FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jingyi & Chao (No 2) [2023] FedCFamC1F 700
File number: SYC 3653 of 2021 Judgment of: AUSTIN J Date of judgment: 22 August 2023 Catchwords: FAMILY LAW – PROPERTY – Contempt – Where the wife alleged the husband wilfully breached several sets of interim orders – Where the wife prosecuted 15 separate counts – Where 10 counts related to interim property orders previously made restraining a corporation by injunction from dealing with numerous parcels of real estate and the proceeds realised on the sales of such property – Where the husband is a director of the third respondent – Where the husband was not personally bound by the injunctions – Where it would have been an abuse of process for the wife to prosecute the husband on these counts as pleaded – Where interim property orders were previously made restraining all respondents by injunction from encumbering five parcels of real property – Where the third respondent corporation executed a mortgage with a third party which was secured by caveat over one of the subject properties – Where the wife conceded there was no evidence to prove the husband executed the mortgage on behalf of the third respondent – Where previous interim property orders directed the husband to provide the wife with a loan account statement for one property and documents pertinent to the sale of another property – Where the wife conceded the husband had partly complied with the order, even though belatedly – Where the wife failed to prove the breach amounted to a wilful and flagrant challenge to the Court’s authority – Where the husband was previously ordered to pay the wife’s costs in a fixed sum – Where a costs order was made in the husband’s favour against the wife by the Supreme Court of NSW – Where the husband does not want to pay the wife money which he only then has to recover from her – Where this count is defective in form and lacks substance – Applicant-Contempt dismissed – Costs reserved. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09 and r 11.71
Cases cited: Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175; [2009] HCA 27
Carlson & Carlson [2020] FamCA 108
Chamberlain v The Queen (No.2) (1984) 153 CLR 521; [1984] HCA 7
Inghams Enterprises Pty Ltd & Anor v Timania Pty Ltd & Anor (2005) 221 ALR 823; [2005] FCAFC 155
Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426; [2019] FCAFC 113
Lahoud v Lahoud [2012] NSWSC 284
Mahaffy v Mahaffy (2018) 97 NSWLR 119; [2018] NSWCA 42
Division: Division…
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- AGLC
- Jingyi & Chao (No 2) [2023] FedCFamC1F 700
- Case
- [2023] FedCFamC1F 700
- Decision Date
CaseChat Overview and Summary
In the case of Jingyi & Chao (No 2), the wife prosecuted 15 counts of contempt against the husband, relating to various orders made by the Federal Circuit and Family Court of Australia (Division 2). The husband successfully demurred to several counts, which were dismissed as an abuse of process. The remaining counts proceeded to a hearing in accordance with the relevant procedural rules. The wife presented evidence to support the remaining counts, while the husband did not give evidence but submitted several documents in his defence.
The legal issues before the court included whether the wife had established a prima facie case for each count of contempt and whether the husband's conduct constituted a breach of the court's orders. The court needed to determine the admissibility and weight of the evidence presented by both parties and apply the principles of contempt in family law proceedings. The court was also required to assess whether the husband's actions were deliberate, willful, or in disregard of the court's authority.
The court dismissed several counts as the wife did not establish a prima facie case. The husband successfully argued there was no case to answer for one count due to lack of evidence. The remaining counts were dismissed because the court could not find that the husband's actions were proven beyond reasonable doubt. The court considered the evidence and found it insufficient to establish contempt. The husband's conduct was not found to be deliberate or in willful disregard of the court's authority.
The court dismissed the remaining counts of contempt and made orders accordingly. Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11 were dismissed as an abuse of process. Count 12 was dismissed for lack of evidence. Count 14 was withdrawn by the wife. The remaining counts (Counts 2, 13, and 15) were dismissed as the court could not find the husband's actions were proven beyond reasonable doubt.
The legal issues before the court included whether the wife had established a prima facie case for each count of contempt and whether the husband's conduct constituted a breach of the court's orders. The court needed to determine the admissibility and weight of the evidence presented by both parties and apply the principles of contempt in family law proceedings. The court was also required to assess whether the husband's actions were deliberate, willful, or in disregard of the court's authority.
The court dismissed several counts as the wife did not establish a prima facie case. The husband successfully argued there was no case to answer for one count due to lack of evidence. The remaining counts were dismissed because the court could not find that the husband's actions were proven beyond reasonable doubt. The court considered the evidence and found it insufficient to establish contempt. The husband's conduct was not found to be deliberate or in willful disregard of the court's authority.
The court dismissed the remaining counts of contempt and made orders accordingly. Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, and 11 were dismissed as an abuse of process. Count 12 was dismissed for lack of evidence. Count 14 was withdrawn by the wife. The remaining counts (Counts 2, 13, and 15) were dismissed as the court could not find the husband's actions were proven beyond reasonable doubt.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Those principles are presently applicable, about which there was no contest.The counts, the evidence and the hearing The wife prosecuted 15 separate counts of contempt against the husband, which concern several different sets of orders. The husband successfully demurred to some counts (Counts 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11) before the hearing commenced. Those counts were dismissed as it would have been an abuse of process for the wife to prosecute the husband with them (r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). In respect of those counts not dismissed at the outset as being an abuse of process, the hearing proceeded in accordance with the procedure prescribed by r 11.71(6) of the Rules. The evidence upon which the wife relied to prove the remaining counts comprised:(a)paragraphs [2], [4], [5]–[14] and [17]–[22] of, together with all annexures to, her affidavit filed on 21 June 2023 (though objections were successfully taken to all or parts of paragraphs [6], [32], [33] and [40]);(b)her affidavit filed on 15 August 2023, including annexures thereto;(c)transcript of 5 April 2023 concerning the conduct of the underlying proceedings under Pt VIII of the Act (Exhibit 1); and(d)paragraphs [1], [2], [8]–[11] and [25] of the affidavit filed by the husband in the Pt VIII proceedings (Exhibit 2), tendered as admissions without objection. The wife was not required for cross-examination. At the close of the prosecution case, the husband successfully submitted there was no case to answer on another count (Count 12) as no prima facie case was established (r 11.71(7)(a)). The wife agreed the count should be dismissed for lack of evidence to sustain it, in which event it was dismissed. The husband did not give evidence, but did adduce several documents in evidence in his defence, comprising:(a)a corporate search (Exhibit 3);(b)a bundle of correspondence relevant to Count 13 (Exhibit 4); and(c)a third party debt notice relevant to Count 13 (Exhibit 5). During final submissions, the wife withdrew another count (Count 14), but no order was made to formally dismiss it at the time. The dismissal order is made now. The remaining counts (Counts 2, 13 and 15) are now dismissed because they cannot be proven beyond reasonable doubt. The following reasons explain those outcomes.Orders made 20 April 2022 (Counts 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11) Multiple parties are joined to the financial cause being contested under Pt VIII of the Act. Besides the spouses, the other parties are the husband’s parents (the second and fourth respondents) and C Pty Ltd (the third respondent). On 20 April 2022, two separate sets of orders were made between the parties by a judge of the Federal Circuit and Family Court of Australia (Division 2) – one set in open court and the second set in chambers with the parties’ consent. These counts concern only the first set made in open court. Although the subject orders were made by the Federal Circuit and Family Court of Australia (Division 2), the underlying proceedings were later transferred to the Federal Circuit and Family Court of Australia (Division 1) on 15 December 2022. Any contempt of the orders proven to have occurred since this Court has been seized of the proceedings can be taken to be a contempt of this Court. All these counts allege acts of contempt after 15 December 2022.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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