X and H
[2001] FMCAfam 74
•26 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
X & H [2001] FMCAfam 74
FAMILY LAW – Property proceedings – Property in China – "Clearly inappropriate forum test" – Chose in action is property – Application for permanent stay of proceedings refused.
| Applicant: | X |
| Respondent: | H |
| File No: | ZP17 of 2000 |
| Delivered on: | 26 June 2001 |
| Delivered at: | Parramatta |
| Hearing date: | 10 April 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Applicant: | Instructed by Bronwyn Hay, Solicitor and Attorney, 1/21 Hayberry Avenue, Crows Nest 2065 |
| Solicitor Advocate for the Respondent: | Mr Bullock |
| Solicitors for the Respondent: | Ian Bullock Partners, Level 1, 144 Marsden Street, Parramatta, DX 8270 Parramatta |
ORDERS
That the Wife’s application for a permanent stay of the Husband’s application for Orders pursuant to s79 of the Family Law Act 1975 (as amended) is dismissed.
That any application for costs be made in writing within 28 days supported by written submissions.
That the respondent to any application for costs file written submissions within a further 14 days.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA
ZP17 of 2000
X
Applicant
And
H
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings comprise an application for a permanent stay of the applicant’s application for property orders pursuant to s 79 of the Family Law Act.
Background facts
The applicant husband first came to Australia from China in 1988. The husband obtained permanent residency status in Australia in 1994. In 1995 he returned to China and on 25 January 1996 the husband and wife participated in a ceremony that the wife describes as a marriage ceremony. On 30 June 1996 the wife travelled to Australia, the husband having returned to Australia before her.
On 30 September 1996 they were married in Sydney.
On 7 May 1996 the parties entered into a contract to purchase a residential unit in the Bai Yun District "the unit". The property is at Guang Zhou, in China. The property was purchased off the plan and was completed in about January 1997. The wife’s parents have occupied the property since it's completion. They travelled to Australia for an extended stay in June 2000 and were living with the wife at the time of this hearing.
There is one child of the marriage, A, born 29 April 1997. A was born in Australia.
In June 1998, the parties travelled to China. The husband returned to Australia ten days later and the wife remained in China living at the unit, with her parents, until 18 September 1998. The day the wife returned to Australia, the parties separated. A has remained in the wife’s care since separation.
There is no suggestion that the parties and their daughter have any intention to continue to live other than in Australia for the indefinite future as they are entitled to do.
After a defended hearing, parenting orders were made in the Family Court at Parramatta on 4 September 2000.
A Decree Nisi dissolving the marriage was ordered on 26 July 2000, which decree became Absolute on 27 August 2000.
On 12 December 2000, the husband filed a response to the wife’s application to vary the parenting orders made on 4 September 2000. In his response he sought orders that related to the adjustment of property. The orders he sought are:
(1)That the wife forthwith do all things and sign all documents necessary to transfer all her right, title and interest in the property in the Bai Yun District to the husband.
(2)A declaration that, subject to these orders, each party shall be the absolute owner of all other real and personal property now in his or her possession.
The parenting proceedings were completed on 12 December 2000 and orders made as follows.
11.1That the Mother's application filed 17 October 2000 be dismissed.
11.2That the Applicant Mother pay the Respondent Father's costs assessed in the sum of $750.00 which costs are payable upon the conclusion of the current s79 proceedings.
The application for property orders was re-listed and came before the court on 5 March 2001. On that day, Mr Campton for the wife indicated that she sought an order that the husband’s application be permanently stayed. The wife alleges that Australia is clearly an inappropriate forum for the adjudication of the parties’ property interests. She further submitted that there was no property that could be the subject of s79 orders. The husband opposed the orders sought by the wife. Thus, the application for a permanent stay was listed for hearing and directions made as follows:
(1)That the matter be listed for hearing at 3.00 pm on 10 April 2001.
(2)That the parties file all affidavits upon which they rely that address the “clearly inappropriate forum test” by 2 April 2001.
(3)That the parties provide a list of authorities relied on by 6 April 2001.
Evidence
The Wife relied on her affidavit filed 4 April 2001 and her oral testimony.
The husband relied on his affidavit filed 9 April 2001, his financial statement filed12 December 2000 and his oral testimony.
Relevant law and conclusions
The first issue that requires consideration is whether there is property available for distribution pursuant to s 79 of the Act. A copy of the contract executed by the parties on the purchase of the unit and a translation comprise annexures to the husband's affidavit. The recitals show the parties are the purchasers and that they paid RMB $10,000 by way of initial deposit. The purchase price was RMB$260,110, including the deposit. Payment of the final RMB$250,110 was due by 30 October 1997. Clause 4 of the contract requires the seller to guarantee clear ownership and to provide a "Real Estate Certificate" for the purchasers by 30 April 1997.
I accept the husband's evidence that all monies due to the seller have been paid. The husband's evidence is that he transmitted monies to China and had understood that the wife or her family had ensured that title was registered in the parties. The first he became aware that registration of title to the unit in the parties name may not have been completed was when he received the wife's affidavit filed in these proceedings.
There is no evidence that either party has on sold their interests in the unit, nor that either has completed any document such that another person/s has any entitlement to register as owners of the unit. Nor is there any suggestion that the terms of the contract have not been complied with. Hence I am satisfied that the contact which secured the parties interest was given to the Guang Zhou Municipal Real Estate Exchange Bureau for registration and registration purposes in accordance with clause 11.
The wife, her parents and the husband have between them lived in the unit since it's completion. Albeit the husband briefly during a visit to China. The wife's parents have completed renovations. The wife does not allege that the unit is registered in another parties name. Rather that she does not have a copy of the contract and does not know that the unit it is in fact registered in the parties names. I accept the husband's evidence that all that was needed to be done to effect transfer of the title to the parties pursuant to the contract has been done. The Wife did not comply with directions for the filing of her affidavits (neither did the husband), and she first raised this issue within 6 days of the hearing. I am satisfied, having regard to the terms of the contract and the totality of the evidence that the parties are the registered owners of the unit. Hence it is property within the meaning of s4(1) of the Act.
In any event, even accepting that title is not yet registered in the parties I am satisfied that their interest in the contract is property within the meaning of the Act. They have the right to transfer the property after pre-sale (clause 6) and to tenant the property (clause 12.2). It clearly comes within the discussion of the nature of property adopted by the Full Court of the Family Court in Duff and Duff (1977) FLC 90-217.
The next issue is the application of the "clearly inappropriate forum " test formulated in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. The application of the test to Family Law Act proceedings was recently restated by Justice O'Ryan in Steen v Black (2000) FLC 93-005.
"The test of ‘clearly inappropriate forum’, as formulated by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 C.L.R. 538, is the test to be applied in these proceedings: Henry v Henry (1996) 185 CLR 571. The question is whether a continuation of the proceedings would be ‘oppressive’ in the sense of seriously and unfairly burdensome, prejudicial or damaging, or, ‘vexatious’, in the sense of being productive of serious and unjustified trouble and harassment.
In determining the question of appropriateness a number of factors must be balanced against each other. In Conflict of Laws in Australia 6th edn 1995, P E Nygh. the learned author said at pp.107-108:
“The applicable test has to be gauged to partly, from what was said by Lord Goff in Spiliada, partly from what was said by Deane J in Oceanic Sun, and finally from the statements made by the majority in Voth. The following is an attempt to put these various elements together:
(1) The plaintiff has prima facie the right to have the forum exercised the jurisdiction regularly evoked by the plaintiff either through service of the defendant within the forum or outside, unless the forum is satisfied that it is clearly inappropriate. But not too much weight should be placed on this right, and by itself it has little weight.
(2) The onus of establishing that satisfaction lies upon the party (normally the defendant) who seeks a stay or the setting aside of service on that ground, except where the plaintiff was required to obtain prior leave to serve the defendant outside the jurisdiction.
(3) The following factors are relevant in considering whether the forum is clearly inappropriate. They are to be balanced against each other and none is conclusive by itself:
(a)Any significant connection between the forums selected and the subject matter of the action and/or the parties, such as: the domiciles of the parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated.
(b)Any legitimate substantial juridical advantage to the plaintiff, such as: Greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced.
(c)The availability of an alternative forum and whether it will give the plaintiff adequate relief.
(d)Whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case.”
It is necessary to consider whether there is significant connection between the forum selected and the subject matter of the action and/or the parties, such as their domiciles, their places of business, the places where the relevant transactions occurred or the subject matter of the suit is situated.
And "It is necessary to consider whether or not there is any legitimate and substantial juridical advantage to the wife in bringing her action in the Family Court. In Spiliada v Cansulex Ltd [1987] 1 A.C. 460 at 482-3 Lord Goff identified relevant matters such as the earlier trial, greater scope for discovery, better recovery of damages and opportunity for enforcement and a more advantageous limitation period. In Voth the High Court at p.565 described Lord Goff’s list as being of valuable assistance”.
And "It is necessary to consider the availability of an alternative forum and whether it will give the plaintiff adequate relief: see Voth (supra) at p.558. It was submitted that the question is whether substantial justice will be done in the appropriate forum overseas”.
And further "It is relevant to consider whether the law of the forum will be the substantive law to be applied in the resolution of the parties' rights and obligations: Voth (supra) at p.566. In Gilmore (supra) Fogarty J said at p.79,728 that this factor is not significant in matrimonial property proceedings where each court tends to apply its own law."
Undoubtedly the onus lies with the wife to establish that Australia is a clearly inappropriate forum for the adjudication of these parties property dispute. The husband has commenced the proceedings in Australia, as he is entitled to do. Both parties are resident in Australia and were so at the time the proceedings were commenced. Other than for the brief periods to which I have already referred they have lived in Australia continuously since their marriage and I am satisfied that I should infer they will continue to do so. There have been significant proceedings relating to their daughter conducted in the Family Court and further proceedings taken in the Federal Magistrates Court. There is no evidence that there have been any proceedings taken in China relevant to the breakdown of their marriage.
The wife did not adduce any evidence of the applicable law in China for the determination of matrimonial property proceedings. Nor did she adduce any evidence that would enable the court to determine whether her parents might have any claim of the type she appears to assert they may have in equity should the forum remain Australia. She had the burden of demonstrating that the husband had available an adequate alternate forum and whether or not he could seek adequate relief. She did not do so. Indeed the entire focus of her submissions was essentially that the proceedings in Australia would be oppressive and burdensome. This is because:
·The unit is in China.
·Her parents may wish to make a claim as a consequence of their occupation if the property and improvements to it.
·Documents relating to the instalment payments and other documents are in Chinese and require translation.
·The parties are in dispute as to the valuation of the unit and expert evidence from a valuer will be necessary.
The wife's parents are present in Australia and will be so at least until 15 July 2001. They live with the wife and have done so since their arrival in Australia in July 2000. They made no claim in these proceedings asserting an interest in the unit nor indicating that they proposed to make any claim seeking an interest in Australia or China. Because they live with the wife I am satisfied that I can infer that they are aware of the proceedings and the nature of the husband's claim qua the transfer of the unit to him.
In the absence of any evidence from them that they intend to do so, I am not satisfied that I should infer that they do in fact intend to. Hence I am satisfied that the prospect of proceedings between the parties and the wife's parents in China is remote and not a factor that should have material influence in the decision I make.
The parties own few possessions in Australia and other than the unit none in China. The husband asserts possession of personalty valued at $2000 in Australia. For the purpose of these proceedings the wife conceded the husband's trading enterprise has no value. Thus the significant item of property the subject of the s79 application is the unit. Both agree it has a small value, the husband claiming $70,000. The husband earns his income from a trading company and his financial statement discloses an income of $200.00 per week. He receives some benefits in addition to his income. He pays $196.00 per month child support to the wife. For her part the wife receives payments from the Department of Social Security and child support.
Although there are some difficulties associated with the valuation and factual issues relating to the unit in China, I am satisfied that Australia is the appropriate forum for the determination of the property proceedings. I am not satisfied that these parties can readily afford to travel to China to conduct proceedings, nor is there evidence available as to any remedies that may be available. The husband has a business to run in Australia and an extended absence from Australia by him, its sole proprietor, may cause harm to its overall profitability. The wife's parents are present in Australia and available to give evidence. Interpreters are available to parties and witnesses without cost when giving evidence.
If it is necessary, although I am satisfied it is not; to consider the relevant Chinese land law, this is not the burdensome exercise that Counsel for the wife submitted. It is quite likely that relevant university lecturers and in all likelihood Chinese born solicitors practising in Australia, some of whom regularly appear in this court, could assist by the provision of expert evidence. Similarly the valuation issue if it continues to be an issue would be best addressed by the parties retaining a valuer jointly to give an expert opinion. The outcome could be presented as an agreed fact. Whether or not the proceedings are conducted here or in China the valuation issue must be addressed. Of course evidence can be taken by telephone.
Finally there is the issue of enforceability. Any orders made pursuant to the property application are orders in personam. The parties are present in the jurisdiction and they can be compelled to comply.
I am satisfied that the Federal Magistrates Court of Australia is not an "inappropriate forum" and the wife's application for a permanent stay is refused.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 26 June 2001
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