Xuen & Chao (injunction in aid of enforcement)

In Xuen & Chao, Tree J of the Family Court of Australia considered an application by the husband for an injunction to restrain the wife from leaving Australia and to place her on the Airport Watch List. The husband sought this relief in aid of enforcing orders made consequent upon an undefended hearing, which required the wife to pay sums of money. The husband believed the wife was in Australia on a visit from China at the time of his application, but it transpired she had already departed Australia.

The court was required to determine whether it had the power to issue an injunction restraining the wife from leaving the country, and whether such an order was appropriate in the circumstances, particularly in relation to the usual requirement for an undertaking from the applicant in support of interlocutory injunctions. The court also considered the contravention proceedings initiated by the husband.

Tree J reasoned that while civil liberties, including freedom of movement, may be curtailed in aid of enforcing monetary judgments, such prohibitions are not a matter of course in Commonwealth Courts. However, the Family Law Act provides specific power for such measures. The court found that it was in the interests of justice to make an order restraining the wife from leaving the country, noting that the wife had made no effort to comply with the existing orders. The court distinguished the usual rule requiring an undertaking for interlocutory injunctions, finding that the present application was based on certain facts rather than merely one party's assertions, thus providing a sufficient basis to dispense with the undertaking.

The court ordered that the wife be restrained from leaving or attempting to leave the Commonwealth of Australia and requested the Australian Federal Police to place her on the Airport Watch List. The order was to lie in the Brisbane Registry and only be uplifted by the husband upon his solicitor filing an affidavit confirming the wife's return to Australia. The contravention application was adjourned pending the wife's return. The wife was also directed to surrender her Australian passport.