Lan and Hao and Anor

[2016] FamCA 670

FAMILY COURT OF AUSTRALIA

LAN & HAO AND ANOR [2016] FamCA 670

FAMILY LAW – Objection to subpoena – Where subpoena not found to be relevant – No legitimate forensic purpose served by subpoena – Subpoena set aside

FAMILY LAW – PROPERTY – Application for anti-suit injunction – Where the husband initiated proceedings in China – Where the wife initiated proceedings in Australia – Where both parties seek an anti-suit injunction – Where the husband seeks a stay of proceedings in Australia – Application of “clearly inappropriate forum” test – Where Australia not a clearly inappropriate forum – Consideration of whether Australian proceedings are vexatious or oppressive –Where the parties’ applications are dismissed

Family Law Act 1975 (Cth)

Henry v Henry (1996) 185 CLR 571
Lederer v Hunt (2007) 36 Fam LR 587
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Oceanic Sun Line Special Shipping Company Inc v Fay  (1988) 165 CLR 197

APPLICANT: Ms Lan

RESPONDENT:	Mr Hao
2nd RESPONDENT:	Ms Csien

FILE NUMBER: SYC 4184 of 2013

DATE DELIVERED: 16 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 21 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White SC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr Batey

SOLICITOR FOR THE 1ST RESPONDENT:	York Law Family Law Specialists
COUNSEL FOR THE 2ND RESPONDENT:	Mr Miller QC

SOLICITOR FOR THE 2^ND RESPONDENT: Swaab Attorneys

Orders

IT IS ORDERED

1. That the objection of the Second respondent to the subpoena directed to the Registrar of Births Deaths and Marriages is upheld.

2. That the application of the wife filed 23 December 2014, seeking to restrain the husband from taking further steps in proceedings in China be dismissed.

3. That the Response of the Husband filed 27 March 2015, seeking to restrain the wife from proceeding in the Family Court of Australia be dismissed.

4. That the Response of the Husband filed 27 March 2015, seeking to stay the proceedings in the Family Court of Australia be dismissed.

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 and Anor 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 Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4184 of 2013

Ms Lan

Applicant

And

Mr Hao

First Respondent

And

Ms Csien

Second Respondent

REASONS FOR JUDGMENT

1. Ms Lan (“the wife”) and Mr Hao (“the husband”) commenced cohabitation in Australia in 2004, married in Australia in 2005 and separated in April 2011. They were divorced by order of the Family Court of Australia on 20 October 2013.

2. Before the Court are proceedings for property settlement instituted by the wife. The second respondent to those proceedings is Ms Csien (“Ms Csien”) who is alleged by the wife to live in a de-facto relationship with the husband.

3. The matter comes before the Court for determination of a number of issues. Firstly, Ms Csien has filed an objection to a subpoena issued by the wife to the Registrar of Births Deaths and Marriages. That application can be determined first and the outcome does not affect the determination of the more complex issues between the wife and the husband.

THE SUBPOENA TO REGISTRAR OF BIRTHS DEATHS AND MARRIAGES 

1. The subpoena seeks the production of documents relating to the birth of any child in relation to whom the husband is the biological father, and specifically documents relating to a child of Ms Csien.

2. On behalf of Ms Csien, senior counsel argued that the documents could have no relevance to the issue which is to be determined, namely whether either proposed jurisdiction is a clearly inappropriate forum.

3. Senior counsel for the wife submitted that the existence of a child of the husband in Australia would be evidence of a “connection” between the husband and Australia for the purpose of the test set out in Henry v Henry (1996) 185 CLR 571,which is discussed later in these reasons.

4. I do not accept that the fact, if it were established, that the husband had a child in Australia who is not associated with the marriage, could be relevant to the consideration of the husband’s “connection” with Australia in circumstances where he is an Australian citizen; has been ordinarily resident in Australia since about 1989; has worked in Australia; has from time to time owned various real property in Australia; and has held office and owned shares in companies incorporated in Australia.

5. I accept the submission of senior counsel for Ms Csien that there is no relevance or legitimate forensic purpose served by the inspection of the documents for which the subpoena calls.

6. The objection to the subpoena is upheld.

THE COMPETING APPLICATIONS

1. In an Application in a Case filed 23 December 2014, the wife sought the following order:

   Pending the final determination of all proceedings in suit number SYC4184/2013 in the Family Court of Australia at Sydney (including the determination of any appeal) the Respondent Mr Hao be restrained from taking any further step in proceedings number … in the [B] Civil Court at [City C], China other than discontinuing the proceedings.

2. The husband, in his Response filed 27 March 2015, sought orders that the wife’s application be dismissed and, in the alternate, the following orders:

   …pending final determination of all proceedings before the Peoples Court of [B] District, [City C], and any appeals:

   (a)The wife’s proceedings in the Family Court of Australia be stayed; and

   (b)That the wife, by herself, her servants or agents or otherwise be restrained from:

   (i)Taking any further steps in the proceedings issued by the wife in the Federal Circuit Court of Australia on 11 September 2014; and

   (ii)Instituting any further proceedings against the husband in the Federal Circuit Court of Australia or the Family Court of Australia relating to the marriage of the parties or to any property of either or both of them.

3. Those competing applications now fall to be determined.

THE EVIDENCE

1. The wife relied upon:

   Application in a Case filed 23 December 2014;

   Affidavit of the wife filed 11 September 2014;

   Affidavit of the wife filed 23 December 2014;

   Affidavit of the wife filed 16 March 2015;

   Specified paragraphs of the affidavit of the wife filed 14 May 2015;

   Specified paragraphs of the affidavit of the wife filed 10 November 2015;

   Affidavit of the wife filed 14 April 2016;

   Three affidavits of her solicitor annexing documents;

   Her financial statement filed 11 September 2014; and

   The English translation of the single expert’s report.

2. The husband relied upon:

   Response to Application in a Case filed 27 March 2015;

   Joint Chronology provided to the Single Expert;

   Affidavit of the husband filed 27 March 2015;

   Affidavit of the husband filed 8 September 2015;

   Transcript of proceedings in the Chinese Court on 10 April 2015;

   The English translation of the single expert’s report; and

   English translation of the “Marriage Law of the Peoples Republic of China”.

3. The last document upon which the husband sought to rely was a copy of an entry in a publication about family law in China. It is not an official publication of the Government of the Peoples’ Republic of China. The document emanates from the law offices of an attorney in New York, and contains the disclaimer “We are not attorneys in the jurisdiction…”. The document is not admissible in evidence and will be disregarded.  

HISTORY

1. Some of the relevant factual history, at the time of determination of these applications, is subject to dispute. It is neither possible nor necessary to resolve those issues. As far as possible, the competing assertions, where they are relevant, will be set out.

2. The wife is a Chinese citizen and is ordinarily resident in China.

3. The husband is an Australian citizen and is ordinarily resident in Australia. Although born in China, the husband commenced residing in Australia in about 1989 and continued to reside in Australia, and work in Australia, during the currency of the relationship between the husband and the wife.

4. The wife alleges that the parties commenced cohabitation in Australia in April 2004. They were married in Australia in 2005 and they separated on a final basis in April 2011. Their divorce in Australia, pursuant to the Family Law Act1975 (Cth) (“the Act”), was granted on 20 October 2013. During the course of their relationship the wife maintained her primary residence in China and the husband maintained his primary residence in Australia. They lived together from time to time either in China or in Australia.

5. Prior to co-habitation, the wife was a director of a company based in City C and had assets in China including a home and interest in a company. The husband was employed in Australia and owned real estate at Suburb D subject to a mortgage, as well as a motor vehicle and superannuation.

6. When the husband and the wife met, the husband was living in a rental property in Suburb E and the wife moved into that property when they commenced cohabitation.

7. The husband asserts that during the course of the relationship the wife purchased various properties in China. The wife contends that the Chinese property was owned by her prior to the relationship.

8. The wife asserts that between the commencement of their co-habitation and approximately September 2005, she and her mother contributed $150,800 towards the repayment of the mortgage secured over the husband’s Suburb D property. On 27 September 2005, the husband and the wife entered into an agreement in which he acknowledged that he would repay the monies borrowed from the wife and her mother over a period of seven years.

9. In September 2005, a company, F Pty Ltd was incorporated in Australia. The wife was a shareholder and director of the company and the husband was the secretary.

10. In March 2006, the husband borrowed $360,000 from Westpac Bank to discharge the mortgage to St George Bank secured over the Suburb D property. The mortgage over the Suburb D property was discharged on or around 15 June 2006. The amount was sufficient to discharge the loan over the Suburb D property and pay the sum of approximately $148,000 to the husband.

11. In May 2006, the husband purchased a property in Brisbane for $361,500. In order to finance the purchase, the husband borrowed $253,100 from Westpac Bank and the balance of the funds came from the monies which had been borrowed from Westpac Bank that were secured over the Suburb D property.

12. On 5 July 2007, the husband sold the Suburb D property for $457,000, paying $338,180 to Westpac Bank. There is no evidence about the manner in which the remainder of the proceeds of sale, approximately $100,000, was utilised.

13. When the wife visited Australia in August 2007, the husband was residing in rental premises at G Street, Suburb D. Ms Csien was also residing at those premises.

14. The husband and the wife travelled together to the Middle East in September 2007, to City C in 2008 and to South East Asia in March 2009.

15. On 14 April 2010, the husband and Ms Csien completed a loan application to the National Australia Bank in relation to the purchase of a property at Suburb H for $825,000. The purchase was completed on 3 May 2010.

16. In July 2010, the wife and the husband travelled to North Asia.

17. In October 2010, the wife applied for a partner visa to Australia to enable her to reside in Australia for four years, following which she then would be eligible to apply for permanent residence.

18. On 13 January 2011, the wife travelled to Australia to spend time with the husband. During that time she gave the husband $6,000 which she understood to be part of a deposit for the purchase of a property in North Sydney. The purchase did not proceed.

19. In April 2011, the parties separated. The wife asserts that the reason for the separation was that she discovered that the husband was in a de-facto relationship with Ms Csien and that they had a child together.

20. On 12 June 2011, the husband made an application to the Civil Court in B, China (the Chinese proceedings) seeking that the parties’ marriage be dissolved and that their joint spousal property be divided. Those proceedings were returnable on 28 September 2011;on that date, the husband withdrew his application.

21. On 28 September 2011, the husband made a further application in China requesting that his name be added to the wife’s property interests in China and seeking to become a joint owner of those properties. The wife was represented in those proceedings on 30 November 2011.

22. Since August 2012 the husband has been employed as a manager for a company based in City I. While there is no clear statement in the affidavits upon which the husband relies as to his place of residence, I infer that he resides in rental premises in Australia. Such appeared to be conceded by his counsel in the course of discussion. Although in written submissions counsel for the husband asserts that the husband now resides in China and does not intend to return to Australia, there is no evidence from the husband to that effect.

23. The Chinese proceedings were determined by judgment delivered in June 2013 which held that the properties the subject of the proceedings were not the property of the wife. The husband has appealed against those orders. That appeal was listed on 25 July 2016.

24. On 24 July 2013, the husband filed a Divorce Application in the Family Court of Australia and the divorce order was made final on 20 October 2013. In his application, the husband stated that he regarded Australia as his home and intended to live indefinitely in Australia, that he is an Australian citizen by grant of citizenship, and that he lives in Australia and has done so for the 12 months immediately prior to the filing of the application.

25. On 11 April 2014, the husband made a further application in China seeking an order that the parties’ marriage be dissolved and that their property be divided. That application was returnable on 12 September 2014. The wife did not attend and was not aware of the proceedings.

26. On 11 September 2014, the wife filed an Initiating Application for property settlement in the Federal Circuit Court of Australia.

27. On 23 December 2014, the wife filed an Application in a Case seeking an antisuit injunction in relation to the Chinese proceedings.

28. On 27 March 2015, the husband filed a Response to the wife’s Initiating Application seeking an order that “the Initiating Application filed 11 September 2014 be dismissed” and seeking an anti-suit injunction in relation to the Australian proceedings.

29. The wife’s legal representative appeared in the Chinese proceedings on 26 February 2015 and again on 25 March 2015, the second return date. On 2 April 2015, the wife attended the Chinese court with her legal representative.

30. On 10 April 2015, the Chinese court ordered that the husband provided a certified copy of the Australian divorce documentation. The documentation has not been provided to the Chinese court and no further dates have been allocated in the proceedings.

31. On 7 September 2015, the husband deposed in an affidavit that he remained the sole owner of the Brisbane property and retained a 50 percent interest in the Suburb H property.

32. The wife asserts that the husband has transferred his interest in the Suburb H property to Ms Csien and that Ms Csien has purchased property at Suburb J which she holds on trust for the husband.

33. In the wife’s Further Amended Application filed 27 June 2016, she seeks orders pursuant to section 106B of the Act setting aside the husband’s transfer of his interest in the Suburb H property to Ms Csien; in the alternate, a declaration that Ms Csien holds 50 percent of the Suburb H property on trust for the husband and a declaration that Ms Csien owns the property at Suburb J in whole or in part on trust for the husband.

34. The wife’s Further Amended Application, seeking orders under section 106B of the Act, stands to be determined at trial.

THE SINGLE EXPERT’S REPORT

1. A single expert has been appointed and prepared a report in relation to the application of Chinese Law to the present proceedings.

2. The report of the single expert has not been tested and no opportunity has been given for cross-examination. However, the single expert relevantly opines that, pursuant to Chinese law:

   1.A Chinese court will recognise the divorce granted in the Family Court of Australia subject to being satisfied as to the procedure.

   2.From the date of marriage to the date of divorce any property acquired by the husband and the wife is their joint property regardless of the name of the registered proprietor.

   3.A Chinese court will not make orders for property settlement unless the marriage has been dissolved.

   4.Property owned by a party prior to the marriage remains the property of that party and does not become joint property of the parties.

   5.A Chinese court can make property adjustment orders only in relation to joint property.

   6.Chinese courts do not have authority outside their judicial district and there is no mutual recognition of judgments between Australia and China. The Chinese court will not investigate or have regard to assets outside China.

   7.Chinese courts will not recognise orders made by the Family Court of Australia concerning the partition of property although the findings of fact contained in a judgment of the Family Court of Australia can be admitted as evidence of those facts in a Chinese court.

IN WHAT ORDER SHOULD THE COMPETING APPLICATIONS BE DETERMINED?

1. The considerations in determining the competing applications are not the same. In determining the husband’s application to restrain the wife from proceedings in Australia, the test is whether Australia is “a clearly inappropriate forum”.

2. Even if it were determined that Australia was not a clearly inappropriate forum, it does not follow that an injunction would be granted restraining the husband from proceedings in China as sought by the wife.

3. In the Full Court’s decision in Lederer v Hunt (2007) 36 Fam LR 587, citing CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, Bryant CJ, Finn and Boland JJ stated that “one well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive.” (Emphasis added)

4. There are two bases of the Court’s powers to grant an anti-suit injunction as outlined in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, at 392 – 393. Firstly, the Court’s inherent power to prevent its processes being abused; and secondly, powers arising from equity to prevent proceedings that are vexatious or oppressive.

5. I propose to consider the competing applications in the following priority:

   ·    Is Australia a “clearly inappropriate forum”. If the answer to that question is “yes” then it is not necessary to consider the wife’s application for an injunction restraining the husband from proceeding in China. If the answer to that question is “no” then:

   ·    Should an injunction be granted to restrain the wife from continuing the proceedings in Australia?

   ·    In the alternate, should the proceedings in Australia be stayed?

   ·    Should an injunction be granted restraining the husband from proceedings in China?

IS AUSTRALIA A CLEARLY INAPPROPRIATE FORUM?

1. In Henry v Henry (1996) 185 CLR 571 (“Henry”), the High Court considered the principles to be applied in considering an application relating to forum. The Court held that the test to be applied is that of a “clearly inappropriate forum”. The High Court noted:

   39. Some of the matters properly to be taken into account in a case such as the present emerge from what has already been written. To start with, no question arises unless the courts of the respective countries have jurisdiction with respect to the parties and their marriage. And if there is a question as to the jurisdiction of the foreign court, it may be necessary to adjourn the local proceedings to enable the foreign court to determine that question. However, if both have jurisdiction, it will be relevant to consider whether each will recognise the other's orders and decrees. If the orders of the foreign court will not be recognised in Australia, that will ordinarily dispose of any suggestion that the local proceedings should not continue. However, if the orders of the foreign court will be recognised in Australia, it will be relevant to consider whether any orders may need to be enforced in other countries and, if so, the relative ease with which that can be done. As well, it will be relevant to consider which forum can provide more effectively for complete resolution of the matters involved in the parties' controversy.

   
   40. Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs that have been incurred. It will also be relevant to consider the connection of the parties and their marriage with each of the jurisdictions and to have regard to the issues on which relief might depend in those jurisdictions. Moreover, it will be relevant to consider whether, having regard to their resources and their understanding of language, the parties are able to participate in the respective proceedings on an equal footing. The list is not exhaustive. Rather, the question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved. (Footnotes omitted)

2. It follows from the decision in Henry that the matters here to be considered are:

   ·    Do both Courts have jurisdiction in relation to the parties and their marriage?

   ·    If both have jurisdiction, will each recognise the orders and decrees of the other? If the orders of the foreign Court will not be recognised in Australia, that will ordinarily dispose of any question that the local proceedings should not continue.

   ·    Which forum can provide more effectively for complete resolution of the matters involved in the controversy?

   ·    The order in which the proceedings were instituted, that stage they have reached and the costs that have been incurred.

   ·    The connection of the parties and their marriage to each of the jurisdictions.

   ·    Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing.

3. Each party can claim a legitimate juridical advantage in her or his chosen forum. A presumption of joint ownership of assets acquired in China during the marriage advantages the husband. The absence of such a presumption in Australia and the requirement that the Court considered contributions to the acquisition, conservation and improvement of the assets, wherever situated, advantages the wife. Those advantages are evenly balanced.

4. Since, in these proceedings, there are competing applications in which each party contends that one jurisdiction is clearly inappropriate, I propose to determine each application sequentially.

5. Consideration must first be given as to whether Australia is a “clearly inappropriate forum” for the determination of the property dispute between the parties.

6. I propose to consider each of the factors referred to in Henry in relation to each jurisdiction in determining whether Australia is a clearly inappropriate forum.

Do both Courts have jurisdiction in relation to the parties and their marriage?

1. The Chinese Court has jurisdiction provided that the husband complies with the requirements to provide a certified copy of the divorce order. The husband asserts that there is a complicating factor in relation to the Chinese jurisdiction, in that the wife has asserted in the Chinese proceedings that the marriage was not valid because the husband was living in a de-facto relationship with Ms Csien at the time of the marriage.

2. According to the single expert, the Chinese Court will exercise jurisdiction only in relation to property in China and will not have regard to the husband’s property in Australia.

3. The Australian Court has jurisdiction whether or not the marriage was valid in China. The parties married in Australia and the divorce order was made according to Australian law.

4. The Australian Court can have regard to the existence of the wife’s property in China and can make orders in personam against the wife in respect of that property.

5. This factor favours the proceedings being conducted in Australia.

If both have jurisdiction, will each recognise the orders and decrees of the other? If the orders of the foreign Court will not be recognised in Australia, that will ordinarily dispose of any question that the local proceedings should not continue.

1. The single expert opines that the Chinese Court will not recognize orders made in Australia, other than the order for divorce.

2. Any order made in proceedings in China cannot be registered in Australia.

3. Counsel for the husband submitted that:

   Any order made in the Australian proceedings would be an order in REM and though not enforceable per se in China, could certainly be enforced in Australia pursuant to the assorted enforcement mechanisms available under the Act.

   There is no similar process whereby the Chinese Court would be required to take into account any Australian Orders, but in any event there would be no Chinese proceedings if  the wife’s anti-suit injunction were successful, thus depriving the Husband of an ability to place evidence before the Australian Court as to the Wife’s beneficial interests in China.

4. I do not accept that the proceedings in Australia are proceedings in rem. I do not accept that the husband would be deprived of the opportunity to place evidence before the Court in Australia of the wife’s assets in China.

Which forum can provide more effectively for complete resolution of the matters involved in the controversy?

1. As opined by the single expert, the wife’s claim against the property of the husband in Australia cannot be determined in China.

2. The husband’s claim against the property of the wife in China can be determined in Australia.

3. Counsel for the husband submitted that the husband’s claim against the wife’s Chinese assets could only be determined in China. I do not accept that submission.

4. However, I accept that any order made in Australia in relation to the wife’s interest in property in China cannot be enforced against that property. Despite this, the Court has jurisdiction to make orders in personam against the wife (see Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143).

5. The husband submits that, in order to determine his claims, it will be necessary to have valuations and other documents produced in China translated into English, and this will cause expense.

6. No such expense would be incurred in the Chinese proceedings because those proceedings are only concerned with the property in China. Should the proceedings be held in China, the wife would be precluded from making any claims against the property that the husband owns in Australia, to which she asserts that she has made contributions. If the proceedings are heard in Australia, the husband would be enabled to adduce evidence as to the existence of the wife’s Chinese property.

The order in which the proceedings were instituted, that stage they have reached and the costs that have been incurred.

1. The husband commenced proceedings for divorce in China in June 2011. Those proceedings were withdrawn.

2. The Chinese property proceedings were instituted by the husband on 28 September 2011. The wife was represented in those proceedings on 30 November 2011.

3. Those proceedings were determined by judgement delivered in June 2013 which held that the properties the subject of the proceedings were not the properties of the wife.

4. The present proceedings in China were instituted by the husband on 11 April 2014. The wife claims that those proceedings were not brought to her attention until December 2014. Neither the wife nor her legal representatives appeared in the Chinese Court on 12 September 2014.

5. The wife’s Initiating Application for property settlement in Australia was filed on 11 September 2014.

6. The husband responded to that application.

7. The timing of the institution of the two sets of proceedings cannot in those circumstances be determinative.

8. The proceedings in Australia are well advanced as is demonstrated by the volume of material filed by both parties. The proceedings in China appear to be in limbo, the Court not yet having accepted jurisdiction.

9. It is the wife’s submission that she has incurred significant costs, approximately $176,000, with respect to the local proceedings, but only modest costs with relation to the Chinese proceedings. The wife deposes, in her affidavit filed 10 November 2015, that she has expended approximately $5,656 in legal fees in relation to the Chinese proceedings.

10. In his affidavit filed 7 September 2015, the husband deposed that he had expended, to that date, approximately $71,000 in relation to the Chinese proceedings.

The connection of the parties and their marriage to each of the jurisdictions.

1. The wife is a Chinese citizen living in China. She owns property in China and does not own property in Australia.

2. The husband is an Australian citizen and has been living in Australia since 1989. He has worked in Australia and owns property in Australia. He does not own property in China.

3. Counsel for the husband submitted that the husband is residing in China and has no intention of returning to Australia. There is no evidence from the husband about his residence or his intentions.

4. The only evidence about the husband’s residence is found in the annexures to the affidavit of the wife where his departure cards are annexed. The husband departed Australia on 16 June 2015 and indicated on his departure card that he was an Australian resident temporarily departing for the purpose of visiting friends or relatives. He returned to Australia in November 2015 and remained in Australia until 15 February 2016 when he again filled in a departure card indicating that he was departing temporarily.

5. The single expert states in his report that, for the purpose of the Chinese proceedings, the husband is a “foreign national”.

6. I do not accept that the husband is resident in China. He maintains to the Australian government that he is an Australian resident.

7. The marriage took place in Australia and the parties were divorced according to Australian law. The jurisdiction of the Family Court of Australia in divorce was invoked by the husband.

Whether, having regard to their resources and their understanding of the language, the parties are able to participate in each jurisdiction on an equal footing.

1. Each party has engaged legal representatives in each country.

2. The parties both speak Mandarin Chinese and can participate in the proceedings in China.

3. The husband asserts that he would be hampered by inadequate English skills from full participation in proceedings in Australia. I do not accept that assertion. He has been participating in proceedings in Australia since 27 March 2015 when he filed a Response to the wife’s Initiating Application. Since that time, he has filed a Response to an Application in a Case, three Applications in a Case, two affidavits, and a Financial Statement. None of those documents bears a certification that an interpreter was required. The language in his affidavits is sophisticated. The husband has participated in hearings before Stevenson J, Johnston J, and was the appellant in an appeal in the Full Court.

4. The husband has demonstrated no impediment to participation in Australian proceedings.

5. The wife deposed that she has adequate English to engage in Australian proceedings and she has also filed a volume of documents in Australian proceedings, as is demonstrated by the documents on which she relied in this application.

6. Both parties are able to participate on equal footing in either jurisdiction.

7. Having regard to all of the matters considered in these reasons, Australia is not a clearly inappropriate forum.

SHOULD THE WIFE BE RESTRAINED FROM CONTINUING THE PROCEEDINGS IN AUSTRALIA?

1. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 , the majority in the High Court held, at 395-396:

   The cases concerned with injunctions in restraint of proceedings in foreign courts recognise that, although an injunction of that kind operates in personam, it nevertheless interferes with the processes of the foreign court and may well be perceived as a breach of comity by that court. Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot in the following terms:

   "'Comity', in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws."

   For this reason, the cases also emphasise that the power to grant injunctions in restraint of foreign proceedings should be exercised with caution. And that is so whether the injunction is sought in the exercise of the inherent or equitable jurisdiction. (Footnotes omitted)

2. Their Honours went on to say, at 397:

   It will generally be the case that, where an anti-suit injunction is sought in the exercise of equitable jurisdiction, the matters relied upon for the grant of the injunction will or can be raised as issues for determination in the foreign proceedings in respect of which the injunction is sought. Because that is so, an interlocutory anti-suit injunction is vastly different from other forms of interlocutory relief.

3. And:

   If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction.

4. Their Honours stated, at 398:

   …the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction.

5. The test to be applied, in accordance with the test in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 247 per Deane J, is whether the Chinese proceedings are vexatious and oppressive, in that they are

   
   

   “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.

6. There is a legitimate juridical advantage to the wife in proceedings in Australia. She alleges that the husband has property of substantial value in Australia to which she has made a contribution in contributing lump sums towards the discharge of a mortgage.

7. According to the report of the single expert, that property will not be considered as an asset in the proceedings in China. Only in Australia can the wife’s claim against the husband’s Australian property be determined.

8. If her claim is legitimate, and arises under Australian law, it is difficult to see how her pursuit of that claim could be classified as burdensome to the husband, simply because he wishes to pursue a different claim in another jurisdiction.

9. The husband has not established that the wife’s claim is vexatious or oppressive within the test applicable.

10. It follows that the wife should not be restrained from continuing proceedings in Australia.

SHOULD A STAY BE GRANTED IN RELATION TO THE AUSTRALIAN PROCEEDINGS?

1. In Henry v Henry, Brennan CJ stated, at 578:

   It follows that, before proceedings instituted under s 39(3) of the Family Law Act are stayed, two conditions must be satisfied: first, that the Family Court is a clearly inappropriate forum in which to determine proceedings for a decree of dissolution of the marriage in question; secondly, that there is some forum in another country which has and can exercise jurisdiction in proceedings for a decree of dissolution of marriage. (Emphasis added)

2. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391, the majority held that “a stay is only to be granted if the Australian court is a clearly inappropriate forum.”

3. Thus, in order for a stay to be ordered against the Australian proceedings, the first consideration must be that Australia is a “clearly inappropriate forum”.

4. As determined above, Australia is not a clearly inappropriate forum.

5. Therefore, there is no basis for a stay of proceedings to be granted, and the husband’s application must fail.

SHOULD THE HUSBAND BE RESTRAINED FROM PROCEEDING IN CHINA ?

1. Senior counsel for the wife submitted that it would be oppressive and vexatious for the wife to have to simultaneously prosecute proceedings in Australia and defend proceedings in China.

2. There is a juridical advantage to the husband in proceeding in China. Under Chinese law, any property acquired in China by either party after the date of the marriage and before the marriage is dissolved, is joint property and no considerations of contribution to the acquisition, maintenance and conservation of the property apply.

3. Senior counsel for the wife submitted that there is no such property, the wife having acquired her property in China before the marriage.

4. It is the husband’s case that substantial property, including five pieces of real property and shares in a company, was acquired by the wife in China after the marriage.

5. The chronology relied upon by the husband suggests that he has been unsuccessful in persuading the court in China that the properties belong to the wife. On 19 June 2013, judgement was handed down in which it was determined that four properties which the husband alleged belonged to the wife, were the property of a company. The single expert states that, under Chinese law, property which belongs to a company is not property of the wife. The husband appealed against that decision. The appeals were either withdrawn or dismissed.

6. There remains on foot in China the husband’s application for divorce and consequent division of assets.

7. There is no evidence before this court that a court in China would recognize and enforce an order which restrained the husband from proceeding in China.

8. The single expert states that there is no civil and judicial mutual assistance agreement between China and Australia. The single expert states:

   Very unfortunately, as there is no bilateral civil judicial mutual assistance agreement signed between China and Australia, therefore the courts in China can only recognise the divorce decree made the Australian courts based on the “Rule of the Supreme Peoples’ Court concerning Chinese citizens applying for recognition of divorce decree procedure by overseas courts”. Judgements such as the partition of property are not binding on courts in China.

9. That statement does not suggest that any order made in the Family Court of  Australia, such as is sought by the wife, would have any effect on the continuation or otherwise of the Chinese proceedings.

10. The wife has not demonstrated that there is any utility in making the orders she seeks.

1. Accordingly the wife’s application will be dismissed.

CONCLUSION

1. The findings I have made lead to the somewhat unusual circumstance that the proceedings in both Australia and China will continue.

2. That is a consequence of the manner in which these parties have operated and conducted their personal and financial affairs.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 August 2016.

Associate: 

Date:  16/8/2016