Okien and Nhan

[2017] FamCA 707

FAMILY COURT OF AUSTRALIA

OKIEN & NHAN [2017] FamCA 707

FAMILY LAW – INJUNCTIONS – Where husband appears to defy orders as is evidence from his own former solicitor’s letter to the solicitor for the wife – where restraint on the husband is appropriate having regard to his movement of funds overseas.

Family Law Act 1975 (Cth)

APPLICANT: Ms Okien

RESPONDENT: Mr Nhan

FILE NUMBER: MLC 12009 of 2016

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Sayer Jones

THE RESPONDENT: No appearance

Orders

1. That all outstanding applications (both for final and interim relief) are adjourned to Friday 10 November 2017 at 10.00am.

2. That the husband Mr Nhan born … 1980 is restrained by injunction from leaving the Commonwealth of Australia without further order of this court AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the name of the husband on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watch List indefinitely.

3. That the wife have leave to file and serve:

   (a)       a contempt application;

   (b)      an amended application initiating proceedings; and

   (c)      any affidavits

   upon which she wishes to rely by no later than 4.00pm on 28 September 2017.

4. That the wife have leave to forthwith issue subpoenae returnable at 9.30am on 20 September 2017 before Registrar Jenkins.

5. That the husband be served with any of the documents referred to in paragraph 3 of these orders by:

   (a)email to the husband at his email address shown in the Notice of Address for Service filed 7 September 2017; and

   (b)by prepaid post to his last known address.

6. That if the husband fails to attend the hearing on 10 November 2017, the wife is at liberty to seek the issue for warrant for his arrest.

7. That the conciliation conference on 20 October 2017 is vacated.

8. That the wife’s costs are fixed in the sum of $12,309 on an indemnity basis and the question of the payment of those costs is reserved to 10 November 2017.

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 Okien & Nhan 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 12009 of 2016

Ms Okien

Applicant

And

Mr Nhan

Respondent

REASONS FOR JUDGMENT

1. Today is the return date of a matter that had begun by an urgent application in the case filed on 15 August.  It was listed before me on 17 August, upon which date counsel appeared for the applicant wife, and the then solicitor for the husband appeared.  The issue on that date related to injunctions about two specific things. 

2. The first was that the husband had an investment in a company called B Pty Ltd, and the wife had become aware that he was about to receive about $100,000 from that investment.  The second issue related to a motor vehicle that the wife had become aware had been placed on the market for sale and about which she had knowledge but there was a dispute about value.

3. The solicitor for the husband was not in a position to file any material on that day, having regard to the urgency with which the matter came before the Court, but I was sufficiently concerned about what had happened previously to make a number of orders. 

4. The substance of the background can be seen in the orders and the judgment in June 2017.  The husband had sent $265,000 to the United States of America to a woman by the name of Ms C.  His logic behind the payment was that a debt he had incurred some 20 years ago had been suddenly called up and so he sent virtually all of the assets that the parties then had in liquid form to Ms C to satisfy the debt.

5. On any view, that was a very suspicious transaction.  I made an order that Ms C send the money back.  She has not done so.  The lack of a coherent response as to why all of that occurred and the absence of any return of the money justified the orders I made on 17 August restraining both the husband disposing of the B Pty Ltd money and also the motor car.

6. The solicitor who appeared for the husband on 17 August indicated two very significant things.  The first was that his client had not received the money from B Pty Ltd.  Secondly, the motor vehicle had not been sold.

7. The reasons I gave have been published. I do not intend to repeat them. Suffice to say, the inference must be drawn that the husband had not received the money. I was sufficiently concerned about the fact that he might not receive the money to thwart the orders that I made an order under section 106A of the Family Law Act to enable the registrar to sign the necessary documents to receive the funds and they could then be placed in a trust account as had been anticipated. I specifically restrained the husband from disposing of the funds if he received them and, secondly, from disposing of the motor vehicle injunction.

8. No further material has been filed by the husband since 17 August. 

9. Quite concerning is the fact that on 7 September at 9.37 am, the solicitor who appeared before me on 17 August emailed to the solicitor for the wife an email that reads, “We are instructed to cease acting on behalf of [Mr Nhan] effective immediately.  We shall advise the Court immediately following this email.”  One minute later, an email was sent to the Court indicating that the solicitors were withdrawing and they sought permission not to have to appear today.

10. The email to the wife’s solicitor went on to read, “He has instructed us that he is no longer living in Australia and has no assets of substance in this country.  He has requested us, and we have therefore obliged, to file his notice of address for service, which we attach by way of service.  Our client instructs as to the substantive outstanding queries and in the context of the above information (1) as to the motor vehicle, it has been sold and the funds are with our client.  (2) as to the [B Pty Ltd] funds, they are with our client.  (3) As to the [Ms C] funds and surrounding transactions, he has provided no new instructions.”

11. The wife has some contact within B Pty Ltd and her instructions to her counsel today are that on 30 August she was alerted to the fact that the husband had received the money.  That is consistent with the email dated 7 September.

12. Both of those things indicate that the husband has failed to comply with paragraph 2 of the orders made on 17 August.  The same email indicates that not only has the husband sold the motor vehicle, which is contrary to the injunction I made on 17 August, but he has received the money. 

13. Whilst that may not be necessarily fatal, the problem has been apparent from the words of the email “he has instructed us that he is no longer living in Australia and has no assets of substance in this country”.  From that I understand that he has taken the Ford proceeds, as well as the B Pty Ltd proceeds, out of the country.  It is said that he is currently living in Asia.

14. Two orders were sought by counsel for the wife today. The first was for an airport watch order, and whilst it might be seen that that is making an order after the horse has bolted, the reality is that if the husband returns to Australia, he will have great difficulty leaving because of such an order. The second order sought today was for a warrant for his arrest. Dealing with those in the reverse order, I have declined to order the issue of a warrant on the basis that the Family Law Rules 2004 set out the types of application upon which a warrant can be issued. There is no such application before the Court at the moment, but it is now indicated by counsel by the wife that that application will be filed.

15. The airport watch order is an order that falls within the powers of the Court in section 114(3) of the Family Law Act 1975 (Cth) (“the Act”). Australians value freedom of movement which is a constitutional right and it is a very unusual situation for a court to restrict travel within or without Australia, but this is a case where the extraordinary email was written on instructions. The solicitor filed a notice of address for service on behalf of the husband nominating his new address.

16. Some explanation needs to be given as to why all this has happened in the face of the order of 17 August.  It is not my problem today to deal with that, but no doubt the husband will be conscious of the fact that the wife now seeks to proceed in the future on two bases.  The first relates to a substantive resolution of the outstanding property proceedings.  It may be that there is no property within Australia, but that is not a basis to preclude a court from making an order.  It seems that Ms C had $265,000 and, although that debt seems to have not troubled the husband for some 20 years, the wife can consider her enforcement options.

17. The second matter is that there is a significant amount of money overseas, which is the substantial portion of what the parties own.  That too may become an enforcement issue.  The husband acknowledges that he has that money. 

18. There was a significant dispute about the value of the motor vehicle, but, on one version, it was a very valuable motorcar.  One of the concerns I had in August was that the husband had not fulfilled his discovery obligations by indicating exactly what had occurred.  As such, it seems appropriate in the circumstances, and proper, that an airport watch order be made which, in reality, is an injunction precluding the husband from leaving Australia.

    ORDERS DELIVERED

    
    RECORDED  :  NOT TRANSCRIBED

19. This is an application also for costs of the wife. Section 117 of the Family Law Act provides that, in proceedings under the Act, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. The husband has not attended today, but he filed a notice of address for service yesterday through his solicitors who were clearly aware of the hearing today, because the practitioner who sent the email enclosing the notice of address for service was the practitioner who appeared in person on the husband’s behalf when the matter was set down.

20. On the basis that the husband has also said that he has left the country and taken the assets, it is an example where a court ought apply the principle that each party should pay their own costs.  The Court is justified making an order for costs on the basis that the wife has come to pursue her legal rights in circumstances where the husband has taken the law into his own hands.  In those circumstances, the wife is entitled to costs. 

21. The question is whether an order for costs should be made, and before making such an order, the Court must consider the matters in section 117(2A) of the Act. That requires the Court to consider the financial circumstances of the parties. I have read the financial statement of the wife and it would be fair to say that she is not in a strong position financially and this is costing her money in circumstances where the husband should have cooperated. I do not have to trouble myself about the husband’s financial circumstances, because he acknowledges that he has in excess of $100,000 in his hands.

22. In terms of the conduct of the parties as litigants, it is hard to imagine a better example of a litigant who has effectively thumbed his nose at the Court.  He may have some plausible explanation for all of this, but one wonders what it could be when only yesterday he instructs his solicitors to tell the Court that, effectively, he is not intending to comply with the orders that were made on 17 August. 

23. There are no Legal Aid considerations here; and the husband has been wholly unsuccessful.

24. In my view, this is a case where an order for costs should be made, however what is sought here is costs on an indemnity basis.  The Court cannot make an order for indemnity costs, first, unless there is a cost agreement tendered, but, secondly, to make such an order, the Court has to depart in a very significant way from the rule that each party would pay costs on the scale.  Here, what is sought are fees that may or may not be in excess of the scale and to what extent, I am unable to calculate at the moment, but what I propose to do is to indicate that unless there is some plausible explanation from the husband, I would be likely to make an order for indemnity costs here having regard to the very circumstances that I have already outlined.  This is one classic example where the husband has not taken due responsibility in relation to the orders and the litigation. 

25. On that basis, I will reserve the issue of the payment of the wife’s costs and the fixing of the sum to the return date.  Reserve the question of the quantum of the payment to 10 November 2017. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 September 2017.

Associate: 

Date:  14 September 2017