Meng and Gong and Anor

[2017] FamCA 846

FAMILY COURT OF AUSTRALIA

MENG & GONG AND ANOR [2017] FamCA 846

FAMILY LAW – PROPERTY – INTERIM – Where the Wife is granted sole use and occupation of the former matrimonial home – Where an injunction is granted requiring the second respondent company to take steps to permit the Wife to have access to the former matrimonial home.

Family Law Act 1975 (Cth)

APPLICANT: Ms Meng

FIRST RESPONDENT: Mr Gong

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: MLC 10503 of 2017

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Forrest J

HEARING DATE: 13 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matta

SOLICITOR FOR THE APPLICANT: Brygel Lawyers

COUNSEL FOR THE RESPONDENTS: Ms Smallwood

SOLICITOR FOR THE RESPONDENTS: Asia Pacific Lawyers

Orders

1. Until further order, pursuant to s 114(1)(f) of the Family Law Act 1975 (Cth) the applicant wife shall have the sole use and occupation of the former matrimonial home situate at, and known as, C Street, Suburb D in the State of Victoria, more particularly described in Certificate of Title Volume … Folio … (“the Suburb D Property”).

2. Pursuant to s 90AF of the Family Law Act 1975 (Cth) the second respondent company and in particular its directors, employees and/or agents, shall take all necessary steps to inform management of the Suburb D Property forthwith that their previous request to deactivate all swipe cards, swipe toggles and remotes that gain access to the property is rescinded and to inform management that until further notice, namely until further order of this Court, the wife shall have sole use and exclusive occupation of the Suburb D Property without interference by any further direction of the second respondent.

3. The applicant’s applications otherwise be adjourned for hearing before his Honour Justice Cronin at 10.00 am on Wednesday, 25 October 2017.

4. The applicant shall serve her Application and any Affidavits in support on Mr E by 16 October 2017.

5. The respondents and Mr E shall file any Response and Affidavits in support of such Response by 4.00 pm on 23 October 2017.

6. All parties’ costs, including the costs of Mr E, be reserved.

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 Meng & Gong and Anor 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 MELBOURNE

FILE NUMBER: MLC 10503 of 2017

Ms Meng

Applicant

And

Mr Gong

First Respondent

And

B Pty Ltd

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 11 October 2017, the applicant, Ms Meng, who I shall hereafter call the wife, filed an Initiating Application in this Court.  In that application, she named her husband, Mr Gong, as the first respondent and a company, called B Pty Ltd, as the second respondent. 

2. The company is a company in which the shares are owned equally by the husband and his father, as the evidence seems to show.  Until recently, the husband and his father were also both directors of that company.  In recent times, and since the husband and the wife separated and ended their relationship, the husband’s father has ceased being a director of the company, and a third person unknown to the wife, as I understand her evidence, has been made a director of the company.

3. In her application that was filed on Wednesday of this week and urgently returned before the Court this morning, the wife seeks substantive final relief in respect of property matters between her and the husband. Indeed, in the first paragraph of the final orders that she seeks, she simply seeks an order that is often seen early after proceedings are filed, but generally not seen by the time the matter gets to a trial, namely, that there be a just and equitable division of property between the parties, pursuant to s 79 of the Family Law Act 1975 (Cth).

4. I observe that litigants are often criticised by the Court for such general applications, but, in the circumstances of this case and having read the wife’s affidavit, it is apparently clear that the wife does not know anything much at all about the financial circumstances of her husband and intends, or hopes, to be able to further particularise her application for final relief once she does know all there is to know about the husband’s financial circumstances.

5. Additionally, she seeks an order on a final basis that the apartment, that might be described as the former matrimonial home, situated in an apartment building in Suburb D, and a motor car that she drives, be effectively transferred into her sole ownership.  It is that apartment that has become the subject of the application that was urgently listed before the Court this morning.

6. In her Application in a Case filed on Wednesday, the wife also seeks a number of interim orders.  In addition to orders for periodic spousal maintenance to be ordered to be paid by the husband to her benefit on an urgent basis, she also seeks orders with respect to discovery, wherein the husband is ordered to provide discovery and disclosure with respect to all of his interests in corporations and trusts and, more broadly, in respect of his financial circumstances.

7. More particularly, and most relevantly to the immediate issue for determination before me, is an application by her on an interim basis for, what is usually called, sole use and exclusive occupation of the former matrimonial home. In short, she seeks the sole use and exclusive occupation of the apartment that I spoke of before, that she seeks to have transferred to her on a final basis in the proceedings. She has particularised the relief that she seeks as being relief pursuant to s 114(1)(f), of the Family Law Act and/or s 90AF of that Act.

8. When the matter was called on before me this morning, the wife appeared represented by a solicitor and counsel.  The first and second respondents also appeared represented by a solicitor and counsel who represented both of the first respondent and the second respondent.  Another barrister appeared on behalf of a third person who has not been made a party to the proceedings. 

9. The Court was informed that the first and second respondents had not yet been able to prepare any material to file and rely upon in response to the applicant wife’s application.  The Court was told that the husband is away overseas and has been from some time before this matter was filed on Wednesday. That explains the reason why, along with the fact that the matter was brought on for hearing on very short notice,  no material has been able to be prepared and filed on behalf of the first respondent husband or the second respondent company.

10. The third party who appeared also had not been able to prepare material to file and rely upon and, indeed, was not making or did not flag any sort of application to actually be joined as a party.  Counsel who appeared for that third party informed the Court that his client had been given notice of the application as a person interested, and thereby he appeared.

11. The parties were given, at their request, some time to have some discussions about the proceedings.  They did that, and when the matter resumed the barrister who appeared for the third person informed the Court that all of the parties had agreed that the application, particularly that part of it that seeks interim relief, was to be adjourned for hearing in this Court on 25 October 2017, namely, in almost two weeks time.  He informed the Court that the parties had agreed that orders could be made that provided for his client to actually be formally served by the applicant with her application and supporting affidavit, and for the respondents and his client to file affidavits in response by 23 October 2017. 

12. He told the Court that the parties had agreed that the costs be reserved and asked for leave to retire from the bar table, which was given.  The Court was then informed that as between the applicant wife, the first respondent husband and the second respondent company owned by the husband and his father there was still one issue that remained in dispute, namely, whether or not the wife could remain or, should I say, go back into occupation of the apartment and remain in occupation of that apartment until the hearing and determination of the balance of her application on 25 October.

13. By way of some factual background and observing that this is material deposed to by the wife in her affidavit that has not been responded to by the respondents at all, I note that the wife is 27 years of age and was born in China in 1989.  She first came to Australia in 2007 to study.  She has lived in Australia for the 10 years that have expired since that time, and she has obtained permanent residency of Australia.

14. The husband is also a man who was born in China in 1983.  He is 34 years of age, but has also obtained permanent residency of Australia.  It seems that he is a very successful businessman.  The applicant and the first respondent met in 2012 and started living together later in that year at the same property that is the subject of these proceedings.  The applicant wife says that she has been living in that property ever since, so namely, five years now.  In 2013, she and the first respondent husband married. 

15. They separated on a final basis in July of this year, according to the wife.  I understand from her evidence that the husband asserts that they actually separated in July, 2015, but that she does not accept that.  That is a matter upon which I cannot make any determination of fact today and I do not consider it necessary that such a determination actually be made even if it could.  Since July, 2015, when the husband apparently left the property or at least made it known to the wife that he would not be returning to the property, the wife has nevertheless continued in occupation of it.

16. I have been informed by counsel for the husband, although affidavit material has not been able to be prepared and filed on his behalf, that there is some apparent dispute between the parties about the exact circumstances pursuant to which the wife has continued to occupy the property at Suburb D since the separation of the parties, whenever that might be.  Indeed, counsel for the husband informed the Court that the husband told the wife earlier this year of an intention to sell the apartment and a need for her to leave the apartment.  Indeed, she told the Court that the husband asserts, or instructs, that the wife agreed as long ago as the end of July this year, that she would, in fact, vacate the property.

17. The evidence satisfies me, in general terms, that the husband has been asserting to the wife in recent months that she must move out of the property as the company that owns it, namely, the second respondent, has entered into an agreement to sell that property to the third party who was represented by counsel here this morning.  That gentleman, a Mr E, is, I understand, otherwise an occupant of the same building living in a different apartment in that building in which the subject property is located.

18. Apparently, quite concerned about the security of her occupation of that property, the wife obtained legal representation and communications began between the wife’s lawyers and lawyers representing the husband and the first respondent.  It seems, on the material I have read and from what I’ve heard today, that the relationship between the husband and the wife has reached such a low ebb that communication between them, at least in terms of full and frank and open communication between them as to their respective positions, has become very difficult.

19. The wife, through her lawyers, has requested copies of the documents upon which the husband relies in his assertion that the second respondent has sold the property to the third party.  Some material, apparently, was provided to her over time, but seemingly against a background of apparent reluctance or unwillingness to provide full details and full documentation to the wife so that she could properly assess and obtain advice about her position.

20. As I understand it, she was informed that, pursuant to the agreement reached between the first respondent, the company that is the registered proprietor of the apartment and the third gentleman who has apparently agreed to purchase it, occupation of that property was said to be agreed to have been conferred by licence upon the third party from some period around the end of this month. The wife was, initially, told that she would have to vacate the property before then. Still unsure of her position and not being provided with full documentation, the wife became even more worried about her position and clearly began instructing her legal representatives to commence these proceedings. 

21. Then, in recent days, before the proceedings were actually commenced, she was informed by the lawyers for the husband and first respondent, or at least the first respondent himself if not his lawyers, that the date upon which the licence to occupy was effectively going to be conferred upon the prospective purchaser, the third party, had been brought forward and that she was required to, in fact, vacate the property by Sunday, 15 October. That is this coming Sunday, in two days’ time.  In response, she clearly instructed her lawyers to file the application on 11 October that I have referred to and that is before me today. 

22. When I began hearing submissions from the parties, after counsel for the third party had left the Court room earlier today, I was informed for the first time by counsel for the applicant that after having filed this application on Wednesday, 11 October and then bringing it to the attention of the first respondent and the second respondent, and advising them of the listing of the application for hearing this morning, without any warning, when the wife returned to the apartment in Suburb D from an outing yesterday at some time in the evening after 5 o’clock, she learned to her surprise and, no doubt, dismay, that she had been effectively locked out of the apartment.

23. That was not effected by any changing of the locks, but, in this day and age when things are digital and electronic, simply by the first respondent having made a request of the managers of the apartment building to deactivate all swipe cards, swipe toggles and remotes that gain access to the apartment. So, effectively, the wife was electronically locked out of her home and barred from re-entry into that apartment at a time when the first respondent and the second respondent were quite aware that the issue surrounding her occupation of that property was before this Court for determination early this morning.

24. I was told by counsel for the applicant that the wife merely wants to be able to reoccupy that property, her home for the last five years, and remain in it at least until the balance of her applications for interim relief are determined, including, of course, no doubt, an application to be able to stay in it for a longer period given that she, ultimately, in the form of her current proceedings, seeks orders for the transfer of that property to her. 

25. When I asked counsel for the first respondent and second respondent for her submissions in response, the position advanced to the Court - briefly, of course, because it was just before I adjourned for lunch – was that the wife’s continued occupation of the property is opposed, even for the period between now and 25 October when the application can be heard, and the husband, the second respondent and the third party have an opportunity to put on material and have procedural fairness in respect of their case and their arguments.

26. Although, the time I gave to counsel for the respondents was, I concede, fairly limited, the nature of the argument advanced was simple - it is their property - and I hope I do counsel no injustice by summarising it in this form – it is their property, she does not have a case for, ultimately, overturning any contract that is apparently already in place and legally binding, and because she has been on notice that she would have to leave the property for some time, she should just, effectively, wear it – if I can use that colloquial expression – and face the fact that she cannot get back in and move out.

27. I am not persuaded by that argument, as basic as it is, that that should be the appropriate outcome in these proceedings today. In the application, the wife seeks to rely on the power given to this Court under section 114 of the Family Law Act in the first instance. Section 114(1) of the Act says that:

    In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including –

    relevantly –

    (f) an injunction relating to the use or occupancy of the matrimonial home.

28. There is no doubt that, although this property is registered in the ownership of the second respondent, it is, indeed, a property properly described as the matrimonial home.  It is that section that the wife firstly relies upon.  I am satisfied that the proceedings that are between her and her husband are, indeed, proceedings within the definition of matrimonial cause, and she, indeed, seeks an injunction relating to the use or occupancy of the former matrimonial home.

29. In the circumstances, it is difficult and, in my view, not possible to consider that it is anything other than proper, on all the circumstances as they present to me this afternoon, for the wife to be able to, firstly, regain access to the former matrimonial home, and remain in it at least until the determination of this dispute more broadly by a judge of this Court on 25 October, 2017.

30. No doubt, in an abundance of caution, given that the property is actually owned by a third party company, one that is equally owned by the husband and his father, the applicant’s legal representatives have on her behalf sought that the injunction also be granted pursuant to s 90AF of the Family Law Act which is contained within part VIIIAA, headed Orders and Injunctions Binding Third Parties. That section, in particular subsection (2) of s 90AF, says that:

    In proceedings under section 114, this Court may make any other order, or grant any other injunction that directs a third party to do a thing in relation to the property of a party to the marriage, or alters the rights, liabilities or property interests of a third party in relation to the marriage.

31. In this particular case, where I am prepared to grant sole use of the former matrimonial home pursuant to s 114(1)(f) of the Family Law Act to the wife pending further order of this Court, I am satisfied that s 90AF(2)(b) applies in respect of the rights and interests of the third party, namely, the second respondent company in these proceedings. I am satisfied that the sort of order or injunction that is required to be made against the second respondent company is one that will require them, mandatorily, to take all steps to instruct or cause the management of the building to allow and permit the wife to again have access to the former matrimonial home until further order.

32. Indeed, of course, given that the third party second respondent company is the registered proprietor of that property, there is some alteration or interference with its rights in respect of that property that would be caused by that. Section 90AF(3) comes into play because it says:

    The Court may only make an order or grant an injunction under subsection (2) in certain circumstances.

    Those are that:

    if the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage.

1. In this particular instance, it is on an urgent interim basis that the order or injunction against the third party is being sought in circumstances where the wife, ultimately, seeks a division of property between the parties to the marriage that involves the property owned by the third party company.  Whether or not she will, ultimately, be able to achieve that is another matter, of course, but not one that I need to necessarily determine this afternoon. 

2. Subsection (b) of s 90AF(3) does not apply, in my view.

3. Subsection (c) of subsection (3) requires the Court to determine or be satisfied that the third party, that is the second respondent, has been accorded procedural fairness in relation to the making of the order or injunction.  I am satisfied that, in the circumstances, although they were given short notice and have not had the opportunity to put on material, they are being given that opportunity to do so before the further determination of the matter on 25 October.

4. Subsection (d) says that the Court must be satisfied in respect of “an injunction or order under section 114(1)” that, “in all the circumstances, it is proper to make the order or grant the injunction” that the Court is minded to grant. I am, as I have said, already quite satisfied that in all the circumstances that present on this urgent interim basis that it is proper to make the order that I have foreshadowed I will be making, namely, an order that grants the wife sole use and exclusive occupation of the property pending further order, and a further injunction under this section directed at the third party second respondent to take such steps to facilitate that sole use and exclusive occupation being available to the wife.

5. I am also required to be satisfied that the order or injunction takes into account the matters mentioned in subsection (4) of s 90AF. Having looked at those, I am satisfied that none of those make any difference or have any impact on the outcome of the application for the injunction today on an immediate basis. Most particularly, when asked, I think at least twice, whether there was any prejudice that counsel for the first and second respondents could point to or raise with me, even though affidavit material has not been filed, by the wife continuing in occupation of that property until 25 October, counsel for the first and second respondents offered none.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 October 2017.

Associate: 

Date:  24 October 2017