Kwok & Beng (No 6) - [2024] FedCFamC1F 743

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kwok & Beng (No 6) [2024] FedCFamC1F 743

File number(s): SYC 1577 of 2021

Judgment of: HARPER J

Date of judgment: 6 November 2024

Catchwords:
FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where the wife’s primary claim is for a lump sum of $150,000 for spouse maintenance – Where the husband has capacity to pay a lump sum from funds held for both parties in solicitors’ trust accounts – Where any interim lump sum ordered can be adjusted in the final property orders – Where the wife requires leave of the Court pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute spouse maintenance proceedings four months after the expiration of the 12 month period from the date the parties’ divorce orders took effect – Whether the wife would suffer hardship if leave was not granted to institute her spouse maintenance claim – Where the wife’s delay in instituting spouse maintenance proceedings is not material and not sufficient reason to refuse leave – Residual discretion exercised to grant leave for the wife to commence proceedings for spouse maintenance pursuant to s 44(3) of the Act – Order for lump sum interim spouse maintenance of $50,000 in favour of the wife.

FAMILY LAW – JURISDICTION – Where the wife previously sought leave to commence spousal maintenance proceedings in the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Court lacked jurisdiction pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the wife filed an initiating application in the Federal Circuit and Family Court of Australia (Division 2) seeking leave to institute spousal maintenance proceedings out of time pursuant to s 44(3) of the Act – Where the wife’s application was transferred to Division 1 removing previous jurisdictional impediments.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 4, 44, 72

Federal Circuit and Family Court of Australia Act2021 (Cth) s 50

Cases cited:
Kwok & Beng (No 5) [2024] FedCFamC1F 463

Vang & Chung (No 3) [2024] FedCFamC1F 101

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 17 October 2024

Place: Sydney

Counsel for the Applicant: Mr Brickwood

Solicitor for the Applicant: Luminous Legal

Counsel for the Respondent: Mr Moutasallem

Solicitor for the Respondent: Kammoun Sukari Lawyers

ORDERS

SYC 1577 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BENG

Applicant

AND:
MR KWOK

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

6 NOVEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) the Applicant Wife (“wife”) be granted leave to commence proceedings for spouse maintenance, being proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” in s 4(1) of the Act.
2.Within 7 days of the date of these Orders the parties shall do all acts…

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 Kwok & Beng (No 6)

Details

AGLC: Kwok & Beng (No 6) [2024] FedCFamC1F 743
Case: [2024] FedCFamC1F 743
Decision Date: 6 November 2024

CaseChat Overview and Summary

In the case of Kwok & Beng (No 6), the wife, Ms Beng, sought leave to commence spouse maintenance proceedings against Mr Kwok. The primary claim was for a lump sum of $150,000. The husband had the capacity to pay the lump sum from funds held jointly in solicitors' trust accounts. The court was tasked with determining whether leave should be granted to the wife to institute the spouse maintenance claim outside the standard 12-month period after the divorce orders became effective. Additionally, the court had to consider whether the delay in initiating the proceedings was significant enough to deny the wife's application.

The legal issues before the court centred on whether the wife's delay in instituting the spouse maintenance claim constituted a material factor that would justify denying her leave under section 44(3) of the Family Law Act 1975 (Cth). The court also had to address the jurisdiction of the court to hear the matter, considering previous jurisdictional impediments. Ultimately, the court found that the wife's delay was not material and did not warrant refusal of leave. The residual discretion was exercised to grant the wife leave to commence proceedings for spouse maintenance.

The court granted the wife leave to commence proceedings for spouse maintenance pursuant to section 44(3) of the Family Law Act 1975 (Cth). It ordered that $50,000 be paid to the wife by way of lump sum spouse maintenance from the funds held in the solicitors' trust account. The court's decision resolved the jurisdictional issue by transferring the wife's application to Division 1 of the Federal Circuit and Family Court of Australia, thereby removing previous jurisdictional impediments. The order was made on 6 November 2024 by Harper J.

Orders

Orders of the court

SYC 1577 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BENG

Applicant

AND:

MR KWOK

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

6 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) the Applicant Wife (“wife”) be granted leave to commence proceedings for spouse maintenance, being proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” in s 4(1) of the Act.

2. Within 7 days of the date of these Orders the parties shall do all acts and things and sign all documents necessary to cause the sum of $50,000 to be paid to the wife by way of lump sum spouse maintenance from the funds standing in the trust account (in the names of the parties) of Kammoun Sukari Lawyers.

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.

Background

Background to the litigation

Full text does not contain this section.

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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File number(s):	SYC 1577 of 2021
Judgment of:	HARPER J
Date of judgment:	6 November 2024
Catchwords:	FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – Where the wife’s primary claim is for a lump sum of $150,000 for spouse maintenance – Where the husband has capacity to pay a lump sum from funds held for both parties in solicitors’ trust accounts – Where any interim lump sum ordered can be adjusted in the final property orders – Where the wife requires leave of the Court pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute spouse maintenance proceedings four months after the expiration of the 12 month period from the date the parties’ divorce orders took effect – Whether the wife would suffer hardship if leave was not granted to institute her spouse maintenance claim – Where the wife’s delay in instituting spouse maintenance proceedings is not material and not sufficient reason to refuse leave – Residual discretion exercised to grant leave for the wife to commence proceedings for spouse maintenance pursuant to s 44(3) of the Act – Order for lump sum interim spouse maintenance of $50,000 in favour of the wife. FAMILY LAW – JURISDICTION – Where the wife previously sought leave to commence spousal maintenance proceedings in the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Court lacked jurisdiction pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the wife filed an initiating application in the Federal Circuit and Family Court of Australia (Division 2) seeking leave to institute spousal maintenance proceedings out of time pursuant to s 44(3) of the Act – Where the wife’s application was transferred to Division 1 removing previous jurisdictional impediments.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 4, 44, 72 Federal Circuit and Family Court of Australia Act2021 (Cth) s 50
Cases cited:	Kwok & Beng (No 5) [2024] FedCFamC1F 463 Vang & Chung (No 3) [2024] FedCFamC1F 101
Division:	Division 1 First Instance
Number of paragraphs:	25
Date of hearing:	17 October 2024
Place:	Sydney
Counsel for the Applicant:	Mr Brickwood
Solicitor for the Applicant:	Luminous Legal
Counsel for the Respondent:	Mr Moutasallem
Solicitor for the Respondent:	Kammoun Sukari Lawyers

SYC 1577 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BENG Applicant
AND:	MR KWOK Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	6 NOVEMBER 2024