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
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…
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CaseChat Overview and Summary
The court examined whether the respondent had contravened two specific orders: order 1(b) concerning property settlement and order 6(e) related to the SMSF. The evidence demonstrated that the respondent had indeed withdrawn funds from the SMSF bank account without reasonable excuse, thus breaching order 6(e). Additionally, the respondent had failed to comply with order 1(b) by not making certain payments. The court was required to consider whether the respondent had a reasonable excuse for these contraventions and, if not, what orders should be made under section 112AD of the Family Law Act.
The court found that the respondent had contravened the orders without reasonable excuse. Consequently, the court ordered the respondent to enter into a bond under section 112AF of the Family Law Act, requiring him to comply with all future orders made under the Act, with a penalty of $2000 for any breach. The respondent was also ordered to attend the Melbourne Registry to sign the bond. Furthermore, the court mandated that the respondent pay the applicant's costs of the contravention application, amounting to $4900, within eight weeks of the order date. The court reserved the right to relist the matter if the respondent failed to execute the bond or required further explanation regarding it.
Orders
Orders of the court
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.
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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