Yang and Lin - [2015] FCCA 3040

FEDERAL CIRCUIT COURT OF AUSTRALIA

YANG & LIN

[2015] FCCA 3040

Catchwords:
FAMILY LAW – Competing interlocutory applications – assets in Australia and China – forum issue.

Legislation:

Family Law Act 1975, s.79

Federal Circuit Court Rules 2001, r.6.19

Federal Circuit Court Act 1999, ss.39(4), 39(2)(b)

Voth and Minildra Flour Mills Pty Ltd (1990) 171 CLR 538
Gilmore and Gilmore (1993) FLC 92-353
Pagliotti & Hartner [2009] FamCAFC 18
Henry v Henry (1986) 185 CLR 571
In the Marriage of Gilmore (1993) 110 FLR 311
Cashiel and Carr (2005) FLC 93-232

Applicant:

MR YANG

Respondent:

MS LIN

File Number:

MLC 7205 of 2014

Judgment of:

Judge Harland

Hearing date:

9 October 2015

Date of Last Submission:

23 October 2015

Delivered at:

Melbourne

Delivered on:

13 November 2015

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Oakfair Lawyers

Counsel for the Respondent:

Ms Kildea

Solicitors for the Respondent:

Rose Chai Lawyers & Consultants

ORDERS

The application in a case filed by applicant wife on 31 July 2015 is dismissed.
The response to an application in a case filed by the respondent husband on 9 September 2015 is dismissed.
Pursuant to s.39(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) proceedings are transferred to the Melbourne Registry of the Family Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7205 of 2014

MR YANG

Applicant

And

MS LIN

Respondent

REASONS FOR JUDGMENT

The parties have competing interim applications before the Court. The parties are Chinese. The husband lives in China. The parties have significant assets in China.
It is significant to note that the husband invoked this court’s jurisdiction when he filed the initiating application. The husband says he had to bring urgent proceedings to injunct the wife from dealing with the proceeds of the parties’ (omitted) business.
The parties broadly agree about what assets and liabilities they have although valuations have not been carried out as yet so the size of the pool is not established. The wife annexes a balance sheet to her case outline. The majority of the parties’ assets are located in China. The Australian assets are easier to deal with as they consist of real property subject to a mortgage, motor vehicles and bank accounts. The assets in China consist of real estate and two companies operating an (omitted) business. There is no value attributed to the companies apart from the funds which have been frozen by the Chinese court.
The wife filed an application in a case seeking an order that she receive 50% of the funds being held in China pursuant to a Chinese court order. Those funds are the proceeds of sale from real property owned by the parties’ company (business omitted). Those funds were frozen by order of a Chinese court when the wife sought orders that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yang and Lin

Details

AGLC: Yang and Lin [2015] FCCA 3040
Case: [2015] FCCA 3040
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the matter of *Yang and Lin*, heard by Judge Harland, the applicant wife and respondent husband brought separate applications concerning their marital relationship. The wife filed her application on 31 July 2015, and the husband filed his response on 9 September 2015.

The court was required to determine the appropriate course of action for the proceedings, specifically whether to proceed with the applications as filed or to transfer them to another registry.

Judge Harland ordered the dismissal of both the wife's application and the husband's response. Pursuant to s.39(2)(b) of the *Federal Circuit Court of Australia Act 1999* (Cth), the proceedings were subsequently transferred to the Melbourne Registry of the Family Court of Australia.

Orders

Orders of the court

The application in a case filed by applicant wife on 31 July 2015 is dismissed.

The response to an application in a case filed by the respondent husband on 9 September 2015 is dismissed.

Pursuant to s.39(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) proceedings are transferred to the Melbourne Registry of the Family Court of Australia.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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