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Weng & Wah

Weng & Wah

Case [2022] FedCFamC2F 475 14 March 2022

Contravention of Court Order

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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…

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 Weng & Wah

Details

AGLC: Weng & Wah [2022] FedCFamC2F 475
Case: [2022] FedCFamC2F 475
Decision Date

CaseChat Overview and Summary

In the matter of Weng & Wah, the Federal Circuit and Family Court of Australia (Division 2) delivered its judgment on 14 March 2022. The case involved a contravention application filed by Mr Weng, the husband, against Ms Wah, the wife, asserting that she had contravened an order regarding the payment of funds held in a trust account. The wife admitted to the contravention but argued that she had a reasonable excuse. The court had to determine whether the wife's contravention was without reasonable excuse and, if so, what penalty, if any, should be imposed. Additionally, the court had to consider the husband's application for costs.

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.

Orders