Su & Jia

[2021] FamCA 544

FAMILY COURT OF AUSTRALIA

Su & Jia [2021] FamCA 544

File number(s):	MLC 5093 of 2018
Judgment of:	WILSON J
Date of judgment:	28 July 2021
Catchwords:	APPLICATION FOR ALTERATION OF PROPERTY ORDERS – proceeding in China for parenting and property orders resolved at mediation – remaining property in Australia an improved parcel of real estate plus $5,000,000 bond – no evidence of circumstances in which bond redeemable – husband’s application for release to him of bond – no evidence of his entitlement to bond – orders not made until adequate evidence is adduced of all circumstances in respect of $5,000,000 bond.
Legislation:	Family Law Act 1975 (Cth) s 79
Cases cited:	Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517
Number of paragraphs:	28
Date of hearing:	13 July 2021
Place:	Melbourne
Counsel for the Applicant:	Not applicable
Solicitor for the Applicant:	Not applicable
Counsel for the Respondent:	Mr G. Combes
Solicitor for the Respondent:	K & C Law Group Pty Ltd

ORDERS

MLC 5093 of 2018

BETWEEN:

MS SU

Applicant

AND:

MR JIA

Respondent

ORDER MADE BY:	WILSON J
DATE OF ORDER:	28 JULY 2021

THE COURT ORDERS THAT:

1.On or before 4pm on 30 August 2021 the respondent must file and serve any further evidence on which he relies in relation to the sum of $5,000,000 bond held by Treasury Corporation Victoria.

2.On or before 4pm on 30 September 2021 the applicant must file and serve any evidence in reply. 

3.On or before 4pm on 29 October 2021 the parties must file and serve written submissions.

4.I adjourn the further hearing of this application to 10am on 24 November 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

WILSON J:

INTRODUCTION

1. The parties in this litigation are Chinese nationals who live in China.  They have no current connection to the Commonwealth of Australia save for two things – the sum of $5m previously deposited in connection with a visa together with a parcel of real estate in suburban Victoria.  They married in China and divorced in China.  They settled their parenting and property issues in China.

2. The sum of AUD $5m is held in a nominated account maintained with Treasury Corporation of Victoria.  That sum was deposited in connection with a visa.  The respondent has since withdrawn that visa.  The applicant seeks orders in relation to the sum of $5m.  The respondent says the applicant is not entitled to any amount in view of the property orders already made in China.

   SYNOPSIS

3. For the reasons that follow, in my view further evidence must be adduced before any determination is made in this proceeding.

   RELEVANT FACTUAL BACKGROUND IN OVERVIEW

4. This proceeding was commenced in May 2018 upon the wife filing an application for orders altering property interests under s 79 of the Family Law Act.

5. In the same month the wife commenced a proceeding in a court in China seeking orders in relation to matrimonial assets in China.

6. The respondent husband responded to the wife’s initiating application by contending in his response dated 2 July 2018 that this proceeding should be dismissed so as to allow the matter to be determined in a Chinese court.

7. The parties married in China on in 2010.  They divorced pursuant to orders made by a Chinese court on 17 January 2020.

8. Neither party lives in Australia.

9. On 27 February 2020 when this proceeding was before me for directions, Ms L, the solicitor then acting for the wife, told me that the parties had fully and finally resolved all property issues by reason of a mediation conducted in China.  On probing Ms L for information about the applicant’s instructions in the overall, Ms L told me she needed an adjournment to obtain her client’s further instructions.

10. The case next came before me on 27 October 2020.  On that day the applicant told me, in person but using an interpreter, that she wished to invoke the jurisdiction of this court despite the parties successfully mediating in China in respect of all property and parenting issues.  I made directions for the filing and service of affidavit material and submissions and adjourned the further hearing of the issue of the court’s jurisdiction to 14 July 2021.

    THE WIFE’S EVIDENCE

11. On 14 July 2021 the wife participated in the hearing by telephone using an interpreter.  She told me she was in China at the time.  She was not legally represented.  As required by Re F: Litigants in Person Guidelines[1] I explained to the applicant the manner in which the hearing on 14 July 2021 would unfold.  I invited her to tell me if she needed further explanation.  She said she did not.  She said she fully understood how the hearing on 14 July 2021 would proceed.

    [1] (2001) 27 Fam LR 517.

12. The wife had not filed written submissions in accordance with my directions made on 27 October 2020.  Nor had she filed affidavit material in accordance with those directions, whether on the date ordered or at all.  The wife filed two affidavits relevant to this application, one on 7 May 2018 and the second on 26 February 2021.  Taking first her 7 May 2018 affidavit, the wife affirmed the following –

    (a)she and the respondent commenced cohabitation in China in May 2010 and married in 2010;

    (b)she has a property in Region C, China that she said (without providing any verification of the amount) was worth $60,000;

    (c)the respondent has three children from a previous marriage, one born in 1993, one born in 2000 and one born in 2003;

    (d)the applicant and the respondent have one child together, born in 2012;

    (e)in or about 2015 the respondent raised with the applicant the respondent applying for a subclass 188C visa;

    (f)in September 2016 or thereabouts the respondent lodged with Treasury Corporation of Victoria the sum on $5m for the acquisition of Victorian Government Bonds connected with the respondent’s 188C visa;

    (g)the respondent was granted a 188C visa;

    (h)in April 2017 the respondent purchased a property in his name at E Street, Suburb F for $2,400,000 in cash;

    (i)in May 2017 the respondent purchased a motor vehicle for $140,000 in the applicant’s name;

    (j)in March 2018 the applicant and her child returned to China and thereafter retained Chinese legal practitioners to commence divorce proceedings in China; and

    (k)in April 2018 the applicant returned to Australia and removed her personal belongings from the Suburb F property, although she did not say what became of the motor vehicle in her name.

13. The applicant made that affidavit in support of her application for interim financial relief.  Thereafter she made an affidavit on 26 February 2021.  That affidavit was purportedly made by the deponent in City G, China yet witnessed by a solicitor in Sydney.  No explanation for that apparent anomaly was given.  Be that as it may, the applicant stated as follows in that affidavit –

    3.Request the Melbourne Family Court to split $385,000 interest on $5 million of government bonds over four years.

    4.Request for the preservation of the couple's joint property of $5 million and the property of E Street Suburb F Vic. Here are the facts and reasons.

    (a)Order of City H Local Court confirmed the interest accrued on Australian government bonds maliciously hidden by Mr Jia and clearly stated that the Chinese courts could not separate Australian assets. (Notarial Certificate …)

    (b)Defendant Mr Jia has so far refused to pay the compensation and requested the preservation of the joint assets of the husband and wife located in Australia, which was enforced under the circumstance that Defendant Mr Jia refused to perform the civil mediation agreement. The property preserved until defenndant Mr Jia fulfils the agreement to pay all the compensation, be unsealed (Notarial Certificate …).

14. During the hearing before me on 14 July 2021 no substantiation was given by the wife of the assertions in paragraph 4 of that affidavit.

    THE HUSBAND’S EVIDENCE

15. The evidence of the husband was recorded in three affidavits, namely –

    (a)his affidavit affirmed 25 February 2021;

    (b)the affidavit of his solicitor affirmed 25 February 2021; and

    (c)the further affidavit of his solicitor affirmed 31 March 2021.

16. Is it necessary to address each.

17. The key issues from the respondent’s 25 February 2021 affidavit may be briefly recorded.  They include his statements that –

    (a)the subject matter of this proceeding has been determined in China;

    (b)on 3 April 2018 the applicant commenced a proceeding in the J Local Court in China, which proceeding was later transferred to the K Local Court for orders in respect of divorce, division of matrimonial assets and liabilities and children issues as between the applicant and respondent;

    (c)on 17 January 2020 the parties attended a mediation and ultimately resolved all issues so “as to end all family law matters and proceedings between us”;[2]

    (d)the parties were legally represented in their mediation;

    (e)he has done all he was required to do under the settlement agreement;

    (f)the wife is not permitted to continue with this proceeding having regard to her agreement at the mediation that she would discontinue this proceeding; and

    (g)if the applicant wishes to contest any aspect of the agreement reached at mediation, she is required to do so in a Chinese court.

    [2] Paragraph 8 of the respondent’s 25 February 2021 affidavit.  The details of the terms of that final agreement were exhibited to the respondent’s affidavit.

18. The respondent exhibited to his affidavit a translated version of a document called “Paper of Civil Mediation” recording the terms of settlement reached after the mediation of the proceeding in China.  Relevantly paraphrased, the more important terms of the settlement documents were as follows –

    (a)the parties’ daughter born in 2012 will live with the respondent who will pay child maintenance fees;[3]

    (b)the applicant has the right to visit the child once a week at times agreed between the parties and upon the child reaching 10 years of age, she can decide “to follow her father or mother”;[4]

    (c)the respondent will pay the applicant LCY 16,000,000 and the applicant shall not claim for property division against the respondent for any reason thereafter;[5]

    (d)the applicant would withdraw her lawsuit against the respondent in the Family Court of Australia prior to 17 February 2020.[6]

    [3] Paragraph 2 of the Paper of Civil Mediation.

    [4] Ibid.

    [5] Paragraph 3 of the Paper of Civil Mediation.

    [6] Paragraph 6 of the Paper of Civil Mediation.  She did not withdraw this proceeding.

19. So far as the $5,000,000 government bond was concerned and the Suburb F home, paragraph 6 of the Paper of Civil Mediation addressed the matter.  It was in the following terms –

    The defendant shall have the ownership of the 5,000,000 Australian dollar government bond and the house located at E Street, Suburb F, Melbourne, Australia VIC. The plaintiff shall not claim the right any longer (sic).

20. In the first affidavit of the respondent’s Chinese legal representative, he deposed to the way in which the Paper of Civil Mediation operated as a matter of law in China.  The deponent stated that he is a legal practitioner, holding a practising certificate with a stated number in China.  The deponent stated as follows –

    15(a).In accordance with the Marriage Law of China ("Marriage Law"), in order for divorce to be granted by a court, the relationship must have irretrievably broken down with no possibility of reconciliation. At the time of original proceedings in the Local Court, the court determined that a possibility of reconciliation remained and therefore denied the divorce.

    15(b).Pursuant to Articles 36, 37, 39 and 41 of the Marriage Law, at the time of divorce proceedings, the parties must also determine the division of matrimonial assets and liabilities and parenting and children matters. Hence, the parties' dissolution of marriage, division of matrimonial assets and liabilities and parenting and children matters were determine (sic) contemporaneously.

    15(c).Pursuant to Articles 23 and 24 of the Law of the Application of Law for Foreign-related Civil Relations of China ("Civil Relations Law"), the parties may choose to apply the laws of the country within which they reside, have nationality or within which the majority of property is located. As proceedings were originally issued in China, and the parties are both of Chinese nationality, the parties' family law matters must be resolved in accordance with Chinese law.

21. The same deponent expressed his opinion on the enforceability in China of a foreign judgment obtained in Australia.  He said the following –

    17(a).The process of enforcing foreign judgments in China is known as 'Special Judicial Assistance'. This process is subject to the following conditions:

    i.The foreign judgment must have been confirmed and must have taken effect.

    ii.The foreign judgment must not contradict any judgment made in China.

    iii.The parties must not have litigated the same subject matter of the foreign judgment in a domestic Chinese court.

    iv.The country within which the foreign judgment is made is deemed to have jurisdiction over the dispute pursuant to Chinese law.

    v.The foreign judgment must not have damaged or contravened public order and the customs of China.

    vi.The laws of the country within which foreign judgment is made must not contradict Chinese law.

    vii.The foreign judgment must not have been obtained illegally.

    17(b).Therefore, if the jurisdiction of the Family Court of Australia were invoked, and orders were made, they would not be enforceable in China as the subject matter of those orders would have already been litigated in Chinese courts. Indeed, as the Applicant first issued proceedings in China, she has submitted to the jurisdiction of Chinese courts.

22. He then offered his conclusions on the effect of the parties in this case having resolved their litigation and having entered into a Paper of Civil Litigation.  It was as follows –

    18.Based on my professional opinion and knowledge of Chinese law as a legal practitioner practising in China, I am of the view that not only have the parties reached a mutually agreeable settlement on the basis that all family law matters be resolved and at an end thereafter, but any further orders made by the Family Court of Australia will not be enforceable in China and be of no effect or purpose.

    19.Jurisdiction over the dissolution of marriage, division of matrimonial assets and liabilities and matters relating to parenting and children remains solely and exclusively with China. Any further appeal, allegation, claim, demand or agreement must be heard or reached in China and/or pursuant to Chinese law.

    20.Respectfully, the present proceedings should be withdrawn or discontinued so as to give effect to the Paper of Civil Mediation.

23. The applicant did not challenge that affidavit nor did she adduce evidence of a different legal practitioner possessed of expertise in family law in China.  In my view, the respondent’s evidence from his legal practitioner should be received and accepted by me.

24. The same legal practitioner filed an affidavit on 31 March 2021 prepared, in the main, in answer to assertions made by the applicant in her 26 February 2021 affidavit in relation to enforcement proceedings.  The legal practitioner stated that the applicant’s assertions in paragraph 4 of her affidavit were wrong and “a gross misrepresentation”.[7]  Importantly, he stated as follows –

    17.As at the date of this my Affidavit, there are no pending or outstanding court proceedings in China.

    18.The Paper of Civil Mediation remains in full force and effect.

    19.I am instructed by my client, the Respondent, that he has made instalment payments as required by the Paper of Civil Mediation to be held by the Chinese court. These instalment payments will be released to the Applicant upon her full compliance with the Paper of Civil Mediation.

    20.To the best of my knowledge, any allegations that the Respondent concealed any details of his or the parties' joint assets and/or liabilities at any stage during Chinese or Australian proceedings are without basis and false.

    21.The Applicant has not presented any credible information or document evidencing her allegation of the Respondent’s concealment or non-disclosure of assets and/or liabilities.

    22.The Applicant's failure to withdraw these present proceedings is a clear violation of the Paper of Civil Mediation and breach of the respective rulings from the Original Enforcement Proceedings as well as the Appellate Enforcement Proceedings as to the timing for performance of parties' obligations under the Paper of Civil Mediation.

    23.Respectfully, these present proceedings should be withdrawn or discontinued so as to give effect to the Paper of Civil Mediation.

    [7] Paragraph 15(d) of the legal practitioner’s 31 March 2021 affidavit.

25. No challenge was made to that evidence by the applicant.

    THE SUFFICIENCY OF THE EVIDENCE ON THE $5,000,000

26. The applicant deposed to her own visa grant notice.[8]  However, beyond the assertion that the sum of $5,000,000 was paid in connection with the applicant’s 188C visa, and that such an amount was paid to a Victorian body, no evidence was led about the source of funds for that deposit and whether the money is refundable.  If it is held in connection with a migration visa, a federal matter, it is curious that those funds were deposited to a Victorian instrumentality.  No submissions were made on the point.  The sum involved was very large.

    [8] Exhibit A3 to the applicant’s 7 May 2018 affidavit.

27. Self-evidently, the parties turned their minds to the sum deposited and how it was to be applied.  However, no attention was devoted to other aspects of the return of the deposit especially whether it is redeemable at all (and not forfeited) upon the respondent’s withdrawal of his visa, if it be the fact that he did withdraw the visa application.

28. Before reaching a final decision on this application, I require further evidence in relation to the sum of $5,000,000.  I direct that any further evidence by the respondent be filed and served by 4pm on 30 August 2021  Any evidence in reply by the applicant must be filed and served by 4pm on 30 September 2021.  Submissions must be filed and served by 4pm on 29 October 2021.  I adjourn the further hearing of this application to 10am on 24 November 2021.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       28 July 2021