Yan and Yan

[2014] FamCA 194

FAMILY COURT OF AUSTRALIA

YAN & YAN [2014] FamCA 194

FAMILY LAW – PROPERTY – Interim financial – No appearance by Respondent – Respondent on notice of interim hearing - Matter dealt with on undefended basis – Application granted

Family Law Act 1975 (Cth) s 90RD

APPLICANT: Ms Yan

RESPONDENT: Mr Yan

FILE NUMBER: PAC 2914 of 2013

DATE DELIVERED: 17 March 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

THE RESPONDENT: No appearance

Orders

1. The matter is to return to the Registrar’s list on the next available date.

2. The Respondent husband do all acts and things necessary to cause the Applicant wife to receive half of the rental income received from the property situate at F Street, Suburb G, NSW with folio identifier … .

3. That the Respondent husband allow the Applicant wife exclusive use of the Lexus motor vehicle with registration number … (“Lexus motor vehicle”) and the Respondent husband shall be restrained from removing the Lexus motor vehicle from the Applicant wife’s possession.

4. That the Respondent husband pay all future costs for the Lexus motor vehicle when they fall due including costs of registration, greenslip, and insurance at the current level.

5. The costs of the wife of today in relation to the Application in a Case are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yan & Yan 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 PARRAMATTA

FILE NUMBER: PAC 2914/2013

Ms Yan

Applicant

And

Mr Yan

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the wife in proceedings on 14 October 2013 in relation to seeking interim orders with respect to an application for property settlement that is before the Court.  This particular application relates to two pieces of property, one being real estate located at F Street, Suburb G and the second being a Lexus motor vehicle. 

2. In relation to the property at F Street, Suburb G, there is evidence before the Court that satisfies me that it is a property that is owned by both parties.  It is referred to in the father’s Financial Statement and there were previously Orders made by this Court on 30 August 2013 which relate to that property and from which it is clear that both the parties have an interest in it. 

3. The order that the Applicant wife is seeking is that she receive half of the rental income from that property. 

4. The second part of the wife’s application relates to the Lexus motor vehicle and the wife says that the Lexus motor vehicle is a vehicle which has been regularly used by her for some time and that, as other vehicles are available to the husband for his use, she be allowed exclusive use of that motor vehicle. 

5. The Response to the Application in a Case filed by the husband seeks his own orders and, in particular, an order under section 90RD of the Family Law Act 1975 (Cth) (“the Act”) that there was no defacto relationship between the Applicant wife and the Respondent husband and it is that relationship upon which the wife’s orders are essentially based.  He also seeks an order that the Lexus motor vehicle be returned. 

6. However, the Respondent husband was aware of the proceedings today and has not appeared.  I am informed from the Bar Table that enquiries were made and the Respondent husband was informed that in fact the matter was on today.  The Court received a letter from the father’s lawyer dated 14 March 2014 directed to the Registrar which says:

   We are instructed to advise the Court and the Applicant that our client would not require the Court to make a 90RD declaration, our client instructed us not to attend the Court on 17 March 2014.

7. Accordingly, the matter is dealt with on an undefended basis so far as those orders are concerned. 

8. I am satisfied that the wife does hold the relevant interest in the F Street, Suburb G property and that she has been allowed exclusive use of the Lexus motor vehicle since September 2013.  It is clear from correspondence annexed to the wife’s affidavit that there have been discussions to and fro concerning both the F Street property income and the motor vehicle.  At times the husband has reported the vehicle missing to police and threatened to not continue with registration, it would seem as some sort of alternative to reaching an agreement. 

9. It would seem that the husband is certainly on notice today that the matter was being dealt with and, in light of there being no evidence in response, it appears just and appropriate to make the orders that are sought by the wife with some slight amendments in the application.

10. Accordingly, orders are made in terms of proposed orders 1 to 3 set out in the wife’s Application in a Case, but order 1 should read “the husband do all acts and things necessary to cause the Applicant wife to receive half of the rental income received from the property situated at [F] Street, [Suburb G] NSW and with the folio identifier …”.  Order 2 is made in the terms sought, and order 3 is made in the terms sought but deleting the word “should”.  The application for costs is reserved.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 March 2014.

Legal Associate:       

Date:    28 March 2014