Choi and Lin

[2011] FamCA 450

FAMILY COURT OF AUSTRALIA

CHOI & LIN [2011] FamCA 450

FAMILY LAW – INJUNCTIONS – Restraint from leaving the Commonwealth of Australia

Family Law Act 1975 (Cth)

APPLICANT: Ms Choi

RESPONDENT: Mr Lin

FILE NUMBER: MLC 4089 of 2011

DATE DELIVERED: 26 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. Johns

SOLICITOR FOR THE APPLICANT: Hogg and Reid

COUNSEL FOR THE RESPONDENT: Mr Szabo

Orders

1. That the hearing in the Judicial Duty List on 2 June 2011 at 10.00am is vacated.

2. That the parties and their respective solicitors attend a conciliation conference with a registrar of the Court to make a bona fide endeavour to resolve all outstanding financial issues between them, such conference is appointed for 26 August 2011 at 2.15pm. 

3. That until further order each party Ms Choi born … 1958 (female) and Mr Lin born … 1959 (male) are each hereby restrained from departing the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said parties on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said names on the Watch List until the Court orders its removal.

4. That the solicitor for the wife serve a copy of this order upon the Australian Federal Police as soon as practicable.

5. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

6. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

7. That the reasons for judgment this day be transcribed and made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Choi & Lin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4089 of 2011

Ms Choi

Applicant

And

Mr Lin

Respondent

REASONS FOR JUDGMENT

1. I have before me this morning an application that I adjourned from yesterday.  Yesterday’s application made by the wife was on an ex parte basis and having regard to the reservations I had at the time, I made various orders adjourning the matter to today and required the husband to attend.  The husband’s lawyer is to be given credit for having mobilised the resources as quickly as he has had.  I am grateful for that attendance. 

2. The parties have spent some three and a half hours this morning negotiating about a number of matters most of which stem from a concern that was raised before me yesterday and have sorted out disclosure of documentation that would hopefully resolve a lot of the issues.

3. The contentious issue arises out of an oral application today by the wife that until further order, both she and the husband be restrained from leaving the Commonwealth of Australia without prior written consent of the other or the order of this Court. 

4. I am very reluctant to make an order that amounts to an injunction giving the parties the opportunity to manipulate their exit of Australia which puts the Australian Federal Police in a position where they have to determine whether or not it is a genuine consent.  To the extent that the oral application would require the Court to make an order giving the parties the opportunity to advise the Australian Federal Police that the injunction is not necessary, I think that it is far too dangerous.

5. Having regard to the consequences of a breach of such an order, it is a matter that requires some serious consideration. 

6. The power to make an order preventing a party from leaving Australia is not clear. Section 114 of the Family Law Act 1975 (Cth) (“the Act”) entitles the Court to make an order arising out of a matrimonial cause and the general provision in subsection (3) is that the Court can exercise its jurisdiction and grant an injunction where the Court considers it is just and equitable to do so and on terms and conditions that it considers appropriate. But as has been well understood in authorities of this Court, that injunction has to arise out of and be supportive of one of the matters that arises from subsection (1).

7. This is a case where the gravamen of the argument arises out of the property of the parties.  The husband has not had an opportunity at this stage to file any material and all I have at this stage to work on, is the evidence of the wife.  The evidence of the wife is that she does not understand what the husband has done with substantial sums of money.  There are many explanations to be given relating to his conduct over the last 12 months.  The husband’s response to those assertions is that he is indignant about any order being made against him having regard to the fact that there are ample assets here and there is no basis to be concerned about his conduct, particularly having regard to the fact that he will be providing information.

8. The wife points to a number of transactions which, whilst at this stage unexplained, are quite disconcerting.  The first is that she says she has no knowledge of a sum of $900,000 missing from last year followed by a further $830,000 that went unaccounted for, at this stage, in the months between March and September.  Those funds were significant because they either came from the sale of assets or from borrowings. 

9. There are also complications in this case because both parties have, to some extent, acted unilaterally and when the wife did so the husband obviously was aware of what she was doing and undid what she did. 

10. There is also an extra-marital relationship between the husband and a woman which must have been reasonably serious in July 2010 because the husband went to the trouble of executing a very complex will which seems to have a testamentary trust attached to it.  All of those matters indicate that there were things going on between the parties about which they were not telling one another.  That then led to the complete breakdown of the relationship only some days ago.

11. The matter came on urgently before me yesterday because of the fact that a sum of in excess of a million dollars was drawn on a Westpac bank facility which was transferred in a number of tranches to accounts that the wife was unable to recognise. 

12. No doubt over the next few weeks those transactions will be explained.  The husband has been ordered by consent today to put a significant sum of money of the million dollars back into that loan account. 

13. In the end it is the fact that all of these transactions were occurring without communication between each other indicating a complete absence of trust.  I am asked to make an injunction for the protection of the property of the parties.  If the husband left the country and went to China, there is some prospect that not only would these issues about discovery not be resolved, but there may be also other issues associated with the determination of the property dispute.  Whilst the husband says that there is ample property here in Australia, the wife seems to be unsure about that.  Having regard to the fact that there are a number of obligations to be fulfilled, it is important that there not be any movement by the parties or either of them out of the Commonwealth of Australia pending further order of the Court. 

14. The basis upon which such an injunction can be made under section 114 of the Act is that the Court is satisfied that it is proper to make such an order. Having regard to the absence of trust and the many obligations that are to be fulfilled, I am satisfied that it is proper in the circumstances to make the order. I stress, again, however, I will not make an order that puts the parties in a position where they can effectively remove the injunction without actually having a court order. I appreciate that it may be a costly exercise and also an inconvenient one, but it also places each of the parties in a position where the other can be under no misapprehension about what each is doing.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 May 2011.

Associate: 

Date:  15 June 2011