Xuen and Chao

[2016] FamCA 100

FAMILY COURT OF AUSTRALIA

XUEN & CHAO [2016] FamCA 100

FAMILY LAW – PROCESS AND PROCEDURE – Orders amended

APPLICANT: Mr Xuen

RESPONDENT: Ms Chao

FILE NUMBER: BRC 3743 of 2010

DATE DELIVERED: 17 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 February 2016

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: Ms S.J. Chao in person

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. Clause 2 of the Order made by Tree J on 12 June 2014 is discharged.

2. Clause 2 of the Order made by Hogan J on 17 November 2015 is discharged.

3. Clauses 3-9 (inclusive) of the Order made by Hogan J on 17 November 2015 are made by way of final Order.

4. Save as is otherwise provided for in this Order, the Application for Contravention filed 4 June 2014 and the Application in a Case filed 27 October 2015 are otherwise dismissed.

5. The Respondent Wife's Australian passport is to be returned to her forthwith.

6. There be no Order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuen & Chao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3743 of 2010

Mr Xuen

Applicant

And

Ms Chao

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter first came before me on 17 November of last year.  At that time, the parties reached agreement in relation to the terms of an interim order. 

2. The Court has received correspondence from the Applicant by way of email, it seems, dated 16 February 2016.  I intend to make that piece of correspondence an Exhibit in the proceedings.[1]  For the Respondent’s information, it informs me that he has received the necessary documents to transfer the property referred to in clause 4 of the Order made 17 November 2015. 

   [1]          Exhibit 1.

3. It tells me that he requests that the Court discharge all of the Respondent’s indebtedness to him, arising out of Orders made by the Court at any time on or before 17 November 2015, and further advises that he would like to withdraw the Application for Contravention, filed 4 June 2014, and the Application in a Case, filed 27 October 2015.  It also advises the Court that he has instructed his lawyer in China to withdraw his interest in the property outlined at Clause 5 of the Order made 17 November 2015. 

4. It is clear the terms of the November 2015 Order provided, in broad summary, that the Respondent transfer her interest in the property outlined at Clause 4 to the Applicant (and do all things necessary to have him registered in China as the sole owner of that property) and that he do everything necessary to ensure that she is registered as the sole owner of property outlined and described in Clause 5.  Clause 6 also required both parties to do matters necessary to affect the transfer of those properties to each of them.  In the case of the Respondent, it makes it clear that that is something that simply, it seems to me, was a fallback, in case it was required. 

5. Given that the matter had been listed because I had not heard anything from any party to tell me what was happening with it, the Court corresponded with the Applicant yesterday to reaffirm the necessity to appear this morning.  The email from the case coordinator to the Applicant will be Exhibit 2 in the proceedings.  Yesterday afternoon, after 5.00 pm, the Applicant sent correspondence advising as follows:  he is unable to attend;  he had written the letter to the Court to withdraw the case against the Respondent on the advice of his then legal representatives;  and he had no objection to the Court returning the Respondent’s passport to her.  This will be Exhibit 3 in the proceedings. 

6. I intend to make orders by way of final order that dispose of the proceedings before the Court.  Included in those orders, as a final order, will be some of the terms of the November 2015 Order, so that the Respondent will be able to enforce against the applicant his agreed obligation (under Clause 7 of the November 2015 Order) to have the full debt as at 17 November 2015 owing as child support by the Respondent waived.  So that order will continue as a final order and he will continue to be bound to honour that term.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 17 February 2016.

Associate:     

Date:    17 February 2016