Ming and Leong

[2007] FamCA 145

FAMILY COURT OF AUSTRALIA

MING & LEONG [2007] FamCA 145

FAMILY LAW - PROPERTY - Interim order restraining husband from dealing with the property - Wife's application for interim spousal maintenance and exclusive occupation of marital home dismissed
FAMILY LAW - CHILDREN - With whom a child lives - Interim orders

APPLICANT: MRS MING

RESPONDENT: MR LEONG

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBF 1176 of 2006

DATE DELIVERED: 29 January 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 29 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nettlefold

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. THAT the order restraining the respondent from dealing with the property made by His Honour Justice Carmody on 15 January 2007 be extended to 4.00pm on 3 April 2007 save and except that the husband shall do all acts to withdraw from such funds the sum of five thousand dollars ($5,000.00) for each of the parties.

2. THAT the applicant mother’s application for interim spousal maintenance and for exclusive occupation of the former matrimonial home be dismissed and in doing so IT IS NOTED that those applications have not been heard on their merits and were dismissed on the basis that it is available to the mother to bring back such interim applications if she believes she has evidence to do so.

   IT IS DIRECTED

3. THAT the parties attend at the Family Relationships Centre within fourteen days of today’s date in an endeavour to mediate the issues that exist before them.

   IT IS FURTHER ORDERED

   UNTIL FURTHER ORDER

4. THAT both parties be restrained from abusing, demeaning or belittling the other in the presence or hearing of Y born in October 1998 (“the child”).

5. THAT the child live with the mother.

6. THAT the child spend supervised time with the father at the Good Beginnings Centre in South Hobart at times and dates arranged between the parties and in accordance with the times made available by Good Beginnings.

   IT IS DIRECTED

7. THAT both parties attend intake sessions at Good Beginnings within seven days from the date of this order or such later time in the event that the Centre is not open.

8. THAT both parties obey reasonable directions of the staff at Good Beginnings.

9. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. THAT these proceedings be adjourned to a Judicial Duty List at 10.00am on
    3 April 2007.

    IT IS FURTHER DIRECTED

11. THAT the respondent father file a Response to both the primary application and interim application on or before 4.00pm Wednesday 28 March 2007 together with any affidavits in support in respect of property, injunction and parenting.

12. THAT the respondent father file a Financial Statement in accordance with the Rules on or before 4.00pm Wednesday 28 March 2007.

13. THAT the applicant mother file an affidavit setting out the factual basis upon which she says:

    (a)that there ought not to be equal shared parental responsibility;

    (b)where the child should reside;

    (c)what time the child should spend with the father;

    (d)whether such time ought to be supervised.

14. THAT a copy of my reasons be taken out and placed on the Court file.

    IT IS CERTIFIED

15. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 1176 of 2006

MS MING

Applicant

And

MR LEONG

Respondent

REASONS FOR JUDGMENT  

1. These are proceedings between Ms Ming, who I will refer to as "the mother", and Mr Leong, who I will refer to as "the father", in relation to a number of issues.

2. The proceedings were commenced by the father in October 2006 and those proceedings were discontinued by the father the day after they were filed.

3. On 14 December 2006, the mother filed an application for final orders and application for interim orders.  That application for interim orders was listed before a judge of this court on 15 January 2007 and related to orders that the husband be restrained from dealing with property of the parties.

4. In support of that application, the mother filed an affidavit on 14 December saying that she and the father were married in China in May 1996 and separated in October 2006.  There is one child of their marriage who was born in October 1998 and is currently aged eight.

5. The mother deposes that the child has lived with her since separation in October 2006.  As an aside I observe that the father indicated to me in submission, but not on oath, that he had been working and away in China in September 2006.  He returned for seven days and then went away for another period of two months and he has not seen his son for some time and he wants to see his son and in fact he wants his son to live with him.

6. The mother deposes in her affidavits that the matrimonial assets are a property at R with a value of about $160,000; money in the Commonwealth Bank; unsecured notes with GR Finance; debentures with M Mortgages and other financial institutions; a Mazda motor vehicle and chattels.

7. She says that all of these are registered in the names of the father and that she is making an application for division of this money.  She says that the father is employed as a geologist with BHP and from time to time works in China.  This accords with what the father submits from the bar table, although as I said that is not evidence.

8. The matter came before his Honour Carmody J on 15 January 2007 and at that time the mother appeared with counsel and the father appeared in person.  I observe that we had in court an interpreter to assist the father.  He said to me earlier in the day that whilst English was not his first language he understood what was being said provided I did not use difficult legal terms.  To the best of my ability I have endeavoured to use terms which are reasonably understood.

9. His Honour Carmody J make an order restraining the father from disposing, selling or dealing with the assets and directed that the father filed a response together with any supporting material by 24 January 2007 and that the mother file an amended application and affidavit by the same date.

10. Prior to that time the father had filed an application in the case on 22 December 2006 in which he sought the following orders:

    (1) Allocate where my child, [Y] is; (2) Let me meet my child as soon as possible; (3) Stop my wife calling my company, my supervisor, my colleagues; stop send her representative to do these things.

11. In support of that application the father relied on an affidavit where he says:

    I've been away from home for more than two months for work.  My wife called my company, my supervisor, my colleagues and me and sent her younger sister to my work to ask me back home.  But when I back, she hid away with my child.  I am worried about him without seeing him for more than three months.  My wife and her sister call my company, my supervisor, my colleagues and me in working time; definitely spoilt my job.  I apply to stop them doing such things.

12. That material was before his Honour Carmody J.  Since that time the mother has filed an amended application in which she sought not only orders in relation to property but spousal maintenance, parenting orders and sole occupation of the former matrimonial home.

13. I am informed today that the mother is unable to proceed with regard to the spousal maintenance and sole occupation application.  I intend to dismiss those interim applications but note that they were not heard on their merits with the intent that if the circumstances arise - and I note that I am not encouraging anyone to do this in any way - it is still open for that to be argued on an interim basis.

14. I am then left with the children's issues and the property issues.  In terms of the property, the mother says that the father travels to China regularly; all of the property is in his control; he did not provide a statement of financial circumstances as provided by the rules of this court and it is very easy for him to take the assets and remove them from Australia, with the exception of the real property.

15. The Full Court in a recent decision of M v DB, delivered by Kay, Warnick and Boland JJ, delivered on 12 October 2006, discussed the law with regard to interim orders such as this.  They said:

    Significantly, in our view, all that was said in Waugh in paragraph 46 was that a trial judge did not consider the fundamental question whether there was any evidence of an intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgment

    Their Honours did not say that the trial judge had to find on the balance of probabilities matter fundamental to success there was such a scheme.  Put another way, all that the court said in Waugh was that the trial judge had taken a fundamentally flawed approach and ought to address the question as to whether there was any evidence of intention as part of an inquiry into the risk of disposal of assets to defeat judgment.

16. The court further concluded, in paragraph 46, when it said in terms of such relief as sought by the mother:

    Finally we think it helpful to recognise that the essential power being exercised in this case is simply as described in section 114(3) of the Family Law Act; that is, "A court may grant an injunction in any case in which it is just or convenient to do so." Ultimately each case will involve an overall assessment of a number of factors to determine the just or convenient result. Not all cases with the same identity of factors will necessarily produce the same result because of the varying weights individually and comparatively.

    We have perceived that a real, though perhaps subtle, difference exists between on one hand establishing on the balance of possibilities a risk or danger of disposal of property intended to defeat an order, and on the other hand proving to the civil standards as an independent issue that a scheme to defeat an order exists. 

    In some cases the possibility, based on some evidence of an intentional scheme may, with other factors, be sufficient to establish a possibility of an objective risk of disposal with the intent to defeat an order.

17. In this case the father is very upset about the breakdown of his marriage and has expressed so in very clear terms to the court.  He has the capacity to remove a significant part of the assets of the parties from Australia and has not provided details of what moneys are in the accounts.  He has not filed any documents.

18. He certainly knows what moneys are there, as he submitted during the course of the day that some money could not be made available until March because it was in some investment and it was not released at that time.

19. I questioned him in respect of the value of the matrimonial home and he prevaricated in terms of his answers in that regard.  Based on that evidence I am satisfied that there is on that evidence the probability of an objective risk of disposal.  The danger in holding the money is not such as would cause significant prejudice to the parties. 

20. I intend to make an order releasing the sum of $10,000, being $5000 to each of the parties so that they can maintain their lives until this aspect of the matter has had the opportunity of a hearing.

21. The next question is that with regard to the parties' child. The state of the evidence is not good. The Full Court in the recent decision of Goode v Goode (2006) FCA 1346, their Honours the chief justice, Finn and Boland JJ, said:

    In an interim proceeding for parenting the court should:  (a) identify the competing proposals; (b) identify the issues in dispute at interim hearing; (c) identify any agreed or uncontested facts; (d) consider the matters under section 60CC of the act; (e) decide whether the presumption applies; (f) if the presumption does apply decide whether it's rebutted; (g) if the presumption applies and is not rebutted, consider making an order for equal time or substantial time; (h) if equal time is not found to be considered, then make such order as the court considers fit, including considering whether there ought to be equal or substantial time.

22. On the evidence before me it seems that the mother may be the primary carer of the child.  This is at least on the basis that the father has been away for almost three of the last four or five months.

23. There is an allegation by the mother that the father should have supervised time with the child and the evidence in that regard is contained in paragraph 20 of the mother's affidavit filed 24 January 2007 where she says:

    I believe the respondent husband has an anger management problem.  He has been physically and verbally abusive to me in the past in the presence of our child.

24. That evidence is more of a conclusion than setting out what the underlying facts are and is thin to say the least.  The mother also relies on an application she has made for a protection order.

25. It is not possible for me, with the state of the evidence, to make the determination that the Full Court says I ought to make in the case of Goode and in fairness to this child I do not intend to make such an order without giving each party a reasonable opportunity to put before the court some detailed material as to why orders ought to be made.

26. On the material I am unable to say whether the presumption ought to apply or ought not to apply and it seems to me I am far safer in the circumstances leaving in place the several position created by section 61C of the Act.

27. Taking all of these matters into account, and giving the parties time to properly prepare the proceedings, in this matter of Ming and Leong I make the following orders.

I certify that the preceding 27 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:    

Date:  29 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MING & LEONG