Tian and Xiao (No. 2)

[2018] FamCA 1084

FAMILY COURT OF AUSTRALIA

TIAN & XIAO (NO. 2) [2018] FamCA 1084

FAMILY LAW – ENFORCEMENT – Application for enforcement – Where new orders made under s 79A – Where a party has defaulted on orders without fault – Where varying an order is just and equitable.

FAMILY LAW – ENFORCEMENT – Injunctive relief for enforcement of final orders – Where orders made under s 114 – Where evidence suggests a party may not comply with final orders – where the injunction sought by a party places an insignificant burden on the other party.

Family Law Act 1975 (Cth) ss 79A, 114

APPLICANT: Ms Tian

RESPONDENT: Mr Xiao

FILE NUMBER: CAC 1250 of 2015

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. Order 4(b), and to the extent that Order 5 relates to 4(b), Order 5 of the Orders of 10 October 2018 are discharged. 

2. Order 6 is amended so as to read:

   6.Within a period of six months of the date of these orders the Husband pay to the Wife the sum of $93,500 AUD together with all interests accrued in accordance with these orders into an account directed by her in writing. 

3. That in the event of the respondent, at any time, retaining a conveyancing solicitor to act on his behalf in relation to the sale of the S Town property, the respondent shall within 24 hours of retaining a solicitor provide written notice to the applicant of the name and contact details of this person.

4. That the respondent is restrained from applying to the mortgagor of the S Town property or to any other financial institution in relation to the S Town property to refinance the mortgage or to withdraw funds from the mortgage or from conducting any other dealings in relation to the finances associated with the S Town property.

5. That upon the completion of the sale of the S Town property; the proceeds of the sale be placed in trust with the conveyancing solicitor who acted for the respondent or if no such solicitor is retained, then the real estate agency that sold the property and that the proceeds of the sale be applied as follows:

   a.Discharge any mortgage outstanding with a financial institution on the property;

   b.Pay the expenses of the sale of the property;

   c.Pay the applicant wife the sum of $93,500; and

   d.The balance to the husband.

6. That the parties cause a copy of these Orders to be provided to any real estate agent/agency conducting the sale of the S Town property and any conveyancing solicitor acting for the respondent in the sale of the S Town property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tian & Xiao (No. 2) 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 CANBERRA

FILE NUMBER: CAC 1250 of 2015

Ms Tian

Applicant

And

Mr Xiao

Respondent

REASONS FOR JUDGMENT

1. The background to the Application in a Case, filed by the Wife on 20 November 2018, is that final orders in relation to the property of the parties was delivered on 10 October 2018.  Those proceedings were complicated by the parties each being Chinese nationals and by property being held in China as well as Australia.

2. The Wife, by her Application in a Case, seeks orders related to the implementation and enforcement of those orders.  She no longer seeks the specific orders sought in that Application in a Case but rather seeks orders set out by exhibit W2, as set out below. 

   1.That the Court declares that the respondent immediately owes the applicant wife an amount of $7,000.00.

   2.That within 14 days of the date of these Orders, the respondent pay the applicant $7,000.00 in full by way of electronic transfer to the following Commonwealth Bank account in the name of Ms Tian and account details: BSB no: … and Account no: …41.

   3.That in the event of the respondent, at any time, retaining a conveyancing solicitor to act on his behalf in relation to the sale of the [S Town] property, the respondent shall within 24 hours of retaining a solicitor provide written notice to the applicant of the name and contact details of this person. 

   4.That the respondent is restrained from applying to the mortgagor of the [S Town] property or to any other financial institution in relation to the [S Town] property to refinance the mortgage or to withdraw funds from the mortgage or from conducting any other dealings in relation to the finances associated with the [S Town] property.

   5.That upon the completion of the sale of the [S Town] property; the proceeds of the sale be placed in trust with the conveyancing solicitor who acted for the respondent or if no such solicitor is retained, then the real estate agency that sold the property and that the proceeds of the sale be applied as follows:

   a.discharge any mortgage outstanding with a financial institution on the property;

   b.pay the expenses of the sale of the property;

   c.pay the applicant wife the sum of $90,500; and

   d.the balance to the husband.

   6.That the parties cause a copy of these Orders to be provided to any real estate agent/agency conducting the sale of the [S Town] property and any conveyancing solicitor acting for the respondent in the sale of the [S Town] property.

3. By his Response filed 10 December 2018 (the day before the interim hearing in the matter) the Husband seeks the following orders:

   1.Both parties continue following the left orders of 10 of Oct of 2018 at matter CAC1250/2015 except Order Paragraph 4.b ([Motor vehicle 2] Registration number …of ACT.  This vehicle had been sold before 12 Oct of 2017 (final hearing date), it doesn’t exist since 11 of Oct of 2017);

   2.The Application Wife Mrs Tian signs legal law documents for divorcing of between Application and Respondent in China Government Marriage registration department.  Or go and apply Divorce to China marriage Government with current orders directly as soon as possible.

   3.Withdraw children [X] and [Y] from Family Law Watch list immediately.

   4.Application [Ms Tian] withdraw the CAVEAT of Registered proprietor of lodgement at Section …, Block … district [S Town].

4. The final orders for property provided, amongst other matters, firstly for the transfer of property from the Husband to the Wife including a Motor vehicle 2, and secondly for the payment of the sum of $90,500 by the Husband to the Wife within a period of six months of the orders (such time frame not having expired as yet). 

5. The first aspect of the orders sought by the Wife relates to the transfer of the Motor vehicle 2.  The Wife seeks that the Husband make a cash payment of $7,000 in lieu of the transfer of the Motor vehicle 2, the car not being in the possession of the Husband, having previously been sold.  The Husband points to material to indicate that the car was sold prior to the conduct of the final hearing.  The Wife seeks that in lieu of the car she receive the value placed on the balance sheet for the car of $7,000.  The Husband says, supported by documentary evidence, that he sold the car for $3,000.  The Wife says that if she is not to receive the $7,000 value assigned on the balance sheet, then she should receive the amount of $3,000, being the proceeds of the sale.  The Husband says that if any payment is made it should not exceed the $3,000. 

6. It may be observed that the husband is currently in default of Order 4 of the orders of 10 October 2018 that related to the transfer of the vehicle. It appears that it is a default without fault, but a default in compliance with the orders nonetheless. Section 79A of the Family Law Act 1975 provides that where there is a default in carrying out an obligation imposed on a person by an order and in the circumstances that have arisen as a result of that default mean that it is just and equitable to vary the order than the court is empowered to do so.  These circumstances fall into that category.  They justify a discharge of the order for the transfer of the Motor vehicle 2 and in lieu of that transfer an obligation to pay the value as received by the Husband for the vehicle.  In terms of the mechanics of how that is to be paid, it is appropriate for the amount to be added to the amount that was deferred for a period of six months.

7. The second matter sought by the Wife is the obtaining of orders surrounding the sale of husband's property at S Town.  That property is currently for sale.  It is the source from which the Wife's deferred payment will be made.  The sale is necessary to make the payment.

8. The Wife is, however, concerned at the prospect of the property being disposed of without her receiving her entitlement.

9. Fuelling these concerns are a number of matters recorded by the Wife in her affidavit.  At paragraph 24 she says that on 10 October 2018, being the day of the delivery of the final orders, the Husband threatened not to give her the money provided for in the orders and threatened to take revenge upon her.  She says that after this date he also threatened to kill her and that on 22 October 2018 threatened suicide and to kill her.  The Wife subsequently obtained a family violence order which she says was followed by a further threat of revenge on the part of the Husband.

10. Of particular salience to the orders sought in respect of the S Town property the Wife says that on 5 November 2018 she was told by a mutual friend of the parties, Mr T, that the Husband had told him that he would quickly sell the S Town property and send the money to China.  On 6 November 2018 the Wife listened to a telephone call taking place between Mr T and the Husband.  She says that in that telephone call the Husband repeated the assertion that it was his intention to remove the money to China.

11. The Wife has subsequently obtained a caveat on the property and says she is prepared to withdraw the caveat if she has court orders to protect her interests.  She says that she needed a caveat in the gap of time before the matter came before the Court. 

12. To effect the protection that she seeks, the Wife seeks a relatively benign set of orders that will not interfere with the sale of the property.  They involve the identification of the agent and solicitor involved with the sale, a restraint on further mortgaging the property, an obligation to place the proceeds into a trust account such that the expenses of sale are paid, the mortgage is discharged, there is compliance with the Court's orders by a payment to the Wife and the balance to the Husband.  She further seeks an order that she be permitted to provide the orders to the real estate agent and solicitor.  That is, the orders may be seen to be protective without interfering in a burdensome matter upon the Husband.

13. The Husband resists the making of the orders.  He notes compliance with the orders to date (save with respect to the Motor vehicle 2 which, as I have noted earlier, is not a matter in which fault ought to be ascribed to him).  He notes that the payment is not due for a further period of five months and therefore that in no sense is he in breach of the major order.  He says that he will comply with the obligations of the order and denies that he has either threatened the Wife or refused to comply with the orders. 

14. The power to grant this injunctive relief is contained at s 114 of the Family Law Act 1975.  The injunctive powers within that provision are conditioned either on the answering of the question as to whether it is “proper” with respect to the matter to which the proceeds relate to make the injunction, or is otherwise conditioned upon whether it is just or convenient to grant the injunction.  Which of those two provisions applies is dependent upon whether the matter falls within s 41E of the definition of matrimonial cause contained within the Act.  The test is one of “proper” if it is in circumstances arising out of the matrimonial relationship.  That appears to be the case here.  I would, however, note that in any event injunctive relief would fall within either of the two formulations. 

15. Here the risk spoken of by the Wife is significant and the burden imposed upon the Husband is insignificant.  The balance of convenience rests with the granting of the injunction and it will be granted.

16. By his response the Husband also sought orders that the Wife assist in procuring a divorce in China which would be in aid of the disposal of property within China and thereby potentially in aid of his compliance with his obligations under the October orders.  He also seeks that the parties’ children be removed from the Watchlist so that they can visit family in China.

17. These are two matters of potential importance, but as yet they are insufficiently supported by evidence presented by the Husband.  I have already made orders to adjourn those aspects of the proceedings to give the Husband the opportunity to supply adequate evidence to deal with the matters that he raises.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 December 2018.

Associate:

Date:  18 December 2018