Heng and Long and Ors - [2018] FamCA 682

FAMILY COURT OF AUSTRALIA

HENG & LONG & ORS

[2018] FamCA 682

FAMLY LAW – PROPERTY – Where the husband and wife sought orders regarding the family trust’s rights under two contracts for purchase of two “off the plan” properties – Where the wife sought disclosure orders directed at Bank of China – Where the wife sought variation of previous interim orders regarding education expenses for children – Where the husband and wife have temporary resident visas due to expire in March 2019 – Where all applications dismissed and matter expedited for trial in February 2019

Jones v Dunkel (1959) 101 CLR 298
Gao v Zhu [2002] VSC 64
Gucci America Inc., et al v Weixing Long, et al [2015] No 10 Civ. 4974 (RJS), SDNY, USA
MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Heng

FIRST RESPONDENT:

Mr Long

SECOND RESPONDENT:

Mr Song

THIRD RESPONDENT:

Ms Long

FILE NUMBER:

BRC

12699

2016

DATE DELIVERED:

6 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

27 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Yu

SOLICITOR FOR THE APPLICANT:

Mr Hsu

THE FIRST RESPONDENT:

In Person

THE SECOND RESPONDENT:

No Appearance

THE THIRD RESPONDENT:

In Person

Orders

That the applications for interim orders contained in the First Respondent Husband’s Amended Application in a Case filed by leave on 27 August 2018 are dismissed.
That the applications for interim orders contained in the Applicant Wife’s Amended Response to an Application in a Case filed 24 August 2018 are dismissed.
That paragraphs (10)(vi) and (vii) of the Orders of Justice Forrest made 25 October 2017 be discharged, in respect of each of the Applicant Wife and First Respondent Husband’s son and daughter, as and when each of those children finishes school this year, 2018.
That on or before Friday, 28 September 2018, the First Respondent Husband shall file and serve an affidavit in which he deposes to the circumstances as to the making of his claim on an insurance policy that was held with Company B insuring the motor car that was registered in his name that was written off in an accident that occurred on 16 May 2107 whilst driven by the Applicant Wife, and as to his receipt and expenditure of the funds paid out on the claim by Company B, with reference to the specific dates when the claim was first made by him, when the money was received by him and when he disbursed those funds. In that same affidavit, he shall depose to the factual circumstances by which he asserts his adult daughter, the Third Respondent, has a 27 per cent beneficial interest in the Suburb C property registered in his sole name.
That on or before Friday, 28 September 2018, the Third Respondent shall file and serve an affidavit in which she deposes to the factual circumstances by which she asserts she and her mother have a joint 27 per cent beneficial interest in the Suburb C property registered in the First Respondent Husband’s sole name.
That until further Order the First Respondent Husband shall keep the Applicant Wife’s solicitors informed in writing as to developments in respect of the contract to purchase an apartment in the D development located at E Street, Brisbane in which F Pty Ltd ATF G Trust is the purchaser, as and when any such developments occur.
That the directions hearing currently listed before a Registrar on 13 September 2018 be vacated.
That the matter be listed for trial before Justice Forrest in Brisbane commencing at 10.00 am on Monday, 11 February 2019 at which all competing applications for property adjustment orders and parenting orders will be heard.
That the trial fee shall be paid by all of the parties in equal shares within one month of the date of these orders.
That leave be granted to the parties to, on or before Friday, 30 November 2018, file and serve one affidavit each, and one affidavit from each witness upon which each intends to rely as his or her evidence in chief at the trial in February 2019.
That except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the Court.
That the Applicant Wife’s solicitor and the First Respondent Husband shall collaborate on the preparation of a document being a balance sheet in which they set out the property of the parties or either of them as contended for by each of the Applicant Wife and the First Respondent Husband with all matters, including as to the identification and value of items of property, upon which they agree being clearly stated and with all matters upon which they disagree being clearly stated, including as to the identification and value of items of property. That balance sheet should also have set out on it any amounts contended for by either party as being amounts to be notionally taken account of by the Court when determining any just and equitable property adjustment orders as being amounts representing property or capital already had and/or spent by one or other of the party with explanations as to why they should be taken into account. The Applicant Wife’s solicitor shall file that balance sheet when it has been finalised with the First Respondent Husband but at least on or before Friday, 30 November 2018.
That on or before Friday, 1 February 2019, each of the four parties shall make, file and serve a Case Outline document that contains:
(i)A list of all affidavits they rely upon as their evidence for the trial;
(ii)A draft of the property adjustment orders and, in respect of the Husband and the Wife, the parenting orders each requires;
(iii)A summary of argument and a list of any legal authorities each seeks to rely upon.
That the matter be listed for a compliance hearing before Justice Forrest at 9.30 am on Monday, 3 December 2018 where the Court will be advised that the matter is ready for the trial and approximately how long the trial will take to complete.

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 Heng & Long 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 BRISBANE

FILE NUMBER: BRC 12699 of 2016

Ms Heng

Applicant

And

Mr Long

First Respondent

And

Mr Song

Second Respondent

And

Ms Long

Third Respondent

REASONS FOR JUDGMENT

On Monday, 27 August 2018, this matter was before me for the hearing of competing interim applications for orders in the property adjustment proceedings. I had previously made interim orders on 25 October 2017 as between the four parties.
The Applicant is the wife of the former marriage. The First Respondent is the husband of that marriage. The Second Respondent is the husband’s former business partner (according to the husband) and the Third Respondent is the husband’s adult daughter of an earlier marriage.
The parties are all from the People’s Republic of China. As I understand it, at least the husband and the wife are living in Australia pursuant to temporary resident visas that expire on 27 March next year and both of them must leave this country when those visas expire. They have two children of their marriage who are currently attending high school here and about whom they are also in dispute. The children must leave Australia when their visas expire early next year, as well. The Court was informed that the boy is in Year 12 this year and upon completion of his schooling at the end of this year, he intends to travel to the UK to undertake tertiary study. The girl is a few years younger than her brother and not yet finished high school.
The Court was also informed that the husband and wife have property settlement proceedings underway in a court in China. They both appeared to agree that the Chinese Court does not have jurisdiction to, and will not deal with their property interests in Australia, and that, therefore, it is appropriate for this Court to deal with these interests. Indeed, they both claimed to want this Court to finalise their property dispute in respect of their property interests in this country. As I already observed, they are also in dispute about the parenting of the children. In particular, the children are not seeing the father at the moment and the father seeks orders that provide for them to spend time with him.
The interim orders I made last year provided for the sale of a real property here in Brisbane and for the net proceeds of sale of that property to be invested in an interest bearing account and held on trust for the parties by the Applicant wife’s solicitor with the sum of $11,000 per month to be drawn and used by the husband, $11,000 per month to be drawn and used by the wife, an initial $4000 followed by an additional $2,200 to be drawn by the wife per month and used to pay for suitable rental accommodation for her and the two children and, relevantly, such amounts to be drawn from time to time to pay the school fees for the children’s education at the two expensive private schools they attend in Brisbane.
The interim orders also provided for valuations to be carried out in respect of their chattels and for some other matters, including in respect of disclosure, about which there is also much dispute.
The matter came back before the Court again after the husband filed an Application in a Case. He filed that on 10 August 2018. In that, he sought orders in respect of the purchase of an apartment in an apartment building rapidly approaching completion of construction in the Brisbane CBD.
The corporate trustee of a discretionary family trust, undisputedly controlled by the husband, is the purchaser on a contract entered into almost four years ago for the purchase of that apartment “off the plan”. The purchase price was $892,000 and a deposit of $89,200 was paid on the execution of the contract.
The husband, who acts for himself and unfortunately speaks and understands little English, filed an affidavit in support. It had only two substantive paragraphs. He said, in summary, that the contract is to settle in August 2018 (without any documentary evidence supporting the assertion and without a specific date referred to) and that if the purchase is not settled by the family trust, the deposit will be lost as an asset of the trust. He said that to avoid further loss the trust’s rights under the contract should be assigned to the wife, and that she can complete the purchase and move into the apartment with the children. He proposed that $200,000 from the money still held in trust by the wife’s solicitors be distributed to the wife to assist her in completing the purchase.
On 22 August 2018, the husband filed an amended Application in a Case seeking additional orders to “forbid” the wife’s solicitor from requiring disclosure of information and documents and “which are not necessary to this case.”
Also on 22 August 2018, the wife filed a Response to the Application in a Case seeking to have the husband’s Application in a Case dismissed and seeking orders for the sale of the same trust’s interest in a contract to purchase another apartment “off the plan” in a Suburb H development. That contract is said to have been entered into in September 2015 with a purchase price of $562,000 and a deposit paid of $56,200. Although there was no evidence before the Court as to the expected settlement date for this contract, the husband told the Court it was expected to be set for some time next year or in 2020.
In that Response, the wife also sought orders directed at the Bank of China’s Sydney Branch for the production of documents. She also sought orders varying the existing orders that provide for funds to be paid to the children’s schools for school fees so that those funds can also continue to be paid for the children’s education into the future, including for the eldest boy’s post-high school education, training or coaching in Australia or abroad.
The wife then caused an Amended Response to be filed on 24 August. In that, she also sought orders, in the alternative to dismissal of the husband’s application, to have the first contract assigned to her, that put her in charge of the contract for the purchase of the city apartment with a view to settling it if she can, but that include the right to sell a third apartment in Brisbane registered in the husband’s name to raise the funds to be able to complete the purchase of the city apartment. The husband and his adult daughter, the Third Respondent, currently live in that third apartment.
At the hearing, the husband filed an Amended Application in a Case after having received the wife’s Response and Amended Response. In that, in a misconceived fashion, he sought orders that “forbid” the wife’s solicitor from requiring information and documents that are “not necessary” for the case. He sought orders that the rights under the Suburb H contract be assigned to him for him to do what he determines is appropriate, including defaulting on the contract and forfeiting the deposit if he considered that appropriate. He also sought, again in a misconceived fashion, an order that all the shares in the corporate trustee of the family trust be transferred to the wife so that the wife would be (he believed) responsible for the contract to purchase the city apartment. He also sought some orders in respect of the disposition of funds from the money held in trust by the wife’s solicitors.

Discussion of Some Other Relevant Matters

This case has presented difficulty to the Court on each occasion it has been before the Court. Most particularly, the difficulty arises from the lack of legal representation of the three respondents, namely: the husband; his former business partner; and the husband’s adult daughter, and their relatively poor command of the English language, a matter barely compensated for by the presence, at least on the last occasion, of a qualified interpreter skilled in the interpreting of the Mandarin and English languages. It is also made difficult by the allegations and counter-allegations of fact made by the parties, including as to whether disclosure has been provided, and the lack of evidence each provides to support or contradict the allegations made. In addition, on this last occasion the matter was before the Court, the Second Respondent simply did not appear and the Court was told by the First Respondent that she was “sick”.
One very significant matter that was pointed out in the evidence relied upon by the wife, is the fact that last year, when the First Respondent husband was represented by solicitors, his solicitors informed the wife’s solicitors in response to questions about the family trust’s interests in the two contracts to purchase apartments off the plan, that their instructions (from the husband) were that the trust had defaulted on both contracts and forfeited the deposits totalling $145,400. Indeed, the evidence also showed that the single expert accountant who had valued the trust had asserted that he had been told by the husband’s accountant that very same thing. It clearly was not true that the contracts had been defaulted upon by the family trust at that time.
When I asked the husband to explain that matter to me, he asserted that it had to have been an error of communication, somehow seeking to blame the inability of his solicitor to properly understand him for the solicitor getting it wrong. When I asked him how it was his accountant is recorded by the single expert accountant as having reported the same thing, he again asserted that it must have been a breakdown in communication between his Chinese accountant and the single expert European Australian accountant. Of course, I am not in the position of being able to satisfactorily determine where the truth lies in respect of that matter, but it did leave me with grave doubts about the credibility of the First Respondent husband.
Another issue of relevant concern relates to the insurance claim that was to be made in respect of a motor vehicle that was written off in an accident last year when being driven by the wife. In my Orders of October, last year I made the following two orders:
16. That the First Respondent Husband shall as soon as practicable take all necessary steps to make an insurance claim on the policy in his name held with [Company B] (the insurance company) insuring the motor car that was registered in his name, in respect of the accident that occurred on 16 May 2017 when the said motor car was being driven by the Applicant Wife and the Applicant Wife shall co-operate with him and [Company B] as required and as necessary to provide all information that is within her power to provide that will assist in the processing of the claim and any excess that is charged by [Company B] in processing and meeting the claim shall be paid by the Applicant Wife’s solicitors from the funds invested and held on trust for the Applicant Wife and the First Respondent Husband pursuant to these Orders upon the presentation of an invoice or demand for payment of same from [Company B] given to them by the Applicant Wife or the First Respondent Husband.
17. That any money received by the First Respondent Husband from [Company B] in payment of the insurance claim just referred to, shall be paid into the Trust Account of the Applicant Wife’s solicitors and also to be invested by the Applicant Wife’s solicitors on trust for the Applicant Wife and the First Respondent Husband as otherwise done in respect of other money provided for in these Orders.
In the Balance Sheet filed by the husband on 6 August 2018, he refers to this issue of the insurance claim. He says the car was written off in the accident. He says, without any reference at all to my orders of last October, that the money received from the insurance company in respect of the loss to the parties was $72,300. He says that he used $37,858 of that to purchase a new car that he has retained. He says he paid $28,000 to his sister in repayment of money he owed to her. He says he retained the balance of $6,442. He does not say when that all happened. If it happened before the hearing on 25 October 2017, he certainly did not disclose to this Court then that it had, when it was clearly an issue in those proceedings. If it happened since my orders of that day, then, prima facie, the husband has contravened the Court’s orders made that day. My orders will include an order that he file an affidavit deposing to the facts surrounding when the claim was made by him and when the insurance company made the payment to him, and attaching copies of documentation confirming it.
The evidence also establishes that the husband alone gave personal guarantees on the two contracts to purchase apartments “off the plan”.
In other evidence adduced by the wife, it is clear that by a term of the contract of purchase for the D apartment that the benefit of the contract cannot be assigned by the purchaser. The husband has, it appears, overlooked that when seeking an order from this Court for the assignment of the contract to the wife.
The Court was informed by the wife that there was as at 6 August 2018, the sum of $701,982 remaining in the money held in the wife’s solicitor’s trust account. Clearly, the family trust needs $802,800 to be able to settle on the contract for the purchase of the D apartment. The evidence before the Court does not support a finding that the trust has ready access to that sum of money. At the same time, the evidence does not support a finding that the wife has ready access to that sum of money.

The Court was told that the third apartment that is registered in the husband’s name has been valued by a single expert at $425,000. It is apparently unencumbered. If it was sold, or, if money was borrowed and secured by mortgage over it, and the funds obtained were contributed along with some of the funds currently held in trust, the purchase of the city apartment could be settled. However, the Third Respondent who is the husband’s adult daughter asserts that she and her mother (a former wife of the husband) own a 27 per cent share in this third apartment. Although she has not pleaded, or even identified in an affidavit of evidence, the basis upon which she asserts this, the implication from the Amended Response to Initiating Application that the Third Respondent filed on 10 August 2018 is that she and her mother contributed $130,985 to the purchase of that apartment (in which the Third Respondent currently lives with her father, the husband). Her mother has not sought to join in the proceedings and I understand she lives in China, so it might be difficult for her to do so. At the hearing of this matter on 27 August 2018, the Third Respondent told the Court that her mother had sent that money to Australia, not the Third Respondent herself. The Third Respondent’s position in respect of that apartment is, interestingly, supported by the First Respondent husband. He asserts in the Balance Sheet filed by him on 6 August, 2018 that his daughter, the Third Respondent (not his former wife), owns 27 per cent of this apartment. He does not explain the basis for that assertion.
The Court was told that the wife does not accept that money said to have been sent by the Third Respondent’s mother to Australia was her own money. I apprehend the wife’s case to be that the husband simply used other parties, including his former wife, as a conduit to send money to Australia that was his money, if not money of the husband and the wife.

My Determination about these Issues

There is simply insufficient evidence to persuade me that the Orders sought by the husband are appropriate at this interim stage of the proceedings. Apart from asserting that settlement on the contract to purchase the city apartment was due around now, he adduced no documentary evidence that supported that. In addition, there is insufficient evidence for me to determine that it is appropriate, necessary, or even of any utility, to make orders that somehow oblige the wife to take responsibility for settling the purchase of that property without being satisfied at the same time that she can actually do it, even if she is permitted to have access to $200,000 from the money currently held in trust to assist in that endeavour.
At the same time, I am not persuaded that it is appropriate for orders to be made that force the immediate sale of the apartment that is registered in the name of the husband in which he lives with his adult daughter, particularly whilst there appears to be a dispute, albeit one which has not been properly articulated by the First Respondent or the Third Respondent (or her mother who has not joined the proceedings), about the beneficial ownership of that property, even though the sale proceeds of that property, along with the money held in trust, could facilitate the completion of the purchase of the city apartment.
I am simply not persuaded that any order about that contract should be made at all, save for one that obliges the husband to keep the wife’s solicitors completely informed in respect of any developments in connection with that contract. I acknowledge that if the family trust fails to settle on the contract that it is likely that the deposit of $89,200 will be forfeited to the vendor and that there is a risk the trust and the husband as guarantor will be pursued for breach of contract and damages compensating the vendor for any loss that is experienced on a resale. As things currently stand, as the sole registered proprietor of the third apartment, and as he was the sole registered proprietor of the real property that was already sold last year from which the funds held in the wife’s solicitor’s trust account are sourced, the husband is (and, of course, as a consequence, the parties are) vulnerable to any potential suit against the husband in respect of any loss the vendor asserts it suffers consequential upon any breach of contract by the family trust. Nevertheless, in the absence of agreement between the husband and the wife as to how they might complete the purchase and thus avoid that risk, I am not persuaded that the Court, through any orders it was to make, can resolve that difficulty for the parties and protect them from that risk.
I will not be making any order in respect of that contract. At this point, the Court cannot help the parties, or either of them, in respect of that matter. If they cannot reach an agreement as to how the family trust should deal with its rights under that contract then they will each have to deal with the consequences of that and those, if any, will have to be taken into account in the determination of the final property adjustment proceedings.
Similarly, I will not be making any order that assigns the benefit of the contract for purchase by the family trust of the Suburb H property. The husband told the Court that settlement is not expected before next year or the year after. Accepting that in the face of any evidence establishing a contrary factual position, I do not consider there to be any pressing need to act as the husband seeks, by ordering the benefit of the contract be assigned to him, or as the wife seeks, by ordering the immediate sale of the purchaser’s rights under that contract.
It is apparently the case that the terms of the Suburb H contract do not prevent the assignment of the benefit of the contract by the purchaser to a third party. Accordingly, if the parties could agree, the benefit of that contract could be sold now before the purchase is due for settlement. However, any such assignment would be, in my view, unlikely to generate cash that was able to be used now by the family trust to complete the purchase that is now due for settlement. Furthermore, the husband asserted (though with little cogent evidence to support his assertion) that any sale of the benefit of the contract on the purchase of the Suburb H property would be likely to lead to further loss given the current state of the market. That is the basis, he told the Court, for his opposition to such a sale.
The wife also sought orders from the Court directed at the Bank of China, Sydney Branch to produce documents that had previously been the subject of a subpoena to the bank. The documents the wife wants the Court to order the Bank to produce are as follows:
(a) the transaction history from 1 July 2015 to 29 February 2016 on a Bank of China account held by a person named [Mr K] at a branch in City L, China;
(b) the transaction history from 1 November 2015 to 29 February 2016 held by a person named [Mr M] at a branch in [City L], China.
The evidence of the wife’s solicitor is that the named persons are the mother and the step-father of the Second Respondent. He had caused subpoenas to issue out of the Court directed to the Bank of China to produce those documents. He also said that he had spoken with a person working at the Bank of China in Australia who had informed him that the Bank here in Australia had no access to account information for accounts held in China “due to jurisdictional restrictions”.
The bank also wrote back to the Court after receiving the subpoenas telling the Court that the accounts specified in the subpoena were not held by the Bank in Australia.
The wife’s legal representatives referred me to two cases involving subpoenas being served on the Bank of China. One, a Victorian Supreme Court decision of Gao v Zhu [2002] VSC 64 does not assist the wife. In that case, Justice Habersberger set aside a subpoena directed at the Bank to produce to the Court documents from China. The Judge relied upon a UK decision in MacKinnon v Donaldson, Lufkin and Jenrette Securities Corporation [1986] Ch 482 in which it was held that to order the production of such documents was beyond the jurisdiction of the Court and would infringe the sovereignty of a foreign country. Justice Habersberger said that the subpoena was an attempt to compel a foreigner, under threat of punishment for contempt, to produce documents in respect of conduct outside the jurisdiction. His Honour did acknowledge that the UK decision had included the caveat “save in exceptional circumstances” and went on to express the concluding opinion that there were no exceptional circumstances in the course he was determining.
The second case referred to was a decision of the District Court of New York in Gucci America Inc., et al v Weixing Long, et al [2015] No 10 Civ. 4974 (RJS), SDNY, USA. In that case, the New York District Court Judge found the Bank of China to be in contempt of Court for failing to comply with orders to produce documents pursuant to a subpoena served on its New York Branch that were held in China. The Court imposed a “coercive fine” of US$50,000 per day for each day the Bank remained in contempt.
The wife’s solicitor said in his affidavit that the Bank purged its contempt and handed over the records, but he did not explain where he obtained that information from, so I am not in a position to determine if that is correct.
I am inclined to follow the Victorian Supreme Court decision, which, in turn, followed the UK Court’s decision. There is nothing about this case, on the evidence before me, that supports a finding that there are “exceptional circumstances”. The case in the United States involved companies suing Chinese nationals for fraudulently manufacturing and selling by the internet counterfeit copies of trademarked products. It involved millions of dollars. There is nothing like that in this case.
In addition, the wife’s legal representatives presented no evidence to support a finding that they had served the Bank of China with the documents by which she sought such orders against the Bank or had given them any formal notice of these proceedings against the Bank so that the Bank could appear and be heard.
I will not make the orders against the Bank of China that are sought by the wife.
At this point it is worth observing that the October 2017 Orders I made included five paragraphs of orders pertaining to disclosure and provision of documents to the wife by the First, Second and Third Respondents. It is not clear to me entirely, but I apprehend the wife to be making complaint through her legal representatives that the Respondents have not fully complied with the obligations of disclosure and provision of documents imposed upon them by those orders. Additionally, the wife, of course, complains that she has not seen copies of bank statements of the Second Respondent’s mother and step-father that might prove or disprove the First Respondent and Second Respondent’s case in respect of the origin of certain funds and the path of those funds into the First Respondent’s hands.
Rather than to continue to encourage or discourage the parties to make further interim applications about disclosure to this Court, and having particular regard to the undisputed evidence that the visa permission of the Australian Government for the wife and the husband to continue living in Australia expires in late March 2019, I consider it appropriate to expedite the hearing of these contested matters, to take this matter into my docket and to list it for trial before me in February 2019. I also consider that appropriate given the money that is being drawn from the capital that is held in the wife’s solicitor’s trust account on a monthly basis. Accordingly, I will list the matter for trial and make directions for the parties to ready the matter for trial. I will also vacate the directions hearing currently listed before a Registrar of the Court on 13 September 2018.
All of the parties would be well advised to bear in mind the power this Court has when it is satisfied that one or more of the parties has failed to make full disclosure of his or her financial affairs or has deliberately not disclosed significantly relevant financial matters. Authority supports the principle that once it has been established that there has been a deliberate non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party. As the Full Court said in Weir and Weir (1993) FLC 92-338 at 79,593 “[t]o do otherwise might be thought to provide a charter for fraud in proceedings of this nature [property adjustment proceedings]”.
Furthermore, the parties should remember that if there is an unexplained failure to give evidence, or to call someone as a witness who might properly be thought would be able to throw light on a fact in issue, then any inferences that may properly be drawn against that party are confirmed, thus rendering more probable the inferences against them that are open on the evidence (see Jones v Dunkel (1959) 101 CLR 298). Accordingly, if any of the Respondents fail to produce the documents that the wife has made it abundantly clear she wants to see and have access to, such as the bank statements of the Second Respondent’s mother and step-father, without reasonable explanation, they must remember these principles when it comes to the trial.

The payment of school fees and extra-curricular expenses

My October 2017 Orders provided for money to be withdrawn from the funds held in the wife’s solicitor’s trust account to pay school fees and levies owing to the two private schools the children attend in Brisbane and to pay fees and levies owing to service providers who provide the children with their extra-curricular tutoring and tuition.
The wife has sought an amendment to those provisions in the following terms:
That in circumstances where either of the two children of the Applicant Wife and the First Respondent Husband has entered or transferred, or is preparing to enter or transfer into another education, training or coaching institute, whether it is located in Australia or abroad, the funds held in the interest-bearing account on trust for the Applicant Wife and the First Respondent Husband shall also be utilised, from time to time, to pay the children’s food, accommodation, transport, and clothing expenses incurred, and any education training or coaching fees and levies as and when they fall due and owing to that educational or training or coaching institute, upon the presentation to the Wife’s solicitors of invoices from the institute or payment receipts by the Applicant Wife or First Respondent Husband.
There was very little evidence led in support of this proposed change. Only evidence about the imminent expiration of the family members’ visas was led and, then, the date was incorrectly written as 27 September 2018 when it is actually 27 March 2019. The Court was also told about the eldest boy’s current plans to go to the UK to study after completion of high school here in the next month or so.
In these circumstances, and without more, I do not consider it appropriate to amend this part of the Orders I made last year. In actual fact, I consider it appropriate now to discharge those parts of the existing interim Orders as at the end of this school year in respect of both children. It appears that both children will be leaving the country by March next year. One may be travelling to the UK. The other may be returning to China and attending a new school. In any event, I do not consider it appropriate to leave Orders in place that allow continued withdrawals from the parties’ capital that is invested in trust for them after the children finish school this year. Any further expenditure on education and extra-curricular activities after the children finish school this year should be drawn from the invested capital of the parties only by their agreement, pending further order.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 September 2018.

Associate:

Date: 6 September 2018