Alessi & Alessi
[2024] FedCFamC2F 269
•1 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alessi & Alessi [2024] FedCFamC2F 269
File number(s): MLC 12802 of 2021 Judgment of: JUDGE MCGINN Date of judgment: 1 March 2024 Catchwords: FAMILY LAW - CONTRAVENTION APPLICATION – contravention of property settlement orders – contravention without reasonable excuse established – unlawful withdrawal from SMSF bank account – deferral of payment – offset for incurred liability – costs considered – orders made Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Family Law Regulations 1984
Cases cited: Naczek & Dowler [2017] FamCA 105
Kaljo & Kaljo (1978) FLC 90-445
Division: Division 2 Family Law Number of paragraphs: 88 Date of last submission/s: 19 December 2023 Date of hearing: On the papers (Considered in Chambers) Place: Adelaide Solicitor for the Applicant: J C Legal Solicitor for the Respondent: Klaus Kenny Intelex ORDERS
MLC 12802 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ALESSI
Applicant
AND: MR ALESSI
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
1 MARCH 2024
UPON NOTING
A.That the respondent has contravened without reasonable excuse order 1(b) of the orders of 8 March 2023 on 13 June 2023.
B.That the respondent has contravened without reasonable excuse order 6(e) of the orders of 8 March 2023 on 15 March 2023.
IT IS ORDERED:
1.That the time for the filing of written submissions pursuant to order of 26 September 2023 be extended nunc pro tunc to the date of the same being filed
2.That as and from 7 March 2024 and pursuant to s 112AD of the Family Law Act 1975 (Cth):
(a)the respondent is required to enter into a bond in accordance with s 112AF of the Act for a period of 12 months commencing the day upon which the respondent enters into the bond upon condition that the respondent complies with all orders made or to be made under this Act and that in the event, and only in the event, that he breaches that condition of the bond he shall then forfeit to the Commonwealth of Australia the sum of $2000; and
(b)that the respondent do attend at the Melbourne Registry at 11:00 am on 7 March 2024 (Australian Eastern Daylight Time) to sign the bond referred to in order 1(a) in the presence of a Judicial Registrar or other judicial officer of this Court.
3.That there be liberty to relist this matter upon written application to the associate to Judge McGinn in the event that:
(a)the respondent does not execute the bond referred to in order 1(a); and/or
(b)the respondent requires a further explanation to be given to him in relation to the bond pursuant to s 112AF.
4.That the respondent do pay the applicant’s costs of the Application-Contravention filed 10 July 2023 fixed in the sum of $4900 (inclusive of GST) within 8 weeks of the date of this order.
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 the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
Before the Court is the wife’s Application – Contravention filed 10 July 2023.
Although the Application refers to it having been brought for the respondent to be dealt with under Division 13A of the Family Law Act 1975 (Cth) (“the Act”) in relation to an order affecting children, the Application is in reality (and as also set out on the face of the Application) an application for the respondent to be dealt with under Part XIIIA of the Act.
That application is supported by an affidavit of the applicant wife of 10 July 2023.
The respondent husband has answered that affidavit by his own affidavit of 16 August 2023.
On 26 September 2023 the parties, then each legally represented, indicated that no cross-examination of the other was required and that the matter should be dealt with on the papers.
As a consequence, the Court determined on that day that there be the provision of written submissions by each of the parties after which judgment would stand reserved. Submissions were due initially by the applicant on 8 November 2023 (not exceeding 5 pages), then by the respondent on or before 22 November 2023 (not exceeding 6 pages) and then, within 2 weeks of service of the respondent’s submissions, the applicant submissions in reply (not exceeding 2 pages). The last of those submissions was received on 19 December 2023.
The respondent’s submissions were filed on 28 November 2023 at 5:49 pm (ACT time) and, presuming they were permissibly served that day, the time for replying submissions to be filed and served would have been 13 December 2023.
The documents before the Court that it might consider comprise:
(a)the Application – Contravention filed 10 July 2023;
(b)the applicant’s affidavit filed 10 July 2023;
(c)the respondent’s affidavit filed 16 August 2023;
(d)the applicant’s submissions filed 9 November 2023;
(e)the respondent’s submissions filed 28 November 2023; and
(f)the applicant’s submissions in reply filed 19 December 2023.
Orders as to the filing of submissions by certain dates and constraints on the length of submissions have been disregarded by each of the parties. In that respect no party has sought to have this matter brought before the Court to seek leave to remedy the extent of such non-compliance.
Further, the applicant’s submission makes reference to a letter of 2 November 2023 as being attached to her submissions (which it was not)[1] and which was not otherwise in evidence.
[1] Applicant’s Written Submissions of 9 November 2023 [5].
Rule 1.33(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides that a step taken after the time specified for the taking of that step by a procedural order is of no effect.
By virtue of that Rule there are no submissions before the Court and, pursuant to Rule 1.33(2), it would be open to the court, amongst other things, to dismiss the application.
No party has sought to have this matter brought before the Court to seek leave to remedy the extent of such non-compliance. Such relief could have been sought pursuant to Rule 1.34.
For these reasons alone I could dismiss the Application and make no order as to costs as between the parties.
However, as no issue is taken by either party as to their delay in filing submissions or the non-observance of direction as to length, the Court is disposed to otherwise consider the Application – Contravention and the affidavits and submissions filed in respect of it and determine it.
The Application, by virtue of orders made 18 August 2023 by a Senior Judicial Registrar, was constrained to a consideration of counts two and three of the Application.
Count two alleged that there was a contravention without reasonable excuse of paragraph 1(b) of orders made 8 March 2023 on 13 June 2023 in that the respondent failed to make a payment of $400,000 and only made a payment of $386,586.90. In other words, there was an alleged lack of compliance with the order to the extent of a lack of payment of $13,413.10.
Paragraph 1(b) of the orders of 8 March 2023 provides:
1. The Husband pay to the Wife the sum of $800,000 (the payment) as follows:
…
(b) $400,000 by 4:00 pm on 7 June 2023 (the second instalment).
(emphasis in original)
Count three alleged that there was a contravention without reasonable excuse of paragraph 6(e) of the 8 March 2023 orders in that on 15 March 2023 the respondent had failed to pay rates, taxes and outgoings in respect of a property at B Street, Suburb C.
The amounts identified in the Application total $3,271.41 having been amounts payable (by the order in which they appear in the Application) 30 November 2022, 28 February 2023, 9 March 2023 and 1 February 2023.
Paragraph 6(e) of the orders of 8 March 2023 provides:
6. Pending the [Suburb C] transfer and the [Suburb C] discharge:
…
(e) the Husband pay all rates, taxes and outgoings including utilities due and payable with respect to [Suburb C].
To understand what “Suburb C transfer”, the “Suburb C discharge” and “Suburb C” are, reference has to be made to orders 4 and 5 of the orders of 8 March 2023. Those orders are:
4. The parties do forthwith do all acts and things and sign all documents as may be required to transfer to the Wife, at the expense of the Wife, all of the Husband’s right, title and interest in the property at [B Street, Suburb C] ([Suburb C]), free of all encumbrance (the [Suburb C] transfer).
5. Contemporaneously with the [Suburb C] transfer, the parties do all acts and things and sign all documents for the Husband to discharge the Commonwealth Bank of Australia (CBA) mortgage registered number […] secured by [Suburb C], so as to release the Wife from any and all payment and liability thereunder, including to release the Wife from any and all personal guarantees provided by her in relation to [Suburb C] or any real property to be retained by the Husband pursuant to these orders, and provide confirmation of such release (the [Suburb C] discharge).
(Emphasis in original)
The applicant seeks:
(a)in relation to count two, that a contravention be recorded, the payment of $13,320 plus interest “as detailed in the Applicant’s Contravention Application”[2] (which it is not); and
(b)in relation to count three, that the contravention be recorded and the respondent pay outstanding balances up until 27 March 2023 including any interest and penalties applied by council and relevant services.[3]
[2] Applicant’s Written Submissions of 9 November 2023 [17].
[3]Applicant’s Written Submissions of 9 November 2023 [33].
Each party seeks an order for their costs in respect of the Application.[4]
[4]Applicant’s Written Submissions of 9 November 2023 [34], Respondent’s Written Submission of 28 November 2023 [29].
It is to be recalled that the Application is agitated under Part XIIIA of the Act.
The sanctions available for a contravention without a reasonable excuse are set out in s 112AD of the Act and in particular sub-section (2).
Those available sanctions do not coincide with the relief that the applicant seeks in her submissions. Payment of monies can be generally regarded as better pursued by utilising those remedies set out under Chapter 11 of this Court’s Rules.
The Application being under Part XIIIA of the Act requires the contravention within the meaning of s 112AB to be established.
Such a contravention must be of “an order under this Act” which according to s112AA which, if not an order of this Court, must be an order made by another court under particular circumstances and registered in this Court.
Here the order was made in the Federal Circuit and Family Court of Australia Division 1 which is not this Court. However, the order is “an order under the Act” as, by virtue of it having been annexed to the Application and filed in this Court it is registered in this Court for the purposes of s 112AA.[5]
[5] See definition of “order under this Act” paragraphs (g) and (h): Family Law Regulations 1984 reg 17: Naczek & Dowler [2017] FamCA 105 [28].
This is not an application for contempt but for a sanction for a failure to comply with orders that do not affect children. As such the standard of proof to which I must be satisfied that both the contravention and the reasonable excuse exist is that set out in s 140 of the Evidence Act 1995.
The respondent concedes the two contraventions of the orders but claims he had and has a reasonable excuse for those contraventions.[6] That he should concede the contraventions is consistent with his evidence[7] which discloses that he intentionally failed to comply with the orders in question. There is no question that he cannot be taken to have understood his obligations under the relevant orders. His understanding of the orders is underscored by his giving close deliberation of them when it came to determining whether to give effect to them or not.
[6] Respondent’s Written Submission of 28 November 2023 [7].
[7] Respondent’s Affidavit of 16 August 2023 [15] and [23].
I am satisfied on the balance of probabilities that each of the contraventions are made out.
There is a non-exhaustive definition of what might be a reasonable excuse for contravening an order located in s 112AC. The non-exhaustive list of circumstances includes those where a court is satisfied that the respondent ought to be excused in respect of the contravention.
The reasonable excuse is said to exist in the circumstances of this case in respect of each contravention as the wife through her actions has brought it upon herself to cause the husband not to comply by forcing him to look to his own interests after they had been damaged by the wife’s actions.
In determining whether a reasonable excuse exists in respect of the contraventions it is necessary to consider the respondent’s explanation for failing to comply with each of the contraventions.
COUNT TWO
In respect of the contravention constituted by count 2, the failure to pay the amount $13,413.10 so as to pay the full amount of $400,000 required by order 1(b) the respondent husband says:
(a)$94.10 of the unpaid amount was on account of the wife’s conveyancing expenses[8];
(b)$13,320 was on account of potential administrative[9] penalty from the Australian Tax Office on account of an unlawful withdrawal from a self-managed superannuation fund bank account said to be in breach of various regulatory provisions (comprising both legislation and regulation) referred to collectively as superannuation regulations.
[8] Respondent’s Affidavit of 16 August 2023 [3].
[9] Respondent’s Affidavit of 16 August 2023 [3], [10.3].
The parties are members of a self-managed superannuation fund styled the “Alessi Superannuation Fund” of which the company Alessi SF Pty Ltd is the trustee.
Under the orders of 8 March 2023 there was to be a super split to the wife out of the husband’s entitlement in that fund of some $200,000.[10] The wife was thereafter to effectively remove from the fund her entitlements and leave the fund in the respondent husband’s control.[11]
[10] Order 8 March 2023, order 14.
[11] Order 8 March 2023, order 18.
Those orders were to be operative from 8 March 2023.
For the purposes of considering the present application, two other orders of 8 March 2023 need to be noted:
19. After giving effect to the foregoing paragraph [which provided for the wife to leave the fund and leaves the control of it’s trustee in the hands of the respondent husband], the Husband be liable for and indemnify the Wife absolutely in relation to the trustee and the Fund, for all liabilities, whether past present or future including but not limited to taxation liabilities or penalties.
20. Pending the superannuation split, each party be and is hereby restrained from dealing with, charging, encumbering or disposing of any property of the Fund, other than in accordance with the terms of this order.
The withdrawal of funds giving rise to the non-payment of $13,320 took place on 22 March 2023 in the sum of $659.16 from a bank account in the name of the superannuation fund’s corporate trustee.[12]
[12] Respondent’s Affidavit of 16 August 2023 [6].
By letter of 22 May 2023 the respondent gave notice that:
As such, until it is clear there will not be any action taken in response to the reportable contravention and penalties issued, our client intends to withhold the amount of $13,320 from the final payment due to your client for a period of 12 months from the date the reportable contravention is made. If no notice of action to be taken is received by that time, our client will pay the further amount to your client.[13]
[13] Respondent’s Affidavit of 16 August 2023, annexure 6.
The respondent claims the non-payment is “simply a deferral of payment of the balance of the funds to her [ie the applicant]”.[14]
[14] Respondent’s Affidavit of 16 August 2023 [15].
It appears that the respondent has made good this and another payment removed from the superannuation fund accounts.[15]
[15] Respondent’s Affidavit of 16 August 2023 annexure “-3”, p 22 of 92; Respondent’s Written Submissions of 28 November 2023 [26.1].
The respondent gives in his affidavit of 16 August 2023 his motivation for him not complying with the order as:
(a)having considered whether to make an application to the court to vary the orders to include provision for him to withhold $13,320 from Ms Alessi’s [ie the applicant’s] final payment and determining not to do so on account of costs and delay, he was then hoping the matter would resolve by agreement;[16] and
(b)as he had no means to recover funds from the applicant wife should the Australian Taxation Office impose an administrative penalty, the most practical and cost-effective way to deal with the situation was to withhold funds from the applicant wife and defer payment for a reasonable period to see if the Australian Taxation Office took any action.[17]
[16] Respondent’s Affidavit of 16 August 2023 [15].
[17] Respondent’s Affidavit of 16 August 2023 [16].
This motivation is depicted as being a reasonable excuse in his written submission as follows:
The husband submits it is unjust if the ATO [ie the Australian Taxation Office] were to impose a penalty upon him, as sole director of the trustee, as a result of the wife’s deliberate impropriety. In those circumstances, the husband contends he had reasonable excuse to withhold the amount from the payment due to the wife pursuant to the final orders pending the completion and lodgement of the tax returns for the SMSF [ie self-managed superannuation fund of the parties] for the financial year ending 30 June 2023, and pending the issue of any penalty notice by the ATO.[18]
[18] Respondent’s Written Submission of 28 November 2023 [19].
The husband by his submission accepts there is no certainty of any penalties being imposed or the amount of those penalties if imposed.[19]
[19] Respondent’s Written Submission of 28 November 2023 [15].
There is nothing to be gained in considering whether the action of the wife were deliberate, reckless, indifferent or naïve in withdrawing the monies in question. Regardless of her motivation, it is the prospect of the consequences from the Australian Taxation Office which are relevant.
The husband can be seen to have acted contrary to orders so as to provide himself security for the prospect of action being taken by the Australian Taxation Office.
He has done so when it was open to him to bring, at least before this Court, an application to stay, suspend or enforce the operation of various of the orders of 8 March 2023 or exercise the ability to have consequential orders made.[20] Such applications could, in my view, be pursued both before and after any action by the Australian Taxation Office.
[20]Kaljo & Kaljo (1978) FLC ¶90-445, at 77,275.
I am not satisfied that a court in considering any such application would be readily disposed to permit the husband to disregard his obligations under the order. Further, I am not satisfied by the husband’s assertion that the costs or delay of the bringing of such an application would operate to render such applications impracticable.
I find that the respondent has not established a reasonable excuse for his failure to comply with order 1(b) of the orders of 8 March 2023.
I find that the contravention without reasonable excuse set out at count two is established.
COUNT THREE
In respect of count 3 the applicant says there is a failure to comply with orders requiring the payment of two lots of council rates due 30 November 2022 and 28 February 2023 in the total sum of $2,348, water rates payable 9 March 2023 in the sum of $286.83 and electricity bill in the sum of $636.58 payable 1 February 2023. These amounts total $3,271.41.
The type of accounts and their due dates indicate that they were liable to be paid by the husband pursuant to order 6(e).
The affidavit in support of the Application - Contravention speaks of these accounts as being unpaid as at the date of that affidavit of 4 July 2023.[21]
[21]Applicant’s Affidavit sworn 4 July 2023 [12].
The respondent’s affidavit and submissions do not state that these specific accounts have been paid.[22]
[22]Respondent’s Affidavit of 16 August 2023 [21].
The council and water rates as set out in the Application and the supporting affidavit, at the very least, appear to have been outstanding at the date of the application [23]
[23] Respondent’s Affidavit of 16 August 2023 [22]; Respondent’s Written Submission of 28 November 2023 [26].
However, given the concession in the respondent’s submissions,[24] I find that the contravention referred to in count 3 is established.
[24] Respondent’s Written Submission of 28 November 2023 [7.2].
The respondent husband claims a reasonable excuse in that the unpaid amount of the rates is that he was and is due an offset for;
(a)the withdrawal of $942.86 by the wife from the parties’ self- managed superannuation fund. This amount appears to be the total of amounts said to have been removed by the wife on 20 May 2021 and 22 March 2023;
(b)the payment of electricity and gas bills of $763.61 due after 27 March 2023. I infer these bills related to the Suburb C property and related to bills that were otherwise payable but for that date;
(c)$107.66 in eTag fees incurred by the wife on dates not specified; and
(d)$825 for the respondent’s legal fees said to be incurred as a result of signing documents in relation to the superannuation fund for the purposes of the March 2023 orders.
I will deal with each of these matters individually (in the order of eTag matters, legal fee expenses, superannuation fund reimbursements and the utilities accounts) and then collectively.
I infer from the letter of 13 April 2023[25] that the eTag liability was incurred at least in part from 6 March 2023 and it was open to the respondent to cancel it as he chose to do so. It appears the respondent delayed in cancelling the eTag and the applicant assumed its continued use beyond the date of the March 2023 orders. There is nothing that persuades me that the continued use of the tag by the applicant otherwise reasonably justified the respondent’s non-compliance with the order 6(e) of those orders.
[25] Respondent’s Affidavit of 16 August 2023, MA-4, p 24 of 92.
The incurring of legal fee expenses by the respondent in relation to the signing of documents in relation to the superannuation fund, even if exclusively for the purposes of giving effect to the March 2023 orders, was a matter for the respondent as to what, if any, legal advice and upon what terms it was sought. It does not in all the circumstances constitute a reasonable excuse not to comply with orders relating to the pay rates, taxes and outgoings including utilities.
Similarly, the offsetting of what appears to have been paid to reimburse the superannuation fund does not constitute a reasonable excuse for failure to comply with an order relating to a different subject matter namely the outgoings on the Suburb C property until transfer.
The payment of electricity and gas bills said to be due after 27 March 2023 does not constitute a reasonable excuse for not paying them when the terms of the orders provide to the contrary and where those terms are not conditioned by a time limit other than the occurrence of the relevant transfer and discharge. This was a term accepted by the parties at the time they settled their property dispute and the risk of delays, both foreseen and unseen, and the consequences of them are to be taken as also to have been assumed by them. Should circumstances have prevented effect being given to the orders then other applications need to be made in the absence of agreement and orders obtained.
The focus of each parties’ submissions appears to be the council rates that were not paid by reason of the asserted and cumulative effect of a series of offsets. If the offsets were of a nature that made giving effect to orders impracticable to be implemented, there may be some prospect of those offsets not being met to have enjoyed some prospect of enabling them to constitute a foundation for a reasonable excuse to be established. However, they are not.
The plea that in circumstances where one party has, in their view, been wronged enables them to otherwise fail to give effect to orders does not find favour with the Court in the circumstances of this case.
The sale of the Suburb C property and the discharge of council rates liabilities at settlement upon sale of that property as asserted in the respondent’s submissions and acknowledged in the applicant’s replying submissions is a matter of no weight in the determination of the existence of a reasonable excuse.
There is no reasonable excuse established in respect of the contravention referred to in count three.
I find that there is a contravention without reasonable excuse in relation to count three.
SANCTIONS
I turn to consider the question of sanctions. I have briefly referred to the question of sanctions in reference to the type of relief that the applicant sought in her submission.
The question of the sanction to be imposed is a matter is a matter for the Court.
In determining the sanctions to be imposed here I have had regard to the following matters:
(a)that there are two contraventions without excuse;
(b)the contraventions relate to the non-payment of monies;
(c)the amounts the subject of the Application and as set out in that Application total $16,684.51;
(d)that some portion of those amounts may have been paid consistently with the orders of March 2023 but it is uncertain to the extent of that payment;
(e)the amount of $13,413.10 due under order 1(b) and the council rates due to be paid under order 6(e) of 8 March 2023 have not been paid;
(f)that unpaid monies carry interest pursuant to s 117B of the Act;
(g)that no party has set forth information as to their financial or personal circumstances; and
(h)that whatever orders are now made there may be further applications in due course.
Should it be necessary to consider and impose separate sanctions for each count, I would in the circumstances of this case have imposed a bond in respect of each count for a period of 12 months upon condition that the respondent comply with all orders past and future that are made under the Act and in the event of failure to comply, require the forfeiture of an amount of $1500.
However, I would consider that there should be one sanction to be imposed in respect of both counts.
In the circumstances, I consider that the appropriate sanction would be for the respondent to be required to enter into a bond in accordance with s 112AF pursuant to subsection 112AD(2)(a). The bond would be for a period of 12 months and upon conditions that the respondent would during that period comply with all orders having been made or to be made under the Act and that in the event he fails to comply with the terms of the bond that the sum of $2,000 be forfeited to the Commonwealth.
Before the respondent enters into the bond, he is entitled to receive from the Court[26] an explanation in language likely to be understood by him as to the purpose and effect of the proposed requirements of a bond and the consequences that follow if he fails to enter into the bond or having entered into the bond fails to act in accordance with the bond.
[26] Family Law Act 1975 (Cth) s 112AF(5).
That explanation is now provided in the following:
(a)that a bond is a solemn promise and agreement by the person entering into the bond to the Court to comply with the obligations set out in the bond document that is to be signed by that person;
(b)that the bond will operate for a period of 12 months from the date of entering into the bond;
(c)that the bond requires the respondent to adhered to and give effect to all existing and further orders made under the Family Law Act 1975 (Cth) for the 12 months that the bond operates;
(d)in the event that the respondent does not comply with the terms of the bond then:
(i)the sum of $2000 is to be paid to the Commonwealth of Australia;
(ii)the Court can then give consideration to:
(A)allowing the bond to continue; and/or
(B)impose further penalty for failure to comply with the terms of the bond;
(e)in the event that the person fails to enter into the bond then the Court can give consideration to other sanctions which include imprisonment, fine, community service orders, work orders, attendance at a centre order, periodic detention order and the like;[27] and
(f)any order made requiring a respondent to enter into a bond is capable of variation under the Act but the grounds for such variation are not specified in the legislation.[28]
[27] Family Law Act 1975 (Cth) s 112AD(2).
[28] Family Law Act 1975 (Cth) s 112AK.
COSTS
Each of the parties has sought an order for costs. There are no detailed submissions as to why such an order should be made.
The applicant in her affidavit seeks that the order for costs be on the basis of indemnity costs.
I am not disposed to grant such an order as, firstly, there is no compliance with the Rules with respect to the provision of the relevant costs agreement or retainer, and, I do not consider the circumstances of this matter to be so exceptional as to justify such an order and, thirdly, I do not have any information or evidence as to the quantum of any claim for such costs or the basis upon which such quantum would be justified.
I take into consideration the provisions of s 117 of the Act and in particular those provisions set out in subsection (2A) and (2).
Here, the respondent has been wholly unsuccessful in seeking to establish a reasonable cause for his admitted contraventions and to that extent the application has been brought because there has been a failure to comply with orders. However, at the same time it has to be recognised that a majority of the counts originally agitated by the relevant Application have been on an earlier occasion dismissed and hence to be regarded as being wholly unsuccessful.
Further it is not to be overlooked that the relief that the applicant wife is sought by her written submissions are not those which in those terms can be granted by the Court in respect of her present Application.
Any award for costs in this matter would only be on the basis of the relevant schedule set out under this Court’s Rules.
I am of the opinion that an order for costs should be made for the respondent to pay the applicant’s costs in relation to the Application – Contravention in the sum of $4900 inclusive of GST to be paid within 8 weeks of the date of this order after taking into account the following factors:
(a)the fact of the filing of the Application and the affidavit in support;
(b)the consideration of the respondent’s affidavit material;
(c)the attendance before a Judicial Registrar;
(d)the attendance before this Court for the purposes directions;
(e)the preparation consideration of the written submissions of each of the parties;
(f)the non-complying length of submissions; and
(g)the Courts view that the parties should be spared the further expense in trouble of undertaking an assessment of costs.
For these reasons there shall be orders as set out at the commencement of these reasons.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 1 March 2024
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