Pyun and Pyun

[2014] FamCA 967

FAMILY COURT OF AUSTRALIA

PYUN & PYUN [2014] FamCA 967

FAMILY LAW – COSTS – Between parties – Circumstances justifying an order – Where the parties entered into a deed of agreement in Korea – Where proceedings were instituted by the husband in Australia in relation to the validity of the agreement and for property division – Where the wife in response sought orders for property division and spousal maintenance – Where the parties agreed at the call-over date that the appropriate forum was Korea – Where the costs applications of both parties were dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Pyun

RESPONDENT: Ms Pyun

FILE NUMBER: SYC 5737 of 2012

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees

HEARING DATE: 27 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cohen

SOLICITOR FOR THE APPLICANT: El Khan Legal Solicitors & Attorneys

SOLICITOR FOR THE RESPONDENT: Cambridge Lawyers

Orders

IT IS NOTED

1. That it is agreed that the most appropriate forum for these proceedings is Korea.

IT IS ORDERED

1. That the applications and response in the proceedings in Australia are withdrawn and dismissed.

2. That the application for costs for both parties be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pyun and Pyun has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5737  of 2012

Mr Pyun

Applicant

And

Ms Pyun

Respondent

REASONS FOR JUDGMENT

1. Before the Court are proceedings in relation to property, instituted by the husband, Mr Pyun. The respondent is the wife, Ms Pyun.

2. The chronology of the matter, briefly, is that the parties married in 1996 and lived for a period of time thereafter in Australia.

3. They separated in about September 2002 for the first time. The wife then went to Korea and purchased a number of properties. They reconciled in April 2004 and after the reconciliation lived in Australia and purchased properties in Australia. Those properties were sold and subsequently other properties were purchased in Korea.

4. The parties separated again in September 2009 and proceedings were instituted for divorce and settlement of property in Korea. Those proceedings came to an end in March 2010 when the parties entered into a deed of agreement.

5. About two months after the deed of agreement was entered into, the parties reconciled again and returned to Australia. They separated for the final time in March 2011 and divorced in December 2012. 

6. All of the property which is relevant to the proceedings is situated in Korea. The dispute about the validity of the deed of agreement must be resolved according to Korean law.

7. Before me today the parties have agreed that the applications in Australia should be dismissed and that Korea is the appropriate forum for this dispute to be conducted.

8. Each party seeks an order for costs in relation to the dismissal and withdrawal of the Australian proceedings. 

9. The proceedings were instituted in Australia by the husband who sought orders in relation to the validity of the agreement which had been entered into in South Korea and consequent orders for the distribution of property.

10. The wife, in response, sought orders that the husband’s application be dismissed and in the alternate sought orders for the distribution of property and an order for spousal maintenance. Thus it is the case that each party has sought to invoke the jurisdiction of this Court.

11. The applications for costs are to be determined under the provisions of sub-s 117(2)(A) of Family Law Act1975 (Cth).

12. Before me is a balance sheet which indicates that the parties each have some assets from which they would be able to pay costs. 

13. In relation to the conduct of the proceedings and the conduct of the parties particularly, I am of the view that since each party sought to invoke the jurisdiction of this Court, neither can criticise the other or hold the other’s conduct as being responsible for the institution or the continuation of the proceedings.

14. The parties, mainly at the instigation of the Court when the matter was listed for call-over, have agreed that the forum is inappropriate. They both invoked the jurisdiction. They both agree the forum is inappropriate and in those circumstances I do not consider it appropriate to make any order for costs. 

15. Therefore the applications for costs of both parties are dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 27 October 2014.

Associate: 

Date:  11 November 2014