Wei and Gong

[2016] FamCA 1003

FAMILY COURT OF AUSTRALIA

WEI & GONG [2016] FamCA 1003

FAMILY LAW – PRACTICE AND PROCEDURE – Where both the husband and the wife have filed appeals against orders made on 30 September 2016 – Where the husband’s appeal is directed at the property orders and the wife’s appeal is in relation to the parenting orders – Where the husband made an Application for a stay of the operation of the financial orders made 30 September 2016 pending his appeal – Where the husband requires leave to appeal – Consideration of the merits of the husband’s case - Balance of convenience of granting stay –Where the husband’s application for a stay of the proceedings is dismissed – Where the wife sought that the parenting orders made on 30 September 2016 be stayed pending her appeal – Where orders were made in accordance with the wife’s Response.

Family Law Act 1975 (Cth), s 61DA(3)

Aldridge & Keaton [2009] FamCAFC 106
Medlow & Medlow (2016) FLC 93-692
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Wei

RESPONDENT: Ms Gong

FILE NUMBER: SYC 5655 of 2015

DATE DELIVERED: 20 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 20 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Parker Law

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Orders 3 and 4 of the Orders made by the Court on 30 September 2016 be stayed pending determination of the applicant wife’s proposed appeal.

1. Pending a determination of the applicant wife’s proposed appeal, the husband spend time with the children pursuant to the Orders made by the Court on 20 April 2016.

1. The husband’s Application in a Case filed 14 October 2016 be dismissed.

1. No orders as to costs.

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 Wei & Gong 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:  SYC5655 of 2015

Mr Wei

Applicant

And

Ms Gong

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to applications for a stay of some orders made on 30 September 2016.  Those orders were made by Stevenson J.  In each instance the stay applications are in aid of an appeal in relation to some aspects of her Honour’s judgment.  When the applications for a stay were to be listed for hearing her Honour was not available in a reasonable timeframe and the applications were listed before me for hearing.

2. Her Honour’s judgment sets out some background facts.  Noting that the judgment was published about three weeks ago, the husband and wife were 32 and 27 years of age respectively.  They met in 2007 in China and started living together in July of that year.  They were married, on the husband’s case in June of 2009 and on the wife’s case in December of that year.  They separated on the husband’s case in February 2016 or on the wife’s case, in August 2015.  The parties have three children:  N, O and P, who are 7, 5 and 4 years of age respectively.  N attends School X in Year 1, the other children attend at School S in kindergarten and prep, respectively.

3. The judgment referred to orders having been made by consent on 30 June 2016, including an order that the mother have exclusive occupancy of a property at Suburb C and restraining the parties from causing a company, Company K Pty Ltd, to sell or deal with one of three properties, at Suburb C and two at Suburb H, without agreement.  The orders provided for the husband to make available a fund of $100,000 that would be drawn on by the parties for children’s expenses and there were orders about disclosure.  Her Honour also referred to an order made, again by consent, on 20 April 2016 specifying supervised time for the father with the children, with the supervising body being an agency called Connecting Families.

4. On 22 August 2016 orders were made on a contested basis, requiring, inter alia, the husband to pay to the Office of State Revenue a figure just a bit short of $50,000 and to the St George Bank a figure in the order of $35,500.

5. Relevantly, her Honour found that both parties had failed to provide financial disclosure. 

6. The orders made on 30 September 2016 included an order that within 28 days the husband pay to the wife $200,000 by way of interim or partial property settlement.  There was also an order in relation to a motor vehicle.

7. Again relevantly, the orders of 30 September 2016 included an order that the parenting orders made on 20 April 2016 be discharged as at three weeks from the date of her Honour’s orders and that in the interim the parties would have equal shared parental responsibility for the children, the children would live with the mother.  Upon the discharge of the 20 April 2016 orders, the children were to spend time with the father, under a graduated program but relevantly none of the time was to be supervised.  Otherwise, the relevant applications in response were dismissed.

8. Appeals have been filed now by each of the parties.  The husband has challenged the order that he pay $200,000 by way of property settlement and the wife is aggrieved, I think, with all of the parenting orders that were made.  The notices of appeal have been filed.  In the case of the appeal against the property order, the husband needs leave to appeal.  In each case the parties have sought expedition of their appeals.  They are not able to tell me when the appeals are likely to be determined. 

9. In Aldridge & Keaton [2009] FamCAFC 106, the Full Court dealt with stays in relation to appeals:

   ·Except in certain circumstances, stays are not automatic on an appeal, certainly not in the instances we have here.

   ·The onus in establishing the need for a stay rests with the applicant for the stay, but there is no need to demonstrate any special or exceptional circumstances. 

   ·A person who has obtained a judgment is entitled to the benefit of the judgment and is entitled, as the Court is entitled, to presume that the judgment at first instance is correct. 

   ·The Court must be satisfied that the applicant for a stay is bona fide in seeking to challenge the decision. 

   ·A stay may be granted on terms and the terms must be fair to the parties.  That may involve weighing the balance of convenience and the competing rights of the parties. 

   ·The Court has to assess the risk that an appeal may be rendered nugatory if a stay is not granted and this would be a substantial issue in determining whether it is appropriate to grant a stay.

   ·Some preliminary assessment of the strength of the proposed appeal needs to be considered.  In other words, whether the appellant has an arguable case. 

   ·In relation to parenting issues, although not the paramount consideration, the best interests of the child is a significant consideration.  It is relevant to consider the period of time within which an appeal can be heard and whether the existing arrangements, the arrangements that would apply if a stay is granted, would be appropriate for the relevant period.

10. I should say as a practical matter, the husband did not have significant notice of the wife’s application for a stay of the parenting orders.  English is not his first language.  Indeed I gather he does not have any significant facility in English and he was assisted today by an interpreter, I think in the Cantonese language.  That assistance was available throughout today’s hearing and I thank the interpreter on staying on beyond the booked hours.  In circumstances where English is not the husband’s first language there was not only the husband’s legal team and particularly his counsel, without ready access to informed instructions but there was effectively no opportunity for the husband to put any evidence on in relation to the parenting stay application.

11. These issues were canvassed briefly in the course of today’s hearing and after conferring with his client the husband’s counsel did not seek an adjournment in relation to the part of the proceedings that related to the parenting issue.  The hearing proceeded without those opportunities and I am not to know what might have been said or done if there had been that opportunity for the husband to give proper instructions.  Nevertheless, the issues were all addressed efficiently today in my view and the parties have the benefit of the matter being resolved quickly. 

12. I will deal with the financial stay application first.  The husband has that the additional hurdle.  He has to establish that he should have leave to appeal.  The interests of justice will determine that question and that will go to the strength of his arguments on appeal.  It was not submitted to me that the husband’s appeal was not a genuine one.  I have no reason to believe that he is not sincere in his application or that  the filing of the appeal and his application were not for the stated reasons rather than an attempt to delay the proceedings.

13. As to the merits of the appeal, as I say, it is just a matter of establishing that there is a case to argue.  The husband does not have to argue and win his appeal points here on his application for a stay.  It is his argument that, in effect, there was not sufficient evidence for the trial judge to be sanguine about the husband having a capacity to make the payment.  The trial judge had before her competing versions of events which are quite disparate.  However, the Court noted that there were on both parties’ versions, some millions of dollars in net assets.  The evidence included wildly different gross values and total debts but there was no contention on behalf of either party that there were no net assets.  The husband’s case is that, in effect, although the trial judge did not order that the funds come from any particular source, the ordered funds must come from assets of the husband held in China and that the trial judge did not have any evidence that would allow her to be confident that those assets could be brought to bear for the ordered payment.

14. Importantly, it is argued that the appeal would be rendered nugatory if a stay was not granted.  I do not follow that argument.  I think it went along the lines of, if the husband did not pay, he would be in default and there would in some way be consequences that could not be remedied if the appeal was successful, in the absence of a stay.  I have not done that justice but as I say, I do not quite follow the argument.

15. I think it is fair to say that her Honour relied on the Chinese assets.  Without saying as much and without tying the payment to the assets, the trial judge noted at paragraph 48 – having also referred to it earlier – that the husband conceded that he owned a share portfolio in China worth some $750,000.  Her Honour recorded that it had been submitted on behalf of the husband that it could not be assumed that those assets could be sold or moneys repatriated from China to Australia without difficulty.  However, her Honour noted:

    In the past, however, extraction of funds from China has seemed to create no difficulties.

16. There is no issue on behalf of the husband that the wife will not ultimately receive $200,000, or that there should not be a payment of $200,000.  That is sensible because it was his proposal that the wife receive $200,000, and that he receive $200,000, and that that occur from the sale of property in Australia.

17. There is no issue about the payment being something that could not be reversed on a final basis or that it would exceed the wife’s claims.  Her Honour prepared the groundwork for that by noting the bare pool and noting categories of contributions the wife had made.  Therefore the wife had a claim for property that would be at least $200,000 and that was conceded by the husband’s own proposals.

18. But her Honour went on:

    I am prepared to infer that the husband could obtain a sum of $200,000 by the sale of some of his Chinese shareholding or by other means of dealing with those assets.  These shares are assets of the husband himself and not those of his parents or their associated entities.  Additionally, I am conscious that the husband obtained a sum of $100,000 and complied with Order 4 made on 30 March 2016.  I will order that the husband pay to the wife a sum of $200,000 as an interim property distribution within 28 days. 

19. In terms of the merit of the appeal, I can see there is an argument that the trial judge has done beyond what she could safely find in relation to those matters, and I do not discount that there is an arguable case.

20. As to the failure to grant a stay being something that would render the appeal nugatory, I do not understand that at all.  If there is no stay, there is an obligation that is triggered in 28 days from the date of judgment, that is about 26 October - in a few days.  The first possibility is that the husband pays the money.  Depending on where he finds the money, I suppose it is possible that might render his appeal nugatory.  But that would only be, presumably, because he sought to mislead the court and there was an avenue from which he could make the payment.  Or, I suppose, putting it more politely, he has not yet exhausted all ways of satisfying the payment and he discovers in these few days that there is a way of him making the payment.  Another possibility is that he does not pay and there is enforcement action.  Enforcement is discretionary.  If it is found that he cannot pay, then his appeal is alive.  No harm is done.  If the enforcement is successful, then that may render his appeal nugatory because, depending on what the findings are on the enforcement application, it may be that there was a source of funds that the husband could use.

21. They are forensic issues rather than the husband having a right which he would seek to preserve for his appeal which was lost because there was no stay.  It is difficult to see how the lack of a stay could render his appeal nugatory.

22. The husband’s own evidence supports this, to some extent.  There is no doubt that the $100,000 and the $50,000 and the $35,000 from the two sets of interim orders did not come from his parents.  We know that because it is the husband’s evidence that on the breakdown of his marriage they refused to help him.  They cannot be the source of those funds.  He has not put any evidence before me nor has he taken me to the evidence that was before the trial judge, as to the fact that he could not deal with his shares.  The Court relied on his own disclosure.  Some odd things happened in relation to his financial affairs in China through the agency of his mother but he does not put any evidence on.  He does not say, “When I said they were listed on an exchange, they were not and, in fact, they cannot be traded,” or whatever.  This is his application and he is in an unique position to put the evidence on.  I can see no basis for finding that the lack of a stay would render the appeal nugatory.

23. I will allow that the husband has a case to argue and he is entitled to challenge the judge’s decision.  It is true that the judge’s findings in relation to these things may have been inadequately supported by the evidence before her Honour but these were interlocutory proceedings.  The reasons for judgment describe a conservative disposition and that must be so.  It was a disposition the parties and the husband contemplated himself.  Nothing has developed in the husband’s case along the recent line of authority from Medlow & Medlow (2016) FLC 93-692 (‘Medlow’) about the wife being able to be adequately satisfied from assets in her own name.  I suppose that is fully addressed by the fact that, unlike in Medlow, there was no  source of funds identified from which the payment had to be made.

24. Here the trial judge has said, “I’ll make an order.  I’m satisfied that it can be satisfied from a particular source or that arrangements can be made for reliance on that source.”

25. In my view, there is no basis for a stay of order 1 made on 30 September 2016.

26. In relation to the parenting order the mother seeks to stay only the operation of the spend time orders.  She seeks to interfere with the progression to increased time and the removal of the requirement of supervision orders that were made by the trial judge.  As I say, there is a slightly different consideration in stay applications relating to children by reference to the best interests of the children. 

27. Again, I do not have any reason to doubt the bona fides of the mother in relation to her appeal.  There is no suggestion that she wants these orders for a reason other than the obvious one.  She feels as though they’re inappropriate and do not meet the best interests of the children.  There was no suggestion on behalf of the husband that that was not her motivation.

28. The complaint is, that the trial judge has not followed the legislative pathway sufficiently, or has not explained why she has not applied provisions of the legislative pathway, or she has impermissibly presumed to make a finding that should not have been open to her on interlocutory proceedings.  There is also a complaint about the application of s 61DA in terms of finding, in effect, that there was no impediment to applying the presumption in relation to equal shared parental responsibility by reason of family violence.  That involved, it’s said on behalf of the mother, a rejection of her allegations of physical violence by the father against the children.  There is a provision in s 61DA(3) that allows the Court not to apply the presumption in interlocutory proceedings if that was the appropriate course.  The complaint is that there is no explanation from the trial judge as to why she did not take that option.  The provision is:

    Where the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

29. The subsection identifies no specific criteria.  The exemption is a nod to the fact that there is often inadequate material in interim proceedings and findings cannot be made.  For that reason there is an exemption from a provision that triggers a series of things in terms of not only parental responsibility, but then in terms of the sequence of considerations for living arrangements.

30. Her Honour has found that the presumption was not rebutted.  That is notable in a case were both parties allege violence.  The husband says that the wife was violent to the children.  The wife says that the husband was violent to the children.  An argument might be made that there was no doubt about it.  In each case, however, that evidence was rejected on behalf of the other party. 

31. The Full Court has accepted that there need not be an absolutely slavish adherence to the Part VII labyrinth in order to pass muster under Goode & Goode (2006) FLC 93-286 and other decisions requiring adherence to the legislation. In other words, the sequence of doing things is not as critical as the fact that each issue is addressed. Again, I cannot say that there is no arguable case, in relation to what the trial judge has done. In this instance, there is no need for leave to appeal so it is a matter that will attract the Full Court’s attention in any event.

32. The complaint that is made is that her Honour has relied on pieces of evidence – the way in which there was an expression about a complaint made by a child to a teacher suggesting a basis for dismissing that complaint; the optimistic recordings of the supervising authority in relation to the interaction between the father and the children.  The inference being, in terms of her Honour’s reasoning, presumably, there has been a track record of good arrangements, good interactions from the date the April orders were put in place; and the Court’s concerns were reduced in relation to the presenting risks.

1. The issue here is the level of risk and the extent of the risk.  The type of risk was physical violence, a child being struck.  There is the seriousness of that risk and then the risk of that occurring, whether that was unacceptable and therefore something that would trigger an interference with a fairly natural arrangement between father and children. 

2. Unlike the appeal in relation to the payment of monies, not granting a stay would render the wife’s appeal nugatory.  There is no doubt about that.  If the decision was wrong and if the decision exposed the child to an unacceptable risk, then the child would be exposed to that risk every day under the newly ordered regime until the matter came before the Full Court and was dealt with on the merits of the appeal.  If the appeal was ultimately granted, the fact of there being no stay meant in practice that the appeal was refused in relation to every day from the date the stay application to the date of final orders on the appeal.

3. The authorities talk about consideration of what is fair to the parties and the balance of convenience.  No detriment is identified in the father’s case by the granting of a stay.  Now, part of that would, obviously, be because he has not had an opportunity to put any material on.  But that is a choice that he has made.  The evidence, as the trial judge has identified, is of a nice, loving interaction between father and children.  There were no concerns identified about the impact of supervision.  No concerns about the artificiality of the arrangements or the limited time or the qualities of the particular supervisors or the nature of the supervision or the restrictions on the physical location.  There is no evidence that supervision has caused harm to any child.

4. I would take judicial notice that it is not ideal for there to be supervision of interactions between parent and a child.  It must limit the nature of the interaction with the best will in the world.  It must limit the types of things that they could do together.  But in terms of comparing it with the harm that might be done as a result, for example, of a child being assaulted, nothing is identified.  In the normal range of things, it is unlikely that the two sets of potential harm could be equated.

5. In summary, I accept that there is a genuine complaint about the trial judge’s orders.  There is a case that is identified that can be argued in relation to the trial judge’s decision, as Mr Samsom said on behalf of the father, in this case, a very senior trial judge.  There is no suggestion of complaint by either party in relation to the manner in which her Honour went about her work and so on.  There is no suggestion that she misunderstood the matters before her.  No suggestion of a lack of capacity or experience to deal with the matters and the probability is that her Honour was right in making the decision.

6. However, it seems to me that, in this instance, there is no sense in which the granting of a stay could cause damage that is of anything like the potential of refusing one.  In this instance, the refusal of a stay does render, at least for a period, the mother’s complaint to the Full Court, nugatory.  I will make orders in terms of the Response to an Application in a Case filed on behalf of the wife on 18 October 2016 as to paragraphs 1, 2 and 3 referring to the dismissal of the husband’s Application.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 October 2016.

Associate: 

Date:  24 November 2016