Xuen & Chao (injunction in aid of enforcement)
[2014] FamCA 798
•12 June 2014
FAMILY COURT OF AUSTRALIA
| XUEN & CHAO (INJUNCTION IN AID OF ENFORCEMENT) | [2014] FamCA 798 |
| FAMILY LAW – CONTRAVENTION – Where wife failed to give effect to orders consequent upon an undefended hearing – Where husband believed at the time of the application the wife was in Australia on visit from China – Where wife had in fact left Australia prior to the issue of the application – Where husband sought an order restraining the wife from leaving or attempting to leave Australia and placing her name on the Airport Watch List – Where wife has made no effort to comply with orders requiring her to pay sums of money – Where Court noted that in aid of enforcement of a monetary judgment civil liberties including the right to freedom of movement may be curtailed – Where Court noted no such prohibition exists in Commonwealth Courts and power to do so is provided for in the Family Law Act – Where the Court noted it was in the interest of justice to make an order restraining the wife from leaving the country and to bring the matter back before a Judge as soon as possible after the order is served on her – Where such orders were made by the Court in addition to an order that they lie in Chambers of the Brisbane Registry, only to be uplifted by the husband upon his solicitor filing an affidavit deposing that the wife had again returned to Australia. FAMILY LAW – INJUNCTIONS – Where Court noted interlocutory injunctions are ordinarily supported by undertakings – Where Court noted in this matter is was not acting upon merely one party’s assertions but rather upon certain facts and as such that was a sufficient basis to distinguish the ordinary rule in relation to interlocutory injunctions in relation to undertakings – Where Court satisfied that for the present purposes the husband should not be required to give an undertaking to support the injunction made. |
| Family Law Act 1975 (Cth) ss 34, 114 |
| Anstis v Anstis (2000) FLR 93-013 |
| APPLICANT: | Mr Xuen |
| RESPONDENT: | Ms Chao |
| FILE NUMBER: | BRC | 3743 | of | 2010 |
| DATE DELIVERED: | 12 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC |
| SOLICITORS FOR THE APPLICANT: | Damien Greer Lawyers |
| THE RESPONDENT: | No appearance |
Orders
The Application for Contravention filed 4 June 2014 be adjourned to a date to be fixed following the return of the Respondent to Australia upon the request of the Applicant made to a Registrar of this Court in the Brisbane Registry.
Until further Order, the Respondent, MS CHAO (born … 1969) is restrained from leaving or attempting to leave the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by immediately registering the Respondent, MS CHAO (born … 1969) on the Airport Watch List and it is directed that the Applicant’s solicitors, Damien Greer Lawyers, serve a sealed copy of this Order on the Australian Federal Police.
This Order lie in the Brisbane Registry only to be uplifted by the Applicant upon his solicitor filing an Affidavit deposing as to the Respondent again having returned to Australia.
Upon the filing of the Affidavit referred to in Order 3 hereof and following the request to list the Application for Contravention for hearing, the Applicant shall take all proper steps to serve a copy of this Order, the Applicant’s Application for Contravention filed 4 June 2014 and advice as to the hearing date of the Application for Contravention on the Respondent.
Within three (3) business days of service of this Order on the Respondent, she surrender and deliver up her Australian Passport to the Registrar of the Family Court of Australia at Brisbane to be retained by the Registrar until further order of the Court.
The Applicant’s costs of today be reserved to the Judge hearing the Applicant’s Contravention Application filed 4 June 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuen & Chao (injunction in aid of enforcement) 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: BRC3743 of 2010
| Mr Xuen |
Applicant
And
| Ms Chao |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 10 October 2013, consequent upon the undefended hearing of the husband’s application for both parenting and property orders, I made orders which, amongst other things, required the Chinese resident wife to, within 7 days, repay to the N Superannuation Fund the amount of $68,296.23, and within 30 days, pay to the husband the amount of $81,368.64. She has done neither.
On 4 June 2014 the husband filed an Application for Contravention relating to those failures. At the time that he issued that Application, he was of the belief that the wife had returned from China to Australia on a visit. In fact it appears as though she had left the country prior to the issue of the Application. Subsequently by Application in a Case the husband sought, on an ex parte and urgent basis, amongst other things an order restraining the wife from leaving, or attempting to leave, Australia and placing her name on the Airport Watch List, and obliging the husband to take reasonable steps to serve a copy of that order upon the wife within three days. Within three days of any such service, the orders sought by the husband provided that the wife surrender and deliver up her passport to the Brisbane Registry.
On 12 June 2014 I dealt with that application. Whilst I made an order restraining the wife from leaving, or attempting to leave, the Commonwealth and placing her on the Airport Watch List, I also ordered that those orders lie in Chambers in the Brisbane Registry, only to be uplifted by the husband upon his solicitor filing an affidavit deposing that the wife had again returned to Australia.
These are my reasons for those Orders.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
To most civil lawyers, it would probably seem most unusual that, in aid of the enforcement of a purely money judgment, individual civil liberties, including the right to freedom of movement, may be curtailed. Indeed it seems uncontroversial that in all State Supreme Courts, no such aid to enforcement presently exists, and indeed in most Australian States, has not done so for about 100 years. However it seems plain upon a review of the authorities, that no such prohibition exists in Commonwealth Courts, and specifically, by s 34 of the Family Law Act, this Court has the power to make orders of such kinds, and issue or direct the issue of, writs of such kinds, as the court considers appropriate. An alternative source of power could be found in the general injunction power in s 114 of the Act.
A convenient starting point in reviewing the authorities is Anstis & Anstis (2000) FLR 93-013. At [18] to [38] of that judgment, Mullane J reviewed the relevant law (albeit apparently only adverting to s 114 as the potential source of power) including the relevant provisions relating to the Supreme Court of New South Wales about arrest in aid of enforcement of civil debts.
At [35] the Court said:
Clearly, quite apart from the Covenant [on Civil and Political Rights] the court should not lightly exercise a power to restrain a party’s freedom to leave the jurisdiction, as to do so is a serious restraint on any citizen. Whilst article 12.2 of the International Covenant on Civil and Political Rights has not been incorporated in Australian Municipal Law, it has ratified by Australia and incorporated for the limited purposes that I referred to earlier. The same provision is also part of the Universal Declaration of Human Rights passed unanimously by the United Nations. The ratification of the Convention by Australia gives rise to a legitimate expectation that in exercising the power under s114(3) a court will act in accordance with the Convention.
Later at [38] the Court continued:
In any event the onus on the applicant is not satisfied merely by evidence which establishes that if the respondent left the jurisdiction permanently, the applicant could be denied a remedy which the proceedings are otherwise likely to provide. The onus on the applicant is to establish a likelihood that the applicant will be denied a remedy if the respondent’s freedom to leave the jurisdiction is not limited or suspended.
Next in Khademollah & Khademollah (2000) FLC 93-050, the Full Court refused to interfere with an order restraining the husband from leaving the country without him having first paid arrears in child support due to the mother. Whilst there was no extensive discussion of the relevant principles, at [171] the Court said “we see no justification for this court interfering with her Honour’s restraining order, particularly when her Honour has provided a mechanism for the re-listing of the matter before herself.”
In Ejje & Ejje (2003) FLC 93-129 the Full Court dealt glancingly with the power of the court to restrain a party from leaving Australia and to require them to surrender their passport at [18]. It appears as though the Full Court was of the view that there was power under s 114(3) to make that order, but was also of the view that the husband’s subsequent bankruptcy relieved him of any obligation to pay creditors, and therefore the injunctions were no longer sustainable and should be discharged.
Next in 2003, a useful review of the authorities – albeit undertaken in an ex tempore judgment – was undertaken by Young J in B & B [2003] FamCA 36. There his Honour ultimately made an order for an interim injunction for a finite period to permit further hearing of the application. His Honour specifically adverted to s 34 as containing the power to make such an order.
The Full Court revisited the issue in Brown & Brown (2007) FLC 93-316 where at [192] to [195] the Court said as follows:
192. What senior counsel for the husband sys (whether defensively or offensively) of the “error” in the earlier orders comes essentially to this; namely that the power to grant restraints on freedom of movement in cases involving monetary disputes is only to be exercised:
·where it is in the nature of a short term restraint; and
·the restraint does not take on the character of a free standing enforcement procedure.
193. Senior counsel for the husband relied upon the English authority of B & B (injunction: restraint on leaving jurisdiction) [1997] 3 AllER 258.
194. It seems to us that though that authority contains a helpful consideration of principle, the starting point in the instant case is with the Act. We think there is little doubt that in making the orders of 22 and 23 December 2005, O’Ryan J relied upon s114(3) of the Act. In any event, the subsection is a relevant source of power.
195. The use of s114(3) to found injunctions restraining freedom of international movement in financial cases has not received direct scrutiny by the Full Court of this Court. However, that the power exists for such restrictions was at least impliedly accepted in the single Judge decisions of Anstis & Anstis & Anor (No 1) (2000) FLC 93-013 and B & B [2003] FamCA 36 and the decisions of the Full Courts in Ejje & Ejje(2003) FLC 93-129 and in Khademollah (2000) FLC 93-050, a case where the High Court rejected an application for special leave on 15 February 2002.
In Castles & Pesic [2008] FamCA 1003 Watt J also made an injunction restraining a husband from leaving the country until certain financial orders had been complied with.
Next in Porto & Porto (No 3) (2010) 45 FamLR 101, Dessau J had occasion to again review the authorities relevant to restraints on personal movement. Ultimately her Honour made an order restraining the husband from being able to leave Australia for a period of 12 months unless and until he complied with certain money orders.
At [145]-[146] her Honour concluded:
[145] It was argued strenuously on the husband’s behalf that he should be able to leave Australia. To restrict someone’s freedom of movement is not a decision taken lightly, but the justice of this case, and enforcement of the wife’s rights under these orders, leads me on balance to make an order restraining the husband from leaving the country. Of course he should not be restrained once he has complied with the orders.
[146] That brings me to the form of the orders. An order that he is restrained from leaving the country until he has complied with the orders, would not give sufficient certainty for immigration officers to determine whether a Watch List order that I will make to support the injunction, is or is not still in place. The better course is for the restraint on a Watch List order to remain clearly in force until specifically varied by this court.
Most recently the Full Court of the Federal Court of Australia has considered the restraint of persons pending the determination of bankruptcy proceedings in Talacko & Ors v Talacko (2010) 183 FCR 311. That was a case stated which, albeit in the context of the Bankruptcy Act, dealt with a general power to issue injunctions not materially different to s 114. The specific question posed of the Full Court was whether the provisions of s 30(1) of the Bankruptcy Act1966 (Cth) empowered a court to order that a person in respect of whom a Bankruptcy Notice has been issued, be restrained from leaving the jurisdiction and be required to deliver up his or her passports. The court answered both questions in the affirmative. At [35]-[37] the court said as follows:
[35] To restrain a citizen from travelling is an order which would not be granted lightly and, in granting the order, the importance of the right to be free to travel would be a significant consideration to weigh in the balance. So also would be the prospect that the purposes of the Bankruptcy Act would be defeated or the bankruptcy rendered nugatory if travel were not restrained. The weighing of such considerations in the course of the exercise of judicial discretion is a task with which courts are charged on many occasions.
[36] A contention that the question should be answered in the negative could readily defeat the objectives of the Bankruptcy Act. It fails to take into account the requirement that a court must act judicially in the making of any order under s30(1)(b) and must have regard to whether or not such an order is “necessary” for the purposes of carrying out or given effect to the Bankruptcy Act.
[37] For the foregoing reasons, the questions posed for the court’s consideration in the case stated will be answered in the affirmative.
From the foregoing analysis of the cases it can be seen that the following principles may be discerned:
·Whether it be pursuant to s 34 or s 114(3) there is clear power in this court to restrain a party from leaving Australia, and to require them to deliver up their passport, in aid of enforcement proceedings in relation to orders requiring them to pay a sum or sums of money;
·In the exercise of the discretion whether or not to make such an order, the legitimate expectation of a person for the freedom of movement will loom as a large, but not necessarily determative, consideration;
·Additional considerations will include the interests of justice and the court ensuring, to the extent that it can, that its orders are not wilfully flouted.
EXERCISE OF THE DISCRETION IN THIS CASE
Plainly the facts which gave rise to the application for the injunction in this case are relevant to the nature of any order that should be made. The husband quite properly sought to bring a Contravention proceeding seeking the enforcement of the wife’s obligations under my orders. However he was thwarted in being able to have that application served upon the wife because she had left the country by the time of its issue. Although she now resides in mainland China, she appears to have a tendency of coming in to and out of this country without notice and on an unpredictable basis. She still has family members living here who she visits from time to time. She may also have business interests.
It appears that she has made no effort to comply with the orders requiring her to pay the sums of money. No application has been made by her to extend the time for compliance. As the findings that I made on the undefended hearing bear out, the reason why she has not paid those sums is unlikely to be related to any inability: both sums of money in question were removed by her from bank accounts in Australia immediately prior to her departure from the country in 2009.
However I am mindful that a restriction of a person’s right to freedom of movement is a very serious curtailment, and if made at all, ought be for the bare minimum needed to achieve the relevant purpose. Moreover, absent any material from the wife, it is impossible to say that she may not presently have some reasonable justification for non-payment of the sums in question, or at least be willing to enter into some payment arrangement with the husband to ensure that the orders are complied with. This is therefore not a case where I am persuaded that orders can be made on anything other than a short-term interim basis restraining movement, so as to firstly ensure that the wife does not leave the jurisdiction without the matter being able to be brought back for further consideration, and secondly so that any conditions attaching to her being able to leave the country – if that is what is subsequently ordered – can be determined.
Therefore it seems to me that the interests of justice lie in making an order restraining the wife from leaving the country, but to bring the matter on before a Judge as soon as possible after the order is served upon her, so as she may have a prompt and reasonable opportunity to make such contrary submissions as she may wish to make.
There is a further practical difficulty with the orders as sought by the husband, and that is that if the orders were issued now, with the effect that the wife would be placed forthwith upon the Airport Watch List, she could be restrained from leaving the country, but her presence not come to the attention of the husband. Such an outcome would be an undue restraint on the wife’s freedom of movement, and may not assist at all in achieving compliance with my orders.
It appears as though the husband has reasonably good ongoing intelligence as to the wife’s presence in Australia from time to time. Given that, it seems appropriate that the order restraining the wife being made, but lie in Chambers to be uplifted upon the wife’s presence in Australia coming to the attention of the husband. The appropriate trigger for the uplifting of the order ought be an affidavit filed by the applicant’s solicitor deposing to the wife’s presence in the country. Upon the order being uplifted, the wife will then be placed upon the Airport Watch List, and the husband will then be obliged to make efforts to serve her with his Contravention Application, his application for an injunction, and this order.
I am satisfied that an order should be made requiring the wife to surrender and deliver up her Australian passport within three business days of the service of my order of 12 June 2014 upon her. Again any relaxation of that is a matter which can be addressed at the further hearing of the husband’s Contravention Application.
Finally I should advert to the question of whether or not the husband should be required to give an undertaking to, if so ordered by the Court, pay the wife’s costs expenses, loss or damage incurred by her as a result of the granting of the injunction. Ordinarily in granting an interlocutory injunction in civil proceedings, such an undertaking would be required, and indeed some court rules require it to be offered as a precondition to the granting of any injunctive relief.
Often interlocutory injunctions which are supported by such undertakings are intended to preserve the status quo pending judicial determination of the relevant competing claims. Because the court may be acting upon an incomplete or an inaccurate version of events, the interests of justice necessarily require that, if there be good cause, any loss caused to the respondent by the court so acting can be made good without the need for extensive litigation.
However it seems to me that enforcement proceedings fall into a different category. Here the rights of the parties have crystallised, and absent appeal, are not subject to any legitimate challenge. Further, on the facts, there seems no reason to doubt at all that the orders requiring the wife to pay monies to the husband have not been complied with. Therefore in relation to those matters, the court is not acting upon merely a party’s assertions (albeit usually in the form of an affidavit) but rather upon certain facts. To my mind that is a sufficient basis to distinguish the ordinary rule in relation to undertakings. That is not to say that ultimately, if some continuation of the injunction that I made on 12 June is sought by the husband, that an undertaking may not be sought or ordered. For instance if he seeks to restrain the wife from leaving the country for some lengthy period of time, given that her business interests lie in China, she may legitimately seek to argue that her restraint from leaving Australia is disproportionate, and any financial consequence of doing so should be borne by the husband. However that is a matter which, if it is sought to be ventilated by the wife, can be determined in due course.
However for present purposes I am not of the view that the husband should be required to give an undertaking to support the injunctions.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 June 2014.
Associate:
Date: 12 June 2014
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