Shen and Shen

[2009] FamCA 472

FAMILY COURT OF AUSTRALIA

SHEN & SHEN [2009] FamCA 472

FAMILY LAW – INJUNCTIONS – Preservation of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Shen

RESPONDENT: Ms Shen

FILE NUMBER: SYC 4250 of 2007

DATE DELIVERED: 15 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 15 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Broun, QC with Ms Winfield

SOLICITOR FOR THE APPLICANT: William Chan & Co

FOR THE RESPONDENT: No appearance

Orders

IT IS NOTED

1. The Court is satisfied that the wife has been personally served with the Application and material in support yet she has not appeared at Court.

IT IS ORDERED

1. That pending further order the wife is restrained from selling, disposing of, further encumbering or otherwise dealing with the former matrimonial home situate at and known as H, New South Wales.

2. That the wife file and serve a Response, a Financial Statement or any affidavits not later than 15 May 2009.

3. That both parties have leave to re-list these proceedings on short notice.

4. That a sealed copy of these orders be served personally on the wife as soon as possible.

5. That the husband’s costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4250  of 2007

MR SHEN

Applicant

And

MS SHEN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings brought by Mr Shen, to whom for convenience I shall refer as “the husband”.  The respondent to the application is Mr Shen’s former wife, Ms Shen to whom for convenience I shall refer as “the wife”. 

2. The husband has asked the Court for an order to the effect that pending the resolution of the proceedings the wife be restrained from selling, disposing of, or further encumbering, or otherwise alienating, the former matrimonial home known as H property, New South Wales.  The husband filed his initiating application in which that interlocutory order was sought on 6 March 2009.  But the application seeks in its substantive part an order to the effect that pursuant to s 79A of the Act by reason of a miscarriage of justice some earlier consent orders, being substantive consent property orders between the parties, be set aside. 

3. The husband arranged for personal service of his application on the wife and I am satisfied, having read an affidavit of service by hand, that the application and the material in support was personally served on the wife on 16 March 2009 in the afternoon.  Yet there has been no appearance by the wife at Court today.  

4. The brief background matters are that the husband was born in September 1965 and the wife was born in October 1962.  They were married in June 1987.  There are two children of the marriage, a daughter who was born in February 1992 and a son who was born in October 1996.  The parties have purchased and in fact become the owners of quite an extensive number of properties.  The husband is seeking to set aside those substantive consent property orders in circumstances where he says at the time of the making of those orders the wife had not disclosed all the property to him so that he was not in a position to be able to make a proper decision and was not in a proper position for the Court to have found that what the parties arranged under those consent orders was a just and equitable order as required by s 79(2) of the Act.  So the husband says in those circumstances the substantive orders ought to be set aside. 

5. He is concerned that the wife could affect the Court's ability ultimately to make a proper order if she was to encumber or deal with the property the subject of the injunction.  So the husband had lodged caveats against a number of properties, including that property.  Those caveats I understand are the subject of lapsing notices.  The husband wrote to the wife's solicitors on 4 February this year asking the wife to give him an undertaking not to encumber, alienate or otherwise deal with the property the subject of this application.  He has heard nothing at all from the wife or from her solicitors. 

6. It is in those circumstances that he comes to Court and says on balance of convenience the Court ought to put in place an order such as that sought by him.  That application, as I have said, is unopposed because there is no appearance by the wife, let alone any response by her to that application. 

7. So I infer in those circumstances that there is no prejudice to the wife if the Court is to go ahead and make the order sought.  In those circumstances, it seems to me it is appropriate for the Court to exercise its discretion and make the order as sought by the husband.  

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston 

Associate:     

Date:              4 June 2009