Teo and Ung (No 2)

[2021] FamCA 153

FAMILY COURT OF AUSTRALIA

TEO & UNG (NO. 2) [2021] FamCA 153

FAMILY LAW – INJUNCTION – anti-suit injunction – where the wife commenced proceedings in China seeking a divorce order and property orders – where previous orders made by this Court restraining the wife from proceeding with her application for a property division in the City N People's Court – where the wife seeks for this injunction to be discharged and that the parties’ respective applications for property settlement before this Court be stayed pending the finalisation of the parties’ family law proceedings in the Chinese Court – where the wife says the injunction should be discharged as there is new material evidence before the Court being the husband’s entitlement to compensation arising from his interest in property in China and that the Chinese proceedings have now been listed for trial – were the wife also says the injunction should be discharged as if she withdraws the Chinese proceeding the freezing orders made by the Chinese court will cease to have effect, endangering her ability to preserve the property pool – where in the alternative the wife seeks orders preserving the Chinese compensation payments and restraining the husband from leaving the Commonwealth – where it is found that the new evidence does not materially alter the basis on which the anti-suit injunction was made – where it is found that this Court is not a clearly inappropriate forum for the litigation of the parties’ dispute – where it is accepted that orders should be made to protect the enforceability of any order made by this Court – orders made requiring any compensation proceeds received by the husband to be placed in a joint bank account and that the husband be restrained from leaving the Commonwealth – wife’s application otherwise dismissed.

Family Law Act 1975 (Cth)

CSR Limited v Cigma Insurance Australia Limited (1997) 189 CLR 345
Skinner & Alfonso-Skinner [2020] FamCA 329
Teo & Ung [2020] FamCA 1066
Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538

APPLICANT: Ms Ung

RESPONDENT: Mr Teo

FILE NUMBER: MLC 3974 of 2020

DATE DELIVERED: 23 March 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 16 February 2021; 23 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: TNS Lawyers

COUNSEL FOR THE RESPONDENT: Mr Scriva

SOLICITOR FOR THE RESPONDENT: Tao Jiang Lawyers

Orders

IT IS ORDERED THAT:

1. All extant interim applications be adjourned to the Judicial Duty List at 10.00 am on 8 June 2021 before the Honourable Justice McEvoy.

2. The husband forthwith to transfer or cause to be transferred the whole of the compensation proceeds received by him from the compulsory acquisition of:

   (a)the property at S Street, L District, City N China; and

   (b)any further property in China owned by him or in which he has an interest,

   into a bank account in the joint names of the husband and the wife which shall require both signatures to authorise the withdrawal of funds.

3. Until further order the husband Mr Teo of Q Street, Suburb P in the State of Victoria, born … 1966 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the husband Mr Teo born … 1966 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watch List until further order of the Court.

4. The husband within 24 hours to provide all passports issued in his name to his solicitors Tao Jiang Lawyers and upon receiving such passport(s) his solicitors shall hold and not release it (them) to any person pending further order of the court.

5. The husband shall be at liberty to make an application dismissing paragraphs 3 and/or 4 of these orders upon final property orders being made in these proceedings and his having complied in full with all legal obligations arising from those orders.

Joinder of the Second Named Respondent

1. On or before 4.00 pm on 18 May 2021 the second named respondent, Ms D, file and serve any response and affidavit upon which she seeks to rely (including any application made by her pursuant to Rule 6.04 of the Family Law Rules 2004).

2. On or before 4.00 pm on 24 May 2021 the husband file and serve any amended application and/or affidavit.

3. On or before 4.00 pm on 28 May 2021 the wife file and serve any amended response and/or affidavit.

4. On or before 4.00 pm on 2 June 2021 the parties to each file a summary of argument (not to exceed 10 pages).

IT IS ORDERED BY CONSENT THAT:

Further Disclosure

1. Within 21 days the wife provide by way of full and frank disclosure to the husband’s solicitor such copies of the following documents which have not previously been provided showing the source of all funds used to purchase in the wife’s name the property at K Street, Suburb J and pay the mortgage, rates and outgoings during the time that the said property was registered in the wife’s name for the period 1 January 2015 to 30 June 2020:

   (a)       any Chinese bank accounts;

   (b)       the Westpac Bank Rocket repay home loan account (ending in …50); and

   (c)       the Westpac Bank Rocket Deposit Account Transaction (ending in …08).

Mediation

1. On or before 12 May 2021 the parties attend a mediation to be conducted by a member of the Victorian Bar and for such purposes:

   (a)the mediator to be agreed upon by the solicitors for the husband and the wife;

   (b)the costs of the mediation to be shared equally between the husband and the wife;

   (c)the Second Named Respondent and Ms R shall each be invited and encouraged to participate in the mediation;

   (d)each of the parties and Ms R shall provide to each other party and the mediator a position paper no less than 48 hours prior to the time scheduled for the said mediation.

IT IS FURTHER ORDERED THAT:

1. The wife’s application in a case dated 20 January 2021, and the husband’s response to an application in a case dated 12 February 2021 are otherwise 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 Teo & Ung 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 MELBOURNE

FILE NUMBER: MLC 3974 of 2020

Ms Ung

Applicant

And

Mr Teo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is the wife’s application in a case filed 20 January 2021. Her application seeks, primarily, that paragraph 1 of certain orders made by Johns J on 17 December 2020 be discharged and that the parties’ respective applications for property settlement before this Court be stayed pending the finalisation of the parties’ family law proceedings before the City N People's Court of the C District in the People’s Republic of China.

2. The order of Johns J which is sought to be discharged is an order that pending the determination of the proceedings in the Family Court of Australia between the husband and the wife with respect to the adjustment of their property interests, the wife be restrained by injunction from proceeding with her application for property division in the City N People's Court in China. This first order made by her Honour on 17 December 2020 is an anti-suit injunction restraining the wife from proceeding with the application she has commenced before the Chinese court.

3. Her Honour’s reasons for the issue of this anti-suit injunction are to be found at [2020] FamCA 1066. By way of introduction to her reasons, Johns J recorded the following matters:

   1.By Initiating Application filed in this Court in April 2020 the husband seeks final property orders. Some four months later, on 20 August 2020 the wife filed proceedings in the City N People's Court of the C District in China seeking an adjustment of the parties’ property interests.

   2.On 17 July 2020 the wife filed a Response to Initiating Application in this Court seeking an adjustment of the parties’ Australian property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). She also sought a stay of the proceedings in this Court “pending the finalisation of the parties’ family law proceedings in China”. At the time that application was filed, there were no proceedings on foot in China.

   3.On 2 August 2020, the husband filed an Application in a Case seeking that the interim orders sought by the wife in her response be dismissed and that she be restrained from continuing the property proceedings in China. The husband also sought a raft of other procedural orders, although those applications were not pressed at the hearing before me. 

4. Her Honour also set out, by way of background, the following information:

   6.The husband, Mr Teo is aged 54 and is not currently employed. The husband lives in China, although is currently present in Australia.

   7.The wife, Ms Ung is aged 51. She is currently employed as an educator and is resident in Australia.

   8.The parties married in China in 1991. The date of final separation is disputed; the husband asserts that the parties separated on 1 October 2011 and the wife deposes separation occurred in June 2020. Nothing at the interim hearing turns on that issue. There is one adult child of the marriage, a daughter, Ms D.

   9.The parties migrated to Australia in 2009.  Since that time the wife and the parties’ child have lived in Australia whilst the husband continued to conduct his business in China, and as a consequence, split his time between the two countries.

   10.The husband filed an Initiating Application in the Family Court of Australia on 22 April 2020 seeking final property orders.

   11.The matter first came before the Court on 24 June 2020. That day Registrar George made procedural orders by consent.

   12.On 17 July 2020 the wife filed a Response to Initiating Application. She sought interim orders for a stay of the property proceedings in Australia to allow her to issue proceedings in China for an adjustment of the parties’ Chinese property interests.

   13.On 4 August 2020 Registrar Field made orders by consent listing the matter in the Judicial Duty List, as well as orders for disclosure. The parties were also restrained by injunction from disposing or otherwise dealing with the assets of the marriage. The orders also provided the following notations:-

   A.The Wife intends to issue family law proceedings in China seeking an adjustment of the parties’ interests in property located in China and will notify the Melbourne Registry of the Family Court of Australia that the family law proceedings in China has been issued.

   B.The Husband remains opposed to the application for a stay of these proceedings pending finalisation of the proceedings in China.

   14.The husband filed an Application in a Case on 2 August 2020, seeking that the wife’s interim orders sought in her Response be dismissed.

   15.On 20 August 2020 the wife filed an application for divorce and property division at the City N People's Court of C District in China.

   16.The matter returned to Court before me in the Judicial Duty List on 12 October 2020.

5. The reason the wife seeks the discharge of the anti-suit injunction is that she says there were significant matters that were not disclosed to this Court by the husband relating to the circumstances in which he became entitled to compensation monies from the Chinese authorities in the sum of approximately AUD$1.29 million arising from the sale of a property at S Street, L District, City N (“the property”).

6. The wife’s submissions in support of her application are outlined in documents dated 12 February 2021 and 23 March 2021, and she relies on affidavits she has affirmed on 17 July 2020, 8 October 2020, and 20 January 2021.

7. In addition, the wife complains that if she withdraws the Chinese proceeding then the freezing orders made by the Chinese court on 23 October 2020 will cease to have effect. The wife also claims that a trial date has now been issued for the Chinese proceedings (26 February 2021) and that the imminence of this court date was not known to Johns J when she heard the parties on 12 October 2020 and made her 17 December 2020 orders.

8. The wife refers, in particular, to what she describes as the list of “relevant factors” summarised by Murphy J in Skinner & Alfonso-Skinner [2020] FamCA 329. These factors are relevant in assessing whether the Court is a “clearly inappropriate forum” for the purposes of the forum non conveniens test in this country as authoritatively restated in Voth v Manildra Flour Mills Pty Ltd & Anor (1990) 171 CLR 538.

9. The wife contends that:

   a)there was no evidence before Johns J as to when the Chinese proceedings were likely to be listed for hearing and that it is now known that the matter has been listed for trial;

   b)the husband misled Johns J about his entitlement to compensation arising from his interest in the property; and

   c)although orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) are made in personam, a right to enforce orders personally against the husband may have little value to the wife if the assets in China are significantly more valuable than those in Australia.

10. In this latter respect the wife submits that in order to preserve the pool of matrimonial assets in both countries she requires the ability to maintain the freezing orders in China until each party has received their share of the Chinese assets as determined by the Chinese court. The wife submits that this Court is not able to provide a complete resolution of the matters in dispute between the parties.

11. The wife maintains that if her application for a stay is successful then there should be no anti-suit injunction in favour of the husband. She says the husband’s position on 12 October 2020 was disingenuous and that the husband can use the anti-suit injunction he has obtained to put the compensation money he has received in China from the property outside the reach of the wife.

12. In the alternative, if the anti-suit injunction is not discharged and this proceeding is not stayed, the wife seeks orders preserving the compensation payment from the sale of the property in a joint bank account and restraining the husband from leaving the Commonwealth pending the making of final property orders in these proceedings and his having complied in full with his legal obligations arising from those orders.

13. The wife’s application was heard in the Duty List on 16 February 2021, but was unable to be completed on that day. It was adjourned part-heard, ultimately to 23 March 2021, and I have heard the balance of it today.

14. As will be apparent, the gravamen of the wife’s application is that the husband materially mislead Johns J on the question of the ownership of the property and the entitlement to compensation, and that there is now new evidential material which was not available when the matter was before her Honour. In substance it is said by the wife that had Johns J been aware that the husband did in fact have an interest in the property and would receive compensation, this would have made such a material difference to her Honour’s consideration of the position that she would have stayed the proceeding in this Court and not issued the anti-suit injunction to restrain the wife from continuing the Chinese proceeding.

15. Although it may be accepted, and indeed it is conceded by the husband, that he could have been clearer in his evidence before Johns J as to his ownership of the property and his entitlement to compensation, I do not consider that this would have had the effect on her Honour’s assessment of the relevant matters that the wife contends it would have had. Her Honour dealt with the factual position in relation to the parties’ property holdings as paragraphs 39-42 of her reasons. Although at paragraph 42 her Honour says she is unable to make any findings as to the parties’ contentions as to the identity and value of their interests, it does not seem to me that this is the ultimate or the determinate basis for the decision that her Honour made not to stay this proceeding and to order the anti-suit injunction.

16. Her Honour’s decision not to stay the proceeding in this Court and to order the anti-suit injunction appears to me to have been made on the basis of the matters she outlines at paragraphs 45-51 (no stay) and paragraphs 55-57 (an anti-suit injunction should issue). These matters include that there would appear to have been transfers of property in this country by the wife which the husband seeks to impugn, that neither party appears to have an advantage over the other in this proceeding, that if there are to be orders for the adjustment of property interests including in relation to Chinese property, the parties are present in this country and amenable to the in personam jurisdiction of this Court, and that this Court can provide a complete resolution of the dispute between the parties. On these bases her Honour was not satisfied that Australia is a clearly inappropriate forum, particularly given that this proceeding was commenced first in time, that the parties hold property and superannuation interests in Australia, that this Court can make orders with respect to the parties’ interests, whether here or in China, the fact that the wife’s Chinese proceedings do not and cannot take account of the Australian property interests, and that the parties are both present in Australia, are permanent residents of Australia, and that the wife is ordinarily resident in Australia.

17. For my part I respectfully agree with her Honour’s analysis. Indeed, I consider that even allowing for the corrected position in relation to the husband’s interest in the property, and the possibility that he may be in receipt of further amounts of compensation from the Chinese authorities in relation to other properties, it could not, in all the circumstances, be said that this Court is a clearly inappropriate forum for the litigation of the parties’ dispute. To be clear: I do not consider that her Honour would have made a different decision if she knew at the time what the husband now concedes in relation to his interest in the property and the payment to him of compensation. I would not make a different decision now.

18. I accept also, for the reasons essayed by Johns J, that the circumstances are such, consistently with the principles articulated in CSR Limited v Cigma Insurance Australia Limited (1997) 189 CLR 345 at 391-392, as to justify an injunction restraining the wife from proceeding with her application for property division in the City N People's Court.

19. Accordingly, and noting the wife’s detailed and competent submissions as to the significance of the husband’s concession in relation to the property, order 1 of the orders made by Johns J on 17 December 2020 will not be discharged. Nor will the parties’ applications for property settlement orders before this Court be stayed pending the resolution of the Chinese proceeding.

20. I accept, however, the force of the wife’s submissions that in the event that this proceeding is not to be stayed, and the anti-suit injunction is not discharged, orders should be made to protect the compensation proceeds deriving from the property, and indeed any compensation payments made with respect to other properties, and that the husband should be restrained from leaving the Commonwealth pending the making of final property orders in this proceeding and him having complied in full with any legal obligations arising from the making of such orders.

1. As it would appear that the parties are in agreement with orders to this effect in the event that this proceeding is not stayed and the anti-suit injunction is not lifted, I will make orders by consent on this basis, together with orders, also by consent, in relation to the future conduct of the proceedings. I will otherwise dismiss the wife’s application in a case dated 20 January 2021, and the husband’s response to an application in a case dated 12 February 2021. I will hear the parties on the question of costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 23 March 2021.

Associate:     

Date:              24 March 2021