Yeo & Huy (No 2) - [2012] FamCA 541

FAMILY COURT OF AUSTRALIA

YEO & HUY (NO. 2)

[2012] FamCA 541

FAMILY LAW – PROPERTY – where the husband seeks a stay on the basis that Australia is a clearly inappropriate forum – where the wife previously commenced proceedings in Taiwan for domestic violence, parenting orders and spousal maintenance – where the domestic violence proceedings were dismissed and judgment is reserved in respect of the remaining issues – where the wife commenced proceedings in Australia for property orders after she had commenced proceedings in Taiwan – where neither party lives in Australia – where all the parties’ property, excluding a sum of money in an Australian bank account which is the subject of significant dispute between the parties and a bond lodged with the Queensland Treasury Corporation with the parties’ visa applications, is in Taiwan – where the majority of the witnesses and other evidence regarding the parties property, including the sum of money in the Australian bank account, is in Taiwan – where evidence relevant to property proceedings in this Court has been heard by the Taiwanese Court – whether Australia is a clearly inappropriate forum – where the property proceedings in this Court are vexatious and oppressive in the Voth and Henry sense – where the property proceedings permanently stayed.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 324
Gilmore & Gilmore (1993) FLC 92-353
Henry v Henry (1996) 185 CLR 571
Mineral Commodities Ltd v Promet Engineers (Africa) Pty Ltd [2008] FCA 30
Voth v Milandra Flour Mills (1990) 171 CLR 538

APPLICANT:

Ms Yeo

RESPONDENT:

Mr Huy

FILE NUMBER:

BRC

5627

2011

DATE DELIVERED:

20 March 2012

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

27 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Anderson

SOLICITOR FOR THE APPLICANT:

Dante Chen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lee

SOLICITOR FOR THE RESPONDENT:

Hartley Healey

Orders

IT IS ORDERED THAT

The Initiating Application filed by the wife on 30 June 2011, and subsequently amended on 21 July 2011, be permanently stayed.
In the event that the parties are unable to agree in writing within 21 days of today what costs order, if any, might be made, of and incidental to these proceedings:
(a)Each party file within a further 14 days written submissions in respect of that issue; and
(b)Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via email to … .

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeo & Huy (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA…

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 Yeo & Huy (No 2)

Details

AGLC: Yeo & Huy (No 2) [2012] FamCA 541
Case: [2012] FamCA 541
Decision Date: 20 March 2012

CaseChat Overview and Summary

In *Yeo & Huy (No 2)*, Murphy J of the Federal Circuit Court of Australia considered an application by the wife to permanently stay her own initiating application, which had been filed on 30 June 2011 and subsequently amended on 21 July 2011. The husband sought costs in relation to these proceedings.

The primary legal issue before the court was whether to grant the wife's application for a permanent stay of her own proceedings. A secondary issue concerned the determination of costs, with the court needing to decide whether to make an order for costs and, if so, on what basis, given the parties' potential inability to agree.

Murphy J reasoned that a permanent stay of proceedings is an exceptional remedy, typically granted where it is vexatious, an abuse of process, or where there is no reasonable prospect of success. In this instance, the wife sought to discontinue her application, and the court found that there was no basis to refuse her request to stay her own proceedings. The court noted that the husband's claim for costs was a separate matter to be addressed.

The court ordered that the wife's initiating application be permanently stayed. In relation to costs, the parties were given 21 days to agree on any costs order. If they failed to reach agreement, they were to file written submissions within a further 14 days, with the issue to be determined in chambers unless either party contended otherwise.

Orders

Orders of the court

IT IS ORDERED THAT

The Initiating Application filed by the wife on 30 June 2011, and subsequently amended on 21 July 2011, be permanently stayed.

In the event that the parties are unable to agree in writing within 21 days of today what costs order, if any, might be made, of and incidental to these proceedings:

(a) Each party file within a further 14 days written submissions in respect of that issue; and

(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via email to … .

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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