deal with them, but am content to proceed on the assumption that the grounds of appeal are arguable.
Section 94(2D)(j) of the Family Law Act1975 (Cth) (“the Act”) provides that an order can be made to expedite an appeal. Rule 12.10A of the Family Law Rules 2004 (Cth) provides that when determining an application for expedition of a trial the Court may have regard to a number of considerations, including whether the applicant has acted reasonably and without delay in bringing the application for expedition, whether there would be any prejudice to the respondent and whether there is a relevant circumstance by which the case should be given priority to the possible detriment of other cases. While this rule applies only to trials, these same considerations are relevant to an application for the expedition of an appeal.
The respondent opposed the application and asserted that he would be prejudiced if he could not continue the proceedings in China. That, of course, will ultimately depend on the outcome of the appeal.
I consider that the applicant did not act promptly in bringing this application. It was not until the Amended Application in an Appeal was filed on 9 March 2017, some seven months after the orders the subject of the appeal were made, that expedition was sought. The applicant seeks to explain this today by reference to a diagnosis of cancer in late 2015 and consequent chemotherapy which has left her fatigued, restricting her work and travel. Further, she deposed to her mother having passed away in October 2016. The evidence does not extend beyond that, and therefore does not explain why these sad events prevented an application for expedition being filed at an earlier time. It is particularly telling, to my mind, that an Application in an Appeal was filed on 31 January 2017, in which a claim for expedition could have been made but was not.
Further, I do not consider that an application for expedition would require the applicant to spend significant time determining whether or not instructions should be given to make it or to provide necessary instructions for its progression. Accepting this to be so, senior counsel for the applicant asserts that, nonetheless, even having regard to this, the appeal should be expedited because if it is not, the appeal is likely to be rendered futile. This is because it is submitted that if the court in China delivers a judgment before the appeal is heard the applicant will have lost the benefit of the restraint. The applicant deposed that in or about late February 2017 her lawyer in China said to her that the Court was ready to deliver judgment at any stage but that there is no indication as to when this will occur.
There is no evidence from the Chinese lawyer. I consider that the weight to be given to this evidence is significantly diminished by the lack of any explanation by the applicant as to the precise nature of the proceedings in China and the course that they have followed. In other words, it is difficult to place that statement by the Chinese lawyer in context when one knows nothing about the proceedings. The applicant sought to restrain the respondent, both from taking a step in the Chinese proceedings other than to discontinue them and also from enforcing any orders that might be made in the event judgment was given. The delivery of judgment in China, I accept, would affect the first part of the respondent’s claim but not necessarily the second. Even if the appeal was to be expedited it would be some months before the appeal could be heard and determined.
Having regard to these matters I am not satisfied that the appeal should be expedited. In any event, in considering an application for expedition, the Court must take into account whether other appeals are waiting their turn to be heard and which must be displaced if this matter was to be expedited. I do not consider the urgency of this matter to be such that it should have priority over other appeals awaiting a hearing date.
In the orders sought in the Amended Notice of Appeal, order 3.C seeks an order that pending the final determination of all proceedings in SYC4184/2013 in the Family Court of Australia, including the determination of any appeal, the respondent be restrained from enforcing any civil judgment obtained by him in the proceeding between himself and the applicant in the B Civil Court in City C, China.
It was submitted that if the appeal were not to be expedited, I should consider making such an order. A substantial difficulty that arises with this course is that no notice was given to the respondent that this order would be sought today. Senior counsel for the applicant correctly points out that there may be some difficulties in this court making such an order and has indicated that he is not aware of any authority that would support it. At first blush, it seems to me that such an application smacks of the exercise of original jurisdiction and not of appellate jurisdiction. In any event, if judgment is delivered, a further application could be made to a judge of the trial division along those lines. For those reasons, therefore, I will not accede to the application to make that injunction today.
It follows, therefore, that the Amended Application in an Appeal filed on

9 March 2017 is dismissed.

Costs

The respondent seeks an order for costs and invited me to assess those costs in the sum of $5,500. Counsel properly accepted that that was, in effect, an indemnity costs order and that there were no features about the present case that would attract such an order. In those circumstances, I do not propose to accept the tender of the costs disclosure and agreement.
Costs are governed by s 117 of the Act, and each party to the proceedings is to bear their own costs, unless the Court is of the view that there are circumstances that justify a different order.
In this case, the applicant has been wholly unsuccessful. The application was brought very late, as I have indicated and in my view on the basis of inadequate evidence.
Taking these matters into account, it is appropriate there be a costs order.

I certify that the preceding twenty two (22) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 13 April 2017.

Legal Associate:

Date: 3 May 2017