A and A
[2004] FCWA 109
•6 AUGUST 2004
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
| LOCATION: | PERTH | ||
| CITATION: | A and A [2004] FCWA 109 | ||
| CORAM | : PENNY J | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : A |
Applicant/Wife
AND
A
Respondent/Husband
Catchwords:
Contempt - deliberate course of conduct by husband to mislead the Court as to the whereabouts of funds
Legislation:
Family Law Act 1975 - s 112AB, s 112AD, s 112AP
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr E Stanley |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | JAMES CHONG & CO |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in judgment(s):
Ibbotson and Wincen (1994) FLC 92-496 at p 81,162
1 The wife seeks to have the husband dealt with for contempt as a result of his non-compliance with orders made in the Court of Petty Sessions on 8 March and 29 March 2004. The wife says the husband's conduct in breaching the orders amounted to a flagrant challenge to the authority of the Court. The husband denies he is in breach of the orders.
Facts giving rise to the application
2 The parties finally separated December 2003. The month before they had sold the former matrimonial home, which was registered in their joint names. The proceeds of sale in the sum of $233,782.70 were placed in their joint bank account with the National Australia Bank. Without the wife's knowledge or consent the husband transferred the proceeds of sale to his own bank account from their joint account.
3 On 16 January 2004 the wife filed an application for property settlement seeking final orders and, in the interim, orders that the husband transfer the net proceeds of the former matrimonial home from his bank account into a joint account in the names of the husband and wife or, alternatively, that he be restrained by injunction from withdrawing, transferring or in any other way dealing with the proceeds of sale of the former matrimonial home which, at that time, the wife believed were in a bank account in the husband's sole name.
4 On 4 February 2004 the husband was ordered to file and serve a Form 3A, Form 17 and Form 16 detailing how the net proceeds of sale of the former matrimonial home had been dealt with since 1 December 2003. In an affidavit sworn by the husband on 10 February 2004 he agreed that on the day the funds were paid into a joint bank account in the name of himself and the wife he withdrew the sum of $1,000 for himself and transferred the balance of the money in two instalment sums, being $12,850 and $220,000 into a National Bank account in his sole name. On the same day he transferred the sum of $220,000 into an account in the name of his cousin. The husband went on to say in that affidavit that $20,000 of the sum transferred to his cousin had been paid to him to assist him to fit out his home. His cousin also provided him with $5,000 to pay to his solicitors on account of legal fees. In evidence at the contempt hearing the husband stated he transferred the money into his cousin's name so that he could repay a debt to his father, however, he conceded, there was no reason why the money should be transferred to the cousin's account rather than directly to his father.
5 On 16 February 2004 the matter came before Mr Judges SM. The husband was represented by Mr Berry of Kim Wilson & Co. The sworn evidence before the Court from the husband was that the sum of $194,224.59 was in the possession of his cousin. At that hearing the husband was ordered to disclose to the Registrar of the Family Court of Western Australia and to the solicitors for the wife the full name and residential address of the cousin and a further order was made restraining her from disposing of, charging or encumbering any of the monies paid to her by the respondent.
6 On 20 February 2004 the wife filed an application seeking to join the cousin Ms D as a party and sought an order that she transfer the sum of $195,000, or such balance held by her from the sum transferred by the husband, to a joint account in the name of the husband and the wife. This application was heard on 23 February 2004. On that day orders were made that the husband's father, be restrained from disposing of charging or encumbering any monies given to him by the husband, being the net proceeds of sale of the former matrimonial home. This order could only have been made upon the magistrate having been advised that the father of the husband at that time was holding the money.
7 The matter was back in court on 8 March 2004. On that day at approximately 9.00 am the husband swore an affidavit which, it appears, was handed up in Court on that day. The husband confirmed in that affidavit that the information given in his affidavit of 11 February 2004 was incorrect, when he stated that the funds from the sale of the property which had been withdrawn from the joint account were then, at least to the extent of $194,224, remaining in the bank account with the cousin. In the affidavit of 8 March 2004 he stated that the sum of $198,820 was deposited into his father's bank account on 4 February 2004. These funds, he says, were transferred into his father's account by, the husband of the cousin Ms D. I have no doubt that the husband was well aware the funds were in his father's account when he swore the affidavit on 10 February 2004. As a result, he knew that the order restraining Ms D would have no effect when it was made on 16 February 2004. The husband stated in the affidavit that on 13 February 2004 the sum of $198,820 was withdrawn from the father's bank account in cash and was given to him. The husband's father was restrained by injunction from dealing with these funds on 23 February 2004. That order would not have been made had the magistrate not been advised that the father was in possession of those funds at that time. Again, the Court was deliberately misled by the husband so as to make an order which would have no effect. The husband stated in the affidavit that he had distributed $198,820 to family and friends. He purported to attach to the affidavit annexure "C" which would provide the names of the people he had provided the funds to. That annexure was not attached to the affidavit. The husband stated in that affidavit that the funds were not in his possession, custody or control. This was yet another lie.
8 As a result of that evidence the magistrate had no alternative but to discharge the husband's father as a party to the proceedings as he was no longer in receipt of the funds and, according to the husband's evidence, had not been in possession of those funds when the order restraining him from dealing with them was put in place. On 8 March 2004 a further order was made that eight persons named by the husband as being in receipt of the funds from him, namely family members of his, were restrained by injunction from using, disposing, charging or in any other way dealing with the money transferred to them by the husband. The husband was restrained by injunction from dealing with each of the persons mentioned as being in receipt of the monies in a manner inconsistent with the order made herein. The eight people in receipt of the money were to deposit the funds into the joint account of the husband and wife at the National Australia Bank or otherwise not deal with the funds at all.
9 The evidence of the husband is that after signing the affidavit stating that the money was in possession of his family members he then went to the family members sometime between 10.00 am and 11.30 am on 8 March 2004, before the matter was heard in court at approximately 12 noon, and retrieved the money from all of them, except the parties' daughter, who purchased a car with the sums given to her. Annexure "DA-1" to the wife's affidavit sworn on 26 July 2004 is a document produced by the husband at a court hearing on 16 March 2004, and later confirmed by him to be true, in which he stated as follows:
"On the same morning (8 March) between the hours of 10 and 11.30 am I went to the homes of the family members and collected the money that they were holding for me. A discussion of where the money came from or for what reason the money was to be used for did not arise. My lawyer was not informed of my doing (sic) and was not aware of my intention. He only knew that I had previously given the money to family members.
At 12 pm I attended the Family Court and was only asked to provide the names and amounts that each family member received. I fully complied with the Court's request and produced the lists."
10 The husband later in the document provided a list of the names of the people who had received money and their signatures indicating that the money was taken from them between the hours of 10.00 am and 11.30 am.
11 It is clear that when the husband was in court on 8 March 2004 he was well aware that the submissions made by his counsel were false and that, in fact, the money, save for that given to his daughter, was in his own possession and control at that time. He was well aware that the statement in his affidavit that he had no control over the funds was a lie.
12 An order was made on 8 March 2004 that the husband provide the address of each person, that is the relatives of the husband, to the extent that the information was within his possession, custody or power. The husband confirmed that he was well aware of where each of those persons lived as he had been to each of their homes on the morning of 8 March 2004 to get the money back from them.
13 At the time the orders were made on 8 March 2004 the husband knew that seven of the persons named in the minute attached to the order in paragraph 1 were not holding any funds from the sale of the former matrimonial home and that, in fact, all the funds, apart from the money held by their daughter, were in his possession. The husband was also well aware that the purpose of the orders made were to restrain either the persons named in paragraph 1 or the husband, in dealing with those persons in a manner other than to effect the return of the funds to the joint account.
14 The document annexure "DA-1" was produced by the husband in Court on 16 March 2004 at a further hearing. In that document he, for the first time, disclosed that his relatives did not have possession of the funds when the order was made. In that document he failed to disclose that he had, in fact, on 10 March 2004 transferred the funds to Switzerland. His evidence at that time was that the money was no longer in the care of his relatives, as he had stated in his affidavit handed up in court on 8 March 2004. As a result of the evidence before the Court at that time an order was made that the husband be restrained by injunction from using, disposing of, charging, encumbering in any way, or dealing in any other way with the money he had in his possession, power or control, save and except to pay such funds into the joint account of the parties at the National Australia Bank branch account. A further order was made that the respondent forthwith pay the monies he had received into the said account. The husband was well aware that he did not have the funds to pay into the account, but did not make the magistrate aware of that fact. It was not until the husband gave viva voce evidence on 25 and 29 March 2004 that the whereabouts of the money became known. On 25 March 2004, when the husband gave evidence on oath, he stated that the money was now with "somebody overseas in Switzerland". He was asked to give a name to that person. He said he could not do that other than to say that she was an aunty. Again, the husband lied at that hearing. In my opinion, he was well aware of her name at that time. The application was then adjourned for the husband to provide information on oath to the Court in relation to the whereabouts of the money.
15 On 29 March 2004 the husband revealed that the name of the person to whom he had sent the money was his mother's sister, who lived part of the year in Switzerland and part in Macedonia. The husband confirmed that he had sent $180,000 to her on 10 March 2004 by four different telephonic transfers. At that hearing the husband stated that he did not have the address for his mother’s sister. He stated he had tried to contact her, but because of the time difference he could not get to her and could not speak to her to get her address.
16 When asked whether she was still holding the money, the husband stated:
"Honestly, I don't think so, because I was told to transfer
somewhere - - I told her to transfer them somewhere else."
17 On 29 March 2004 orders were made in the following terms:
"1 That until further order, the Respondent be restrained and an injunction is hereby granted restraining him from using, disposing of, encumbering in any way, or dealing in any other way with the monies he transferred to [name] of [place] Switzerland on 10 March 2004 amounting to $180,000.00 in Australian dollars and held by the [named person] for the Respondent, save and except to direct the [named person] to return the money to the parties' joint bank account number at the National Australia Bank, Branch, Western Australia, and for the costs of such transfer to be charged against the monies held by the [named person]. 2 That Respondent forthwith direct by letter addressed to the person giving her irrevocable authority to return the money sent to her, to the parties' joint account."
18 The husband confirms that he has not complied with order 2 as he does not have an address for the person and therefore cannot authorise her to return the money.
19 It was clear from the way the husband gave his evidence at the hearing of the contempt application, and the smirk on his face as he gave his evidence, that he feels he has been very clever. He firmly believes he has not breached any orders, as on every occasion an order was made he had mislead the Court as to the whereabouts of the money. On 10 February 2004 he swore the money was with his aunt. On 16 February 2004 orders were made restraining her form disposing of it. The husband was well aware when those orders were made that the funds were already in the possession of his father. On 23 February 2004 orders were made that the husband's father be restrained from disposing of the money. The husband was well aware at that time that the funds were no longer in his father's bank account, having been withdrawn on 13 February 2004. The funds were either in his possession or in the possession of relatives who were holding the funds for him. On 8 March 2004 orders were made restraining various family members from disposing of the money allegedly in their possession. These orders were made at a time and when the husband was in the court and was well aware that the money was in his own possession. Again, the injunctions against the family members were useless.
20 The wife seeks to have the husband dealt with for contempt pursuant to s 112AP of the Family Law Act. That section applies to a contempt of court that:
"(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court."
21 S 112AB(1) of the Family Law Act sets out the meaning of the phrase "contravening an order". That section states:
"112AB(1) A person shall be taken for the purposes of this part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order - he or she has:
(i) intentionally failed to comply with the order; or (ii) made no reasonable attempt to comply with the
order;.."
Allegation 1
22 The first contempt is alleged to have occurred on 24 March 2004. The allegation against the husband is as follows:
"The respondent husband, in deliberate breach of the order made on 8 March 2004, failed, neglected or refused to supply or cause to be supplied to the applicant the addresses of each and every person named in paragraph 2 of the court order of 8 March 2004, namely:
(a) I A; (b) D E; (c) A A; (d) A A; (e) Z A; (f) F M; (g) A A; and (h) S A."
23 The husband accepts that he did not provide the addresses of the various family members as set out in paragraph 1 of the Minute of Orders attached to the orders made that day and says he forgot to give the information. The husband confirmed that he was well aware of the address of each of the persons named in that list. Indeed, he had gone to each person's home on the morning of the hearing of 8 March 2004 and retrieved the money he had given to the relatives, except for the money given to the daughter. The husband says that if the wife's solicitor had rung him he would have provided the addresses to him. I do not accept this. At the time the orders were made for the addresses of the relatives to be provided forthwith, the husband was well aware that he was in control and had possession of the monies, not his relatives. It was not until two days later that the money was transferred by him to Switzerland. I have no doubt the husband refused to provide the addresses of the family members forthwith as he did not want the wife's solicitors to become aware that they were no longer in possession of the monies and that he was.
24 I am satisfied beyond a reasonable doubt that the husband intentionally failed to comply with the order. If the wife's solicitors had obtained information from the husband's relatives that he was in possession of the funds, the husband may have been stopped from removing the funds from the country.
25 It is not sufficient, however, that the husband has merely contravened the order for him to be found guilty of contempt. The wife has to prove that the contravention involved a flagrant challenge to the authority of the Court. In relation to what amounts to a flagrant challenge to the authority of the Court, the Full Court in Ibbotson and Wincen (1994) FLC 92-496 at p 81,162 , stated:
"Repeated breaches are not prerequisite, although that may more readily attract the provision. The use of the term 'a flagrant challenge' to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD.
In the ultimate, it is a question of fact and degree whether the stringent terms of the section are satisfied, bearing in mind, as was pointed out in Basic and Newman (1992) FLC 92-297, that it is usually more appropriate to use section 112AD."
26 In these circumstances I am satisfied beyond a reasonable doubt not only that the husband breached the orders, but that he did so in a manner that was a flagrant challenge to the authority of the Court. In determining this I have taken into account not only the fact that the husband did not comply with the order, and his reasons for not complying. I have also taken into account the husband's conduct on the day of the hearing, that is, at approximately 9.00 am he swore an affidavit saying that various relatives held the funds for him, subsequently to swearing the affidavit he then saw each of the relatives and had the monies returned to him. At the time of the hearing at 12 noon he was sitting in court, in all probability with the money in his possession. He was well aware that the submissions made by his counsel on the basis of his affidavit were incorrect and that seven relatives did not hold the money. I have no doubt that he did not want anyone to contact his relatives until such time as he had had an opportunity to get rid of the money he was holding.
Allegation 2
| 27 | The second contempt alleged by the wife is as follows: "The Respondent husband in deliberate breach of the injunction made on 16 February 2004, remitted monies he had in his possession or power or control in the total sum of $180,000.00 to a person in Switzerland on 10 March 2004, by four separate transactions through four different banks particulars whereof are: | |||||||||||
|
28 The breach of the injunction alleged by the wife is that contained in paragraph 2 of the Minute of Orders attached to the orders of 8 March 2004. Paragraph 2 states as follows:
"That until further order the husband be restrained by an injunction from dealing with each of the persons mentioned in paragraph 1 hereof in regard to the money he has transferred to each of them in any manner inconsistent with the orders made herein.
29 The other orders "made herein" which are relevant are as
follows:
2 Orders as set out in paragraph 1, 2 and 3 of the Minute of Orders Sought provided that in lieu of paragraph 3 the order will read "that the said monies be deposited into the joint account of the applicant and respondent at the National Australia Bank account.
3 The parties be restrained by injunction and an injunction is hereby granted restraining both parties from disposing of, charging, or encumbering the proceeds in that account or from operating the said account, other than for the purpose of depositing the monies said herein save and except pursuant to an order of the Court.
Minute of Orders
1 That until further order
(a) I A; (b) D E; (c) A A; (d) A A; (e) Z A; (f) F M; (g) A A; and (h) S A." each be restrained by an injunction from using, disposing of, charging, or in any other way dealing with the money transferred to them by the husband save and except to pay the money received by each one of them to the wife with liberty to apply to set aside this order on giving 48 hours notice.
30 The intent of these orders was that the husband's family members who, according to his affidavit sworn on that day, were in possession of the funds, would be restrained from dealing with the money other than to provide it to the wife, who was then to pay it into a joint account of the parties.
31 It was further ordered that the husband was not to deal with any of the persons mentioned in paragraph 1 of the orders in regard to the money he had transferred to them "in any manner inconsistent with the orders made herein". As the husband himself was then in receipt of the funds from his relatives, it was incumbent upon him pursuant to paragraph 2 of the Minute of Orders that he should not deal with the money he had already received from his family members in a manner inconsistent with the orders. The orders specified that the money should be held or paid to the wife for her to deposit in the joint bank account.
32 The husband says that he is not in default of this order as he had already received the funds from his family members and therefore could not be restrained by injunction from dealing with them in regard to the money. I do not agree with this proposition. The husband at the hearing on 8 May 2004 should have put the true position as to the whereabouts of the funds before the Court. Having failed to do so, and already having "dealt with" his family members in relation to the money, the husband was required not to deal with the money in a manner inconsistent with the orders. The orders stated that it should be deposited in a joint bank account of the parties, instead the husband sent it to Switzerland.
33 The husband agreed that he was aware that the purpose of the injunctions made that day was to ensure that the funds should be placed in the joint account so that it could be dealt with by the Court. He was aware that by sending the money to Switzerland this action would be inconsistent with what the Court was seeking to do by these orders.
34 I am satisfied beyond a reasonable doubt that the husband has contravened the orders as alleged. I am also satisfied beyond a reasonable doubt that his actions in sending the money overseas to Switzerland, from which point he says the funds may not be recovered, was an action deliberately done by him to put the money outside the jurisdiction of the Court. In my view, this amounted to a flagrant challenge to the authority of the Court and the husband is guilty of contempt.
Allegation 3
35 The third contempt alleged by the wife is that the husband in deliberate breach of the injunctions made 29 March 2004, failed, neglected or refused to direct the aunt by letter addressed to Ms D to return the money to the parties' joint bank account at the National Australia Bank in Osborne Park. The husband says that he has not written to the aunt as he is not aware of her address and, therefore, cannot comply with the order.
36 The husband, in evidence given at the contempt hearing, stated that he did not speak to his aunt, in relation to the money, but that his mother spoke to her by telephone and obtained her banking details. He said it was not discussed with his aunt what should happen to the money. This comment is in stark contrast to his evidence given on 29 March 2004. On that day the husband stated that Ms D was his mother's sister, that she lives in Switzerland and Macedonia and goes back and forth between the two countries. He said she works mostly in Switzerland. In relation to the fact that he had not given the address for Ms D to the Court, he stated:
"No I haven't - - I tried to contact her, but because of the time difference I couldn't get to her and I couldn't speak to her to get the address."
37 In relation to where the money was and what instructions he gave to Ms D, the husband stated:
"I told her to transfer them somewhere else.
So you don't know where the money is? - -
Not at this stage.
Okay, but she knows ? - - -Sorry?
But she knows? - - -Yes.
Okay. So when you sent this money you told her to do
something with it - - - I told her to transfer it - - Yeah, take it
out in cash and transfer it again.
To where? - - Sorry?
And where did you ask her to transfer the money? - - I didn't
give her specifics.
Sorry? - - - I didn't give her specific details.
I see. Just transfer it out? - - - Yes.
So you can direct her what to do with the money. Is that
right? - - - Sorry.
You can direct her as to what is to be done with the money? -
- - I told her to transfer it."
38 On that occasion there was no mention by the husband of the fact that he was unaware of the whereabouts of Ms D. In fact, according to him, he had tried to contact her, but could not because of the time difference. At that hearing he indicated to the Court that he had spoken to Ms D and given her instructions about what to do with the money. At the contempt hearing he stated that it was not discussed with his aunt what should happen to the money.
39 I have no doubt that the husband is well aware of where Ms D can be contacted and it is within his power to direct her to return the monies to Australia. I am satisfied beyond a reasonable doubt that the husband has deliberately failed to comply with this order and that this failure amounts to a flagrant challenge to the authority of the Court. The husband himself agreed that he was well aware that the intention of the Court when it made orders on 8 March 2004 was to attempt to track the money down, keep it in Australia and have it placed in a joint account of the parties in order that it may be dealt with according to law. Despite being aware of the facts, the husband transferred it overseas with the instructions that it be withdrawn and transferred to another account. He now has no interest ensuring that it returns to Australia or directing Ms D to return it to this country.
40 I shall now hear submissions from the parties in relation to the punishment which should be imposed.
I certify that the preceding [40] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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