Chan and Wiu - [2010] FamCA 615

FAMILY COURT OF AUSTRALIA

CHAN & WIU

[2010] FamCA 615

FAMILY LAW – CONTRAVENTION – Children
FAMILY LAW – ENFORCEMENT – Costs

Family Law Act 1975 (Cth)
Federal Magistrates Act 1989 (Cth)

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 118 ALR 248
Gould and Gould; Swire Investments Limited (1993) FLC 92-434
Ibbotson and Wincen (1994) FLC 92-496
Kohan (1993) FLC 92-340
McClintock and Levier (200) FLC 93-401
Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Chan

RESPONDENT:

Mr Wiu

FILE NUMBER:

MLC

6614

2009

DATE DELIVERED:

21 JULY 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR PUCKEY

SOLICITOR FOR THE APPLICANT:

WESTMINSTER LAWYERS

THE RESPONDENT:

NO APPEARANCE

Orders

That the allegations of the wife filed in the application of 11 March 2010 are found proved.
That the said allegations are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
That paragraph 15 of the orders made 9 September 2009 is varied until further order by providing that the husband deliver the children to the wife in Australia at her residence or such other place as she may nominate for the wife to spend a period of ten weeks with them from 26 July 2010.
That until further order, the husband be restrained by injunction from transferring, selling, further encumbering or otherwise dealing with the real property at D.
That by 1 August 2010, the husband pay to the wife:
(a)$50,000 by way of security for the husband’s future compliance with the parenting orders made on 9 September 2009 (as amended by these orders) and that the wife be at liberty to use those funds held on her behalf by her solicitors to pursue:
(i)any future enforcement/contravention proceedings in any Australia court arising out of the orders of 9 September 2009; or
(ii)enforcement of the orders in any Taiwanese court;
(b)the sum of $1080 by way of reimbursement for the wife’s airfares to Taiwan in December 2009;
(c)$1215 by way of reimbursement for the wife’s airfares to Taiwan of 15 June 2010;
(d)$1200 being legal costs for the proceedings in the Taiwan Shihlin District Court;
(e)$7570 for the wife’s costs of the divorce proceedings as ordered by Riley FM on 4 June 2010; and
(f)$12,800 being costs thrown away in respect of these contravention proceedings.
That if the husband fails to make the payments to the wife by 1 August 2010 referred to in paragraph (5) above then a registrar of the Court sign all such documents as may be required in the name of the husband to transfer the interest of the husband in the D property upon a trust for sale and the wife thereafter forthwith sell the said property and upon the settlement of the sale, the proceeds be distributed as follows:
(a) first, to pay all costs, commission and expenses of the sale;
(b) secondly, to discharge the mortgage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan and Wiu

Details

AGLC: Chan and Wiu [2010] FamCA 615
Case: [2010] FamCA 615
Decision Date: 21 JULY 2010

CaseChat Overview and Summary

In the matter of *Chan and Wiu*, Justice Cronin of the Family Court of Australia considered allegations made by the wife against the husband concerning contraventions of parenting orders. The dispute centred on the husband's alleged failure to comply with previous orders regarding the children and his conduct in relation to property.

The court was required to determine whether the wife's allegations of contravention were proved and, if so, whether they were established under the relevant provisions of the *Family Law Act 1975* (Cth). Additionally, the court had to consider the appropriate orders to be made in light of the findings, including variations to parenting arrangements, injunctions regarding property, and financial orders for costs and reimbursement.

Justice Cronin found the wife's allegations proved and established pursuant to subdivision E of Division 13A of Part VII of the *Family Law Act 1975*. The court varied existing parenting orders to allow the wife a ten-week period with the children in Australia. An injunction was imposed restraining the husband from dealing with a specific property. The husband was also ordered to pay the wife various sums, including security for future compliance with parenting orders, reimbursement for airfares, legal costs incurred in Taiwan, and costs thrown away in the contravention proceedings. The court further ordered that if the husband failed to make these payments by a specified date, his interest in the property would be transferred to a trust for sale, with the proceeds to be distributed first to cover sale costs, then the mortgage, then the amounts due to the wife, and finally any balance to the husband. The husband was granted liberty to apply to set aside these orders upon explaining his failure to attend proceedings.

Orders

Orders of the court

That the allegations of the wife filed in the application of 11 March 2010 are found proved.

That the said allegations are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

That paragraph 15 of the orders made 9 September 2009 is varied until further order by providing that the husband deliver the children to the wife in Australia at her residence or such other place as she may nominate for the wife to spend a period of ten weeks with them from 26 July 2010.

That until further order, the husband be restrained by injunction from transferring, selling, further encumbering or otherwise dealing with the real property at D.

That by 1 August 2010, the husband pay to the wife:

(a) $50,000 by way of security for the husband’s future compliance with the parenting orders made on 9 September 2009 (as amended by these orders) and that the wife be at liberty to use those funds held on her behalf by her solicitors to pursue:

(i) any future enforcement/contravention proceedings in any Australia court arising out of the orders of 9 September 2009; or

(ii) enforcement of the orders in any Taiwanese court;

(b) the sum of $1080 by way of reimbursement for the wife’s airfares to Taiwan in December 2009;

(d) $1200 being legal costs for the proceedings in the Taiwan Shihlin District Court;

(e) $7570 for the wife’s costs of the divorce proceedings as ordered by Riley FM on 4 June 2010; and

(f) $12,800 being costs thrown away in respect of these contravention proceedings.

That if the husband fails to make the payments to the wife by 1 August 2010 referred to in paragraph (5) above then a registrar of the Court sign all such documents as may be required in the name of the husband to transfer the interest of the husband in the D property upon a trust for sale and the wife thereafter forthwith sell the said property and upon the settlement of the sale, the proceeds be distributed as follows:

(a) first, to pay all costs, commission and expenses of the sale;

(b) secondly, to discharge the mortgage secured over the property;

(d) fourthly, to pay the balance to the husband.

That the husband have liberty to apply to set aside these orders on appropriate notice to the wife and upon condition that he files an application in this Court explaining why he has failed to attend the proceedings.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10.

That the contravention application filed 11 March 2010 be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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