Yang and Chin

[2011] FamCA 703

FAMILY COURT OF AUSTRALIA

YANG & CHIN [2011] FamCA 703

FAMILY LAW – PRACTICE AND PROCEDURE – Where Order exists staying all proceedings in the Family Court pending finalisation of parenting proceedings in Taiwan – Where dismissal of Wife’s appeal in Taiwan has finalised parenting proceedings – Forum non conveniens

APPLICANT: Ms Yang

RESPONDENT: Mr Chin

FILE NUMBER: BRC 7323 of 2010

DATE DELIVERED: 2 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 5 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Anderson of Counsel

SOLICITOR FOR THE APPLICANT: DC Lawyers

COUNSEL FOR THE RESPONDENT: Mr Matthews of Counsel

SOLICITOR FOR THE RESPONDENT: Lang Hemming & Hall

Orders

IT IS ORDERED:

1. That the Wife’s Application in a Case filed 9 June 2011 be stayed.

2. Leave given for any written submissions relating to costs to be lodged with this Honourable Court and the other party by 4.00 pm on 30 September 2011.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yang & Chin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7323 of 2010

Ms Yang

Applicant

And

Mr Chin

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the Applicant Wife on 9 June 2011, in support of which there are affidavits from the Wife filed 9 August 2010,

   
   

   21 September 2010, 7 December 2010, 11 April 2011, 27 April 2011, 19 July 2011 and 4 August 2011, as well as an affidavit of Ms L, an accredited Chinese translator, filed 9 December 2010.  Reference was also made to the Orders of Justice O’Reilly made 21 December 2010 and 27 April 2011.  The Wife seeks final orders in accordance with her Further Amended Initiating Application filed 21 February 2011 which relates to parenting of a child of the parties, J (“the child”) born in February 2004, and a setting aside of a financial agreement.

2. Justice O’Reilly made Orders on 21 December 2010 in the following terms:

   “1.      These proceedings in relation to both parenting and property           matters are stayed pending final determination of the parenting     proceedings in the Taiwan Taipei District Court concerning the        child [J] born […] February 2004.”

3. The Wife’s Application in a Case filed 9 June 2011 seeks orders to vacate that stay of proceedings.  The Wife also seeks interim parenting orders.

4. The parties were married in November 1997 in Tawain.  The parties and the subject child were born in Taiwan and immigrated to Australia when the child was 18 months old in 2008.  The Wife deposes in her affidavit filed 9 August 2011 that “[The child] and I settled down and lived in Brisbane except for school breaks when we occasionally visited our relatives in Taiwan for a couple of weeks”.  She goes on to state that the Respondent Husband was required by his business to be present in Taiwan or China, such that…