Rue and Web

[2010] FamCA 140

FAMILY COURT OF AUSTRALIA

RUE & WEB [2010] FamCA 140

FAMILY LAW – PROPERTY – injunction to restrain departure from Commonwealth of Australia – injunction to restrain dealing with real property – ex-parte application

Family Law Act 1975 (Cth)

Anstis & Anstis (2000) FLC 93-013
Sieling & Sieling (1979) FLC 90-627
Ansah & Ansah (1997) Fam138

APPLICANT WIFE: Ms Rue

RESPONDENT HUSBAND: Mr Web

FILE NUMBER: MLC 2470 of 2009

DATE DELIVERED: 11 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 11 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Dunlop

SOLICITOR FOR THE APPLICANT: Lincolns Lawyers & Cons.

THE RESPONDENT: Ex-parte application

This application coming on before this Court without notice to the respondent husband AND UPON HEARING Mr. Dunlop of counsel for the applicant wife AND UPON THE UNDERTAKING of the wife that she will pay as directed by the court to any person restrained or affected by the restraints imposed by the injunction granted today, or of any continuation thereof, such compensation as the court may in its discretion determine. 

Orders

1. That until further order the husband be and is hereby restrained by himself, his servants and agents and both personally and in his capacity as a share holder, director and secretary of :

   (a)B Pty. Ltd.;  and

   (b)BE Pty. Ltd.;

   from selling, disposing of, assigning or, subject to paragraph (2) hereof, in any way dealing with the assets of :

   (c)the B Trust;  and

   (d)the T Trust;

   and without limiting the generality of this order, with :

   (e)N property in the State of Victoria; 

   (f)M property in the State of Victoria;

   (g)NAB account …652;  and

   (h)NAB account …348. 

2. That notwithstanding paragraph (1) hereof, until further order the husband may, personally and in his capacity as a director, secretary and share holder in B Pty. Ltd. and BE Pty. Ltd., authorise expenditure on routine maintenance and the payment of routine outgoings, including mortgage repayments in respect of the real properties referred to in paragraph (1)(e) and (f) hereof. 

3. That by 4:00 pm. on Friday 12 February, 2010 the wife file and serve an amended application setting out with specificity the interim orders sought by her. 

4. That as soon as practicable, the wife serve the husband with the following documents :

   (a)sealed copy of this order;

   (b)initiating application filed 11 February, 2010;

   (c)affidavit affirmed by the wife filed 11 February, 2010; 

   (d)statement of financial circumstances affirmed by the wife filed 11 February, 2010;  and

   (e)amended application filed pursuant to paragraph (3) hereof.

5. That if the husband opposes an order sought by the wife in the amended application, he file and serve a response, statement of financial circumstances and all affidavits on which he intends to rely by 24 February, 2010. 

6. That the further hearing of all extant applications be adjourned to 10:00 am. on 3 March, 2010.

7. That as soon as practicable the wife serve a sealed copy of this order on B Pty. Ltd. and BE Pty. Ltd. by sending it by ordinary pre-paid post addressed to the registered office of each of the companies.

8. That the reasons for judgment this day be transcribed and copies made available to the parties.

9. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Rue &Web is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2470 of 2009

MS RUE

Applicant Wife

And

MR WEB

Respondent Husband

REASONS FOR JUDGMENT

1. The wife filed an application this morning, which has been listed before the court ex-parte. In it she sought final property orders pursuant to section 79 of the Family Law Act 1975 and to be excused from providing particulars of her claim until discovery is completed. By way of interim orders, she sought that the husband be restrained, until further order, from departing or attempting to depart from Australia. She also sought that he be restrained from repatriating any moneys derived from the parties’ properties and assets in Australia out of the Commonwealth of Australia and an order pursuant to section 106A of the Family Law Act 1975. I cannot say why the last order was included, given the other relief sought.

2. In support of her application, the wife filed an affidavit, affirmed on 9 February 2010 and filed this morning.  Short additional evidence was given this morning.

3. The wife is 46 and an Australian citizen.  The husband is also 46 and a Chinese national.  When the wife affirmed her affidavit, she described him as having permanent residency here in Australia.  Her affirmed evidence today is of advice from a named friend, which suggests he may have become an Australian citizen at a ceremony on Australia Day 2010. 

4. The parties married in 1994 in China and came to live in Australia.  They separated on 21 February 2006, and were divorced on 28 April 2009.  They have a child, F, also called …, who was born in April 1995, and is in year 9 at a private school.  She lives with the mother. 

5. In the course of the marriage, very significant sums were remitted by the parties to Australia from China, totalling $AU 3,771,000.  Nearly $850,000 came from the wife and the balance from the husband. 

6. In Australia, the parties have bought and sold real estate and operated businesses.  Three pieces of real estate are extant.  One is a commercial property at unit N, which the parties bought in 1998 for $440,000.  That property is owned by the B Trust, and the trustee is B Pty. Ltd.  The husband and wife are directors.  The husband is the only shareholder and secretary.  The beneficiaries of the trust are the husband and the wife. 

7. The parties acquired another real property at M in 2001 for $2,560,000, borrowing $1,800,000 secured by mortgage.  That property is owned by the T Trust.  The trustee is BE Pty. Ltd.  The husband and wife are the directors.  The husband is the only shareholder and secretary.  The beneficiaries of the trust are the husband, wife and their daughter.

8. A third property is registered in the wife’s name, being a unit in L.  That was bought in 1998 for $188,500 on a 10 per cent deposit. 

9. The counsel valuation of the three real properties I have described is, according to the wife, $4,331,000.  There are loans of some $1,521,111.  The rent from the properties is $18,528 per month, and the mortgage payments are now $8,000 per month.

10. Until recently, the parties owned real property at K.  That was sold on 26 June 2009, after their divorce, for $2,930,000.  Until then, their total monthly mortgage commitment was $12,680.  The parties split the net balance after payment of encumbrances and the costs of sale.  The husband took a million dollars;  the wife took $1,022,957.  The wife’s evidence is that after the sale, the husband asked for his passport, which was in her possession, and a ring which had been bought in Hong Kong for, she says, $AU 227,000.  He told her to keep her jewellery, to which she attributes a value of three and a half thousand dollars.  She subsequently delivered the ring to the husband and has not spoken with him since.  She and F are presently living in rented premises. 

11. During the marriage, the wife deposes, the husband spent much of the time in China.  Between 1997 and 1999 he worked in China and came back to Australia once or twice a year, staying around two to three weeks each time.  From 1999 to early 2006, he worked in China and came back only once a year, but staying longer, for two to three months each time.  In February or March 2006, the husband left Australia for about 22 months and did not come back until January 2008.  The parties agreed to separate on 21 February, 2006, around the time of his departure.  The husband stayed in Australia for some three weeks in January 2008, and then left again for China.  He returned on 3 March, 2008. 

12. The husband’s periods in China have meant he has had little involvement in his daughter’s day-to-day life.  She has not seen him since June 2009.

13. The wife’s evidence is of being told by the husband in March 2008 that he intended to stay in Australia until he fulfilled the residency requirement to become an Australian citizen.  He would then leave Australia and return permanently to China.  He told her that he wanted Australian citizenship to ensure that if there were any instability in China, he would be able to return here.  He also wanted to finalise their divorce and obtain his share from a property settlement.  It was after his return that the property in K was sold. 

14. For at least a year, the wife has been trying to persuade the husband, and her lawyers to persuade his lawyers, to engage with the practical realities of sorting out their property issues.  The husband told the wife the name of his lawyer in January 2009, prior to the divorce application being filed.  Countless letters have been written by the wife’s lawyers to the husband’s lawyers, with copies sent to the husband at the address to which the wife delivered the diamond ring, which is in N.  There has been at least one written reply from the husband’s solicitor, referred to in a letter of the wife’s solicitors, dated 21 August 2009.  In that letter the solicitor confirmed acting for the husband and threatened to take the wife’s solicitor to the Ethics Committee on some unspecified ground or grounds.  On the material before me, the wife’s solicitors have been assiduous in maintaining a courteous discourse, despite a continuing failure by the husband’s solicitors to provide any genuine response.

15. On 14 January 2010, the husband’s solicitors wrote a letter to the wife’s solicitors, forwarding a cancellation of the power of attorney from B Pty. Ltd. to the wife.  That was signed by the husband as a director.  The letter makes no reference to earlier correspondence. 

16. The mortgage payments came out of a bank account in the name of the trustee of the T Trust until recently.  In January this year, the bank advised the wife that the husband had withdrawn the wife’s authority to access that account.  She is thus not able to draw on funds to support herself and her daughter, nor can the mortgage payments be made.  She has been responsible for making the mortgage payments for a long time, and making them from that account, into which rent is paid.  The wife made the last mortgage payment of around $8,000 from her own funds.  That is a matter that will need to be taken into account. 

17. The wife deposed to learning in 2001 that the husband was working with a Taiwanese partner to operate a business in China;  it is her evidence that the owner of that business is the husband’s brother.  She also deposed that after separation, she discovered that the husband had sent $118,694 to China in 2005 without any advice to her. 

18. The wife has been a businesswoman in her own right, and a successful one.  This is not a case where a wife knows little of the financial affairs of the family. 

19. Most of the parties’ assets are real property in Australia.  Real property can be sold or assigned or leased but it cannot be removed from Australia.  The wife’s evidence is of suspicions based partly on speculation and partly on accounts of a third party.  As I said to counsel in the course of discussion, she would not get to the barrier to obtain an injunction restraining the husband, until further order, from leaving Australia.  I have referred counsel to the decision of Mullane J. in Anstis & Anstis (2000) FLC 93-013; there is no point in rehearsing other authorities. The reality is that the onus is on the wife to establish that such an order would be warranted. Courts do not lightly exercise a power to restrain a party’s freedom to leave the jurisdiction; to do so is a serious constraint.

20. The wife further faces the hurdle that this is an ex-parte application.  It needs to be said that an ex-parte injunction is made only in what might be called, in colloquial terms, an emergency, when a court decides that, in the interests of justice, immediate intervention is required.  See Sieling & Sieling (1979) FLC 90-627; Ansah & Ansah (1997) Fam138. An ex-parte order is, by its nature, an anomaly, having regard to the common law system and its reliance on the importance of natural justice and procedural fairness.

21. The court needs to take into account the nature and imminence of the alleged risk, potential hardship or prejudice to both sides, the consequences of delay and the capacity of the applicant to provide an undertaking as to damages.  I understand the wife is prepared to provide such an undertaking. 

22. I am satisfied in all the circumstances that the court should allow the wife to amend her application and make an oral application for an order to restrain the husband, personally and as a director of the two companies, from selling, assigning, transferring or in any other way dealing with the real property, and from dealing with either of the two trust bank accounts.  Exceptions will relate to mortgage payments, routine maintenance and routine outgoings. 

23. I add that the court has said on occasions that having a child in Australia is a powerful incentive for a parent not to leave the jurisdiction.  The evidence before me is that although the father is in Melbourne, he has not seen his daughter for eight months.  If that is correct, it does not seem likely that it is a tie which binds him to this country. 

24. The adjourned date will be 3 March at 10:00 am.  Orders will provide for service of the documents on the husband and the filing of material by him. 

I certify that the preceding
24  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the         day of         2010.

…………………………………………
Associate.