Nam & Lien

[2020] FamCA 304

FAMILY COURT OF AUSTRALIA

NAM & LIEN AND ANOR [2020] FamCA 304

FAMILY LAW – INJUNCTIONS – Preservation of property – Where the applicant seeks an injunction restraining the respondents from dealing with certain real property – Where the evidence, in so far as it relates to the second respondent, falls short of establishing a prima facie case in the substantive proceedings – Where the applicant has established a prima facie case for a property settlement with respect to the first respondent – Where the balance of convenience does not favour the granting of the injunctions – Where the application is dismissed.   

FAMILY LAW – INJUNCTIONS – Anti-suit injunction – Where the applicant applies for an anti-suit injunction in relation to proceedings on foot in Country F – Where the evidence does not support the granting of an anti-suit injunction and is not necessary for the protection of the Court’s own processes and the application must be dismissed.

FAMILY LAW – PROPERTY – Interim – Where the first respondent makes an application to the Court seeking to have the exclusive use and occupation of a property in the applicant’s sole name and an injunction restraining the applicant from dealing with the property – Where the applicant is currently living in the former matrimonial home and the first respondent is residing with his adult child’s family – Where the first respondent’s age makes him more vulnerable to COVID-19, particularly whilst he lives in a household with children – Where the applicant has previously disposed of property without notice to the first respondent – Where the first respondent will have exclusive use and occupation of the property and the applicant will be restrained from dealing with it.   

Family Law Act 1975 (Cth)
Land Title Act 1994 (Qld)

Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
CSR Ltd v Cigna Insurance Australia Lth (1997) 189 CLR 345
Davis & Davis (1976) FLC 90-062
Henry & Henry (1996) 185 CLR 571
Mullen & De Bry (2006) FLC 93-293
Rowe & Rowe (1980) FLC 90-895.
Stanford & Stanford (2012) 247 CLR 108
Teo v Guan (2015) FLC 93-653
Tsiang & Wu and Ors (2019) FLC 93-911
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Ms Nam

1st RESPONDENT: Mr Lien

2nd RESPONDENT: Mr B Lien

FILE NUMBER: BRC 4686 of 2019

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 22 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Meara

SOLICITOR FOR THE APPLICANT: H & N Lawyers

SOLICITOR FOR THE 1ST RESPONDENT: HD Legal Practice

FOR THE 2ND RESPONDENT: Self-represented

Order

(1)The Application in a Case filed by Ms Nam on 6 April 2020 be dismissed.

(2)Until further order, the applicant hand over and deliver vacant possession of the property situated at C Street. Suburb D in the State of Queensland (“the Suburb D property”) (subject to the rights of any existing tenant) to the first respondent, and the first respondent shall have sole use and occupation of the Suburb D property to the exclusion of the applicant. The first respondent shall be solely responsible for all reasonable outgoings on the Suburb D property including body corporate fees, rates and water charges upon commencement of his occupation.

(3)Until further order, the applicant is restrained from dealing with the Suburb D property without the prior written consent of the first respondent or order of the Court.

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 Nam & Lien 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 4686 of 2019

Ms Nam

Applicant

And

Mr Lien

First Respondent

And

Mr B Lien

Second Respondent

REASONS FOR JUDGMENT

1. The applicant and first respondent agree that they were in a de facto relationship for a number of years until separation in late January 2019. The second respondent is the first respondent’s adult son. The applicant and first respondent are in dispute about property settlement. The competing applications before the Court on 22 April 2020 concerned injunctions preventing the sale of certain property, an anti-suit injunction, and occupation of an investment property.

Background

1. The applicant and first respondent commenced a relationship in Country F in 2008. They have a daughter together who was born in 2009. The applicant contends that their de facto relationship commenced in 2008. The first respondent contends that the de facto relationship commenced in 2011 when the applicant moved to Australia. Nothing turns on this disparity for the purposes of the current application.

2. The applicant is 37 years of age. It is not apparent on the evidence before me whether or not the applicant is employed. She has the care of at least one child aged 10 and possibly her son aged 17 years.  

3. The respondent is 69 years of age and describes himself as a pensioner. He lives with his adult daughter and her family in their home.

4. The applicant and first respondent agree that their relationship broke down on a final basis in January 2019. The first respondent was excluded from the former matrimonial home as a consequence of a protection order made in favour of the applicant against the first respondent, who denies the allegations of domestic violence and contends he consented to the protection order without admission.

5. At the commencement of the relationship it is common ground that the first respondent had an interest in nine properties and that the applicant had no assets of significance. It is also common ground that all of the properties, bar one, have been sold. Two of the properties were sold shortly after separation (but prior to the commencement of the proceedings) and the first respondent contends that all proceeds were used to pay existing debt. The applicant disputes the legitimacy of some of the debt and points to the first respondent’s ability to deal with property within the first respondent’s wider family at his whim. In particular, the applicant highlights the sale of one property after separation to the first respondent’s daughter and son in law, who hold the property as trustees subject to an existing mortgage.   

6. The first respondent sponsored the applicant and their daughter to come to Australia in 2011, and in 2013 also sponsored the applicant’s son, who was then 10 years of age.

7. The first respondent was previously married and in 2012 a final property order was made between him and his wife. The first respondent has a number of adult children.

8. In 2008 a property was acquired in the sole name of the applicant in Country F (“the Country F property”). In mid-2013 a second property was acquired in the applicant’s sole name at C Street. Suburb D, Queensland (“the Suburb D property”). In December 2015, the applicant and first respondent jointly acquired a property at G Street, Suburb H, Queensland (“the Suburb H property”). The applicant and first respondent lived in the Suburb H property at the time of separation and the applicant continues to live there.

9. The material does not disclose the purchase price for the Country F property, although the applicant concedes that at least part of the purchase price was provided by the first respondent. The applicant does not disclose the source of the balance purchase funds. The first respondent contends that he purchased the Country F property so that the applicant could have an income as the manager of the property and that the Country F property was only registered in the applicant’s name because of restrictions about foreign ownership in Country F at the time.

10. In December 2019 the applicant sold the Country F property to a third party without notice to the first respondent. The applicant contends that the net sale proceeds of AUD$44,000 were utilised to repay a AUD$30,000 debt to her parents and the balance to pay off a joint credit card debt. The first respondent disputes the existence of the $30,000 debt to the applicant’s parents and the joint credit card debt.

11. On 31 January 2020 the first respondent commenced proceedings in the Court in J Region, Country F in which he seeks to cancel the contract of sale for the Country F property and reclaim the property as his own. The first respondent contends that those proceedings have been scheduled to commence on 7 August 2020, conclude by 14 October 2020, and that the proceedings can be conducted electronically. In those proceedings the first respondent relies upon a document purportedly signed by the applicant on 25 March 2013 in which she undertook to return to the first respondent any property he purchased for her in consideration of the first respondent sponsoring her and her son to live in Australia. The document makes particular mention of the Country F property and the Suburb D property that would be transferred to the first respondent if the applicant “betrayed” the first respondent or sought a divorce. The applicant contends that the document is a fabrication and her signature thereon a forgery. Even if the document is genuine, it will not bind this Court in Australia.

12. The Suburb D property was purchased using what the first respondent describes as “our savings and loan from the bank”. At another part of his affidavit, the first respondent refers to the Suburb D property being bought by him. The applicant and first respondent lived in this property until 2016. The applicant contends that this property is rented out, a fact disputed by the first respondent. The first respondent contends that he should be able to live in the Suburb D property as he believes the property is vacant as the applicant has not disclosed any tenancy agreement, and the fact that he is at heightened risk, given his age, of contracting COVID-19. He contends that his Centrelink pension will be sufficient to cover the outgoings on the property.

13. In relation to the Suburb H property, the applicant does not disclose the source of funds to purchase the Suburb H property but it is common ground that at least some money was borrowed. The applicant contends she only agreed to the first respondent’s name being included on the title deed because the first respondent promised to sell another property and contribute $200,000 towards the mortgage. She contends that he broke his promise. The first respondent disputes the applicant’s version and, in particular, denies there was ever any promise to sell a property and reduce the mortgage by $200,000. He also contends that from 2016 until mid-June 2019 he paid “a substantial portion of the mortgage”. Additionally, the first respondent contends that upon the sale of one of his properties in March 2016 he gave the applicant $50,000.

14. It is also common ground that the property at K Street, Suburb L in Queensland (“the Suburb L”) was acquired in the joint names of the first and second respondents in 2003 i.e. at least 5 years prior to the commencement of any relationship between the applicant and first respondent. The first and second respondents contend that the second respondent has largely met the outgoings on the Suburb L (a vacant block of land) given the alleged precarious financial circumstances of the first respondent.  

15. The applicant contends that she overheard a telephone conversation between the first and second respondents “about 2 years or 2 and half hear ago” in which the first and second respondents agreed to let the second respondent sell a property in Adelaide and retain the proceeds and in return the second respondent would forfeit any interest in the eventual sale proceeds of the Suburb L. In her second affidavit the applicant clarifies that she merely assumed the first and second respondent were talking about the Suburb L. The respondents deny any such agreement. In any event, there is no evidence that the condition upon which the alleged agreement relied, was fulfilled.

16. Curiously, the applicant also contends that she was not aware of the Suburb L until after disclosure was provided by the first respondent. The applicant says this is the reason she did not seek an injunction at the time she commenced proceedings in April 2019. However, this assertion is at odds with her allegations of overhearing a telephone conversation about two years ago, as mentioned above, in which the precise address was mentioned. The applicant’s later affidavit corrects her earlier affidavit by stating that the precise address was not mentioned just the suburb but this does not overcome the inconsistency identified or explain her failure to take any action earlier.

17. The applicant did not lodge a caveat on the Suburb L until 14 February 2020. The caveat is not before me. It was requisitioned by the Queensland Government Department of Natural Resources, Mines and Energy under the Land Title Act1994 (Qld) on 11 March 2020 as the “document has revealed that it does not meet the Land Registry requirements for registration”, namely that “Section 126(4) of the Land Title Act1994 (Qld) among other things, requires the caveator to start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat. The evidence produced with this request fails to establish the above”. The applicant was informed that the requisition was required to be attended to by 8 April 2020. There is no evidence that the applicant responded to the requisition and accordingly I assume it has lapsed.

18. The first respondent contends that he and the applicant used joint funds to purchase another property in Country F in the name of the applicant’s parents, and that the applicant and first respondent built a home on the property in which the applicant’s parents now live.

19. In addition, the first respondent contends that he discovered during the disclosure process in these proceedings that the applicant transferred approximately AUD$250,000 to her parents during the relationship.

20. Prior to the filing of this Application in a Case, the applicant requested the first respondent sign a consent order not to deal with the Suburb L and to discontinue the Country F proceedings. The first respondent declined to do so.

issues for determination

1. The applicant, by an Application in a Case filed 6 April 2020, seeks the following order:

   (1)The first Respondent and the second Respondent be and are hereby restrained from selling, encumbering or disposing of the interest of the parties or either of them in the property located at K Street, Suburb L in the State of Queensland and being the whole of the lands properly described as Lot … on Registered Plan … with Title Reference … and Lot … on Registered Plan … with Title Reference …, without the written consent of the Applicant or until further Court order.

   (2)The first Respondent and the second Respondent be and are hereby not to oppose for the Caveats number … remaining on the titles regarding the property located at K Street, Suburb L in the State of Queensland and being the whole of the lands properly described as Lot … on Registered Plan … with Title Reference … and Lot … on Registered Plan … with Title Reference …, and shall do all thing reasonably necessary to maintain the Caveats on the titles.

   (3)The first Respondent, within 14 days of this order, is to discontinue his Court proceedings in Country F in relation to the property located at M Street, Suburb N, P City, Country F.

2. The first respondent by a Response filed 17 April 2020 seeks the following order:

   (1)Dismiss the Application in a Case.

   (2)The applicant handover and deliver vacant possession of the investment property located at unit C Street. Suburb D to the first respondent for his sole purpose of occupation pending final orders of this court. It is further ordered that the first respondent be responsible for payment of costs such as body corporate fees, rates and water charges associated with the unit pending final order of this court.

   (3)The applicant be restrained from dealing with the property located at C Street. Suburb D without consent in writing from the first respondent or pursuant to an order from this Court.

3. The second respondent was granted leave to read and file a Response and affidavit. The only order sought by him is the dismissal of the Application in a Case.

The applicant’s case

Interim injunctions

1. Although not forming part of the applicant’s submissions, I note that under the Family Law Act 1975 (Cth) (“the Act”) the Court has power to grant such injunction in a ‘de facto financial cause’ as it considers proper with respect to property of the parties to the de facto relationship or either of them[1] or to grant an injunction where it is necessary to do justice or where it appears just and convenient to do so.[2] A de facto financial cause is defined in s 4 of the Act as including proceedings between the parties to a de facto relationship with respect to the distribution of their property upon the breakdown of their relationship, or any other proceedings relating to concurrent or pending proceedings of the type just mentioned.

   [1]Family Law Act 1975 (Cth) ss 114(2A) and (3).

   [2] Ibid ss 90SS(1)(k), 90SS(5).

2. The power invested in the Court to grant an injunction attracts the operation of particular principles derived from equity courts,[3] although the term ‘injunction’ “takes its colour from the statutory regime in question”.[4] The term ‘just and convenient’ is not “at large”.[5]

   [3]Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 at 240 [88].

   [4] Ibid at 240 [89].

   [5] Ibid at 248, [105].

3. Whether or not an injunction should be granted involves an inquiry as to whether or not there is a serious issue to be tried i.e. whether or not the applicant for the injunction has established a prima facie case for the substantive relief sought. If there is a serious question to be tried, the Court must assess where the balance of convenience lies i.e. which of the parties will suffer the most injury/inconvenience if the injunction is or is not granted. [6] It is not necessary for the applicant to establish that it is more probable than not that the substantive claim will succeed, rather, “it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”.[7] “How strong the probability needs to be depends, no doubt, upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order he seeks.”[8]

   [6]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 68 [19], 81–84 [65]–[72].

   [7] Ibid at 81–82 [65].

   [8] Ibid quoting Kitto, Taylor, Menzies and Owen JJ in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

4. The nature of the enquiry of what is just and convenient in the family law setting is particularly concerned with preserving the subject matter of the proceedings so as to avoid an applicant’s claim being defeated. In Tsiang & Wu and Ors the Full Court of the Family Court (Strickland, Ainslie-Wallace and Aldridge JJ writing jointly) noted that “it is unnecessary to demonstrate a positive intention [to dispose of an asset] but merely the possibility of the event occurring. The determination about the balance of convenience may thus be an inference drawn from the facts and circumstances established by the applicant’s evidence.”[9]

   [9] (2019) FLC 93-911 at 79,138 [25]; Waugh & Waugh (2000) FLC 93-052 at 87,810 [45]–-[46]. See also Mullen & De Bry (2006) FLC 93-293 at 80,995–80,999 [35]–[56].

1. In support of her application, the applicant relied upon two affidavits. The first was filed on 6 April 2020 and only annexures 6, 7, 8, 9 and 13 were relied upon. The second affidavit was filed in response to the first respondent’s affidavit on 21 April 2020, including annexures 1, 2, 3 and 4.

2. The applicant’s case at its highest appears to be that because she and the first respondent were in a de facto relationship, she is entitled to a property adjustment order which, in turn, entitles her to “protection” by means of an injunction restraining the first and second respondents dealing with the Suburb L.[10] There is no evidence that a sale or dealing with the property is imminent or even seriously contemplated. The first respondent opposes the caveat and injunction “because it may have detrimental affects (sic) on my ability and by extension, the Second Respondent’s ability to obtain financial benefit whilst COVID-19 remains a threat to everyone’s health and livelihood”. The second respondent contends that he has no intention to sell the Suburb L “because … it is the only property left that reminds me and my father of my grandmother”. The second respondent owns and operates a family business and opposes the caveat and injunction because “during this Covid-19 pandemic and continuing uncertainty in the local and global market, I may need to mortgage or sell the land to relieve financial stress and debts as any assistance from the Australian government may not be sufficient to sustain my business and prevent me from going into bankruptcy.”

   [10] See affidavit of applicant filed 6 April 2020 [22].

3. The applicant did not attempt to lodge a caveat on the property until February 2020 and contends that she was agitating for a sale of the property for some time prior to separation. As already noted, the applicant’s contention that she did not know of the Suburb L’s existence until after proceedings commenced in April 2019 is inconsistent with her evidence that she pressed the first respondent to sell the property about two years ago, and her evidence that she overheard conversations between the first and second respondents resulting in an agreement involving the second respondent forfeiting his interest in the Suburb L.

4. During submissions the applicant, through her counsel, appeared to concede that the case for an injunction against the second respondent should fail although the concession fell short of formally withdrawing the application against the second respondent. In my view, the concession was properly made in circumstances where the property was acquired by the respondents at least five years prior to the applicant and first respondent commencing a relationship and the circumstances surrounding the alleged agreement that the second respondent would forfeit his interest in the Suburb L is replete with inconsistency. Additionally, the applicant fails to establish that the condition upon which the alleged agreement was entered into was fulfilled.

5. In relation to the first respondent, the applicant does not address in her affidavits the basis upon which a court would grant her a property settlement. Other than the fact that she and the first respondent lived in a de facto relationship for more than two years and had a child together, the applicant’s evidence addresses little of the Stanford & Stanford (‘Stanford’)[11] requirements i.e. would it be just and equitable to make any property settlement order. In considering that initial enquiry, the Court must firstly identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. Secondly, it must be borne in mind that the discretion of whether or not to make a property settlement order must be exercised in a principled way. Thirdly, there is no presumption that the parties’ rights to or interests in property should be different from those that currently exist. Importantly, the consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 90SM(4). It is necessary to give separate consideration to s 90SM(3) and (4) and not to ‘conflate’ the two sections.

   [11] Stanford & Stanford (2012) 247 CLR 108 (‘Stanford’); see also Gao & Wang (2016) FLC 93-735 at 81,776 [19] as to the applicability of the ‘Stanford’ requirements to de facto relationships.

6. Despite this deficiency in the applicant’s material, it does not seem to be in contention that a property settlement order ought be made, rather the terms of such an order are in dispute.

7. Doing the best I can on the material before me, the existing interests of the parties in property appear to be as follows:

Property	Applicant	First respondent	Second respondent
Suburb L[12]	275,000	275,000
Suburb D property	250,000
Suburb H property	375,000	375,000
Less mortgage	(230,000)	(230,000)
Motor Vehicle 1	50,000
Chattels	20,000
Net assets	$465,000	$420,000	$275,000

[12] I have adopted an estimated property value based upon the applicant’s evidence that the first respondent received an offer to purchase the property at this price about two years ago which she urged him to take most recently in 2019. The first respondent does not agree that an offer was made and the second respondent knows of no offer and estimates the value of the Suburb L property at $300,000.

1. The applicant’s affidavits say very little, if anything, about contributions made by her or her current circumstances. The applicant seeks a distribution in her favour of 60% i.e. a 20% differential in her favour. On the information currently before the Court that would seem to be somewhat of an ambit claim, but of course that is very much a tentative observation. The property currently in the applicant’s possession accounts for 52.5% of the property identified above (although the values attributed to the property are estimates only and reflect the absence of a prima facie case against the second respondent).  

2. The refusal by the first respondent to consent to an order that he not deal with the Suburb L was inextricably linked to the discontinuance of the Country F proceedings. Accordingly, his failure to consent cannot, in my view, be relied upon by the applicant as indicating some objective risk of disposal of the Suburb L.

3. In relation to the injunctions sought about the caveat, the decision about whether or not to remove the caveat is one to be made by a third party. It would appear that it may already have been removed given the absence of evidence that the applicant attended to the requisition by 8 April 2020. What the applicant appears to be seeking in the alternative is that the respondents consent to the registration of a caveat on the Suburb L. An injunction, if granted, would support the registration of a caveat.[13]

   [13]Land Title Act 1994 (Qld) s 122(1)(e).

Conclusion on whether or not to grant injunctions sought by the applicant

1. The evidence in so far as it relates to the second respondent falls short of establishing a prima facie case in the substantive proceedings i.e. that the second respondent holds his interest in the Suburb L on trust for the first respondent.

2. In relation to the injunction sought against the first respondent, although the applicant fails to address any of the Stanford requirements, in circumstances where the first respondent also seeks a property settlement order and the agreement about the use to which the property of the applicant and first respondent is to be used has come to an end,[14] I am satisfied, for the purposes of this application, that the applicant has established a prima facie case for a property settlement order. 

   [14]Stanford (n 10) at 122 [42]

3. The balance of convenience does not, however, favour the granting of the injunctions for the following reasons:

   a)The Suburb L has been held in the joint names of the respondents since 2003 i.e. well prior to the commencement of the relationship between the applicant and first respondent;

   b)There is no evidence that the respondents have attempted to deal with the Suburb L, despite the applicant and first respondent having separated over 12 months ago;

   c)There is insufficient evidence that either respondent has a current intention to deal with the Suburb L;

   d)The applicant already has an estimated 52% of the assets in her name and the first respondent holds a 50% ownership in the Suburb H property i.e. even on the applicant’s own case she could obtain 60% of the assets without resort to the Suburb L;

   e)The applicant has possession of the former matrimonial home to the exclusion of the first respondent; and

   f)In the event the respondents sold or otherwise dealt with the Suburb L to the detriment of the applicant, they are on notice that such disposition or dealing could be set aside pursuant to s 106B of the Act if necessary.

Anti-suit injunction

1. Again, while not addressed in the applicant’s submissions I note that the power to grant an anti-suit injunction arises either by reason of the court’s implied power to protect the integrity of its own processes or, arguably, pursuant to s 33 of the Act or pursuant to s 114(3) of the Act which empowers a court exercising jurisdiction under the Act to grant an injunction in any case in which it appears to the court to be just or convenient to do so.[15] 

   [15] Teo v Guan (2015) FLC 93-653; CSR Ltd v Cigna Insurance Australia Lth (1997) 189 CLR 345.

2. While the applicable principles in determining an ‘anti-suit injunction’ are not the same as determining a forum non conveniens argument,[16] the High Court in Henry & Henry[17] said:

   … the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth[[18]] sense of those words.

   [16] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390.

   [17] Henry & Henry (1996) 185 CLR 571 at 591.

   [18]Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 555–556.

3. As to purpose of an anti-suit injunction, the High Court in CSR Ltd v Cigna Insurance Australia Ltd said:[19]

   The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. … a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.

   The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.

   (footnotes omitted)

   [19] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391–392.

4. The issue to be determined by the court in Country F is whether or not the sale of the Country F property to a third party should be set aside. That issue is not identical to the issue to be determined in Australia, nor is it part of the same controversy although, if the first respondent is successful in his claim, the Country F property will be relevant to the property proceedings in Australia, a fact conceded by the applicant.

5. A necessary party to the Country F litigation is the third party who lives in Country F. The first respondent also contends that witnesses upon whom he will rely in those proceedings live in Country F.

6. The only basis argued by the applicant in support of the anti-suit injunction was that the Country F proceedings would delay the Australian proceedings. The only evidence about the timing of those proceedings suggests that those proceedings will be heard in August and concluded in October 2020. Accordingly, it seems highly unlikely that the Country F proceedings will delay the Australian proceedings.

7. The evidence does not support the granting of the anti-suit injunction and is not necessary for the protection of this Court’s own processes.

The first respondent’s case

1. The first respondent relied upon a Response, and an affidavit filed 17 April 2020 and annexures 1, 2 and 3. The first respondent applies for sole use and occupation of the Suburb D property to the exclusion of the applicant and an injunction restraining the applicant from dealing with the Suburb D property without first obtaining the first respondent’s written consent.

2. Although not addressed by the first respondent, I note that section 114(2A) of the Act provides a specific power in relation to the sole use of a property, in particular to:

   (a)make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

   (b)if it makes an order or grants an injunction under paragraph (a)--make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

   (i)that residence; or

   (ii)a specified area in which that residence is situated; …

3. The principles applicable in such a case relevantly include the following:

   a)the needs and welfare of the children;

   b)the availability of other accommodation to either party and the suitability of that accommodation;

   c)the financial circumstances, means and needs of each party; and

   d)the hardship which may be occasioned to either party if an order is made or is not made.[20]

   [20]Davis & Davis (1976) FLC 90-062; Rowe & Rowe (1980) FLC 90-895.

4. The applicant and first respondent’s daughter lives with the applicant, and the first respondent spends no time with her currently, although there are proceedings on foot in relation to parenting matters. As already noted, the applicant and child live in the former matrimonial home. The applicant asserts that the Suburb D property is tenanted but no tenancy agreement has been produced. The first respondent is 69 years old and in receipt of a pension from Centrelink. After being excluded from the former matrimonial home in January 2019, he commenced to live with his adult daughter and her family. The first respondent contends that he should be permitted to take up residence of the Suburb D property in circumstances where there is no evidence that it is subject to a residential tenancy and in the current circumstances of COVID-19 where, because of his age, he is more vulnerable to infection particularly in a household including children. There is no evidence about the applicant’s current financial circumstances. I do not know if she is employed but assume for the purposes of the application that she is not. I also note her evidence that she sold the Country F property because she needed funds to repay her parents and pay out a credit card debt. I assume, therefore, that her financial circumstances are limited.   

5. No submissions were made by the applicant in opposition to the order sought by the first respondent for sole use of the Suburb D property or to restrain the first respondent from dealing with the property.

6. As the applicant is living in the former matrimonial home it seems reasonable for the first respondent to take up residence of the Suburb D property. If there is a tenancy agreement already in place, the first respondent’s occupation will take place at the conclusion of the tenancy term. In the absence of an existing tenancy agreement, the first respondent will be permitted to occupy the Suburb D property to the exclusion of the applicant and meet all reasonable outgoings.

7. In relation to the first respondent’s application that the applicant be restrained from dealing with the Suburb D property without his prior written consent or order of the Court, I apply the principles already outlined above and I place particular weight on the applicant’s admission that she sold the Country F property without notice to the first respondent and disposed of the proceeds in circumstances of controversy. Her conduct raises the reasonable prospect that she may dispose of the Suburb D property if not restrained.

Conclusion

1. The applicant sought to restrain the respondents from selling or dealing with a property registered in their joint names. This is a property they have owned for about 17 years and well prior to the applicant and first respondent commencing their relationship. The evidence has not persuaded me that the applicant has established a prima facie case against the second respondent and I am not satisfied that the balance of convenience favours the granting of an injunction against either of the respondents.

2. In relation to the application for an anti-suit injunction against the first respondent, the applicant has not established that the proceedings in Country F are identical to the Australian proceedings or deal with the same controversy. They are not vexatious or oppressive in the Voth sense, nor do they interfere with the Australian proceedings. Indeed, the applicant concedes that if the first respondent succeeds in the Country F proceedings, the Country F property will form part of the property pool relevant to the determination of her property settlement application in Australia. The applicant’s argument that the Australian proceedings will be delayed is not supported by the evidence.

3. The first respondent will be permitted to have sole use and occupation of the Suburb D property subject to the rights of any existing tenant in circumstances where he is a 69 year old pensioner who is living with family while the applicant lives in the former matrimonial home. The circumstances of the current COVID-19 pandemic and the first respondent’s greater vulnerability is a factor relevant to the determination.

4. The applicant will be restrained from dealing with the Suburb D property given her recent sale of the Country F property without notice to the first respondent and dissipation of the funds.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 30 April 2020.

Associate: 

Date:  30.04.20