Hadleigh & Hadleigh - [2023] FedCFamC1F 729

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hadleigh & Hadleigh [2023] FedCFamC1F 729

File number(s): MLC 6798 of 2022

Judgment of: CARTER J

Date of judgment: 25 August 2023

Catchwords:
FAMILY LAW – CONTEMPT – where wife sought that respondents to subpoenas that had been set aside be held in contempt for non-production of documents – application dismissed

FAMILY LAW – COSTS – where the respondents sought indemnity costs – where indemnity costs not ordered – where costs fixed pursuant to rule 12.17 of the Federal Circuit and Family Court of Australia 2021 (Cth)

Legislation:
Family Law Act 1975 (Cth) ss 45A, 112AB, 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.35, 12.17

Cases cited: Anton & Malitsa [2009] FamCA 70

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 10 August 2023

Place: Melbourne

Applicant: Litigant in person

Counsel for the Respondent: Mr Graeme Thompson

Solicitor for the Respondent: KCL Law

Solicitor for the Others: BlueRock
ORDERS

MLC 6798 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HADLEIGH

Applicant

AND:
MR HADLEIGH

Respondent

MS DENG

Other

MR DEMARCO

Other

ORDER MADE BY:

CARTER J

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:
1.The Contempt Application filed 2 June 2023, naming Ms Deng as the respondent is dismissed.
2.The Contempt Application filed 2 June 2023, naming Mr Demarco as the respondent is dismissed.
3.The wife pay the following costs in relation to the subpoenas issued by her on 18 May 2023 to the respondents, and the contempt applications issued by her on 2 June 2023:
(a)to Ms Deng, fixed at $4,500;
(b)to Mr Demarco, fixed at $4,500; and
(c)to the husband, fixed at $6,000

with payment to be deferred until the determination of the substantive property proceedings between the husband and the wife.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
CONTEMPT APPLICATIONS

The matter before me concerned two contempt applications filed by the wife on 2 June 2023 as follows:
(a)naming Ms Deng as the respondent, asserting she had not produced documents in accordance with a subpoena filed on 18 May 2023 and served on her on 19 May…

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 Hadleigh & Hadleigh

Details

AGLC: Hadleigh & Hadleigh [2023] FedCFamC1F 729
Case: [2023] FedCFamC1F 729
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia recently addressed the issue of contempt and costs in the case of Hadleigh & Hadleigh. The applicant, Ms. Hadleigh, filed contempt applications against two respondents, Ms. Deng and Mr. Demarco, asserting that they had failed to produce documents in accordance with subpoenas issued on 18 May 2023. The subpoenas required production of documents by 31 May 2023. The respondents had objected to the subpoenas, citing excessive costs of compliance, but the wife did not offer to contribute to these costs. The subpoenas were subsequently set aside on 10 July 2023, leading Ms. Hadleigh to file contempt applications against the respondents on 2 June 2023.

The court examined the legal basis for the contempt applications under the Family Law Act 1975 (Cth). Justice Carter determined that contempt could only be established if the respondents had intentionally failed to comply with the subpoenas or made no reasonable attempt to do so, and that the wife had to prove these elements beyond reasonable doubt. Given that the subpoenas had been set aside and that Ms. Hadleigh had not offered to contribute to the respondents' compliance costs, Justice Carter found that it was unreasonable for the wife to insist on the production of documents. The court concluded that the contempt applications were frivolous and vexatious, leading to their dismissal.

In relation to costs, the respondents and the husband sought indemnity costs, while the wife opposed these applications. The court found that while indemnity costs were not appropriate, the wife should be ordered to pay costs. Justice Carter exercised his discretion under rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to fix costs, considering factors such as the importance of the issues and the parties' behaviour. The court awarded $9,000 to be divided equally between the respondents and $6,000 to the husband.

In summary, the court dismissed the contempt applications and ordered the wife to pay costs to the respondents and the husband, reflecting the unreasonableness of the wife's actions in pursuing the applications after the subpoenas had been set aside.

Orders