YANG & CHIN - [2012] FamCA 436

FAMILY COURT OF AUSTRALIA

YANG & CHIN

[2012] FamCA 436

FAMILY LAW – COSTS

FAMILY LAW – PROPERTY – forum non conveniens

APPLICANT:

Ms Yang

RESPONDENT:

Mr Chin

FILE NUMBER:

BRC

7323

2010

DATE DELIVERED:

23 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

5 August 2011 and 4 May 2012

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

Amended on 4 june 2012 pursuant to rule 17.02 of the family law rules 2004

Orders

That all orders sought in relation to parenting as encompassed in the Wife’s Further Amended Initiating Application filed 21 February 2011 be permanently stayed.
That the Wife’s Application in a Case filed 9 June 2011 be permanently stayed.
That the Wife pay the Husband’s costs of and incidental the Wife’s Application in a Case filed 9 June 2011, including the costs reserved by the Orders of 10 December 2010 and 27 April 2011 before Justice O’Reilly, on a party and party basis in a sum agreed or in default of agreement as assessed under the Family Law Rules.
That all orders sought in relation to property including the Wife’s Further Amended Initiating Application filed 21 February 2011 be permanently stayed.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending paragraph (3) to record the correct date of Justice O’Reilly’s Orders.

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

On 5 August 2011 this matter came before me on the Wife’s application to vacate a stay of proceedings. Both parenting and property proceedings had been stayed pursuant to the Orders of O’Reilly J on 21 December 2010, pending final determination of the parenting proceedings in Taiwan.
The issue essentially became one of forum, as both parties and the subject child were Taiwanese, the Applicant Wife had commenced parenting proceedings in Taiwan first in time and, furthermore, the Taiwanese proceedings had been finalised by the end of June 2011, that is, by the time it came before me for hearing.
On 2 September 2011 I published my reasons on the issue of forum non conveniens. By way of Orders that day the Wife’s Application in a Case filed 9 June 2011 was stayed and leave granted for any written submissions on costs to be lodged by 4.00pm on 30 September 2011. At the conclusion of the discrete hearing as to forum, Counsel for the Wife also referred me to the final orders sought in relation to property, as encompassed by the Wife’s Further Amended Initiating Application (filed 21 February 2011). Accordingly, subsequent to publishing my Orders and Reasons for Judgment on the substantive issue I made Orders granting leave for any written submissions in relation to property to be lodged, again, by 4.00pm on 30 September 2011.
Both parties filed written submissions on 30 September, although I note the Wife also filed a further affidavit in support of her written submissions in relation to property.
Counsel for the Husband has objected to the filing of that affidavit and the material contained within, also objecting insofar as the written submissions on behalf of the Wife rely upon its evidence.
This objection was raised before me, inter alia, when this matter came before me for mention on 4 May 2012.
The issue was not pressed by either party at those proceedings on 4 May 2012, although I note the Wife was unrepresented before me at that time. Accordingly, I cannot take this affidavit evidence into account. Insofar as the Wife’s submissions rely upon the evidence contained therein, I have found that little turns upon those submissions.
In relation to the current proceedings, three issues stand to be determined: what is the position as to the remaining parenting orders sought by the Wife; what is this Court’s role insofar as final orders sought by the Wife in relation to property; and whom should bear the costs of proceedings stemming from the forum hearing.

Parenting proceedings

As aforementioned, the Wife’s application for interim parenting orders has been stayed; however final parenting orders as encompassed in the Wife’s Further Amended Initiating Application remain on foot.
Counsel for the Husband appears to contest that the Application my Orders sought to stay was in fact the Further Amended Initiating Application of the Wife, filed 21 February 2011.
The basis of this submission on behalf of the Husband is grounded in the following terms: at the time of hearing there had been final determination in Taiwan and accordingly the “temporal precondition” to the stay’s very existence had been fulfilled. Upon this reasoning, an Order staying the Wife’s Application in a Case to vacate the stay was, in his submission, “otiose at the time of the hearing and at the date of the Orders.”
I do not accept this submission.
This issue of the “sunset clause” inserted by Justice O’Reilly had been raised and conceded by Counsel for the Wife, Counsel for the Husband and myself during submissions at the hearing on 5 August 2011. The Husband refers in his written submissions to his Application in a Case filed by leave on 5 August 2011, which, from my reading of the transcript of proceedings that day, is referrable to a discussion as to the nature of the relief sought by the Respondent given the temporal limitation had subsided.
Nonetheless, Counsel for the Husband makes the valid submission that parenting proceedings have not been dealt with in their totality; the effect of my Orders of 2 September 2011 stays only the Wife’s Application in a Case with respect to interim parenting orders.
Accordingly Counsel for the Husband submits that both the Wife’s Application in a Case filed 9 June 2011 and the Wife’s Further Amended Initiating Application ought be dismissed or permanently stayed.
I refer to and incorporate my reasons of 2 September 2011 with respect to forum non conveniens. Parenting matters have clearly been determined on a final basis by a Court of competent jurisdiction and accordingly any application by the Wife in relation to parenting is, again, forum non conveniens.

Costs

By way of her written submissions, Counsel for the Wife concerns herself with a somewhat pre-emptive rebuttal of indemnity costs. However, the Husband does not in fact appear to be seeking costs on an indemnity basis. Rather, the Husband seeks that the Wife bear his costs of and incidental to the proceedings and all Applications in a Case filed in it, including the costs reserved by the various Orders of Justice O’Reilly, assessed on a party and party basis.
This matter came before O’Reilly J on two occasions: the hearing of 10 December 2010 whereby her Honour stayed both parenting and property orders and again on 27 April 2011 where her Honour made directions for filing in relation to the Wife’s interim parenting application. Costs of both those dates were reserved.
The Wife has made a number of submissions in relation to those factors that a Court shall have regard to in departing from the general rule under the Family Law Act 1975 (Cth) (“the Act”) that parties to proceedings in this Court should bear their own costs (see s 117(2A)).
The Wife submits to a disparity in financial circumstance between the parties and, whilst conceding the Wife has been unsuccessful in this application, the Wife submits that I should not find she has been “wholly unsuccessful” insofar as s 117(2A) is concerned.
I cannot find that these are circumstances in which indemnity costs would be justified and indeed I am not asked by the Husband to do so.
However the crux of my reasons of 2 September 2011 is consistent with a finding that the Wife has been “wholly unsuccessful” in relation to this application.
The Wife herself concedes that “in any event, if the Court finds that it is justified in making a costs order against the applicant, such an order should be on a party and party basis”.
I will accede to the Husband’s submission insofar as the Application in a Case filed 9 June 2011 is concerned, and the reserved costs of 10 December 2010 and 27 April 2010 before O’Reilly J, but otherwise the parties are to bear their own costs.
Therefore the Wife is to pay the Husband’s costs of and incidental the Wife’s Application in a Case filed 9 June 2011, including the costs reserved by the Orders of 10 December 2010 and 27 April 2010 before O’Reilly J, on a party and party basis in a sum agreed or in default of agreement as assessed under the Family Law Rules.

Property Proceedings

As aforementioned on 2 September 2011 I called for further submissions of the parties in relation to property proceedings.
Property proceedings were stayed by the Order of 10 December 2010 of O’Reilly J, pending final determination of the parenting proceedings in the Taiwan Taipei District Court. Consequently, as herein before discussed, this stay was lifted by the delivery of final judgment in relation to parenting matters on 28 June 2011 and accordingly the Court’s jurisdiction to hear property proceedings remain to be determined.
The Husband now asks me to accept that this court remains a wholly inappropriate forum for litigating not only parenting but also property proceedings.
Additionally, the Husband submits that property matters are res judicata, given that the Divorce Settlement Agreement has been adjudicated upon in Taiwan.
The Wife for her part contends that the property issues have never been addressed or determined in finality by a court in any jurisdiction. Accordingly she submits the appropriate course of action is to proceeding with hearing on the property issues.
It is at this stage, I believe, beneficial to revisit a brief chronology of proceedings. I note for such purposes that both the Husband and the Wife have referred me to their earlier written submissions of 18 and 19 July 2011 respectively, insofar as they relate to property proceedings.
These proceedings were commenced in Taiwan on 21 September 2009 by the filing of a Divorce Settlement Agreement which was registered in Taipei on 1 July 2010. This agreement appears at Annexure “SL2” to the affidavit of Ms L filed 9 December 2010.
The relevant portion of that agreement, with respect to property proceedings, are as follows:
“2.Both parties agree that the Husband shall pay the Wife the full amount of USD$2,320,000.00 by 22^nd October 2009. (Rate of exchange is to be determined by the figure shown on the Bank of Taiwan’s foreign exchange rate board at 9.00am on 22^nd October 2009). Enforcement proceedings shall be carried out should the Husband fail to comply with this provision.
3.Both parties agree that the right to request division on the remaining marital property and the request indemnity against all other property or non-property losses which derived from the dissolution of marriage and can be mutually claimed in accordance with Article 1030.1 of the Civil Law have been fully exercised and any unexercised rights shall be forfeited. Neither party can make any further claim under Article 1030.1 of the Civil Law.
4.Any personal or real property with title held by the Husband or the Wife shall be taken as each party’s sole and separate property respectively. Each party shall retain its full ownership with respect to any property that is in each party’s respective title or possession. Each party shall not make any further request to the party in this regard.”
(My underlining)
Such a document has the effect, in my mind, of creating a final, binding agreement between the parties in Taiwan.
On or about 19 July 2010 the Wife filed an “Application for the Final Order to Change Custodian”. According to the Husband’s submissions, the Wife’s principal challenge was to the validity, circumstances of entry into and the binding effect of the Divorce Settlement Agreement.
On 26 July 2010 the Husband was served with the Wife’s Application for Final Orders and on the same day, the Wife filed a Civil Application for Provisional Injunction, which had the effect of seeking parenting orders.
Hearing proceeded and final Judgment and Reasons therefore were given in Taipei in June 2011. A copy of this judgment is Annexure “YZ2” to the Affidavit of Ms Z filed 18 July 2011.
The Taiwan Taipei District Court made Orders only in relation to parenting arrangements. However the Reasons do go toward the effect of the Divorce Settlement Agreement insofar as property settlement and also provide that the Wife has received the sum hereinto before referred.
The Wife now seeks to invoke the jurisdiction of this Court in relation to a concurrent divorce agreement filed in Australia.
It appears the parties sought to give effect to a financial agreement in Australia pursuant to s 90C of the Family Law Act 1975 (Cth) (see Annexure “JH1” to the affidavit of the Wife filed 9 August 2010).
By way of the current proceedings in the Family Court of Australia, the Wife seeks to set aside this “Australian Agreement”, dated 24 March 2010 and filed in Australia.
This document provides, at the “First Schedule”, a list of assets owned by the parties in Australia. The First Schedule provides:
[MR CHIN]
Assets:
1.[… E Street, Suburb B] in the State of Queensland […].
Liabilities:
Nil.
[MS YANG]
Assets:
2.[… C Street, Suburb B] in the State of Queensland […].
3.Vehicle make of Mercedes-Benz ([…]).
4.ANZ Bank Access Account No. […].
Liabilities:
Nil.
Counsel for the Wife asks me to find firstly that this Australian agreement is different to that entered into in Taiwan. Ms Andersen then submits that such Agreement should be set aside on the basis that the Husband has failed to make full and frank disclosure of his financial circumstances (s 90K of the Act).
Mr Matthews of Counsel, for the Husband, submits that the Australian agreement is a mere recitation of the Divorce Settlement Agreement in Taiwan and that it does in fact deal with the transfer of assets.
Mr Matthews asks me to accept that the Orders sought by the Wife insofar as property are caught by my earlier findings in relation to forum non conveniens. Furthermore, the Husband submits that allowing the Wife to pursue proceedings in this jurisdiction would constitute a res judicata.
How then, if at all, do these property proceedings differ from the nature of the parenting proceedings?
It has come to light that proceedings in Taiwan may not in fact be finalised. I refer to the written submissions of the Wife filed 30 September whereby Ms Anderson of Counsel refers to the Wife’s belief that the Husband has appealed the final orders made in Taiwan. I called for further evidence in relation to the verity of such submission and a Dr Yo Chi Ton filed an updating affidavit on behalf of the Husband, deposing to the progress of current Taiwanese proceedings.
As it falls from Dr Chi Ton, who is the Husband’s Taiwanese lawyer, see affidavit filed 9 May 2012, and the further submissions of Mr Matthews of Counsel on 4 May 2012, it appears the Husband has indeed appealed the Taiwanese decision. It appears the thrust of the Husband’s appeal is to obtain a “supplementary order” which would validate the Divorce Settlement Agreement made in Taiwan. The appeal on foot is in fact what appears to be an appeal from an appeal, and Mr Matthews provides that this current appeal goes to a procedural matter in Taiwan, namely, which court would be seized of jurisdiction to give a declaratory order in relation to the notarised divorce settlement agreement. Dr Chi Ton deposes that, “to date, no hearing notice of this appeal has been received”.
Despite the nature of the Husband’s appeal, that is, an Order to “acknowledge and confirm the validity of the Divorce Settlement Agreement” made between the parties in Taiwan in 2009, I cannot find that the absence of same is by implication an indication that the matters have not been “addressed or determined in finality by a court in any jurisdiction” (see submissions of the Wife).
Having come to that conclusion and applying the principles as enunciated in my reasons in relation to the parenting matters, I am of the opinion that Australia is a forum non conveniens in relation to the property settlement.
I thereby order in accordance with the Orders set out at the commencement of these Reasons.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 23 May 2012.

Associate:

Date: 23 May 2012