Rosington and Rosington - [2018] FamCA 172

FAMILY COURT OF AUSTRALIA

ROSINGTON & ROSINGTON

[2018] FamCA 172

FAMILY LAW – CONTEMPT – Where orders were previously made restraining the parties from selling, mortgaging, assigning or alienating any real property including drawing further funds against any existing security without the consent of the other party – Where the wife admits to drawing funds from a mortgage account – Where the wife was aware of the orders made – Where the wife knew that her actions were in breach of Court orders – Consideration of the meaning of ‘flagrant disregard’ – The wife was found to be in contempt of Court by the conduct described in each allegation.

Family Law Act 1975 (Cth) s 112AA, 112AP
Family Law Rules 2004 (Cth) r 21.08

Abduramanoski & Abduramanoska (2005) FLC 93-215 Bande v Cade (2011) 45 Fam LR 376 Kendling and Anor & Kendling (2008) FLC 93-384 Myers & Myers (2006) FLC 93-291 Tate & Tate (2002) FLC 93-107 Tate & Tate (No. 3)(2003) FLC 93-138
APPLICANT:	Mr Rosington

RESPONDENT:

Ms Rosington

FILE NUMBER:

SYC

6654

2015

DATE DELIVERED:

22 March 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

2 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Cummings SC
SOLICITOR FOR THE APPLICANT:	Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Byrne

SOLICITOR FOR THE RESPONDENT:

Panetta & Associates

Orders

The Court found that the wife was in contempt of Court by contravening orders made on 25 November 2015 as alleged in that she withdrew from her account with the T Bank being account number …00 BSB …, $222,521 on 1 September 2016 and $30,000 on each of 27 October 2016, 31 October 2016, 1 November 2016, 3 November 2016, 4 November 2016 and 7 November 2016.
The proceedings are adjourned to a date to be fixed in respect of any consequential orders arising from those findings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rosington & Rosington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC6654 of 2015

Mr Rosington

Applicant

And

Ms Rosington

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Rosington (“the husband”) alleges that on seven occasions Ms Rosington (“the wife”) was in contempt of Court by contravening Court orders. The main dispute in the trial related to whether the contraventions by the wife constituted a flagrant challenge to the authority of the Court and therefore amounted to contempt.

application

The application before the Court was the husband’s Amended Application –…

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.

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Details

Case: [2018] FamCA 172
Decision Date: 22 March 2018

CaseChat Overview and Summary

In the matter of *Rosington and Rosington*, Loughnan J of the Federal Circuit Court of Australia considered allegations of contempt brought by the husband against the wife. The dispute centred on the wife's alleged contravention of court orders made on 25 November 2015, specifically concerning the withdrawal of funds from a T Bank account.

The primary legal issue before the Court was whether the wife had, in fact, contravened the orders of 25 November 2015 by making specific withdrawals from her T Bank account on various dates between September and November 2016. The Court was required to determine if these actions constituted contempt of the existing court orders.

Loughnan J found that the wife was in contempt of court. This finding was based on the evidence that she had withdrawn $222,521 from her T Bank account on 1 September 2016, and further sums of $30,000 on each of 27 October 2016, 31 October 2016, 1 November 2016, 3 November 2016, 4 November 2016, and 7 November 2016. The Court accordingly adjourned the proceedings to a date to be fixed to consider any consequential orders arising from these findings of contempt.

Orders

Orders of the court

The Court found that the wife was in contempt of Court by contravening orders made on 25 November 2015 as alleged in that she withdrew from her account with the T Bank being account number …00 BSB …, $222,521 on 1 September 2016 and $30,000 on each of 27 October 2016, 31 October 2016, 1 November 2016, 3 November 2016, 4 November 2016 and 7 November 2016.

The proceedings are adjourned to a date to be fixed in respect of any consequential orders arising from those findings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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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