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

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:

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

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.
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.”
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.
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 he “predominately resided in Taiwan or China for the last 5 years although he is a permanent resident of Australia”.
The Wife and subject child were granted Australian citizenship in September 2010. The Wife submits the Husband consented to this application, but the Husband asserts the application was a unilateral decision of the Wife. This assertion is supported by the Husband’s Response to an Application in a Case filed 16 June 2011, whereby the Husband seeks that if the stay be lifted the Wife do all such things necessary to renounce the child’s Australian citizenship.
The subject child is now 7 years old and has resided with the Husband in Taiwan since June 2010. The Husband has resigned his employment to care for the child and states that the subject child’s connection to Australia is “at best, now tenuous”.
Proceedings in Taiwan were commenced by way of “Divorce Settlement Agreement” on 21 September 2009. Note that the title of this document has been translated by the Wife, via Ms L, as simply the “Divorce Agreement”. There are substantive discrepancies between the parties as to the correct translation and hence correct meaning of this document. For the purposes of this Application it is common ground that the Divorce Agreement bestowed the rights and duties with regard to the child upon the Husband. However, the translation provided by the Husband, annexed to the affidavit of a Mr Y filed 10 November 2010, states “the Male Party …shall be solely responsible for exercising the rights and assuming the duty in regard to their minor child …” (emphasis added). The Wife’s translator disputes the inclusion of the word “solely”.
It appears that the Divorce Settlement Agreement also contained agreements in relation to property settlement wherein the parties agreed to the Applicant being paid an amount of US$2,320,000, which amount has been paid.
Under clause 5 of the Agreement it was agreed that “the Male Party …shall be solely responsible for exercising the rights and assuming the duty in regard to their minor child…”, and further it appears that the agreement is binding between the parties according to s 1 of article 1055 in the Taiwan Civil Code which provides that:
“After the Husband and Wife effect a divorce, one party or both parties of the parents will exercise the rights or assume the duties with regard to the minor child ….”
Paragraphs 11(b) to (k) of the Submissions on behalf of the Respondent Father filed 18 July 2011, are as follows:
“11(b)On or about 19 July 2010, the Applicant filed an Application for the final order to Change Custodian (“the Application for Final Orders”) in the Taiwan Taipei Family District Court (“the Taiwan Court”). Her principal challenge on her “pleadings” was to the validity, circumstances of entry into and the binding effect of the Divorce Settlement Agreement;
11(c)The Respondent raised by his “pleadings” in Taiwan, the validity and binding effect of the Divorce Settlement Agreement in all respects (ie: concerning [the child] and property matters);
11(d)On or about the 26 July 2010, the Respondent’s legal representatives were served with the Application for Final Orders, along with supporting facts and reasons. That same day, the Applicant filed a Civil Application for Provisional Injunction (“the Provisional Injunction Application”) seeking orders that she exercise rights or assume duties alone in regard to [the child], and that the Respondent hand-over [the child’s] Republic of China passport;
11(e)On the 28 July 2010, the Taiwan Court issued a notice to the Respondent to appear for mediation. On 2 August, the Respondent and his legal representative attended the proposed mediation. The Applicant did not attend;
11(f)The Taiwan Court set a further date of 30 August 2010 for mediation, at which both parties did attend and an agreement was reached. Under the agreement, the Applicant would have [the child] every second and fourth weekend. The agreements [sic] is said to be legally enforceable, according to Article 127 of Taiwan’s law governing non-litigation matters;
11(g)On 3 September 2010, the Taiwan Court affirmed the agreement reached on 30 August 2010 dealt with the Provisional Injunction Application and requested the Applicant withdraw the application;
11(h)On 13 September 2010, the Taiwan Court set a hearing date of
[…] October 2010 for the Application for Final Orders. The hearing was adjourned to[…] November 2010 at the request of the Applicant;
11(i)On […] November 2010, the parties and their respective legal representatives attended the Taiwan Court for hearing of the Application for Final Orders. At that hearing, the Applicant sought amendments to the agreement of 30 August 2010 that would allow, among other matters concerning dates of visitation, for her to see [the child] for 15 days consecutively, rather than on weekends, citing her job in Australia as the reason weekend care arrangements were not suitable;
11(j)The hearing of the Application for Final Orders was set down for […] December 2010, and subsequently hearings concluded on
[…] May 2011;
11(k)Final Judgment and Reasons therefore was given in Taipei on
[…] June 2011 and served on the parties on 4 July 2011. In summary, the Orders made were:
1.“Civil Application for the Final Order to Change the Custodian concerning the minor child [J] born […] February 2004 is hereby dismissed.
2.The Applicant may visit, communicate and live with the minor child [J] born […] February 2004 in the designated time as the attached schedule.
3.The Applicant mother is restrained from taking the minor child [J] or requesting any person from taking the child [J] from the territory of the Republic of China without the prior consent of the Respondent father, and the minor child [J] is restrained from leaving the territory of the Republic of China without the prior consent of the Respondent father either.””
In any event, on 19 July 2010 the Wife sought to vary those final consent Orders of the Taiwanese Court in relation to the child’s custodian.
Proceedings were commenced by the Wife in Australia, by way of Initiating Application filed 9 August 2010 in the Federal Magistrates Court.
Proceedings in Taiwan have now been finalised and judgment was delivered in the matter on … June 2011. The Husband annexed a copy of the judgment to the affidavit filed by Ms Z filed 18 July 2011. The Taiwanese judgment dismisses the Wife’s application for custody, as it is there referred, and provides a visitation schedule for the Wife to (in our terms) “spend time with” the subject child. The Taiwanese Orders also prohibit the removal of the child from the territory of the Republic of China without the Husband’s permission. The Wife was ordered to bear the costs of the application process. It appears that an appeal has been instituted. There is nothing before me to indicate that the appeal is either by way of a stay of proceedings or not.
Counsel for the Wife submits that Orders of the Taiwanese Court made as to the “custody” of the child are not ipso facto determinative of the final orders sought by the Wife in the Family Court of Australia, or rather that such “custody” Orders, whilst akin to an Order for “long-term care and responsibility” are “not determinative of the time that [the child] will spend with each of his parents or where he will live”.
Counsel for the Husband submits that such an application ought be dismissed or permanently stayed on the grounds of res judicata or forum non conveniens, as forum is still a “live issue for determination”.

Forum non conveniens

Counsel for the Husband asks me to determine whether this Court should be seized of the matter when a seemingly competent jurisdiction in Taiwan has already determined issues that, upon his submission, the Wife seeks by way of final orders and a jurisdiction which the Wife has sought and acquiesced in.
The High Court held in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 that a party who has properly instituted proceedings in Australia has a prima facie right to have the proceedings determined by an Australian Court, unless Australia is the clearly inappropriate jurisdiction. The test is not whether another forum is more appropriate, but whether the local court is a “clearly inappropriate forum”: Voth (supra) at 559-60; Henry v Henry (1996) 185 CLR 571 at 577.
The test in Voth (supra) was contextualised within family law principles in the High Court matter of Henry (supra). In Henry (supra), as in Voth (supra), the High Court referred to the “clearly inappropriate forum” test as enunciated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) at [46]:
“The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him.”
His Honour Justice Deane went on to state (at [46]):
“On that approach, “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment.”
In Steen & Black (2000) FLC 93-005, Justice O’Ryan referred to Nygh’s Conflict in Laws in Australia (6^th ed, 1995) where the author had attempted to amalgamate the law as enunciated by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, Deane J in Oceanic Sun and the statements of the majority in Voth, prescribing a balance of the following factors:
“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 place 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.”
Within a family law context, the Full Court has further prescribed that it is not necessary to consider the best interests of the child as the paramount consideration where the application is, as before me, an application for a stay, or some other application which is procedural in nature: B v B (2003) 31 Fam LR 7; Karim & Khalid (2008) 38 LR 300. Counsel for the Wife submits that I should still consider the best interests of the child as one of many considerations, pursuant to Henry (supra). I note from the Taiwanese judgment that this was one of their considerations.
Counsel for the Wife also referred me to the recent first instance judgment of Justice O’Reilly in Whung & Whung and Ors [2011] FamCA 137 as authority for a consideration of costs in the “inappropriate forum test”. In Whung (supra), her Honour enunciates the principles as prescribed in Henry (supra), including (at 592-3):
“Other considerations include the order in which the proceedings were instituted, the stage which they have reached and the costs which have been incurred.”
Wife’s Counsel submits that costs should be one of the considerations of this Court in determining the Wife’s Application in a Case filed 9 June 2011. She stated, in oral submissions, that the costs in this forum are lower because proceedings here are already on foot. Given that parenting proceedings are now finalised in Taiwan, with costs of the appeal to be borne by the Wife, I cannot support a submission that costs would be lowered if proceedings were allowed to be continued in Australia.
As to the instigation of proceedings in competing jurisdiction, the majority in Henry (supra) stated at 591:
“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries…are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.”
While the majority in Henry (supra) went on to state (also at 591):
“It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed.”
Quite clearly I am of the view that this matter has been adjudicated upon by a Court of competent jurisdiction but not only have parties sought such jurisdiction and have acquiesced in it, but they have acted upon such jurisdiction being the payment of the US$2,320,000, and that it would be oppressive for this matter to in effect be re-litigated in this Court when after consideration of the reasons for judgment set out in the respective affidavits, I am satisfied that similar, if not identical principles as applicable to an application for parenting in this Court have been applied by the Taiwanese Court. Therefore in those circumstances, I consider this is a forum

non conveniens and consequently the application of the Wife should be stayed.

Res judicata

The question of res judicata has been brought before the Court. Having come to the conclusion that the application of the Wife should be stayed permanently, I am of the view that it would be unnecessary to consider the decision of

res judicata. However, I will say briefly that it would appear that the final determination of the Taiwanese Court is that it is final as between the parties, the parties are the same, the principles as I have said before appear to be similar, and consequently the matter had been adjudicated upon by a court of competent jurisdiction and it would appear to be that without necessarily finding such, that the matter has already been decided upon.
Husband’s Counsel submits the notarised Divorce Settlement Agreement represents a final judicial determination and that, accordingly, orders sought by Application in a Case of the Wife filed 9 June 2011 are res judicata.
Counsel for the Wife submits that res judicata does not invalidate the Wife’s argument. Ms Anderson instead submits the Taiwanese Court was called on only to make a determination as to whether parties had agreed as to who would have “custody’’ of the subject child.
The Wife’s Further Amended Initiating Application filed 21 April 2011 seeks at paragraph 2 that the child live with the Wife. However, during oral submissions Counsel for the Wife proffered that paragraph should possibly read: “that the child live with the Mother while he goes to school in Australia, and live with the Father at other times”. Counsel for the Wife submits this amendment on the proviso that the Taiwanese Court did not determine the child’s place of residence. Counsel for the Wife submits the decision made in Taiwan was in relation to who would have “decision-making power”, hence the order that the child cannot leave Taiwan without the permission of the Husband.
From my reading of the judgment as translated by Ms Z, I cannot separate the argument of Wife’s Counsel from the well established principles of res judicata. An Order of the Taiwanese Court as to which party should be bestowed with the “decision-making power” of the child, a phrase enunciated by Ms Anderson herself, appears a mirror of our s 61 parental responsibility provisions.
Although Counsel for the Wife submits the Wife’s application does not seek to “disturb the custody order”, or rather that this Court can hear an application for parenting orders that would not disturb the current orders of the Court in Taiwan, I find that “custody”, as the Taiwanese Court so refers, is equivalent to our provisions of whom a child “lives with” and “spends time with”. While Counsel for the Wife submits that the child’s geographic residence was not considered by the Taiwanese Court, I cannot differentiate between a Taiwanese Order that provides for a parent to have rights and duties to a child, to an Australian Order which would provide for parental responsibility including decision-making as to where a child would live.

Furthermore, the provision in the Taiwanese Orders made 28 June 2011 for the Wife to “visit, communicate and live with the minor child…in the designated time as the attached schedule”, does not seem reflective of the “interim decision” suggested by Ms Andersen that does not contemplate with whom the child was to live.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on .

Associate:

Date: 2 September 2011