PUNG & DINH

[2020] FamCA 663

FAMILY COURT OF AUSTRALIA

PUNG & DINH [2020] FamCA 663

FAMILY LAW – INJUNCTIONS – Preservation of Property – Where the applicant de facto wife seeks an injunction restraining the respondent de facto husband from dealing with a real property in his sole name and his financial investments in Australia – Where the respondent de facto husband opposes the granting of an injunction but proffers an undertaking, in similar terms – Where the respondent de facto husband was unable to point to any real prejudice he would suffer if an injunction was granted, rather than an undertaking – Where the injunction is granted in the terms sought.

FAMILY LAW – PROPERTY – Interim – Where the applicant de facto wife seeks orders that the respondent de facto husband pay to her spousal and child maintenance, that he meet certain expenses of her and their children, and for her to have the exclusive use of certain property, on an interim basis – Where orders are made by consent.

FAMILY LAW – CHILDREN – Interim – Where the applicant mother seeks interim parenting orders that the children live with her and spend time with and communicate with the father – Where orders are made by consent.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pung

RESPONDENT: Mr Dinh

FILE NUMBER: BRC 1243 of 2020

DATE DELIVERED: 24 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Green

SOLICITOR FOR THE APPLICANT: Thynne & Macartney

COUNSEL FOR THE RESPONDENT: Mr Hii

SOLICITOR FOR THE RESPONDENT: Ascent Lawyers

Orders

IT IS ORDERED BY CONSENT

1. That until further Order, the Respondent be restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the property situate at and known as B Street, Suburb D in the State of Queensland, Title Reference …, Lot … on Registered Plan … (“B Street”).

2. That until further order, the Respondent Husband pay the accommodation expenses of the Applicant Wife and children at their Airbnb rental property of approximately $3,000 (Three Thousand Dollars) per month.

3. That until further Order the Applicant Mother have exclusive use of the motorcycle 1 registration ...

4. That until further order or as otherwise agreed, the Respondent Father, Mr Dinh (dob: …1964) and the Applicant Mother Ms Pung (dob: …1980) and their servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children, X born … 2005 (male), N born … 2007 (female), and Z born … 2013 (male), from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the children’s names on the Family Law Watchlist until the Court orders its removal.

5. That the children, X (dob: …2005), N (dob: …2007), and Z (dob: ..2013) live with the Applicant Mother.

6. That the child, Z (dob: …2013), spend time and communicate with the Respondent at all such times as are agreed but not less than:

   (a)from 10.00 am to 4.00 pm each Sunday when the Father is in Queensland;

   (b)from end of school (3.00 pm) each Wednesday for 3 hours when the Father is in Queensland; and

   (c)by telephone (or Skype or Face time) each Tuesday, and Thursday with the mother to facilitate the child’s contact with the father.

7. That the parents shall each have responsibility for the day-to-day decisions in relation to the care of the children during the periods that the children are in his/her care respectively.

8. That the children are at liberty to telephone the father at all reasonable times.

9. That pursuant to section 90SG of the Family Law Act the Respondent Father pay to the Applicant Mother by way of urgent spouse maintenance the sum of $600 per week until further order.

10. That the spouse maintenance referred to in Order 9 shall be paid in cash directly to such bank account as nominated by the Applicant Mother.

11. That the first payment of spouse maintenance be made on or before the date that is two business days from the date hereof and thereafter on Wednesday of each week.

12. That by way of security for the spouse maintenance payments ordered to be paid, the husband’s interest in the motorcycle 1 registration … is charged with any and all payments that are not made as and when they fall due (“maintenance arrears”).

13. That pursuant to section 66Q of the Family Law Act the Respondent Father pay to the Applicant Mother by way of child maintenance in respect of the children, namely X (dob: …2005), N (dob: …2007), and Z (dob: …2013), a total of $400 per week.

14. The child maintenance referred to in Order 13 shall be paid to such bank account as nominated by the Applicant Mother.

15. The first payment of child maintenance to be made on or before the date that is two business days from the date hereof and thereafter on Wednesday of each week.

16. That in addition to the amount payable by the Father at Order 13 above, the Father pay all private health insurance premiums, education expenses and the cost of extracurricular activities for the children X (dob: …2005), N (dob: …2007), and Z (dob: …2013) within 24 hours of the applicant producing proof of the expense to the respondent.

IT IS ORDERED UNTIL FURTHER ORDER

1. That until further Order and subject to 18 below, the Respondent be restrained from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with his financial investments in Australia.

   For the purposes of this order, “his financial investments in Australia” shall include:

   (a)Managed fund – MIF – managed by G Limited; Managed Fund – APF – managed by H Company; and Managed fund – J Trust; and

   (b)any real property, intellectual property, monies on bank accounts or other assets held by the Respondent in his name or in which he has a beneficial interest under the terms of a trust (however arising) in Australia and for this purpose “beneficial interest” can include nothing more than the right to the due administration of the trust; and

   (c)real property, intellectual property, monies on bank accounts or other assets owned by an entity in respect of which the Respondent is a director, or in which that entity has a beneficial interest under the terms of a trust (however arising) in Australia and for this purpose “beneficial interest” can include nothing more than the right to the due administration of the trust; and

   (d)investments (however described) made in order to comply with the requirements of his Business Skills (Provisional) (class EB) Business Innovation and Investment (Provisional) (subclass 188C) visa Application ID …, or any subsequent visa, as issued by the Department of Home Affairs.

2. That until further order, the Respondent be restrained from withdrawing, transferring, or otherwise operating upon accounts held with the National Australia Bank or/and accounts held with any other bank or financial institution conducting business in Australia in the Respondent's name, or in his name with another or in the name of any company or other entity, in respect of which the Respondent is authorised or otherwise able to operate, save:

   (a)      for the amount of $600 per week to meet his reasonable expenses; and

   (b)such amount as he is required to draw to pay the Applicant for spouse maintenance and child maintenance,

   (c)amounts agreed between the parties and the applicant will not unreasonably refuse any request for necessary payments by the Respondent upon presentation to the Applicant of supporting invoices or other substantiating documentation.

IT IS FURTHER ORDERED

1. That pursuant to s 68L(2), the interests of the children, X born … 2005, Y born … 2007, Z born … 2013 and W born … 2018, be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children’s interests.

2. That forthwith upon appointment by the said Legal Aid Queensland or otherwise, the Independent Children’s Lawyer shall file a Notice of Address for Service.

3. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

4. That within 48 hours of notification of such appointment each party provide to the Independent Children's Lawyer copies of all relevant documents relied upon by that party.

5. That the matter be adjourned for further hearing in the Judicial Duty List commencing at 10.00 am on Monday, 27 April 2020.

NOTATION

(A)The interim issues remaining for determination at the hearing on 27 April 2020 are:

(i)       The application for sole occupancy; and

(ii)      The application for spousal and child maintenance.

(B)The Applicant Wife requires an interpreter for the hearing on 27 April 2020.

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 Pung & Dinh 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 1243 of 2020

Ms Pung

Applicant

And

Mr Dinh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter came before me in today’s judicial duty list after having been filed very recently in circumstances where the applicant mother (a partner to a former de facto relationship with the respondent father), was arguing for the matter to be heard and determined on an urgent basis.  It was listed through the court registry urgently. The father was served notwithstanding the short notice on which the matter was listed.  He was able to retain solicitors in the matter who have filed a Notice of Address for Service and instructed counsel to appear here today with their client, the respondent father.

2. The parties were represented by their counsel at the call-over of the matters before me this morning at 10.00 o’clock. At that time I was informed that some discussions might assist and some matters might be able to be resolved.  Indeed, as is clear from the orders I have already made by consent, many of the difficult matters that the mother presented as a dispute in the proceedings for the court to hear and determine this morning were able to be resolved with the able assistance to the parties that was obviously given by their solicitors and barristers. 

3. Unfortunately, Mr Dinh, the respondent father took suddenly ill.  It seems from what is being relayed to me, he suffered a stress related anxiety / panic attack, perhaps related to previous illnesses that he has experienced in the past.  He was taken ill to the extent that paramedics were called to the court this morning and he was treated at the scene by them but taken by them to hospital for precautionary check and observation. 

4. In those circumstances some remaining matters that were in dispute between the parties were unable to be finalised in a consensual manner.  In those circumstances, Mr Green of counsel for the mother nevertheless has asked the court to make certain orders and he lists those in paragraphs 18 through to 22 of the draft minute of order that he prepared and handed to the court for the court’s assistance.  I heard submissions from Mr Green and then I heard submissions from Mr Hii in respect of those. 

5. I will jump firstly to paragraph 20.  That is an order where the mother seeks to have the two eldest children, who are known in anglicised terms as [X] and [N], who are 14 and 12 years of age, attend a program of assisted reintroduction of time between them and their father at the commercial private business known as K Services conducted by Ms L and her daughter from premises at Suburb M.  There seems to be a little bit of dispute between the parties as to the nature of the relationship that currently exists between those two young teenagers and their father. The mother says, essentially, that the children are scared of their father and do not want to spend any time with him.  The father, through his counsel, tells the court that his relationship with those children is okay.  His counsel told the court that he neither consents to nor opposes this particular order because he did not get to the point of having his instructions by the time he became ill this morning. 

6. As I see it, whichever of the factual assertions made by the mother or the father about the nature of the relationship between the father and the two children is correct, it is in the father’s interests and indeed more importantly in the interests of the two young teenagers for them to at least commence the process of normalising their relationship with their father as soon as possible, or if it is already normal, at least establishing that it is and getting on with it in a reasonable fashion such that their meaningful relationship which I am satisfied they would already have, is able to continue. 

7. I intend to make the order in the terms sought in the draft handed up by Mr Green but note that it is not an order made by consent. 

8. Similarly, paragraph 21 is an order that is sought for the appointment of an Independent Children’s Lawyer, although that is neither consented to nor opposed for the same reasons by Mr Hii of counsel for the father.  I am persuaded having regard to the allegations that the mother makes against the father in respect of family violence, abuse etc in the past, and the allegation that the children are scared of their father and do not want to spend time with him, that an Independent Children’s Lawyer is warranted having regard to the provisions of the decision of the Full Court in Re K of some years ago.  I will make that order, albeit not by consent, in the usual form for an Independent Children’s Lawyer to be appointed. 

9. Standard orders that are listed in 23 and 22 will also be made. They are orders relating to information being given to the parties about dispute resolution etc.  I have already mentioned to the parties the attraction of child focussed mediation and mediation that might be something that would assist these parties in the very near future. 

10. There are really two orders that Mr Green seeks on behalf of his client, effectively on an urgent interim basis, that Mr Hii of counsel for the father opposes.  They are effectively injunctions relating to the financial aspects of the case. Injunctions that seek to restrain the father from selling, transferring or mortgaging or in any way encumbering or otherwise dealing with his financial investments in Australia and for dealing with and withdrawing funds out of bank accounts that he has in Australia other than in accordance with the orders otherwise made such that requires the payment by him to his former partner, the applicant mother, of $400 per week for her own spousal maintenance, $600 per week for the children, and $600 per week for his own personal expenses akin to that which he has agreed to pay the mother.

11. Mr Green appropriately informed the court, which was confirmed by Mr Hii of Counsel, that Mr Dinh was prepared to give an undertaking to the court in similar terms.  Mr Hii submits that the order in respect of 18(a) is not really necessary because the parties have to maintain the investment of those five million dollars of funds in order to maintain their residency entitlement in Australia pursuant to the visa they are currently on. 

12. I acknowledge the court’s appreciation for the fact that a respondent in a position like Mr Dinh is willing to give an undertaking and, of course, in saying that, I acknowledge also that the court views undertakings as very solemn commitments by parties to the court.  Nevertheless, Mr Green alluded to the fact that he would prefer a court order so that it can be served upon or shown to the organisations who control the managed funds just so that there is that extra safety mechanism that would prevent Mr Dinh from being able to access these funds.  With all due respect to Mr Hii and to Mr Dinh, given the evidence that is before me today, or the lack of it, with respect, I am not totally convinced that simply having the five millions dollars in managed funds that must be maintained in order to maintain residency status in Australia necessarily guarantees that the funds will stay there in circumstances where I cannot be at this point entirely satisfied that staying here in Australia and remaining as a resident is what Mr Dinh himself absolutely wants and seeks to pursue.  If he is prepared to give the undertaking then I do not see any prejudice to him that would be caused by orders being made in the form sought by Mr Green’s client today.

13. The orders ask for the injunction to extend to real property. The parties have purchased a very valuable property in Brisbane which is registered, as I understand, in the sole name of the husband.  There has been some suggestion that he may need to borrow against that in order to fund their support whilst they remain in Australia.  If that is the case, and Mr Dinh is able to readily persuade the applicant and her lawyers of that, it is likely that consent would be able to be achieved in respect of further encumbering or encumbering that property to a certain extent in any event.  I gave Mr Hii the opportunity to point to any particular prejudice that would be caused to his client by the injunction being ordered as opposed to acceptance of the undertaking and, to his credit, Mr Hii said that he could not point to any really at this point in time.  So, in the circumstances, I intend to make orders in terms of those sought in paragraph 18 and 19 on behalf of the mother and note that same are only in place until further order which will be when the matter is heard again on 27 April 2020. At that time, Mr Dinh will be able to file a response and further affidavit evidence and financial evidence that he wishes to file if he intends to continue to maintain his opposition to the furtherance of those injunctions beyond that particular date. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 February 2020.

Associate: 

Date:  17 August 2020