WEI & QUEXING

[2018] FamCA 421

FAMILY COURT OF AUSTRALIA

WEI & QUEXING [2018] FamCA 421

INJUNCTIONS – Where the husband seeks to discharge orders restricting his overseas travel and to remove himself from the airport watch list – Where the husband is at liberty to travel subject to compliance with existing orders – Whether there should be restrictions on the husband's freedom to travel overseas – Application of the husband dismissed.

PROPERTY – INTERIM – Where the wife seeks to be appointed as trustee for sale of jointly owned property in accordance with existing orders – Whether there should there be a sale of property on the basis that the husband defaulted on mortgage contributions – Where there is no sufficient evidence that the husband defaulted – Application of the wife dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wei

RESPONDENT: Ms Quexing

FILE NUMBER: SYC 6426 of 2015

DATE DELIVERED: 7 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 23 and 31 May 2018

REPRESENTATION

THE APPLICANT: Mr Wei (on 23 May 2018) and Mr Jackson, Counsel (on 31 May 2018)

SOLICITOR FOR THE APPLICANT: JC Legal Practice

SOLICITOR FOR THE RESPONDENT: Ms de Saxe (on 23 May 2018) and Ms La Cava (on 31 May 2018)

SOLICITOR FOR THE RESPONDENT: De Saxe La Cava O’Neill

Orders

1. The Application in a Case filed by the husband on 3 April 2018 is dismissed.

2. The Response to an Application in a Case filed by the wife on 21 May 2018 is dismissed.

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 Wei& Quexing 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 SYDNEY

FILE NUMBER: SYC 6426  of 2015

Mr Wei

Applicant

And

Ms Quexing

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Mr Wei and Ms Quexing are parties to litigation concerning financial issues.  The wife filed an Initiating Application on 29 September 2015 and the proceedings still await the allocation of a first day listing in the docket of a judge.

2. On 3 April 2018 the husband filed an Application in a Case, whereby he sought the following orders:

   1.That Order 5 of the Orders made 30 September 2015 to be discharged.

   2.That Order 4 of the Orders made 5 September 2016 to be discharged.

   3.That the Respondent or the Respondent’s solicitor to inform Australian Federal Police and other relevant Commonwealth Authorities to remove the name of the Husband [Mr Wei] (date of birth … 1982) from Watch List in operation at all Australian International Arrival and Departure Points within 7 days from the date of these orders.

   4.        Costs.

3. On 21 May 2018 the wife filed a Response to an Application in a Case, whereby she sought the following orders:

   1.That the application in a case filed 3 April 2108 be dismissed.

   2.That the wife be appointed as the trustee for sale of the property known as and situated at [B Street, Suburb C] (“the [Suburb C] property”), on the terms set out in annexure 1 to these orders.

   3.That the wife be released from the restraint imposed pursuant to order 5 of the orders of 5 September 2016.

   4.That upon settlement of the sale of the [Suburb C] property, the proceedings of sale shall be applied as follows:

   4.1In payment of real estate agent’s commission, legal costs and disbursements incurred on sale;

   4.2In payment of the amount necessary to discharge the mortgage held by Westpac Banking Corporation over the property;

   4.3In payment of the amount necessary to pay to Westpac Banking Corporation the amount of any arrears in respect of the mortgage to Westpac Banking Corporation over the [Suburb D] property; and

   4.4To pay the balance into the home loan amount in respect of the [Suburb D] property.

4. During the interim hearing on 31 May 2018, the wife indicated that she would be prepared to substitute the property E Street, Suburb F in her proposed orders 2 and 4.  This property accommodates the parties’ mobile telephone and tablet accessory business known as H Pty Ltd.

Background

1. The husband and the wife, who are aged 36 and 34 respectively, married in 2010 and separated on 28 August 2015.  They have two children, G and J, who are seven and four years of age.

2. The husband and the wife arrived in Australia from China in 2006.  The husband became an Australian citizen in 2014 and, according to the Case Summary Document submitted on his behalf, he has since required a visa to visit China.

3. The parties own three real properties, being:

   ·K Street, Suburb D

   ·B Street, Suburb C

   ·E Street, Suburb F.

4. The wife and the children occupy the Suburb D property.  Since February 2016 the husband has lived in the Suburb C property.  The husband deposed that his parents have also lived at this property for an unspecified period.  As noted, the Suburb F property accommodates the parties’ business known as H Pty Ltd.

5. The husband’s parents lodged a caveat on the title to the Suburb F property in November 2017.  The wife submitted a Lapsing Notice in relation to this caveat in late May 2018.

6. In summary the issues for determination at the interim hearing were as follows:

   1.should there be any restrictions on the husband’s freedom to travel overseas?

   2.should there be a sale of the Suburb C or Suburb F properties, on the basis that the husband has defaulted on his obligation to make his required contribution to the mortgages on the title to the Suburb D and Suburb C properties?

7. On 30 September 2015 the following Orders were made inter alia:

   4.8Until further Order, that the husband (whether by himself, his servants or agents) be restrained from leaving Australia and/or removing any assets from Australia.

   5.I order that the Australian Federal Police and other relevant Commonwealth Authorities forthwith enter details of the husband into the Watch List in operation at all Australian international arrival and departure points.

8. Order 4.8 was varied on 5 September 2016 so as to provide as follows:

   4.That Order 4.8 of the Orders made on 30 September 2015 be varied by the addition of these words:

   “PROVIDED THAT the Husband be permitted to travel overseas on condition that he provide as security his right title and interest in the properties located at [K Street, Suburb D] and [E Street, Suburb F] in the state of New South Wales (“the [Suburb D] property” and “the [Suburb F] property”) on these conditions:

   4.1the Husband to provide to the wife a copy of his itinerary at least 14 days prior to travel;

   4.2the husband travel for no more than 30 days unless otherwise agreed;

   4.3at least 14 days prior to travel, the Husband provide to the Wife’s solicitor a signed transfer in relation to the [Suburb D] property and a signed transfer in relation to the [Suburb F] property.

   4.4if the Husband fails to return to the Commonwealth of Australia more than 7 days after the date of return set out in the itinerary, the Wife is released from the restraint under Order 5 and at liberty to sign the transfers as the transferee and thereafter to deal with the properties as her own.

9. On 5 September 2016 the following interim Orders were made:

   8.That the Wife pay to the bank into account number …92 an amount of $300 per week and the Husband pay to the bank the balance being the amount required to be paid under the mortgages over the [Suburb D] property by the bank from time to time.

   9.        That if the Husband fails to comply with Orders 6, 7 or 8

   9.1      The Wife may give him notice by email of any default;

   9.2The Husband must rectify the default within seven (7) days of receiving such notice; or

   9.3If the Husband fails to rectify the default within seven (7) days of receiving such notice, the provisions of Order 10 will have effect.

   10.THAT in the event of the husband’s default pursuant to Order 9.3 hereof:-

   10.1the wife be appointed as the trustee for the sale of the property known as and situated at [B Street, Suburb C], on the terms set out in Annexure “A” to these Orders; and

   10.2the Wife be released from the restraint imposed under Order 5.

   11.THAT upon settlement of the sale of the [Suburb C] property, the proceeds of sale shall be applied as follows:

   11.1In payment of real estate agent’s commissions, legal costs and disbursements incurred on sale;

   11.2In payment of the amount necessary to discharge the mortgage held by Westpac Banking Corporation over the property;

   11.3In payment of the amount necessary to pay to Westpac Banking Corporation the amount of any arrears in respect of the mortgage to Westpac Banking Corporation over the [Suburb D] property; and

   11.4To pay the balance into the home loan amount [sic] in respect of the [Suburb D] property.

Consideration

1.  Husband’s overseas travel

1. The husband deposed that he has “not travelled overseas since 30 September 2015, which is now more than two years.”  The husband stated in his affidavit of 27 March 2018:

   9.As the substantive proceedings will not be listed for final hearing for another two years, I believe that it is unfair, unreasonable and prejudicial to me to restrict my travel and restrain my personal liberty in this way for the purpose of the current court proceedings in Family Court.

2. In his affidavit of 22 May 2018 the husband deposed as follows:

   The husband is an Australian citizen.  Before visiting China, the husband has to apply for a tourist visa and will not be allowed to stay in China for more than three months.  It has been three years since the Order was issued, since then the husband couldn’t go back to China either for business purpose or to reunite with his parents or relatives …

3. On 9 February 2018 the husband’s solicitor wrote to the wife’s lawyer and requested her consent for a trip of up to six weeks’ duration to China, subject to the conditions imposed by the Orders concerning the Suburb D property.  The wife’s solicitor replied on 27 February 2018, indicating that she refused her consent and pointing out the variation to the travel orders made on 5 September 2016.  The wife offered no reason for her refusal to consent to this longer period of travel on the existing conditions.

4. It is simply incorrect for the husband to assert that he “couldn’t go back to China either for business purposes or to reunite with his parents and relatives”.  The husband has been at liberty to travel to China or any other overseas destination at all times since the Orders of 5 September 2016, subject to compliance with the conditions set out therein.

5. Additionally, the implication by the husband that he has been separated from his parents would appear to be negated by his affidavit of 30 May 2108.  The husband deposed therein:

   7.I currently reside in the [Suburb C] property with my parents and my parents have been assisting me to repay the mortgage and living expense during my difficult time.

6. In his Case Summary document, counsel for the husband wrote:

   3.In particular the need for the Husband to provide the wife with an itinerary (as noted at Order 4.1 of the Orders made on 5.9.16) appears to be in light of the past almost two years, an unnecessary imposition on his freedom of movement.

7. It seems to me that the simple answer to this submission is that it is impossible for the wife to determine whether the husband has complied with the provisions of the Orders of 5 September 2016 without his itinerary.  The wife could not become aware whether the husband failed to return to Australia within seven days of the due date without his travel schedule.

8. In my view, the wife should have indicated reasons for her refusal to consent to the husband’s proposed trip of up to six weeks’ duration.  It may be that the 30 day limitation on the husband’s permissible absence from Australia is an unreasonable restriction, as considerable time has elapsed since the Orders of 5 September 2016.  I was not asked to vary those Orders, however, as the husband sought only a discharge thereof.

9. For these reasons, I will dismiss the husband’s Application in a Case filed on 3 April 2018.

2.  Sale of Suburb C or Suburb F properties

1. In my view, it is important that close attention be paid to the terms of Orders 8, 9 and 10 made on 5 September 2016.  These Orders provide a particular procedure leading to the appointment of the wife as trustee for sale of the Suburb C property.

2. This process is as follows:

   1.The husband must default on making mortgage payments in accordance with Order 8.

   2.The wife “may” give notice of such default to the husband by email.

   3.The husband must rectify such a default within seven days of receipt of this notice.

   4.If the husband fails to rectify such default within seven days of receipt of the notice by the wife, she is appointed trustee for sale of the Suburb C property.

3. On 9 May 2018 the wife’s solicitor wrote to the husband’s lawyer and indicated that the mortgage accounts were “in arrears” and “will fall into default” unless he paid a sum of $7,336 within seven days.  There was no further evidence of any notice given to the husband by the wife of default in mortgage repayments on his part.

4. In her affidavit of 31 May 2018 the wife deposed to a conversation with a Westpac Bank officer in relation to the mortgage accounts on 30 May 2018.  The wife deposed as follows:

   9.On 30 May 2018 I called Westpac Bank Default Team and spoke with senior banker [Mr L] (Westpac Staff ID …).  [Mr L] said to me words to the effect:  “Westpac issued a Pre-Default Notice on account …92 on 26 April 2018 and this account could go to default any time because it has been in pre-default status for more than one month.” Annexed hereto and marked “F” is the Pre Default Notice.

   10.In addition [Mr L] said “there another two accounts …21 and …74 in Pre-Default status and the Pre-Default Notice letters had been issued and mailed out to you and the husband on 28 May 2018.  These two accounts could go into default any time after seven days from the date of the pre-default letter issued, which would be 4 June 2018.

5. In his affidavit of 30 May 2018 the husband deposed as follows:

   17.On 25 May 2018, I called FMH mortgagee Westpac and a staff member from their Credit Department advised with words of the effect of: 

   “According to our records, your mortgage is not in default now.  If you cannot repay your mortgage, both of you can apply for financial hardship, and we recapitalize the arrears and add that to the total loan amount and recalculate the monthly repayment amount.  We may also consider extending you a limited interest-free period of a number of months.”

6. In my view, the wife adduced no proper evidence that the husband has defaulted on compliance with Order 8 of 5 September 2016.  I accept the submission on behalf of the husband, to the effect that it would be premature at this stage for the wife to be appointed trustee for sale of the Suburb C or Suburb F properties.  I consider that documentary evidence from the Westpac Bank of default by the husband should be a necessary pre-condition to the significant step of the sale of a parcel of real estate.

7. The husband wishes to retain the Suburb C property as a component of final orders pursuant to section 79 of the Family Law Act 1975 (Cth). That opportunity would be denied to him if this property is sold at this stage of the proceedings.

8. Accordingly, I will dismiss the wife’s Response to an Application in a Case filed on 21 May 2018.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 June 2018.

Associate: 

Date:  7 June 2018