FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weng & Wah [2022] FedCFamC2F 475
File number(s): MLC 9718 of 2014 Judgment of: JUDGE MORLEY Date of judgment: 14 March 2022 Catchwords: FAMILY LAW – contravention hearing – where wife wilfully contravened property orders without reasonable excuse – consideration of penalty – consideration of indemnity costs Legislation: Family Law Act 1975 (Cth) ss 112AB, 112AC, 112AD, 112AF, 112AE, 112AG, 112AP, 117
Commonwealth Crimes Act 1914 (Cth) s4AA
Federal Circuit and Family Court of Australia Family Law Rules 2021 (Cth)
Cases cited: Bant & Clayton [2020] FamCAFC 183
COG15 & Child Support Registrar and Anor [2016] FamCAFC 272
Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225
D & D (Costs) (No. 2) [2010] FamCAFC 64
JEL & DDF (No 2) [2001] FamCA 907
Keehan v Keehan [2019] FamCAFC 250
Kent & Kent (No. 4) [2017] FamCA 1053
Kohan & Kohan (1993) FLC 92–340
Latoudis & Casey (1990) 170 CLR 534
Limousin & Limousin (Costs) [2007] FamCA 505
McClintock v Levier (2009) 233 FLR 179
Munday v Bowman (1997) FLC 92-784
Orchide & Orchide [2018] FamCAFC 58
Phillips & Hansford [2020] FamCAFC 28
Sfakianakis & Sfakianakis [2019] FamCAFC 54
Trevi & Trevi (No 3) [2019] FamCAFC 58
Division: Division 2 Family Law Number of paragraphs: 96 Date of hearing: 14 March 2022 Place: Sydney Counsel for the Applicant: Mr Mort Solicitor for the Applicant: M And K Lawyers Group Pty Ltd Solicitor for the Respondent: Ms Ho of Ascent Lawyers ORDERS
MLC 9718 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WENG
Applicant
AND: MS WAH
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
14 MARCH 2022
THE COURT ORDERS THAT:
1.The Court is satisfied that the Respondent wife Ms Wah contravened order 3 of orders made by the Honourable Forrest J on 16 August 2019 and as amended on 9 September 2021, and such contravention was without reasonable excuse.
2.Pursuant to the Court's discretion in section 112AD(1) of the Family Law Act 1975 (Cth), the Court imposes no sanction for the contravention conviction.
3.The Respondent Wife pay the Applicant Husband's costs of these proceedings being:
(a)Enforcement proceedings; and
(b)These current proceedings in relation to the Applicant Husband's Application - Contravention,
in the sum of $30,216.00.
4.Costs awarded by order 3 made today are to be paid by the Respondent Wife to the Applicant Husband by no later than 4:00PM 18 May 2022.
THE COURT NOTES THAT:
5.The Respondent Wife admitted to the contravention charge as alleged by the Applicant Husband.
6.The Respondent Wife raised a defence of reasonable excuse in relation to the contravention charge.
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…
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CaseChat Overview and Summary
The court found that the wife had contravened the order without reasonable excuse. She was fully aware of the order and its requirements but chose not to comply with it for her own benefit. The court also found that the wife's attempt to preserve the funds for other purposes did not constitute a reasonable excuse. As for the penalty, the court exercised its discretion under section 112AD(1) of the Family Law Act 1975 (Cth) and decided not to impose any of the listed sanctions on the wife.
Regarding the costs application, the court found that there were circumstances justifying the departure from the general rule of each party bearing their own costs. The wife's conduct in the proceedings, her failure to comply with previous orders of the court, and her refusal to accept a reasonable offer of compromise by the husband were among the factors considered. The court ordered that the wife pay the husband's costs of the enforcement and contravention proceedings on an indemnity basis in the sum of $30,216.
In summary, the court found that the wife had contravened the order without reasonable excuse and decided not to impose any penalty. The court also found that the husband was entitled to be awarded costs on an indemnity basis.
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