Guanyu & Bai
[2023] FedCFamC2F 698
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Guanyu & Bai [2023] FedCFamC2F 698
File number(s): SYC 381 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 13 June 2023 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs on an indemnity basis – Where father removed child from jurisdiction to China without mother’s knowledge or consent – Where father procured Australian passport for the child by falsifying the mother’s signature – Where father’s conduct has defeated the Court’s jurisdiction given no prospect of a return order – Where mother has been unable to have any contact with father or child for about four months – Where father’s conduct an exceptional circumstance – Application allowed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 117, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.17
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364
I & I (No. 2) (1995) FLC 92–625
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664; [2015] FamCAFC 157
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfoldv Penfold (1980) 144 CLR 311
Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 43 FCR 280; [1993] FCA 115
Rimac & Rimac (No 2) [2022] FedCFamC1F 159
Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187
Division: Division 2 Family Law Number of paragraphs: 75 Date of hearing: 9 May 2023 Place: Sydney Counsel for the Applicant: Mr Butters Solicitor for the Applicant: Strategic Legal The Respondent: The Respondent did not appear ORDERS
SYC 381 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GUANYU
Applicant
AND: MS BAI
Respondent
order made by:
JUDGE ELDERSHAW
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
Costs
1.Within 60 days of these Orders, the father is to pay the mother the sum of $88,162 AUD to the bank account nominated by the mother.
Service and s 121 Orders
2.Within seven days of these Orders, the mother is to cause a copy of these Orders and Reasons for Judgment to be delivered to B Street, Suburb C NSW (“the B Street, Suburb C property”) and by email to … com, together with the BSB and Account number into which the costs pursuant to Order 1 herein are to be paid.
3.Pursuant to s 121 of the Family Law Act1975 (Cth) (“the Act”), the mother may serve a copy of these Orders on the following:
(a)The real estate agent acting on the sales of the properties at D(1) Street, Suburb E and D(2) Street, Suburb E (“the Suburb E properties”);
(b)The vendor’s solicitor(s) as stated on the Contracts of Sale of the Suburb E properties;
(c)The Commonwealth Bank of Australia and any other mortgagee listed on the titles to the B Street, Suburb C property, the Suburb E properties and the property at F Street, Suburb G (“the F Street, Suburb G property”); and
(d)The New South Wales Land Registry Services for the purpose of registering the Orders on the titles to the B Street, Suburb C property, the Suburb E properties and the F Street, Suburb G property.
4.Pursuant to s 121 of the Act, the mother has leave to provide a copy of these Orders and Reasons for Judgment to the:
(a)Australian Federal Police,
(b)Australian Border Force or equivalent Chinese agency; and
(c)Australian Department of Foreign Affairs and Trade and its equivalent Chinese agency.
Parenting
5.All prior interim orders be discharged and all extant applications be dismissed.
6.The father shall forthwith do all acts and things to cause X born in 2011 (“X”) to be returned to the Commonwealth of Australia.
7.In the event X returns to Australia, the parties, and their servants and their agents be and are restrained from removing or attempting to remove, or causing or permitting the removal of the child Miss X born in 2011 from the Commonwealth of Australia.
8.The Australian Federal Police are requested and authorised to give effect to this Order by placing the name of the child Miss X born in 2011 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain X’s name on the Family Law Watchlist for a period of five years.
Application in a Proceeding
9.In the event the father wishes to vary or discharge any order set out herein, then within 28 days of these Orders, he may file an Application in a Proceeding and affidavit in support setting out all facts, matters and circumstances upon which he relies.
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 Guanyu & Bai has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
INTRODUCTION
This is a costs application in a parenting matter.
The subject child of the substantive proceedings is Miss X born in 2011 (“X”).
In the substantive proceedings, the Applicant father is Mr Guanyu born in 1980 (“the father”). The Respondent mother is Ms Bai born in 1981 (“the mother”). The mother is the Applicant in the costs application.
The parties married in China in 2008 and were divorced in May 2013. On 1 August 2014, final parenting and property consent orders were made by the Family Court of Australia.
On 21 January 2021, the father filed an Initiating Application to re-open the parenting orders to which the mother joined issue by her Response filed on 27 April 2021.
On 14 October 2022, the father lodged an application to obtain an Australian passport for X. The application purports to bear the signature of both parents. The mother deposes that she did not sign the application, that is, the signature on the application that purports to be hers is a forgery. On 22 December 2022, the father caused X to depart the Commonwealth of Australia on a flight to China. At the time, X was not on the Family Law Watchlist (“the Watchlist”). That said, nor was it believed that she held a passport.
The mother has been unable to contact the father and X since 16 January 2023. The mother has resigned herself to the likelihood that X will not be returning to Australia, given China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
Documents
The mother relies on her Application in a Proceeding filed 4 March 2023, her affidavit filed 8 May 2023 and an Itemised Costs Account (“the Cost Account”) filed 8 May 2023. The mother also relies on Exhibits M-1 to M-5.
The father has not filed any material.
Applications
The mother seeks her costs of and incidental to the parenting proceedings in the sum of $88,162. In the event the father does not pay the money sum in the specified time, the mother seeks orders appointing her as trustee for the sale of four Australian properties which are owned by the father together with injunctive relief to preserve the assets pending payment of the costs.
The mother also seeks an order that the father forthwith return X to Australia.
Proceeding Ex Parte
The father has not filed any material in the costs application. The father last appeared in the Court on 3 August 2022 with his solicitor. A Notice of Ceasing to Act was filed by the father’s solicitor on 16 February 2023.
The mother filed her Application in a Proceeding on 4 March 2023 seeking an urgent hearing, which was determined on 6 March 2023. The father did not appear.
On 6 March 2023, directions were made for the mother to serve the Orders of that date and her Application in a Proceeding and related documents on the father by way of substituted service to his last known home address in B Street, Suburb C, where it was understood his parents reside, and by email. An order was made permitting the father to file an Application in a Proceeding to set aside or vary the 6 March 2023 Orders by 3 April 2023. No such application was filed.
Given the likely futility of a final hearing, the dates which had been allocated for that purpose on 9, 10 and 11 May 2023 were vacated. However, 9 May 2023 was retained for further case management. The mother had foreshadowed her intention to seek costs, being an extant aspect of her Application in a Proceeding filed on 4 March 2023.
On 9 May 2023, the wife moved on her application for costs. Her Application in a Proceeding, supporting affidavit and the Orders of 6 March 2023 had been served on the father. However, the father had not been put on notice of the precise sum sought by the mother in her costs application, the basis on which that sum had been calculated, or the precise orders sought by her including the default sale orders.
On 9 May 2023, directions were made for the mother to serve her precise minute of orders sought, her affidavit filed 8 May 2023 and her Costs Account on the father.
A timetable for the father to file material in response was also made by no later than 9 June 2023. No material was filed.
I am satisfied the father is on notice of the mother’s application and has been provided with a reasonable opportunity to file material. I will proceed with the matter on an ex parte basis.
Background
X was born in Australia in 2011. She is an Australian citizen.
On 1 August 2014, the parties entered final parenting and property orders by consent. The parties were to have equal shared parental responsibility for X, X was to live with the mother and spend time with the father “one to two days” per week and “one to two days” by agreement at holiday times. Overseas travel was contemplated in the Orders upon the giving of written notice.
On 21 January 2021, the father file an Initiating Application and sought to re-open the final parenting Orders. The mother’s Response filed on 27 April 2021 also sought changes to the parenting Orders for which reason it appears no contested threshold issue arose. Interim parenting orders were made on 17 November 2021 which provided, inter alia, for X to spend five nights per fortnight during school terms and half of each school holiday period with the father.
On 29 July 2022, a Single Expert Report (“the Report”) was released which recommended, inter alia, that the parties and X engage in family therapy.
On 3 August 2022, the matter was listed for case management hearing. On that occasion, the matter was allocated final hearing dates of 9, 10 and 11 May 2023. Orders were also made for the family to attend reportable family therapy.
Since 3 August 2022, X had been living with the father. The mother deposes that:
13.…I did not like or want this arrangement to take place, but I felt I had no choice as [X] would run away from home when she would stay with me and [Mr Guanyu] would keep [X] when she arrived there.
[…]
18.On 23 September 2022 I arranged a meeting with [Mr Guanyu] to discuss us working together to achieve consent orders to finalise the matter and avoid the need for a Final Hearing. The meeting didn’t go well. [Mr Guanyu] was yelling at me and he was demanding and aggressive during our discussion. I felt intimidated and scared when [Mr Guanyu] was talking to me. [Mr Guanyu] said words to me to the following effect “it is your fault that [X] is not well education” and “it is your fault your relationship with [X] was not good’’. I recall having a conversation with [Mr Guanyu] to the following words:
[Father]:She doesn’t want to spend time with you. She may forgive you when you are older, or she may not want to talk to you ever again.
[Mother]:I would like to try and slowly build a more fun relationship with [X]. I am okay with seeing her every second weekend, and then more if she would like to when she is ready. Why don’t we agree to this as consent orders?
[Father]:If you are okay seeing [X] every alternate weekend, how about [X] living in China with me and I will make sure she spends one month a year with you. That is equivalent to a weekend every fortnight.
[Mother]:No [Mr Guanyu], that won’t work. [X] needs to live in Australia.
[Mother]:Okay.
19.On 4 November 2022 I organised to meet with [Mr Guanyu] at [Suburb C] shopping centre, to discuss the upcoming family therapy. I didn’t invite [Mr Guanyu] to my house as I felt safer in public, as I thought he might be less aggressive. During the meeting I suggested that even if we cannot work out a solution about parenting [X] between ourselves, we should work together with the therapist and support each other for [X]’s benefit. [Mr Guanyu] was a lot more patient this time and he didn’t yell at me. [Mr Guanyu] agreed with me that we would work with [Ms H].
20.On 7 November 2022 and 15 November 2022, I attended my intake sessions with [Ms H] and discussed what had happened with my relationship with [X].
(As per the original)
Documents produced on subpoena from the Department of Foreign Affairs and Trade record that, on 14 October 2022, an application was lodged for X to be issued with an Australian passport. At Question 13 of the application, as “Parent 1,” the father’s name and address at B Street, Suburb C (“the B Street, Suburb C address”) are stated.
At Question 14 of the application, as “Parent 2,” the mother’s name is stated. The mother’s residential address is also recorded as the B Street, Suburb C address. Her daytime phone number is stated as “….”
At Question 15 being the passport application declaration and consent, there is a signature under the heading “Parent 2” and the date 14 October 2022 witnessed by “Ms J” with daytime phone number “….” Ms J is also the witness to “Parent 1’s signature.”
The mother deposes she did not sign at Question 15 as “Parent 2,” that she has never met “Ms J,” that she does not reside at the B Street, Suburb C address, and that her telephone number is not …. This evidence is unchallenged, for which reason it is accepted.
An Australian passport was issued to X on 20 October 2022 and is valid for five years.
On 4 November 2022, the mother met the father at a shopping centre to discuss upcoming family therapy. On 7 and 15 November 2022, the mother attended her intake sessions for family therapy. The mother attended a further family therapy session on 1 December 2022.
On 7 December 2022, the mother spoke with X by telephone about Chinese stories. The mother says that X listened, after which the mother was optimistic about family therapy.
On 16 December 2022, the mother spoke to X and congratulated her for completing primary school. The mother said to X “I am very proud of you. I remember your first day of kindergarten seven years ago like yesterday. You were so little back then.” X responded “Thanks, Dad already told me that.”
On 22 December 2022, the mother sent a message to the father on WhatsApp asking to speak to X. The mother received no response. The mother would later discover the father and X had boarded flight … that day bound for City K in China.
On 23 December 2022, the mother sent another message to the father on WhatsApp. The father responded at about 6.00 pm that day. The mother’s phone did not display a caller identification. She said this had not happened before, and asked the father about it. The mother deposes the father said “I don’t know why my phone is doing that, it may be broken.”
On 25 December 2022, the mother sent a message to the father on WhatsApp in order to speak to X for Christmas. She did not hear from him for a few hours so she decided to call him. The father’s phone was switched off and there was no voicemail option.
The father called back the mother a few hours later. The mother asked why his phone was still not displaying a caller identification, to which the father responded “My phone has been having issues and was repaired but the reception of the phone is still not good.” The mother then asked whether the father was still in Sydney to which the father responded “Yes, I am.”
The mother spoke with X by phone on Christmas. She describes X as being unfriendly and negative towards her and X saying “I don’t want to talk to you. Please don’t call me for the rest of January.”
The mother deposes at paragraph 30 of her affidavit that on 2 January 2023:
…I sent a message to [Mr Guanyu] on WhatsApp at about 1pm. The message was not received until a few hours later. Later than night at about 8.30 pm [Mr Guanyu] called me back. [Mr Guanyu] put [X] on the phone and I could hear [X] say words to the following effect to [Mr Guanyu]“I don’t want to talk to her, I already told her not to talk to me in January. Don’t pass the phone to me, I have told you not to do that anymore.” [X] then hung-up the phone without talking to me. [Mr Guanyu] called back a few minutes later and passed the phone to [X] again. [X] said words to me to the effect of “do not call me for the rest of January.” [X] then hung the phone up again. I called back and spoke with [Mr Guanyu] asking him whether he was still in Sydney. [Mr Guanyu] told me he was.
(As per the original)
The mother deposes that on 16 January 2023:
33.…I received a response from [Ms H], outlining that he was sorry to hear about the recent challenges. He had hoped to work on the parents’ relationship, while working with [X] at the same time moving forward. [Ms H] indicated that he had been unsuccessful in securing a follow up session with [Mr Guanyu] despite multiple attempts to organise to see him. [Ms H] indicated that he wanted to speak with [Mr Guanyu] before seeing me again.
34.…I called [Mr Guanyu] and was able to speak with [X] again. During the conversation [X] sounded very negative and stressed. [X] said words to me to the effect of “I don’t want to talk to you”. [X] then hung up on me again. At this point in time, I began to suspect that I seriously suspected that [Mr Guanyu] and [X] might be overseas. I spoke with [Mr Guanyu] again later that day and I recall having a conversation with words to the following effect:
[Mother]: Are you still in Sydney.
[Father]: Yes, I am.
[Mother]: How is [X]?
[Father]: She is okay.
(As per the original)
The mother deposes she has not heard from the father or X since 16 January 2023, and has had no response to her phone calls, WhatsApp messages or emails.
On 27 January 2023, the mother reported the matter to New South Wales Police. On 28 and 29 January 2023, police conducted welfare checks at the father’s B Street, Suburb C address but neither the father nor X were there.
On 31 January 2023, the mother contacted Suburb C High School where X was due to start Year 7. X was not at school. The mother attended the school on 3 February 2023. X was not there. The mother then instructed her solicitors to write to the father’s solicitors to inquire into X’s whereabouts.
On 4 February 2023, the mother called the father’s telephone to wish X a happy birthday. The father’s telephone did not ring. She tried to call X’s phone but there was no answer.
On 5 February 2023, the mother sent a message to the father about a late offer for X to attend L School at Suburb M. She received no response.
On 6 February 2023, the mother received a phone call from Suburb C High School confirming that X was still absent from school and advising that police had been notified. The mother met police at the father’s B Street, Suburb C address. There was no answer to the doorbell. Later that night, the mother reported X as a missing person.
On 16 February 2023, the mother found the father’s profile as a member of staff at N University in China.
THE LEGAL FRAMEWORK
The issue of costs is to be determined in accordance with s 117 of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(e) such other matters as the court considers relevant.
The presumption contained in s 117(1) of the Act applies to this matter. I note that:
(a)All relevant matters in s 117(2A) of the Act “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an Order for costs:” I & I (No. 2) (1995) FLC 92–625 at 82,277;
(b)No one factor under s 117(2A) of the Act prevails over any other factor. Rather, it is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93–664 at [24];
(c)There is nothing to prevent any factor in s 117(2A) of the Act being the sole foundation for an order for costs: PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at [41]; and
(d)Neither special circumstances nor an exceptional case is required before an order for costs can be made: Penfoldv Penfold (1980) 144 CLR 311.
I have no evidence before me as to the financial circumstances of the mother.
The father is the sole registered proprietor of the B Street, Suburb C property. The Title Search for this property, appearing at Annexure B to the mother’s affidavit, records a mortgage to the Commonwealth Bank of Australia. I have no evidence as to the quantum of the liability. According to Exhibit M-5, the father completed a loan application for the Commonwealth Bank in May 2020. On the page headed “Financial Position” there were/was:
(a)Seven properties listed. These include the B Street, Suburb C property valued at $784,000, the property D(1) Street, Suburb E valued at $800,000, the property at D(2) Street, Suburb E valued at $800,000 and the property F Street, Suburb G valued at $1,900,000;
(b)Six existing mortgages. The mortgages total about $4 million. The “Total Commonwealth Group credit facilities” are stated as $3,120,000; and
(c)A net surplus of $2,810,193.
The father’s conduct with respect to the procuring of a passport for X and the removal of her from Australia is egregious given that:
(a)In the midst of family law proceedings, and with final hearing dates approaching, the father removed X from the jurisdiction and took her to a country that is not a signatory to the Hague Convention. The mother cannot seek a return order;
(b)The father has defeated the Court’s jurisdiction for all practical purposes;
(c)X is 12 years old and was due to start Year 7 at a school in Sydney in 2023. She remains reliant on her parents;
(d)X was to engage in family therapy to improve her relationship with the mother;
(e)On 25 December 2022 and 16 January 2023, the father mislead the mother by telling her that he, and tacitly, X, were in Sydney;
(f)The father has ceased all communication with the mother since 16 January 2023.
(g)The mother found it necessary to issue subpoenas to the Department of Foreign Affairs and Trade and the Department of Home Affairs to establish X’s whereabouts; and
(h)The mother has been deprived of the benefit of the litigation.
The factors in s 117(2A)(a), (d), (e) and (f) do not apply.
There is no other matter the Court considers relevant.
I am of the opinion that there are circumstances which justify the making of a costs order, namely the conduct of the father.
What costs order is just?
The wife seeks costs on an indemnity basis.
The considerations that apply to making a costs order on an indemnity basis, as to depart from the usual position of party/party costs or per the scale, has been described in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. Such an order is exceptional and the Court should not take that step lightly. Examples of where an indemnity costs order might properly be awarded have included:
(a)Where it appears the action has been commenced or continued in circumstances where a party, properly advised, should have known they had no chance of success. In such cases, the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful regard for known facts: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 (“Fountain Selected Meats”);
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud: Fountain Selected Meats.
(c)Evidence of particular misconduct causing loss of time to the Court and other parties: Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187;
(d)The making of allegations which ought never to have been made, or the undue prolongation of the case by groundless contentions: Ragata Developments Pty Ltd v Westpac Banking Corporation (1993) 43 FCR 280;
(e)The imprudent refusal of an offer of compromise; and
(f)Failure to make an offer of compromise: Rimac & Rimac (No 2) [2022] FedCFamC1F 159.
The examples cited above are not exhaustive. The mother contends that this case was of an exceptional kind as to warrant indemnity costs having regard to the father’s conduct since 14 October 2022.
I accept this characterisation. I incorporate without need of repetition the matters at paragraph 52 of these Reasons as the basis for being satisfied that this matter reaches the evidentiary standard to justify making an indemnity costs order for the wife’s professional fees, counsel’s fees and other disbursements for the totality of the proceedings.
I have read and re-read the facts set out in the material several times since the matter came before me in March 2023. No level of exposure reduces the profound sadness they invoke. I can only imagine the grief experienced by the mother and confusion for X. I find that the father’s conduct has been egregious and warrants an order for indemnity costs.
Quantum
Having determined it is just to make a costs order for all costs and disbursements of and incidental to the whole of the proceedings, the question is whether to fix the amount as a sum or express the order on another basis.
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permits the Court to order costs in a specific amount. The power to do so is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation:” Graham & Squibb (2019) FLC 93-892 at 78,858 [92] citing Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.
The mother has set out her costs in her Costs Account. Having been itemised, and I am satisfied they are logical, fair and reasonable in terms of the authorities considered and principles adumbrated in Bilson & Geer (Costs) [2017] FamCAFC 7 at [40]–[49]. Accordingly, there will be an order for costs in favour of the wife in the sum of $88,162.
The mother seeks that the costs be paid in 28 days. Given the father is overseas and this matter has been determined ex parte, such that he may wish to file an Application in a Proceeding to vary or discharge the Orders, I will extend that time to 60 days.
The mother seeks to be appointed trustee of the sale of the properties at B Street, Suburb C, Suburb E and F Street, Suburb G. I am satisfied the father is the owner of these properties, as set out in the Title Search for the B Street, Suburb C properties and application for finance. On an interlocutory basis, I have made orders allowing her to lodge caveats over the properties.
The mother contends that, as she does not know whether the properties are cross collateralised, she requires an order which permits her to sell the properties one after the next until the costs are paid. Having regard to the finance application, which refers to a group credit facility, I appreciate the cogency of this contention.
However, the mother deposes that the two properties at Suburb E are currently for sale. It seems pointless to appoint the mother trustee for the sale of properties that are currently for sale, noting she can lodge a caveat against the titles.
I am concerned that an order appointing the mother as trustee for sale of properties for the purpose of recovering $88,162 may be disproportionate especially when two of them are said to be for sale at present. I appreciate the mother does not wish to return to Court for the purpose of an Enforcement Application. However, that is a somewhat limited argument given she envisages returning to Court to dispose of any surplus sale funds pursuant to Order 4(e) of her proposed Minute of Orders.
The mother seeks injunctions against the father with respect to his dealings with the four properties. She does not proffer an Undertaking as to Damages. Again, I am concerned about the proportionality of such restraints compared to the quantum of the costs order.
In all the circumstances, I will make orders that the father is to pay the costs in 60 days. Further:
(a)I will make an order that authorises the mother to be informed and kept informed by the listing agent of the sale(s) of the Suburb E properties and to obtain a copy of the Contract of Sale so she may see the solicitor acting on the sale for the father;
(b)The mother can instruct her solicitors to conduct title searches of the Suburb E and F Street, Suburb G properties to confirm whether the mortgagee remains the Commonwealth Bank of Australia, consistent with the B Street, Suburb C property;
(c)I will grant the mother leave to provide a copy of the Orders to:
(i)The real estate agent acting on the sales of the Suburb E properties;
(ii)The vendor’s solicitor(s) as stated on the Contracts of Sale;
(iii)the Commonwealth Bank of Australia and any other mortgagee listed on the titles to the Suburb E and/or F Street, Suburb G properties; and
(iv)The NSW Land Registry Services for the purpose of registering the Orders on the titles to the four properties.
The mother can, without further order of the Court, file an Enforcement Application if, after the sale(s) of the Suburb E properties and provided all measures relating to the use of Third Party Debt Notices have been exercised, more is required.
Parenting Orders
I am otherwise invited to conclude the substantive proceedings. This means discharging all prior interim orders and extant applications. The effect of doing so would be to reanimate the 2014 Orders. It is undesirable for parenting orders to be in existence if they do not reflect reality. Nevertheless, the existence of the 2014 Orders may also assist in any representations made on the mother’s behalf by Australian authorities.
The mother seeks an order that the father is to forthwith do all acts and things to cause X to be returned to the Commonwealth of Australia. The Order is not likely to be recognised by the Chinese authorities but it may assist in representations made by the mother for X’s return. I will make that Order on a final basis together with a Family Law Watchlist order which is to operate for five years, by which time X will be approaching 18 years.
In reliance on s 60CC(3)(m) of the Act, I am satisfied that it is in X’s best interests to have her parenting arrangements reached in an orderly way. In the event X returns to Australia, one or both parties can approach the Court with an application should they wish to do so, which will be considered on its merits at the time.
CONCLUSION
In the circumstances, I make the following orders.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 13 June 2023
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