Ying & Qigang

[2023] FedCFamC2F 111

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ying & Qigang [2023] FedCFamC2F 111

File number(s):

MLC 197 2019

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

20 January 2023

Catchwords:

FAMILY LAW – ex tempore judgment – application by husband for removal of caveat – unlawful for citizen of the People’s Republic of China (PRC) to prepare or give evidence from PRC in a foreign country – impact of COVID – solicitor alleged case to be a two day case – now ninth day – further two days required – caveat really a ‘short cut’ Mareva injunction – undertaking not to dispose provided – no evidence as would support a caveat for removal of interest – order for removal of caveat.

Legislation:

Civil Code of the People’s Republic of China, Article 277
Family Law Act 1975 (Cth), s 79

Cases cited:

Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509

re F: Litigants in Person Guidelines [2001] FamCA 348

Division:

Division 2 Family Law

Number of paragraphs:

11

Date of hearing:

20 January 2023

Place:

Melbourne

Counsel for the Applicant:

Litigant in person

Counsel for the First Respondent:

Litigant in person

Counsel for the Second Respondent:

Litigant in person

Counsel for the Third Respondent:

Litigant in person

ORDERS

MLC 197 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS YING

Applicant

AND:

MR QIGANG

First Respondent

MR YING

Second Respondent

MS JIAN

Third Respondent

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	20 JANUARY 2023

THE COURT ORDERS THAT:

1.Ms Ying do all acts and things to withdraw the caveat on Mr Qigang’s Suburb C property within 7 days of these Orders at her expense. 

2.Ms Ying, Mr Ying and Ms Jian provide to Mr Qigang all documents obtained from NAB trader relating to share trading in the name of or on behalf of Mr Ying in the period of 2015 to this day within 14 days of these orders. 

3.On or before Monday 3 April 2023, Ms Ying is to file an affidavit annexing the relevant bank statements of herself, the Second Respondent and the Third Respondent from 1 January 2014 to 1 January 2017. 

4.On or before Monday 3 April 2023, Mr Qigang is to file an affidavit annexing his relevant bank statements from 1 January 2014 to 1 January 2017. 

5.Ms Ying is permitted to file on the portal a legible replacement of annexures of documents that are not legible annexed to her affidavit filed on 4 November 2020. 

6.No party is to file any further documents on the court portal without express permission of the Court. 

7.The proceedings be adjourned to the Federal Circuit Court of Australia at Melbourne to 1 May 2023 for Part Heard Final Hearing (not to exceed an additional 2 days). 

AND THE COURT NOTES THAT:

A.Mr Qigang provided an oral undertaking in court today that he would not sell or refinance the Suburb C property before the completion of these proceedings or having first obtained the approval of the Court. 

B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Ying & Qigang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR EX TEMPORE JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled ex tempore reasons in this matter. 

   BACKGROUND

2. The question I must determine is whether a party should be ordered to remove a caveat lodged over another party and a stranger to the litigation’s property. 

3. This matter involves the property dispute between the Applicant Wife, Ms Ying (‘the Wife’) currently aged 45 years, the Respondent Husband, Mr Qigang (‘the Husband’) currently aged 42 years, and the Wife’s parents, Mr Ying and Ms Jian (‘the parents’).

4. This matter was originally set down for a two-day Final Hearing on 17 November 2020 after a callover of cases.  At the time of the callover, the applicant, Ms Ying, was represented.  Her solicitor told me that the case was about a two-day case.  All parties are now litigants in person.  This is day nine of the case.  The case has taken much, much longer than anticipated.  Part of that length of the period of time it stretched out relates to:

   ·the length of the case that has necessitated it being heard in several “chunks”;

   ·the impact of COVID on the time involved to undertake a case over Microsoft Teams video link;

   ·the additional time taken because of the necessity of interpretation and compliance with re F: Litigants in Person Guidelines [2001] FamCA 348;

   ·the delay in the matter whilst the parents of the Wife could be present in Australia, because, by the law of the People’s Republic of China, Article 277 of the Civil Code of the People’s Republic of China (‘PRC’), it is unlawful for a Chinese citizen to prepare or give evidence in a foreign court from the PRC;

   ·The late addition of the Wife’s parents as necessary parties to the proceedings who were living in the PRC.[1]

   [1] I determined that the law of the PRC should be respected in the PRC.

5. That is only part of the travails in this case.  The long and the short of it is that the case has gone on for a very long time.  I had allocated a further two days with the intention to complete evidence in the case at this time (January 2023).  For a variety of reasons, that has not been possible. 

   REMOVAL OF CAVEAT

6. The matter comes to a close at 5 o’clock on the second day of the January 2023 session of sitting (but the ninth day of hearing).  I have indicated to the parties that the only further time I will allocate to this case will be 1 and 2 May.  At that time, the further delay in hearing raised an application by the Husband for an interim order.  He sought an order that the Wife remove her caveat that she had lodged over his property purchased post separation.

7. The caveat is over the property that was purchased subsequent to separation by the Husband and his current wife. The Wife also purchased property post-separation and owns a property with her partner. In evidence and in submissions, there has not been any suggestion that the post-separation purchases of either party’s property impact on these proceedings. Both parties have concentrated very intently on the property that they owned up until the date of separation. That is not the ordinary and orthodox way a section 79 of the Family Law Act 1975 (Cth) hearing proceeds. However, all of the parties in this case, as it has been throughout, insisted on the matter proceeding in that way, and I was prepared to acquiesce in it.

8. I cannot recall being aware of the fact of the caveat being lodged on the Husband and his current wife’s house before now.  On the evidence heard over many days, almost all of it is about who paid what money, and when, from 2014 to 2016. 

9. The Husband offers an undertaking to the Court that he will not refinance or increase the indebtedness of that property or dispose of it pending the further hearing.  He presses that he is concerned about the state of his current relationship by the fact of the caveat hanging over the property owned by himself and his current wife.

10. I am not satisfied on the evidence I have after nine days that there is any proper basis on the evidence for that caveat to be lodged.  It appears to me that the caveat has been lodged as a form of a Mareva injunction (Mareva Compania Naviera SA v International Bulkcarriers SA [1975] 2 Lloyd's Rep 509). A Mareva injunction is where the Court makes an order that a party is not to dispose of property to ensure that there is property, or the subject property, available to satisfy any judgment. It appears to me that there has been a shortcut taken, and I might add, a very common shortcut, by the lodging of a caveat with the Titles Office that alleges that the caveator, the person lodging the caveat, has an actual interest in that property. I do not have a copy of the caveat and no one who appears before me today can remember the terms of the caveat. However, I am satisfied that the evidence that I have does not justify the lodging of a caveat at this point on the evidence that I have so far.

11. Hence it is appropriate and it is in the interests of justice and just and equitable that the Wife be ordered to remove the caveat upon the Husband’s undertaking as recited.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated: 9 February 2023