Rong & Huan (No 3) - [2022] FedCFamC2F 1378

Federal Circuit and Family Court of Australia
(DIVISION 2)
Rong & Huan (No 3) [2022] FedCFamC2F 1378

File number(s): CAC 958 of 2021

Judgment of: JUDGE MANSFIELD

Date of judgment: 13 October 2022

Catchwords: FAMILY LAW – Contravention application - Mixed findings on four allegations of contravention of interim property orders – Issues with form of allegations – Allegation of contravention of interim parenting order found proved and reasonable excuse not established – Subdivision F found to apply - Section 70NFB paragraphs (1)(a) and (2)(g) apply such that the respondent is to pay all of the costs of the applicant - Not appropriate to deal with the contravention other than to impose a sentence of imprisonment - Sentence of imprisonment imposed commencing immediately for a period of 3 months, or upon compliance with the primary order, or preparation of terms and conditions that satisfy the court that the respondent is willing to comply with the order if released.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss. 64B(1), 64B(2)(i), 70NAF, 70NFA(1), 70NFB, 70FNE, 70NFG, 112AB, 112AC

Federal Circuit and Family Court Act 2021 s 67

Federal Circuit And Family Court Of Australia (Family Law) Rules 2021 r. 6.02, 11.67, 11.69(e)

Federal Circuit Court Rules 2001 r 24.04

Cases cited:
Cummings and Cummings (1976) FLC 90-100

Kardos & Harmon [2020] FamCA 328

McClintock & Levier (2009) FLC 93-401

Oswin & Oswin [2019] FamCAFC 164

Division: Division 2 Family Law

Number of paragraphs: 91

Date of last submission/s: 10 October 2022

Date of hearing: 19 September & 10 October 2022

Place: Canberra

Counsel for the Applicant: Dr Leslie

Solicitor for the Applicant: Mark Hanna Lawyers

Counsel for the Respondent: Ms Haughton

Solicitor for the Respondent: Mazengarb Family Lawyers
ORDERS

CAC 958 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HUAN

Applicant

AND:
MR RONG

Respondent

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

13 OCTOBER 2022

THE COURT ORDERS THAT:
1.Having found that the respondent contravened an order to do all things necessary to provide full and frank disclosure as at 15 July 2021, the respondent is to file and serve a written notice pursuant to rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 24 October 2022.
2.Having found that the respondent contravened an order under the Family Law Act 1975 affecting a child and that Subdivision F of Division 13A applies, pursuant to section 70NFB paragraphs (1)(a) and (2)(g), the respondent is to pay all of the costs of the applicant to this application.
3.Having found that the respondent contravened an order under the Family Law Act 1975 affecting a child and that Subdivision F of Division 13A applies, pursuant to section 70NFB paragraphs (1)(b) and (2)(e), a sentence of imprisonment is imposed on the respondent for a period of 3 months commencing immediately and ending on the earlier of:
(a)13 January 2023; or
(b)The provision of the child Y, born in 2014, to…

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 Rong & Huan (No 3)

Details

AGLC: Rong & Huan (No 3) [2022] FedCFamC2F 1378
Case: [2022] FedCFamC2F 1378
Decision Date

CaseChat Overview and Summary

In Rong & Huan (No 3), the Federal Circuit and Family Court was asked to determine whether the respondent had contravened several interim property and parenting orders, and if so, what sanction to impose. The applicant alleged that the respondent had failed to provide full financial disclosure on two occasions, had failed to provide property valuations on one occasion and had failed to arrange for the return of their child from China on one occasion. The court dismissed three of the allegations for various reasons including that they were not sufficiently particularised to inform the respondent of the matters alleged against him. The court found the remaining two allegations proved. The court found the respondent had intentionally failed to provide full financial disclosure on one occasion and had failed to arrange for the child to be returned from China. The court found no reasonable excuse for either contravention. The court ordered the respondent to pay the applicant's costs and to serve a written notice by a particular date. The court imposed a sentence of imprisonment for three months for the contravention of the parenting order. The sentence could be terminated early if the child was returned to Australia or if the respondent satisfied the court that if released, he would comply with the primary order.

Orders