Zao and Gong
[2020] FamCA 621
•31 July 2020
FAMILY COURT OF AUSTRALIA
| ZAO & GONG | [2020] FamCA 621 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application – Summary dismissal – Where the wife makes an application seeking to summarily dismiss husband’s application for Orders under section 79 of the Family Law Act (Cth) – Discussion of the principles applying to applications for summary dismissal – Finding that husband has an arguable case – Wife’s application for summary dismissal dismissed. |
| Family Law Act 1975 (Cth), ss 45A, 79A |
| Friar & Friar [2011] FamCAFC 71 Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14 Pelerman & Pelerman (2000) 93-037 |
| APPLICANT: | Mr Zao |
| RESPONDENT: | Ms Gong |
| FILE NUMBER: | SYC | 2998 | of | 2018 |
| DATE DELIVERED: | 31 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 29 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | Sunfield Chambers Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | JC Legal Practice |
Orders
The wife’s Application in a Case filed 16 March 2020 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zao & Gong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2998 of 2018
| Mr Zao |
Applicant
And
| Ms Gong |
Respondent
REASONS FOR JUDGMENT
The matter of Zao & Gong is an application by the respondent wife to summarily dismiss the husband’s application for property relief filed in the Family Court on 14 May 2018.
That application sought final property orders as follows:
That the Applicant Husband be paid $2.5 million from the complying investment funds relating to the Applicant Husband’s and the Respondent Wife’s sub-class 188 (significant visa stream) visa application, held by B Fund ACN …, the Trustee of B Fund ABN …, C Limited ACN … ABN …, the D Corporation and by any other entity upon fulfilment of the visa condition 8557 for the said visa.
DOCUMENTS RELIED UPON
The documents read and relied upon are as follows:
a)For the wife:
i)Application in a Case, filed 16 March 2020;
ii)Affidavit of the wife, filed 16 March 2020;
iii)Response to Final Orders, filed 27 August 2018;
iv)Affidavit of the wife, filed 27 August 2018; and
v)Written submissions prepared by Mr Lloyd SC on behalf of the wife, dated 9 March 2020.
b)For the husband:
i)Response to Application in a Case, filed 6 May 2020;
ii)Affidavit of the husband, filed 6 May 2020;
iii)Initiating Application, filed 14 May 2018;
iv)Affidavit of the husband, filed 14 May 2018; and
v)Case outline prepared by Mr Livingstone of Counsel on behalf of the husband, filed 18 May 2020.
CHRONOLOGY
The relevant chronology of the parties is as follows.
The husband was born in 1967, currently aged 52.
The wife was born in 1974, currently aged 45.
The parties commenced their relationship in 2009 and travelled frequently overseas and within China.
In 2012, the parties marry for the first time and on that same day sign a pre-nuptial agreement in China.
In 2015, the parties enter into a Divorce Agreement.
The parties reconciled and remarried in 2016 and executed a new pre-nuptial agreement.
In February 2018, the wife lodged an application to divorce in China, which was rejected.
The Husband had commenced Family Court proceedings in Australia on 14 May 2018.
In October 2018, the wife made another application to divorce in China, but this was withdrawn.
On 15 April 2019 the wife filed a further application for divorce
On 23 April 2019, the wife filed a further Affidavit in these proceedings confirming she had filed a divorce application in China on or about October 2018, a time when proceedings in this Court were on foot.
In 2019, the Chinese divorce was granted. The husband said he had not been properly served with the material. He filed an appeal against the divorce decision and his appeal was dismissed.
PROCEDURAL HISTORY
In his initial application, the husband sought interim orders in relation to injunctions against the wife from withdrawing or depleting the funds and various procedural orders thereafter.
Justice Carew made Orders on an ex-parte basis on 18 May 2018 injuncting the wife from withdrawing any part of those funds and ordering the husband to serve the documents on the wife.
The wife had not yet filed a Response and Affidavit in support when the matter came back to Court on 23 May 2018 before Justice Stevenson. At that time, and by consent, the parties agreed to the ex-parte injunction.
The matter went before Registrar Aitkin on 12 June 2018. The wife was directed to file a Response and Financial Statement by 20 July 2018, which were filed by on 27 August 2018.
In her Response, the wife sought Orders that the husband’s application for property relief pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”) be dismissed, that the husband’s application for property relief be permanently stayed, and the injunctive Orders made by the Court on 18 May 2018 and 23 May 2018 be discharged.
On 12 February 2019, the husband filed a Reply seeking Orders that the wife’s application for summary dismissal and a permanent stay of these proceedings be dismissed.
Procedurally, the matter came before me in Chambers on 13 March 2019, allegedly, on an argument about forum, when it was listed for hearing on 3 May 2019. The issues before the Court on 3 May 2019 were resolved by consent, and the wife’s application for the proceedings to be stayed were dismissed conditional upon the following.
2. The net matrimonial pool for the purposes of the property proceedings pursuant to s 79 of the Family Law Act (1975) be limited to:
2.1 Funds invested in Australia by the parties or either of them particularly described in Order 1.1 made by Stevenson J dated 23 May 2018; and
2.2Funds derived from the funds described in 2.1 above including interests and dividends.
The matter was listed for hearing on 30 October 2019 for one day in relation to the issue of property under section 79.
The parties approached Chambers on 27 August 2019 requesting that the matter be relisted on the basis the matter would not be contained within one day and estimated the hearing would take three days.
The matter was placed in a call over before me on 28 February 2020 for the allocation of hearing dates on the issues of property.
On 28 February 2020, the wife foreshadowed an application for summary dismissal and consequently, the proceedings were listed for hearing on that issue on 27 May 2020.
On 27 May 2020, Mr Lloyd of Senior Counsel appeared for the wife and Mr Livingstone of Counsel appeared for the husband.
THE LAW
The law in relation to summary dismissal applications is well settled and such applications are notoriously difficult to succeed. I have been referred to a plethora of decisions, particularly by the husband. The following two decisions are of central importance to me.
The first is the decision of the Full Court of Friar & Friar [2011] FamCAFC 71[1] (“Friar”), in which their Honours allowed an appeal of a decision by a Family Court Judge to dismiss a wife’s claim for property adjustment on a summary basis.
[1]Friar & Friar [2011] FamCAFC 71.
Justice Finn set out the relevant principles, beginning with the following preamble at paragraph 8:[2]
Similarly, no issue is raised on the appeal regarding his Honour’s acceptance (as opposed to application) of the following principles as the principles to be applied in the determination of applications for summary dismissal, and as those principles were articulated in the submissions of Counsel for the husband’s citing Beck & Beck.
[2] Above note 1, at [8].
Reciting Beck & Beck (2004) FLC 93-181,[3] and referring to Bigg & Suzi (1998) FLC 92-799[4] and Pelerman & Pelerman (2000) FLC 93-037,[5] her Honour opined:
[3]Beck & Beck (2004) FLC 93-181.
[4]Bigg & Suzi (1998) FLC 92-799.
[5]Pelerman & Pelerman (2000) FLC 93-037.
a) The power for summary dismissal is a discretionary one.
b)Relief “is rarely and sparingly provided”.
c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
d)A weak case or one that is unlikely to succeed is not “sufficient to warrant a termination”.
e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow the party to reframe its pleadings”.
In determining an application of this nature … the rule … is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the Court to proceed on the basis that the respondent’s version will ultimately be accepted at the trial of the action (see Webster & Lampard (1993) 177 CLR 598 at 608).
Continuing at paragraph 8,[6] her Honour went on to say:
Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi).
[6] Above note 1, at [8].
Justice Finn then recited what his Honour had said in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14,[7] as follows:
"... 2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or is advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”
[7]Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14, at [544-5].
In referring to the appeal before her, Justice Finn said that his Honour correctly identified the issues before him, being “whether the facts as pleaded and particularised in the wife’s points of claim … [considered] in the most favourable light were ‘doomed to fail’”. Her Honour confirmed at paragraph 16:[8]
While it has to be said that the drafting of the wife’s points of claim is not as satisfactory or precise as it might have been, nevertheless when the points of claim in question are considered “in the most favourable light” (as his Honour had earlier recognised that they should be), it should, in my view, be accepted that contrary to his Honour’s conclusions:
· that the wife was claiming that after the death of the husband’s father in 1980 or 1981, the husband’s sister had been one of the parties to the “arrangement or understanding that [the wife] and [the husband] would be beneficial owners of” the property at 102 (Ground 2); and
· that the wife was not claiming that the expenditure by her (particularised in paragraph 23 of the points of claim) had occurred prior to the representations relied on by her had been made, but rather that such expenditure (or part of it) had been made after such representations (Grounds 7 and 8).
[8] Above note 1, at [16].
As her Honour recounted, at paragraph 17:[9]
Similarly, it should be accepted, in my view, and again contrary to his Honour’s conclusion, that the representations of the husband’s sister contained in paragraph 24(b) of the points of claim (being that the wife and the husband should not sell the property at 102 as it would be worth more in years to come), contained an assumption that the husband and the wife owned (or would own) that property (Ground 3).
[9] Above note 1, at [17].
As I understand her Honour’s findings, in reading those two points together and when looking at the wife’s claim in the most favourable light, there was an understanding between the husband, the wife and the husband’s sister that she and her husband would be beneficial owners of the property and that the wife had made expenditure from her own income on the property. After such representations had been made to her, one could not have found that her case was doomed to fail.
Her Honour’s finding was that the wife’s application for relief, being a declaration under section 78 of the Act of an interest in property, should not have been summarily dismissed as the case that she was putting forward in relation to equitable relief was founded on an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff.
It is apparent to me, as is so often the case in these difficult matters, that his Honour fell into error when after stating the principles correctly he went on to analyse the strength of the wife’s case and found it wanting. This is not the test in a summary dismissal application.
The test is whether there is an arguable issue for a Court to determine. In Friar, their Honours found there was such a case. As Justice Finn said at paragraph 20:[10]
It must be emphasised that the wife’s case against the husband’s sister may ultimately not succeed, but it should be permitted to proceed to trial to establish if her claim to some form of equitable relief can be made out having regard to the requirements for such relief, being representations as to future ownership and consequent detriment, as explained in Giumelli.
[10] Above note 1, at [8].
Although Justices Watts and Thackray delivered a separate joint judgment in Friar, they came to the same conclusion as Justice Finn. The brief, clear, and precise decision of Finn J is the manner by which I propose to deal with this application. That decision is clearly still good law having regard to very recent decision of the Full Court in Ritter & Ritter and Anor [2020] FamCACF 86 (“Ritter”).[11]
[11]Ritter & Ritter and Anor [2020] FamCACF 86.
In Ritter, a Judge summarily dismissed a husband’s application pursuant to section 79A of the Act. The matter was appealed. The Appeal Court found the Judge was not entitled to so do and that the husband’s evidence taken at its highest was not inherently incredible or unreliable.
That matter concerned a husband who had been sentenced to a term of imprisonment and was ordered to pay the New South Wales Crime Commission $100,000 in 2007. In 2008, the husband and wife purchased a property for $450,000 and there was no mortgage. The parties separated shortly thereafter and resolved their matter in 2012 by Consent Orders. In early 2012, the husband was sentenced to another term of imprisonment and was released in late 2013. He was significantly seriously injured whilst in jail requiring medical hospitalisation.
In 2012, the parties’ daughter visited her father and said more money had been asked from them by the Crime Commission and they needed to raise money to pay this. The husband agreed and signed a document that she had prepared, selling his share in the property to her for $1. This was an untruth. The property that the husband had transferred to his daughter was sold by her and her mother and they purchased two further properties with the proceeds of sale.
When the husband was released from prison, he lived in a property which he believed his daughter owned. She told him she needed to take out a mortgage of $50,000. This was not true. The husband believed that he gained ownership of the property as he had paid his daughter $47,000 as rent to virtually pay off the mortgage.
The husband brought proceedings pursuant to section 79A of the Act to set the Consent Orders aside on the basis that his daughter had materially misled him as to the circumstances in which he came to sign the documents. Interestingly before the Trial Judge, the daughter argued that the Court lacked power to entertain the husband’s application pursuant to section 79A because the property the subject of the 2012 Consent Orders was no longer in existence and the Court could, therefore, not make any consequential Orders. Further, there was no common substratum of facts which would allow the Court to assume jurisdiction, thus, the husband’s application was “doomed to failure”. The argument about a lack of jurisdiction was not accepted by the Appeal Court and the Court agreed at paragraph 24 that the power being exercised under section 79A, is not dependent on there being an existing matrimonial cause.
The relevant paragraph of the Act in relation to summary dismissal applications is section 45A and as the Court stated in Ritter, a “Judge is obliged to consider whether the husband had no reasonable prospect of success in prosecuting his application under section 79A taking his case at its highest”. As their Honours opine in Ritter, the trial judge fell into error in the summary dismissal application by assessing the substance of the case for trial under section 79A, referring to matters such as such as the husband’s motives for signing documents to transfer property and whether he had come to Court with clean hands. In doing so, the Court found her Honour considered the case on improper principles.
Additionally, the trial Judge in Ritter found that the husband did not have a reasonable cause of action, and the Appeal Court found that this is not the test to be applied.
Furthermore, as the Appeal Court noted, in her own decision, the trial Judge had found that the husband had an arguable case under section 79A of the Act. The Court said that from this finding, it is clear her Honour should have dismissed the summary dismissal application as she had found the husband had an arguable case. The Court went on to state that it was not her role to determine the strength, merit or success of the husband’s application, rather, “did his case raise an issue that a Court would be required to determine.” In accordance with her own decision, she found it had.
The error as I see it was after having recited the principle that a Judge takes the respondent’s case at its highest, to then proceed to assess the strength or otherwise of the respondent’s case, and if found wanting to then dismiss the respondent’s primary application summarily. At paragraphs 56 and 57 of their judgment, their Honours used the words to describe the error as a determination by the Court of the “sufficiency of the husband’s evidence”.[12]
[12] Above note 11, at [56] – [57].
Their Honours confirmed that this is not the role of the trial judge, nor the test to be applied in a summary dismissal application. Rather, in determining a summary dismissal application and applying the relevant principles, the determination of the issue must only take into account the material on which the respondent seeks to make out their case or, as often expressed, take the respondent’s case at its highest unless the respondent’s version is inherently incredible or unreliable.
This finding is a recitation of Justice Finn’s decision in Friar. As their Honours opine, the primary judge herself had correctly stated the principle, which is that as a matter of law, the Court must consider whether the respondent’s evidence at its highest establishes that the husband has no reasonable prospect of success.
THE EVIDENCE
Turning now the matter before me.
The first argument raised by Mr Lloyd SC was that the Court is not seized of jurisdiction as the issues raised by the husband in this matter have been determined by the Chinese Courts on not one, but two occasions. A res judicata argument
If this is correct, it may ground a summary dismissal application finding.
The Husband’s Case
In October 2012, the husband asserts that he and his wife worked to develop a business strategy to gain financial benefits from the sale of a company incorporated at a point earlier in time and that the proceeds of sale of this company is part of the $5 million investment currently in Australia.
The husband says from October 2012 until 19 April 2013, the parties set about on a course of conduct to obtain $5 million Australian dollars by way of selling shares in companies to enable them to obtain a section 118 visa.
The husband asserts that the monies comprising the $5 million bond deposited in various investments in Australia came from sales of shares of the wife and her father together with sales of shares of the husband and the wife.
The husband asserts that the money placed in the $5 million deposit came from sales of shares in the F Company and that the husband had made a contribution of no less than 50 per cent to the value of those shares as he and the wife were in a relationship from 2009 until 2013 and due to the work and effort he put into the businesses of the parties.
The husband asserts that in 2012, the parties decided they would sell the shares in the F Company, as they needed to free up capital to develop their business strategy. That part of the bond money was from the sale of those shares to which he had made a contribution.
The husband says he told the wife to transfer the funds from the sale of the shares in the F Company to Australia for their section 118 visa and that 50 per cent of the $5 million investment fund will be his contribution to the visa. He says the wife agreed and he trusted her to handle the visa process.
In September 2014, $5,030,000 was transferred to Australia for the section 118 visa.
On 14 December 2015, a pivotal event occurs. The parties enter into a Divorce Agreement, some 15 months after the $5 million comes to Australia. The Divorce Agreement was tendered in evidence and is as follows.
It recites the husband’s name and date of birth, the wife’s name and date of birth and where they each live, that they registered their marriage in 2012 and as is translated, says:
(The parties) have agreed to divorce each other of their own accord and free wills as the two parties frequently had quarrels with each other for the reason that the husband could not satisfy the wife’s sexual desires, resulting in the couple’s unhappy sexual life, and, therefore through negotiations they reached the Divorce Agreement including the following terms -
1. The two parties have no child from their marriage.
2. The two parties have no matrimonial assets of joint ownership common.
3. The two parties confirmed that during the period of their lasting marriage relationship they have had no debts for which both parties should be responsible for or creditor’s rights to which the two parties are entitled. Either party should take his or her own responsibilities for his or her own debts, if any, and each party should be entitled to his or her own creditor’s rights, if any.
4. We / the two parties have accepted the above in the Agreement, which are truth, nothing but truth, and willing to take responsibilities for the provisions of any false or fake information.
The document is signed. The husband says in his material he signed this agreement at paragraph 10 of his Affidavit.
At Paragraph 6 of his Affidavit, he says in relation to the divorce and Divorce Agreement of December 2015:
6. Throughout 2015, the respondent and I had undergone many treatments at G Hospital to get pregnant, however we were unsuccessful.
7. Since October 2015, the respondent became moody and would often verbally and physically abuse me for no particular reason.
8. In December 2015, I confronted the respondent about her abusive behaviour towards me.
9. Over 4 consecutive days from 10 December to 13 December 2015, the respondent had screamed and cursed at me throughout the night, not allowing me to sleep. I recall that on one of the nights she screamed at me words to the effect of “You are not going to sleep! I’m not going to allow that unless you agree to the divorce now!” the respondent then took out a small razor and said to me “If you don’t agree to the divorce, I will commit suicide now.”
He encouraged her not to do this and said the following:
You know how much I have sacrificed for our family. If we divorce, how about the money you promised to give to me?
The wife:
You have part of our money in Australia. It has been agreed by us. China will not deal with the money in Australia. If we announce our divorce now, it is not good for our migration to Australia. Look, I will give you the RNB900,000 in China and we divide the money in Australia later. You can take the money and live in Australia.
Paragraph 10:
In 2015, the respondent and I signed a divorce agreement and we officially divorced in China.
It is an irrelevant fact that he did not receive a copy of the Divorce Agreement until April 2019 as he agreed he had signed the document.
Paragraph 3 of his Affidavit:
On 15 June 2012, the respondent and I signed a financial agreement, known as the first pre-nuptial agreement, in China.
The parties reconciled and remarried in 2016 and executed a second pre-nuptial agreement.
In February 2018, the wife lodged an application to divorce in China, which was rejected.
In October 2018, the wife made another application to divorce in China but this was withdrawn. The husband had commenced Family Court proceedings in May 2018. Thus, at the time the wife lodged her second application for divorce and withdrew it, there were proceedings on foot in Australia in relation to property but not a divorce, per se, which she had joined.
In February 2019, the husband filed a detailed Affidavit setting out his contribution to the commercial affairs of the parties during the relationship and his belief that he contributed both directly and indirectly to the $5 million asset pool.
The wife made another application to divorce in China in 2019. At this time both parties were represented in the Australian property proceedings and they were ongoing. The wife’s actions were confirmed in her Affidavit filed on 18 April 2019.
On 3 May 2019, the matter came before the Court. Questions were asked about the divorce proceeding in China and what it meant. The Court was told by the wife’s Counsel at the time, Mr Jackson:
The instructions I have about the divorce proceeding is it’s like our divorce. It’s just simply a dissolution of marriage. It’s not relevant to any property.
Mr Jackson conceded that at the time the husband filed his application for property settlement in Australia, he was in Australia and that currently both parties lived in China. Mr Jackson also conceded that the husband had established a prima facie position of being in Australia when he filed his application.
In 2019, the Chinese divorce was granted. The husband said he had not been properly served with the material. The husband filed an appeal from this decision on 22 October 2019. His appeal was dismissed.
The decision of the Chinese Court in the second divorce in 2019 is as follows. “That the marriage of the husband and wife be dissolved and all properties, revenues, creditor’s rights and debts under the name of either party shall owned or borne by that party”.
On this evidence, I reject the submission by Mr Lloyd SC that this Court is not seized of jurisdiction. It is clear the wife has joined in the proceedings the husband lawfully commenced in May 2018 when he was resident in this country. The wife has submitted to the jurisdiction of this Court, submitted to Orders by consent, submitted to hearing dates being allocated, and submitted to applications being heard.
The inference that had Mr Lloyd SC been representing the wife at a different point in time such concessions by her or submission by her may not have been made, is irrelevant. The wife has submitted to the jurisdiction of the Family Court.
I accept that Counsel cannot grant jurisdiction to a Court from a concession if the Court does not have jurisdiction in the first place. However, that submission raised by Mr Lloyd SC taken at its highest supports the husband having an arguable case that this Court has jurisdiction with the wife arguing it does not. The wife had a foot in two camps and she cannot now argue that in some way she does not want to continue a foot in a camp, which she clearly consented to as having jurisdiction in the proceedings some time ago.
The next issue raised by the wife in relation to summary dismissal is that the husband is estopped by the Divorce Agreement of late 2015 from arguing that as at the date of filing his application in Australia in May 2018 he and his wife, as he alleged in his Financial Statement, had an equal interest in the $5 million in various accounts to substantiate and support their section 118 visa. Further that not only does the Divorce Agreement of 2015 estop him from now declaring that he had that ownership, so does the second divorce proceeding.
I am satisfied on the evidence contained in the husband’s Affidavit that he has an arguable case that he made a contribution to the $5 million currently held in Australia. I am not in this application assessing the strength of his case, the value of his contribution, or the likelihood of success of the claim he makes. There is clearly an arguable case by him that money was sent to Australia when the parties were still living together and married from the sale of shares in companies that the wife owned whilst they were married and living together. The evidence in his Affidavit sets out his case and satisfies me he has an arguable case as to a determination of his contribution to these funds.
Further, I am not satisfied as to the status at law or the effect upon these current proceedings under section 79 of the Act of the Divorce Agreement order of 2015 or 2019.
A mere statement in a document which says the two parties have no matrimonial assets of joint ownership in common does not satisfy me that this is a finding, a declaration, a decree by a Court of competent jurisdiction in relation to the parties’ property as a whole and wherever situate.
It may well have been a statement that was required to be made in order for the divorce to be granted. I do not know. However, neither the husband nor the wife in any of the material they have filed in this Court, being their applications and responses, have declared the existence of these Divorce Agreements in 2015 and in 2019. Both Counsel indicated that is because the other party was seeking to mislead the Court.
The question in both the Application filed by the husband and Response filed by the wife on this issue is the same. For example, the Initiating Application:
Are there any existing orders agreements or undertakings.
“No” is written by the husband in his application, and similarly by the wife in her Response.
It may well be that the husband did not regard the Divorce Agreement as an agreement within the meaning of an existing Order, or agreement relevant to proceedings under section 79 of the Act. Or perhaps it is because it is only a Divorce Order has no impact upon property held by the parties and thus no relevance to a declaration or an estoppel in relation to property proceedings under section 79 of the Act. There may be many other reasons why both parties answered no to these questions and this is an issue that needs to be explored and supports the husband’s position that he has an arguable case. The wife’s failure to declare must be a high point in the husband’s case.
Looking at second Divorce Order of 2019.
The wife says that Divorce Order clearly dealt with the parties’ property. However, the husband’s case is that he was not served with the documents, was not aware that the matter was going to Court, and even though he was unsuccessful in having it set aside on an appeal as he did not participate or have any input into the proceeding he cannot be held to its outcome. The husband says that those proceedings and the resulting Order was created solely from the wife’s actions and input and that he had no part in it at all.
Further, it is of concern that the wife was fully engaged in the Australian proceedings which were at a stage of being listed for a potential three days trial at the same time as she filed the third divorce application. The wife cannot now come to this Court and say, “I no longer seek to have this Court exercise jurisdiction”. This too must be a high point of the husband’s case and he has an arguable case in relation to the status and effect of the second divorce order on his current Australian proceedings for property settlement as well as the status and effect of the first divorce order.
On this evidence I am not satisfied that the Chinese Divorce Order of 2015 or 2019 operate as res judicata in relation to property proceedings under section 79 of the Act.
Taking the husband’s evidence at its highest reading the submission of the wife’s Counsel on 3 May 2019 contained in the transcript which is before me, it is not clear to me what the status of the 2015 and 2019 Divorce Orders are and they may each be but a mere Divorce Order. This finding, coupled with the husband’s evidence of his contribution based entitlement to property in Australia, leads me to the view that the husband has an arguable case, and that his argument is not inherently unbelievable or doomed to fail.
This Court is seized of the matter and will continue to adjudicate the matter. I find that the husband has an arguable case. His case is not doomed to failure nor is it frivolous or vexatious and in those circumstances the wife’s application for summary dismissal is dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 31 July 2020.
Associate:
Date: 31 July 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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