Seer and Hett

[2019] FamCA 70

FAMILY COURT OF AUSTRALIA

SEER & HETT [2019] FamCA 70

FAMILY LAW – PRACTICE AND PROCEDURE

APPLICANT: Mr Seer

RESPONDENT: Ms Hett

FILE NUMBER: CAC 1020 of 2018

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Masters

SOLICITOR FOR THE APPLICANT: Marjason & Marjason Solicitors

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. The stay/adjournment/dismissal/restraint response filed by the Husband and the Wife's application in respect of the forum is listed for hearing together, commencing at 10am on 4 June 2019.

2. By 24 May 2019 the parties are to file any affidavit from any joint single expert in relation to the valuation of the Chinese properties.

3. In the event that the parties are unable to reach agreement about a single expert, then either party has liberty on three days’ notice to list the matter before the Court for determination of that issue.

4. The Husband having alleged an abuse of process by the Wife in her pursuit of divorce proceedings is required to file and serve a document within 14 days of today's date setting out the facts and matters which the Husband alleges constitute that abuse of process.

5. By 31 May 2019 the parties are to file and serve a joint balance sheet.

6. In the event that the parties seek further procedural directions, including as to whether or not there will be scope for cross-examination of witnesses at the hearing, then the parties are at liberty to relist the matter on three days’ notice.

7. The costs of last Monday and today are reserved to the forum hearing.

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 Seer & Hett 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 CANBERRA

FILE NUMBER: CAC 1020 of 2018

Mr Seer

Applicant

And

Ms Hett

Respondent

REASONS FOR JUDGMENT

1. This matter concerns contested property proceedings between a Husband and Wife under circumstances where there is property of undetermined value held in China and property of undetermined value held in Australia. 

2. Part of the property held in each of those jurisdictions is real property.  A question has arisen as to whether or not Australia is a clearly inappropriate forum for the determination of either all or some of the issues relating to the property in the case.  Allied to this dispute between the parties is a dispute in relation to an order for divorce as sought by the Wife.  That order for divorce has followed a torturous path.

3. Initially on the hearing of the matter before the Registrar it was determined that while there were grounds for divorce there was a question as to whether or not the divorce should be deferred on the basis that the application for divorce constituted an abuse of process. 

4. The general reasoning to support that argument was that the giving of an Australian divorce may allow the Wife to engage in parallel proceedings in China for property, whereas the deferring of that divorce may stop her from doing so. 

5. The Husband has adduced some evidence to suggest that the Wife has said things to indicate her intention to litigate in China regardless of what happens in Australia.

6. At this stage of the proceedings it is of course impossible to determine whether those things were said and what weight should be attached to them if they were in fact said.  The Wife subsequently became subject to an anti-suit injunction in the Federal Circuit Court, the matter having moved into the Federal Circuit Court in part due to the Registrar deferring the question of the divorce to the Federal Circuit Court.  There is some contest as to whether or not the Wife consented to the anti-suit injunction in respect China or not.

7. On the raising of the question of forum the matter was transferred to the Family Court of Australia for mention.  The transfer of those proceedings involve not only the property proceedings but also involve the divorce proceedings and the question of a stay of those proceedings.  That mention was listed for last Monday.  At that time there was a contest as to whether or not the matters could proceed to hearing, although it was not identified that the matter had simply been listed for mention on that date.  The matter was unable to be finally resolved on Monday due to a lack of time and was adjourned to the Friday of this week, being today, to finalise the issue about whether or not there should be a grant of a stay in relation to the divorce proceedings.  This morning it became apparent that the listing that had come from the Federal Circuit Court was marked for mention only lending a different complexion to the resistance on the part of the Husband to the matter proceeding last Monday.

8. In significant exchanges between the parties I have indicated reasons for the matter to be adjourned further, over the objection of the Wife.  Those reasons relate to the necessity to provide procedural fairness to both of the parties in the proceedings and noting that the matter having been listed for mention, the Husband having resisted the hearing of the matter and the husband professing an inability to proceed with the matter to finality, are indicative that the matter could not proceed in a way that is procedurally fair to, at least the Husband, in these proceedings.  That has necessitated the adjournment of the proceedings.

9. In parallel the question of forum is being dealt with.  Directions were given on Monday being procedural directions to prepare the forum matter for hearing.  Those procedural directions relate to the obtaining of a single expert and to the filing and serving of agreed facts and further affidavit material directed towards the question of forum.  As yet a hearing date for that has not been set although the filing directions would provide that all material is before the Court by 24 May 2019. 

10. The question of forum and the question of the stay of the divorce proceedings are linked.  If the forum is determined not to be Australia then that determines the issue as to whether or not there should be a stay of the divorce proceedings. Under those circumstances there should certainly not be.  The only basis for seeking a stay is that it is a means of ensuring that the Wife is not able to continue with the Chinese proceedings, although it is not clear that is the case, it seems to be the common position between the parties.  If the forum is determined to be Australia it is then a factor to be considered as to whether or not the stay should continue to be granted although, of itself, it is not necessarily determinative of that issue. 

11. The facts to be determined in relation to forum include, on the part of the Husband, the value of the Chinese property and the state of Chinese law.  The Wife says the value of the Chinese property is not a necessary consideration, although the nature of the Chinese law is.  It may very well be a factor in the determination of forum to consider the relative values of the Chinese property and the Australian property.  That, it seems to me, is likely to be a factor attracting strong weight in the determination of whether or not Australia is a clearly inappropriate forum.  Whether or not it is a matter that will attract strong weight will of course fall to be determined on the submissions made about any such valuations and the information to be derived from those valuations.  For example, as indicated in exchanges with counsel, if the value of property in China grossly outweighs the value of property in Australia that may then present a strong reason to determine that Australia is a clearly inappropriate forum.  I couch that note with the word “may”, as again it is premature to determine whether or not any particular fact will be determinative of the question of forum, but on the state of the material that is before me at present it appears likely that it will be a matter which it will be necessary for the Court to consider.

12. There is a strong dispute between the parties as to whether or not the stay question should be linked to the forum question for hearing or whether it should be uncoupled. 

13. There is a strong reason calling for its uncoupling and that is that the Wife has already suffered lengthy delays in her application for divorce under circumstances where it appears there are grounds for her to receive that remedy.  The further delay of that remedy is contrary to the interests of the Wife and to her receiving the benefits of the remedy to which it seems that she is clearly entitled. 

14. There are however strong reasons to couple the matters together.  As has been noted there are matters which link the question of forum to the question of whether or not a stay should be granted.  That question of whether or not a stay should be granted is linked not only to the question about whether or not the remedy of divorce is pursued as some kind of abuse of process, but also to other authority which has been drawn to the Court's attention today being the matters identified by the majority in Emmett & Emmett. 

15. In support of the idea that they should be heard together the Husband says that this is an efficient way to deal with the matter and notes the closely related issues that are to be determined between the two matters.  I note that while there are closely related issues, there are also disparate issues.

16. I note that the primary purpose of the Rules which govern this Court is to see proceedings resolved in a just and timely manner at a cost to the parties and the Court that is reasonable.  It is clear on the arguments presented by the parties that those considerations pull in different directions in this case.  However, the balance in relation to those considerations is to deal with issues which cover a large portion of the same factual ground together, despite possible delay that may occasion to the Wife in her divorce.  I say might occasion delay to the Wife in her divorce as the issue of forum may well be determinative of the question as to whether or not there should be a stay granted or should not be a stay granted on the question of whether or not she is to obtain her divorce.  Accordingly, it will be necessary to hear the matters together despite the difficulties that that poses for the Wife. 

17. It will also be necessary to determine the question of the value of the properties in China, given the observations that I have made about the potential for that to be important in the determination of the question of forum.  That determination of the values should take place in light of the currently agreed directions made by the parties.

18. A hearing date is available for one day on 4 June 2019, the parties having identified that one day appears to be the appropriate time. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 8 February 2019.

Associate: 

Date:  19 February 2019