Huang & Wen (No 2)

[2024] FedCFamC1F 447

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Huang & Wen (No 2) [2024] FedCFamC1F 447

File number:

SYC 1300 of 2018

Judgment of:

HARPER J

Date of judgment:

18 June 2024

Catchwords:

 FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has filed an Application – Contempt making allegations of non-disclosure by Husband – Where it would not be appropriate for the presiding judicial officer to determine the Application – Contempt prior to the determination of the final hearing – Where Application – Contempt is stood over to a date to be advised after the determination of the final hearing.

Legislation:

Family Court Act 1975 (Cth) s 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Wynn & Danilov [2023] FedCFamC1A 149

Division:

Division 1 First Instance

Number of paragraphs:

7

Date of hearing:

18 June 2024

Place:

Sydney

Counsel for the Applicant:

Ms McMahon

Solicitor for the Applicant:

William Chan & Co

Solicitor for the Respondent:

Ms Chen of Chen Shan Lawyers

ORDERS

SYC 1300 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HUANG

Applicant

AND:

MR WEN

Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	18 JUNE 2024

THE COURT ORDERS THAT:

1.The Application – Contempt is stood over to a date to be advised after the conclusion of the final hearing.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Huang & Wen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. These are proceedings listed for final hearing commencing on 2 December 2024.

2. The applicant wife (“wife”) has filed an Application – Contempt in which she makes allegations of non-disclosure against the respondent husband (“husband”) which she contends constitute a contempt of court.

3. Having considered the Application – Contempt, on its face and in light of the comments of the Full Court in Wynn & Danilov [2023] FedCFamC1A 149, especially the discussion at [60]–[66] of the relationship between s 112AP of the Family Court Act 1975 (Cth), and the rules of disclosure contained within the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I am of the view that it is more appropriate to stand over the Application – Contempt after the determination of the proceedings at final hearing.

4. A further reason for doing so is that in the event that the Application – Contempt is heard prior to the final hearing, there is a risk that credit findings may be made against the husband which would require another judicial officer to preside over the final hearing. In my view, this would create case management issues which would be difficult to solve in a timely fashion.

5. It is also the case that the jurisprudence of this Court concerning the consequences of non-disclosure in property proceedings is well-established and it will be open to the wife to cross-examine the respondent and ask the Court to draw inferences adverse to the husband by reasons of allegations of non-disclosure, quite irrespective of whether the Application – Contempt is successful or not.

6. I have borne in mind the potential difficulty which might arise by reason of the Court making findings concerning disclosure at final hearing and how this may ultimately have an impact on the Application – Contempt, but I am also aware that experience suggests that once the determination of the litigation is brought about by a final hearing, the need to pursue the Application – Contempt may dissipate.

7. For those reasons I will adjourn the Application – Contempt to a date to be advised.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 18 June 2024.

Associate:

Dated:       1 July 2024