Ying & Qigang (No 2)
[2023] FedCFamC2F 1082
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ying & Qigang (No 2) [2023] FedCFamC2F 1082
File number(s): MLC 197 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – interim property orders – application to vary an undertaking – application allowed – where one party seeks to refinance a property – where other parties have made criminal complaints against the party seeking to vary the undertaking – undefended hearing where the applicant did not appear Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.19
Cases cited: Ying & Qigang [2023] FedCFamC2F 111 Division: Division 2 Family Law Number of paragraphs: 20 Date of hearing: 18 August 2023 Place: Melbourne The Applicant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person The Third Respondent: Litigant in person ORDERS
MLC 197 of 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:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.The First Respondent MR QIGANG is released from the undertaking that he made on 20 January 2023.
2.The First Respondent MR QIGANG be and is permitted to refinance the existing mortgage debt or obligation existing on the property co-owned by him with his wife but provided and on the condition that the extent of the encumbrance is not exceeded beyond the encumbrance or debt existing as at this day save for reasonable transaction costs of arranging the refinance or terms of the replacement mortgage or debt.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The circumstances surrounding this litigation are set out in the reasons for judgment delivered on 20 January 2023, and I refer to and rely upon those reasons in the judgment, and it is unnecessary that I repeat them here. They were anonymised as Ying & Qigang [2023] FedCFamC2F 111.
In this matter I am asked by Mr Qigang, the Respondent Husband, to vary an undertaking that he made on 20 January 2023. That request was made by an email sent to my chambers on Wednesday, 16 August 2023 and is exhibit H11, 18 August 2023. That email had been also sent to the Applicant, Ms Ying, and the Second and Third Respondents, Mr Ying and Ms Jian (who are Ms Ying’s father and mother, respectively. I made an order on 16 August 2023 that that email be and is treated as an application for interim orders, and I listed the matter for hearing today, that is, two days after the email, at 10:00 am.
Ms Ying appears in court before me today, as does the Second Respondent, Mr Ying, and Third Respondent, Ms Jian. An interpreter has been provided by the Court for the assistance of Mr Ying and Ms Jian. Mr Ying and Ms Jian appear in person this day.
There has been no appearance for Mr Qigang. My associates have both emailed him and telephoned the telephone number that is in the Court records of Mr Qigang. There is no appearance for Mr Qigang or explanation for his failure to attend. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 include the consequences of failing to attend a court event as:
15.19 Failure to attend a court event
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a)adjourn the court event to a specific date or generally;
(b)order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c)if the absent party is an applicant—dismiss the application;
(d)if the absent party is a party who has made an interlocutory application—dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
One of the matters I must consider is whether I should dismiss Mr Qigang's application, because he did not turn up to Court today or provide an explanation. I listed the matter on short notice on an urgent basis because of his request for urgency.
I had and still have the option of requiring Mr Qigang to put on affidavit and file documents with the Court setting out what he wants and why he wants it, and giving Ms Ying and Mr Ying and Ms Jian the opportunity to explain in affidavit and response why it is they oppose what Mr Qigang has requested. I decided, in all of the circumstances, not to place that burden of requiring even more documents to be filed explaining their position upon Ms Ying or Mr Ying or Ms Jian. I decided that I would listen to what they had to say directly to me, rather than requiring them to put it all on documents first, as is the usual practice of the rules.
Mr Qigang’s email reads as follows:
I write to seek to obtain the URGENT approval of refinance of our home loan regarding the property with the address of [D Street, Suburb C].
With another 2-year fixed interest term expiring soon, our home loan rates will jump from current 1.94% to something at 6.84%. We are definitely going to fall off the "mortgage cliff".
With soaring costs of living, rising child care fees, and child support payments, the struggling financial situations are putting heavy pressure on our day-to-day life.
I appreciate His Honour's finding that [Ms Ying] has no caveat interests on our [Suburb C] property.
However, according to the Interim Order dated 20 January 2023, I need to obtain the approval or wait until the completion of these proceedings before I can sell the property or refinance.
Thankfully the hearings have been completed in May.
While we are eagerly waiting for His Honour's final judgement, I plead for the approval so I could be able to seek financial options to sort out our financial difficulties.
With great appreciation!
[Mr Qigang]
Ms Ying has told me that she opposes Mr Qigang's request to vary his undertaking or be excused from it so that he can refinance his existing debt with another financial institution or with different arrangements with the same institution. She fears and believes that money that has wrongly been taken from her arising from the relationship has or may have been directly or indirectly applied to the purchase of the property that Mr Qigang has with his wife, whom he married after the end of his relationship with Ms Ying. She regards him as untrustworthy, someone who cannot be trusted. She fears that he will dissipate the equity in that property so that he can avoid the decision or judgment in this proceeding.
I asked Ms Ying why it matters to her whether Mr Qigang and his wife have borrowed from bank A or bank B, or how that relates to the recovery of funds that she hopes to be entitled to from these proceedings. Ms Ying's response was because Mr Qigang cannot be trusted and because the police are investigating what she regards as a theft of funds from her parents.
During the final hearing, the matter had proceeded before me in different chunks over a number of days before it became apparent that Ms Ying's case was that the City E property, although registered according to the law of the Country F in the proportions of 80% to Ms Ying and 20% to Mr Qigang, was in fact the property of, or at least under concepts in common law jurisprudential terms of being held on trust for, Mr Ying and Ms Jian. That meant that Ms Ying and Mr Qigang were making claims on property that one party said was owned by someone else. That necessitated Mr Ying and Ms Jian being joined to proceedings.
Along the way, I stumbled upon article 277 of the Civil Code of Country F, and I took expert evidence from an independent expert as to what that provision meant. The long and the short of it is that it was unlawful for a Country F citizen to prepare or give evidence in a foreign court from the Country F. I was satisfied that Mr Ying and Ms Jian wished to participate in this court case and that they wished to travel to Australia to be able to give evidence and participate in the case. Country F, like the rest of the world, being in the grip of a COVID pandemic, restricted travel for its citizens to the rest of the world and the ultimate delay of Mr Ying and Ms Jian being able to come to Australia to attend the Court in person was much longer than anyone had anticipated.
At a point that I cannot precisely remember, but something like day 5 of 6 of this hearing, and nothing turns on which precise day it was, but well into the hearing after many, many months, I was informed that Ms Ying, Mr Ying and Ms Jian had laid a complaint of criminal behaviour against Mr Qigang with Victoria Police over the very same issue that was alive in these proceedings. That is, whether Mr Qigang had dishonestly dealt with money of Mr Ying and Ms Jian, contrary to how he had been directed to deal with it. That is the criminal matter that Ms Ying refers to and relies upon as a reason why Mr Qigang should not be permitted to refinance his existing mortgage.
I take into account what Mr Ying and Ms Jian have told me about why they oppose the application. The joint position of Mr Ying and Ms Jian is that they oppose it because they cannot trust him and because he always tells lies. In addition, Mr Ying is worried he will sell the property. Ms Jian has the additional position that she does not trust him about anything.
I have considered whether I should simply dismiss Mr Qigang's application because he has not turned up today. In all the circumstances, and by the thinnest of margins, I have determined that I will not. The request by Mr Qigang in the circumstances is reasonable and, without the lack of trust and extreme antipathy between the parties, is something that would ordinarily be readily agreed to, provided the existing equity in the property was not unreasonably reduced. I take some confidence by the fact that Mr Qigang, in fact, raised with me and the other parties a request that is entirely consistent with and within the undertaking that he gave to me that I have recited above on 20 January 2023. Had Mr Qigang turned up, the issue of the variation of the existing undertaking or the provision of another could be explored. He has not turned up and he has not explained why. Nonetheless, the merit of what he asks for is overwhelming.
Balancing all of those matters, I will release him from that undertaking and instead make an order of the Court to the same effect, which is an injunction, but entitling Mr Qigang to refinance the existing mortgage on the property, provided the equity in that property is not unreasonably reduced, or reduced by any more than the transaction costs of obtaining the new mortgage.
While giving these reasons, just now, I received a response from Mr Qigang. It reads:
Dear Associate,
I'm very sorry but I was in a meeting at work.
I read the interim order dated 16/08/2023 stating no need to appear to the Court.
I don't want any more hearing or procedures. I just purely want the final judgement from the conclusion of 1 May 2023 trial hearing.
If this simple refinance request is treated as an application, I withdraw the application. I don't want this delays the final judgement. I will wait until the final orders.
Thanks!
Yours sincerely,
[Mr Qigang]
That email was sent at 11:04 am, when I had almost concluded the judgment. Tempting though it is to revisit my decision to dismiss his application, I will conclude my judgment, taking into account Mr Qigang's discourteous position. I note that his professed understanding that there was no need to appear in court was entirely wrong. He had been advised of the specific courtroom his application was to be heard in. The orders I made in Chambers where I treated Mr Qigang’s email as an application did not require an appearance.
I will add the procedures of the Court are that where a case is to take longer than three or, perhaps, four days, the case is to be transferred to Division 1 of this Court, which is set up and has facilities for cases that take more than three or four days and are able to accommodate longer cases, like this one where we are now in day 11 of the matter. I understand the human need of the parties to have a decision and reasons as soon as practical. With the benefit of hindsight, a decision could have been considered to vacate this trial and transfer it to Division 1 of the Court where that time is available for very long hearings. I note that Mr Ying and Ms Jian did not play any role in the decision to tell me that the case would take two or three days. That information came from Mr Qigang and Ms Ying's former solicitor. I resisted and still resist the temptation to vacate this trial and transfer the matter to where it should have been in the first place, and would have been had even remotely realistic estimates of the time that the case would take. As the case unravelled and it became apparent how long it would take, I continued to resist the temptation to vacate the trial and transfer it to the Court that would be able to accommodate it, and I continue to resist that temptation.
Those are my reasons.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 22 August 2023
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