Perica & Perica (No 2) - [2023] FedCFamC2F 1010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perica & Perica (No 2) [2023] FedCFamC2F 1010

File number(s): HBC 984 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 11 August 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – contempt – property – where the husband seeks to proceed with an amended Contempt Application in respect of twenty counts – where wife legally represented – prima facie case established

Legislation:
Family Law Act 1975 (Cth), pts XIIIA, XIIIB, ss 112AP(1), 112AP(1)(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.02, 11.71(3), 11.71(7), 11.71(7)(a)

Cases cited:
Bande & Cade [2011] FamCAFC 93

Fierro & Fierro (No 7) [2023] FedCFamC1A 24

Kendling and Anor & Kendling (Contempt) [2008] FamCAFC 154

LGM & CAM (Contempt) [2008] FamCAFC 1

Stradford & Stradford [2019] FamCAFC 25

Division: Division 2 Family Law

Number of paragraphs: 51

Date of hearing: 26 July 2023

Place: Hobart

For the Applicant: In person

Counsel for the Respondent: Mr McKenna

Solicitor for the Respondent: Murdoch Clarke
ORDERS

HBC 984 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PERICA

Applicant

AND:
MS PERICA

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

11 August 2023

THE COURT RULES THAT:
1.There is a prima facie case against the Respondent for Contempt.

THE COURT ORDERS THAT:
2.The Contempt Application filed 31 May 2023 is listed for finalisation of hearing to 25 August 2023 at 3:00pm.
3.The Respondent Wife file and serve any affidavit material upon which she relies in her defence to the Contempt filed 31 May 2023 by 4:00pm on 23 August 2023.

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
Judge Taglieri

In his Contempt Application filed 31 May 2023 (“the Contempt Application”), the Applicant Husband Mr Perica (“the Husband”) alleges that the Respondent Wife Ms Perica (“the Wife”) contravened court orders on numerous occasions and accordingly is liable to be punished for contempt under the Family Law Act 1975 (Cth) (“the Act”).
The Contempt Application sets out 24 alleged counts of breach on the part of the Wife. At the outset of the hearing of the Contempt Application on 26 July 2023, I sought clarification of the…

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 Perica & Perica (No 2)

Details

AGLC: Perica & Perica (No 2) [2023] FedCFamC2F 1010
Case: [2023] FedCFamC2F 1010
Decision Date

CaseChat Overview and Summary

In the case of Perica & Perica (No 2) before Judge Taglieri, the Husband alleged that the Wife had breached several court orders in relation to property proceedings, and sought to hold her in contempt of court. The Wife denied all allegations, and her counsel submitted that the Husband’s application was vague, ambiguous, and should be dismissed as it related only to procedural non-compliance, not substantive matters. Counsel also argued that the Wife should not be held in contempt because she was legally represented, and thus her case was conducted according to legal advice.

Judge Taglieri dismissed the submission for summary dismissal, and instead considered whether the application was inherently defective or if there was no case to answer. The judge held that the allegations were not vague, ambiguous, or lacking in clarity, and found that there was a prima facie case against the Wife. The judge was satisfied that the Wife’s legal representatives would have notified her of the orders, and that the non-compliance with the orders could amount to a flagrant challenge to the authority of the Court.

The judge ordered that the Contempt Application be listed for finalisation, and that the Wife file and serve any affidavit material in her defence by a specified date. The Wife was given the opportunity to state a defence to the allegations and give evidence, after which the Court would determine whether she should be convicted of contempt.

Orders