Yang and Chin

[2010] FamCA 1247

FAMILY COURT OF AUSTRALIA

YANG & CHIN [2010] FamCA 1247

FAMILY LAW – PRACTICE AND PROCEDURE – Parenting and property proceedings in Australia – Parenting proceedings in Taiwan – Those proceedings well progressed – Property proceedings here concern financial agreement – Application to set aside – Proceedings here stayed pending conclusion of Taiwan proceedings

Family Law Act 1975 (Cth) s90K

APPLICANT: Ms Yang

RESPONDENT: Mr Chin

FILE NUMBER: BRC 7323 Of 2010

DATE DELIVERED: 10 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Byrne

SOLICITOR FOR THE APPLICANT: DC Lawyers

COUNSEL FOR THE RESPONDENT: Mr Matthews

SOLICITOR FOR THE RESPONDENT: Lang Hemming & Hall

Orders

IT IS ORDERED

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.

2. The proceedings be listed for mention at 9.30am on Thursday 24 March 2011 before the Honourable Justice O’Reilly.

3. The mother file and serve any further amended initiating application in relation to property matters by 4.00pm on Thursday 24 February 2011.

4. The costs of and incidental to the husband’s response filed 22 September 2010, of today and of the proceedings to date are reserved.

NOTATION:

As the proceedings are stayed there are not to be any procedural hearings or other Registry events before the matter is back before the Honourable Justice O’Reilly. 

IT IS NOTED that publication of this judgment under the pseudonym Yang & Chin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7323 of 2010

MS YANG

Applicant

And

MR CHIN

Respondent

REASONS FOR JUDGMENT

1. By initiating application filed on 9 August 2010, Ms Yang, the wife, instituted parenting proceedings in this Court concerning the child J born in February 2004. By amended initiating application filed on 3 November 2010, she enlarged those proceedings to include property proceedings, in particular that a financial agreement dated 24 March 2010 between herself and her former husband Mr Chin be set aside pursuant to section 79A of the Family Law Act 1975 (Cth). Now, it is plain that the reference to section 79A in that context is an error and intended to be a reference to section 90K of the Act, or to some aspect of non compliance with s90G of the Act. By response filed on 22 September 2010 the husband seeks to have the proceedings here dismissed, or in the alternative stayed, until the completion of proceedings between the parties in the Taiwan Taipei District Court.

2. Those proceedings were commenced on 19 July 2010 by the wife, concerning the child.  Those proceedings, according to the material, are well developed and likely to reach finality within three months.  It is in those circumstances that Mr Byrne of Counsel, for the wife, has offered that she will consent to a stay of the proceedings here, both parenting and property proceedings, until the final determination of the parenting proceedings in Taiwan. Mr Matthews of Counsel, for the husband, made clear that he was instructed nonetheless to seek the dismissal of the proceedings here and made submissions in support of that, although in doing so he acknowledged that conventionally, where courts have jurisdiction (and that as yet has not been argued in relation to the parenting proceedings here) it is appropriate to stay but not dismiss proceedings. 

3. Mr Matthews submitted that these proceedings are “much more unusual” than those in which forum non conveniens arguments usually are raised, because not only were they raised early and promptly by the husband, but the proceedings in Taiwan are so well progressed as to there being a likely result in a short time. He submitted that the circumstance of the wife including in her amended initiating application reference to the financial agreement, particularly in conjunction with its awkward reference to section 79A, is without foundation and “an artifice” to bolster the wife’s attempt to have parenting proceedings dealt with here rather than in Taiwan. Finally, he submitted that there can be no prejudice to the wife because she can recommence parenting proceedings in certain circumstances here, if so advised; and that in relation to the property proceedings if she has a competent claim after any dismissal of these proceedings she would not be prohibited in the future from filing competent property proceedings. He submitted that not only are the property proceedings incompetent but that despite exhibit 1, which is a letter 16 November 2010 from the husband’s solicitors to her solicitors pointing out various matters, there has not been a proper response.

4. It seems to me that this is a matter which, despite whether it may be said to have unusual features, it is appropriate, there being jurisdiction at least in relation to section 90K once there be amendment to invoke it, that the proceedings be stayed and not dismissed, for the reason that to dismiss the proceedings “in toto” would have effect, potentially, of a multiplicity of proceedings.  In this regard, Mr Byrne said his instructions are to pursue proceedings for the financial agreement to be set aside.  As to whether in those circumstances the parenting proceedings ought be dismissed now, or as is conventional, stayed until the outcome of the Taiwan proceedings, it seems to me that in the circumstances of the proceedings remaining on foot in any event it is appropriate simply to stay the parenting proceedings as well and consider the position in about three or four months time. 

5. In the circumstances, I propose to list the matter before myself at 9.30am on Thursday 24 March 2011 for mention. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.  

Associate:     

Date:              2 February 2011