WEIRS & WEIRS - [2012] FMCAfam 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEIRS & WEIRS

[2012] FMCAfam 247

FAMILY LAW – Contempt application – breaches of orders pursuant to s.112AP of the Family Law Act 1975 – order to serve a term of imprisonment.

Family Law Act 1975, ss.112AP, 90MT, 108
Federal Magistrates Court Rules 2001
Family Law Rules 2004
New South Wales Sentencing Act 1989
Crimes Act 1900

LGM & CAM (2008) FamCAFC1
A Bank & Coleiro [2011] FamCAFC 157
English & English (1986) FLC 91-729
Abduramanoski & Abduramanoski (2005) FLC 93-215
Rand & Rand [2010] FamCAFC 167
Milford & Milford (No.2) [2008] FMCAfam 1239
DAI & DAA [2005] FamCA 88
Schwarzkopff & Schwarzkopff (1992) FLC 92 – 303
Rutherford & Marshal of the Family Court of Australia (1999) FLC 92-866
Tate & Tate (No.3) (2003) FLC 93-138
Australasian Meat Industry Employees Union & Mudginberri Station Pty Ltd (1986) 161 CLR 98
N & N (unreported, Coleman J, 7 May 1993)

Applicant:

MS WEIRS

Respondent:

MR WEIRS

File Number:

PAC 6763 of 2007

Judgment of:

Harman FM

Hearing date:

7 March 2012

Date of Last Submission:

7 March 2012

Delivered at:

Parramatta

Delivered on:

7 March 2012

ORDERS

The respondent is hereby found to have been in contempt of orders made by Henderson FM on each of the 18 August 2009 and 8 October 2009, and specifically through having dealt with and applied, contrary to such orders, funds of a self-managed superannuation fund on each of 8 September 2009, 22 September 2009, 28 September 2009, 8 October 2009, and 19 October 2009.
The respondent is sentenced to a term of imprisonment for a period of nine months to commence from 23 March 2012 and to conclude 23 December 2012, and to give effect to this order a warrant of commitment forthwith issue in the usual form.
To give effect to order 2 hereof that:
(a)The Registrar is requested to provide a copy of this order and the commitment warrant to the Patrol Commander, Parramatta Police, and to the relevant officer of the Department of Corrective Services, and;
(b)Mr Weirs is to present himself to Parramatta Police Station for the purpose of being processed and commencing sentence no later than 2 pm of 23 March 2012.
All outstanding applications and responses are dismissed and all issues are removed from the list of cases awaiting hearing.
These reasons are to be published.

IT IS NOTED that publication of this judgment under the pseudonym Weirs & Weirs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 6763 of 2007

MS WEIRS

Applicant

And

MR WEIRS

Respondent

REASONS FOR JUDGMENT

These proceedings are commenced by way of contempt application pursuant to s.112AP of the Family Law Act 1975.
The application was filed by the applicant wife in the proceedings, Ms Weirs, on 9 June 2010.
The respondent to the proceedings, Mr Weirs, was served with that application and an affidavit in support of it some short time…

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 WEIRS & WEIRS

Details

AGLC: WEIRS & WEIRS [2012] FMCAfam 247
Case: [2012] FMCAfam 247
Decision Date: 7 March 2012

CaseChat Overview and Summary

In the case of Weirs & Weirs, the court examined an application made by the first applicant, who sought enforcement of orders made by Henderson FM on 18 August 2009 and 8 October 2009. These orders were in relation to the handling of funds from a self-managed superannuation fund. The second applicant, who is the respondent, was found to have contravened these orders by dealing with and applying the funds on several occasions. The respondent was subsequently found to be in contempt of these orders.

The central legal issues the court had to address were whether the respondent had indeed breached the orders made by Henderson FM and, if so, what the appropriate penalty for such contempt would be. The court needed to determine the extent of the respondent's actions that contravened the specified orders and consider the appropriate legal consequences for such non-compliance.

The court examined the evidence and found that the respondent had indeed acted contrary to the orders of Henderson FM on multiple occasions. The respondent's actions involved dealing with and applying the funds of the self-managed superannuation fund on dates specified in the application. The court determined that these actions constituted contempt of the orders. Given the seriousness of the contempt and the need for deterrence, the court sentenced the respondent to a term of imprisonment for nine months, starting from 23 March 2012 and concluding on 23 December 2012. The court also issued a warrant of commitment and requested the Registrar to provide necessary documentation to the relevant authorities. Additionally, the court dismissed all other outstanding applications and responses and ordered the publication of the reasons for the decision.

Orders

Orders of the court

The respondent is hereby found to have been in contempt of orders made by Henderson FM on each of the 18 August 2009 and 8 October 2009, and specifically through having dealt with and applied, contrary to such orders, funds of a self-managed superannuation fund on each of 8 September 2009, 22 September 2009, 28 September 2009, 8 October 2009, and 19 October 2009.

The respondent is sentenced to a term of imprisonment for a period of nine months to commence from 23 March 2012 and to conclude 23 December 2012, and to give effect to this order a warrant of commitment forthwith issue in the usual form.

To give effect to order 2 hereof that:

(a) The Registrar is requested to provide a copy of this order and the commitment warrant to the Patrol Commander, Parramatta Police, and to the relevant officer of the Department of Corrective Services, and;

(b) Mr Weirs is to present himself to Parramatta Police Station for the purpose of being processed and commencing sentence no later than 2 pm of 23 March 2012.

All outstanding applications and responses are dismissed and all issues are removed from the list of cases awaiting hearing.

These reasons are to be published.

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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