Allwright & Allwright (No 3)
[2023] FedCFamC1F 985
•13 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allwright & Allwright (No 3) [2023] FedCFamC1F 985
File number(s): CAC 89 of 2022 Judgment of: MCNAB J Date of judgment: 13 October 2023 Catchwords: FAMILY LAW – PARENTING & PROPERTY – Procedural – Where the mother elected to proceed unrepresented when she had the benefit of a s 102NA Order – Where the mother was not permitted to cross-examine the father - Multiple contraventions by the mother without reasonable excuse– Where mother admits to several contraventions –– Where there has been no previous application for contravention -Where the mother is placed on a 12 month Good Behaviour Bond – Where costs are ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Subdivision E of Division 13A of Part VII, ss s 62B, 65DA(2), 70NEA and 70NEB, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 29 Date of last submission/s: 13 October 2023 Date of hearing: 13 October 2023 Place: Melbourne Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: TW Lawyers Counsel for the Respondent: Litigant in Person ORDERS
CAC 89 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALLWRIGHT
Applicant
AND: MR ALLWRIGHT
Respondent
ORDER MADE BY:
MCNAB J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT DECLARES THAT:
1.The Court being satisfied (and the mother having admitted) that the mother has committed contraventions of orders under the Family Law Act 1975 (Cth) (“the Act”) affecting the children X born 2013, Y born 2015 and Z born 2017 (“the children”), being contraventions of the orders made in the Federal Circuit and Family Court of Australia on:
(a)8 February 2022
(b)15 June 2022 and
(c)23 September 2022
(“the orders”);
2.the mother not having proved that she had a reasonable excuse for the contraventions;
3.no court having jurisdiction under the Act having previously made an order in respect of a contravention of the orders; and
4.the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contraventions.
THE COURT ORDERS THAT:
5.The respondent mother enter a Good Behaviour Bond for a period of 12 months commencing 13 October 2023 and comply with orders of the Court made as follows:
(a)8 February 2022;
(b)15 June 2022; and
(c)23 September 2022.
6.The Respondent mother pay the applicant father’s costs fixed in the sum of $6,000.00 – such payment to be stayed for 60 days from the date of these orders.
7.The Contravention Application filed 27 July 2023 be otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Annexure and these particulars are included in these orders.
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 the pseudonym Allwright & Allwright has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPTMcNab J
The parties in this matter are Ms Allwright aged 46 years and Mr Allwright aged 41 years. The mother has two children by a previous relationship: D born 2006 aged 17 years and E born 2008 aged 15 years.
Parties met and commenced a relationship around mid-2012 and began living together in around late 2012. There are three children of the relationship: X born 2013 aged 9 years, Y born 2015 aged 8 years and Z born 2017 aged 6 years.
The father states there was a domestic violence/assault incident in late 2021 and that police issued a Domestic Violence Order to protect the father and children D, E, Z and Y from violence perpetrated by the mother the next day. The father states X was not originally included in this order as he was in Queensland with the paternal grandparents. The mother’s account is that the police took out a Provisional Apprehended Violence Order against her and one count of common assault which was to return to court in early 2022 and which she intended to plead not guilty to.
The parties separated on 26 December 2021 on the mother’s account and on 28 December 2021 on the father’s account and the father relocated from the family residence at Town F to his parent’s house in Queensland. The father’s account was that X had been picked up by the grandparents and left Town F with them for Queensland in early 2022 and that this was an annual holiday where Y and X spent time with the grandparents.
The mother commenced proceedings by an Initiating Application filed on 20 January 2022 for property and parenting orders. She sought sole parental responsibility of the children, that the children live with the mother, and she sought urgent interim orders for recovery of X. The children have been under the full-time care of the mother under orders made on 8 February 2022 for the children to live with the mother and for the mother to have sole parental responsibility for the children.
The mother sought interim property orders:
13. That the Respondent Husband is hereby restrained and an injunction is hereby granted restraining the Husband from distributing, transferring and dealing with any funds in the parties joint names until further Order of the Court or written agreement between the parties’ solicitors.
14. That the Respondent Husband is restrained from selling, dealing or encumbering the properties at [G Street], [Region J] QLD and [H Street], [Town L] QLD until further Order of the Court or written agreement between the parties’ solicitors.
15. That the Respondent Husband forthwith transfer the sum of $130,000 to the [K Pty Ltd Trust Account] on behalf of the Applicant Wife.
The father moves on a Contravention Application filed on 27 July 2023. The applicant is the father, and the respondent is the mother.
The father alleges the mother has committed contraventions against property and parenting orders, specifically orders of 8 February 2022 (Orders 3 and 24), 15 June 2022 (Order 9) and 23 September 2022 (Orders 1 to 3 and 6). These orders relevantly are:
Orders 8 February 2022
3.The Mother is restrained from locating the children’s permanent residence from [Town M] NSW, unless with the prior written consent of the Father or by further Order of the Court.
…
PROPERTY
24.BY CONSENT of the Applicant and the First Respondent, both the Applicant and First Respondent are restrained, by injunction, from selling, distributing, transferring, disposing of, encumbering or otherwise dealing with any of the assets of the relationship unless expressly agreed in writing between the Applicant and the First Respondent or by Order of the Court.
Orders 15 June 2022
Disclosure
9.Within 28 days of these Orders, each party shall exchange all documents as required for financial disclosure as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders 23 September 2022
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The parties are to forthwith jointly manage the properties located at [G Street], [Region J] in the State of Queensland (‘the [Region J Property]’) and [H Street], [Town L] in the State of Queensland (‘the [Town L Property]’) subject to these Orders.
2.The parties are to effect the management of the [Region J] and [Town L] properties subject to any pre-existing residential tenancy lease or any further lease to be entered into as agreed between the parties in writing.
3.Both parties are restrained from dealing with, renting out, attending at or instructing others to attend at the [Region J] or [Town L] properties pending further Order, without the prior written consent of the other party, subject to any current tenancy or terms of any tenancy in place.
…
Chattels and Effects
6.Forthwith, and within at least twenty-one (21) days from the date of these Orders, the Respondent wife is to arrange for the Applicant husband’s contents, machinery, equipment and tools detailed at “Annexure A” of the Applicant’s Outline of Case (Interim Hearing) document filed 15 September 2022 to be removed at her instruction from the [Town F] and [Region J] properties and returned to the Applicant husband, with the exception of the following: [tools, equipment and motor vehicles].
The father listed 22 contraventions in his application. At the commencement of the hearing on 13 October 2023, counsel for the father advised the court that they were proceeding on selected alleged contraventions and the court struck out two contraventions on the basis of how they were formulated. Those matters discontinued and struck out are shown in the following paragraphs:
(3)On 23 February 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a cupboard, without the written consent of the Applicant and in contravention of the Orders.(4)On 23 February 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a wardrobe, without the written consent of the Applicant and in contravention of the Orders.(5)On 23 February 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a cupboard, without the written consent of the Applicant and in contravention of the Orders.(6)On 23 February 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a cupboard, without the written consent of the Applicant and in contravention of the Orders.(7)On 9 December 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a motor vehicle, without the written consent of the Applicant and in contravention of the Orders.(8)On 9 December 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a fridge/freezer, without the written consent of the Applicant and in contravention of the Orders.(9)On 9 December 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely bed frames, without the written consent of the Applicant and in contravention of the Orders.(10)On 9 December 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a queen bed, without the written consent of the Applicant and in contravention of the Orders.(11)On 10 December 2022, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a musical instrument, without the written consent of the Applicant and in contravention of the Orders.(12)On 27 January 2023, in contravention of order 24 of the Orders dated 8 February 2022, the Respondent listed for sale online joint items of martial [sic] property, namely a musical instrument, without the written consent of the Applicant and in contravention of the Orders.(14)On 1 September 2022, the Applicant's solicitor requested disclosure from the Respondent. The Respondent failed and/or refused to provide any disclosure in accordance with the request and in contravention of order 9 of the Orders dated 15 June 2022.(15)On 14 September 2022, the Applicant's solicitor requested disclosure from the Respondent. The Respondent failed and/or refused to provide any disclosure in accordance with the request and in contravention of order 9 of the Orders dated 15 June 2022.(16)On 14 November 2022, the Applicant's solicitor requested disclosure from the Respondent. The Respondent failed and/or refused to provide any disclosure in accordance with the request and in contravention of order 9 of the Orders dated 15 June 2022.(17)On 9 February 2023, the Applicant's solicitor requested disclosure from the Respondent. The Respondent failed and/or refused to provide any disclosure in accordance with the request and in contravention of order 9 of the Orders dated 15 June 2022.(22)On 23 September 2022, an order was made by a Senior Judicial Registrar ordering the Respondent to arrange for the Applicant's personal belongings (namely the belongings listed in order 9(a) to (w)) by 14 October 2022. The Respondent failed and/or refused to return the Applicant's personal belongings in contravention of order 9 of the Orders dated 23 September 2022.The following orders are the subject of proceedings:
(1)On 3 August 2022, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children's residence from Town M in New South Wales to Town L in Queensland, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
(2)On 5 May 2023, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children's residence to Town F in New South Wales, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
(13)On 15 June 2022, an Order was made by a Judicial Registrar ordering the parties to exchange disclosure by 13 July 2022. The Respondent failed and/or refused to provide disclosure by 13 July 2022 in contravention of order 9 of the Orders dated 15 June 2022.
(18)On 4 October 2022, the Applicant requested specific information from the Respondent regarding the tenancy of the investment properties located at H Street, Town L and G Street, Region J to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
(19)On 14 November 2022, the Applicant's solicitor requested specific information from the Respondent regarding the tenancy of the investment properties located at H Street, Town L and G Street, Region J to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
(20)On 6 January 2023, the Respondent advertised on Facebook to rent out a room in the property located at H Street, Town L without the prior written consent of the Applicant, or an order of the Court, in contravention of order 3 of the Orders dated 23 September 2022.
(21)On 9 February 2023, the Applicant's solicitor requested specific information from the Respondent regarding the tenancy of the investment properties located at H Street, Town L and G Street, Region J to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
The father relied on his Contravention Application filed on 27 July 2023 and his affidavit in support filed on the same date.
The respondent mother filed a response to this application by way of affidavit on 28 August 2023.
Her responses to each of the alleged contraventions which remain on foot are extracted from her affidavit as follows:
Alleged Contraventions 1 – 2 Residential Address
10. CONTRAVENTION 1. The trip to [Town L], Qld was not a permanent move. This was a business trip planned within the school holidays time-frame. This turned into 5 weeks and 4 days due to the damage I found at the [Region J] Property that [Mr Allwright] had not attended to.
11. CONTRAVENTION 2. [N Organisation] and the [O Support Services] stepped in and relocated the children and myself back to the [Town F] Property for our own safety. Annexed hereto “[MA-01]” a letter from the Domestic Violence Rapid Response Team.
Alleged contravention 13 is the only one of the alleged contraventions from 13 – 17 dealt with in Court, but the respondent answered alleged contraventions 13 – 17 together as outlined:
Alleged Contraventions 13-17 Financial Disclosure
24.I was advised by [P Lawyers] in March 2022, that at the time 3 month’s-worth of Bank Statements were needed for Disclosure. My Financial Report has been Filed in January 2022.
25.To comply with my Disclosure obligations, I supplied by Bank Statements on three (3) separate occasions to each of my legal representatives along with reminder texts and emails. Annexure “[MA-03]” hereto shows my ongoing effort to comply.
26.In September 2022 the Applicant’s Lawyer, [Mr Q] sent a rigorous and exhaustive list of Financial Disclosure Expectations. It took me quite by surprise. I replied on 7th Sept 2022, by email, querying if the Applicant had also gathered his version of this exact list of information and if so, why had he not already Filed it.
27.A reply came on 14th September 2022. Still to this day, this is the only piece of Financial Disclosure offered by the Applicant. It is but the Index Sheet found in Annexure “[FA-07]” of the Applicants 21st July 2023 Affidavit. A skeletal frame of information, grossly imbalanced in comparison with the punctilious screening [Mr Q] has since routinely pressured me for.
Alleged Contraventions 18-21 Management of Rentals
28.The actions listed here more accurately describe the behaviour of the Applicant, not my own.
29.[Mr Allwright] still refuses to communicate, answer calls, email written permissions, text back or even co-operate through his Lawyer with transparency, truthfulness, or maturity. Annexed hereto and marked “[MA‑04]” demonstrates the frustrating wall of silence I endure.
30.In the intentional absence of co-operation; [Mr Allwright] created a trap. He then sat back and chalked up my incidental Breaches and now pushes them before the Court as genuine Contraventions.
31.I do not believe the Court foresaw that [Mr Allwright] would unilaterally refuse to co-operate or communicate. The Applicant totally abstained from any decisions or permissions in regard to necessary maintenance to continue business.
32.I do not mind doing all the Property Management work. I find it rewarding and satisfying, though I would rather the requirement for future permissions from the Applicant is abolished.
33.Without the work I do, the [Region J] and [Town L] properties would have fallen into disrepair. Annexed hereto and marked “[MA-05]” the ongoing tasks I single-handedly attend to, to keep the properties legally safe, and well maintained to council standards.
Prior to the hearing commencing the Court made clear to the respondent that she had the benefit of the s 102NA order and that she could make application to adjourn the proceeding in order to engage a solicitor pursuant to that scheme. The respondent chose not to have the matter adjourned for the purposes of appointing a lawyer to cross examine the applicant on his affidavit. The option to do this was raised on a number of occasions with the respondent throughout the hearing.
In response to the question as to whether the respondent wished to admit or deny the allegations, the respondent gave the following responses:
(a)Allegation 1: denies.
(b)Allegation 2: denies but reasonable excuse raised.
(c)Allegation 18: denies.
(d)Allegation 19: admits but reasonable excuse raised.
(e)Allegation 20. admits but reasonable excuse raised.
(f)Allegation 21: admits but reasonable excuse raised.
(g)Allegation 22: admits but reasonable excuse raised.
CONSIDERATION
In relation to alleged contravention 1 that the respondent did breach the orders of 3 August 2022, in particular Order 3, by locating the children’s permanent residence from Town M to Town L, and I refer to the evidence of the enrolment of the children in a school in that location very shortly after they were located there; the fact that she enrolled the children at that school shortly after travelling there with the children is indicative of relocating to that town permanently.
In relation to alleged contravention 2 the respondent has admitted in evidence before the court to relocating the children to Town F from December 2022 and I do not accept that there is reasonable excuse for the breach of the orders. The respondent is aware of the orders. She has been involved in these proceedings for some time, and she did not seek for the orders to be discharged or amended. She did not cross-examine the applicant, as she was not entitled to because of section 102NA, and the effects of 102NA were clearly explained to her prior to the commencement of the proceeding. The evidence before the Court does not support a claim that she was required, because of anything that the applicant did, to flee to Town F. The most important consideration is that she failed to apply to the Court to discharge or amend the order. I find this contravention to be established. Reasonable excuse for that contravention has not been established.
In relation to alleged contravention 13, on 15 June 2022 an order was made by a Judicial Registrar ordering the parties to exchange disclosure within 28 days of those orders, being 13 July 2022. The respondent failed and/or refused to provide disclosure by 13 July 2022, in contravention of Order 9 of the orders dated 15 June 2022. The applicant’s affidavit evidence disclosures were requested for compliance with those orders on 1 September 2022, 14 September 2022 and 14 November 2022. Those correspondences are attached to the applicant’s affidavit.
I find that there has been a breach of those orders made on 15 June 2022, and there has not been disclosure in accordance with those orders, and there is no evidence before the Court that those orders have now been complied with. The evidence of the respondent was that she has sought to comply in more recent times, but she also made the statement that documents had been redacted, and she refuses to provide certain information to the applicant in relation to the rental properties.
In relation to the alleged contravention 18, which relates to 4 October 2022, the applicant requested specific information from the respondent regarding the tenancy of investment properties: H Street, Town L and G Street, Region J, to enable the applicant to participate in the joint management of the investment properties. That alleged contravention was denied. The evidence supports a finding that, in fact, there has been a breach of that order by the failure to provide the specific information which was requested, and I find that the information requested is reasonable to request as the request goes to the proper management of the properties.
As to alleged contravention 19, in relation to the request for information of 14 November 2022, the respondent admitted the breach but said there were reasonable grounds. Her defence seemed to be that the applicant was failing to cooperate with her in providing information. The evidence that has been put before the Court does not support that allegation, and in particular, the exhibit MA-04 of the respondent’s affidavit does not support that. That evidence shows that the father was making acknowledgments for information regarding the joint management of the investment properties. In fact, the father was seeking information, and those requests for information were not provided. I do not accept that there is a defence on reasonable grounds that the applicant caused the respondent to contravene the relevant order.
As to alleged contravention 20 relating to the respondent advertising a room to rent at H Street, the orders of the Court were quite clear that both parties are restrained from dealing with, renting out, or attending or instructing others to attend the Region J and Town L properties pending further order or without the prior written consent of the other party. There is no evidence of any request for written consent and it is plain that the respondent has done this without the written consent of the applicant. I do not accept that there are reasonable grounds for breaking the order.
I do not accept the argument put by the respondent that by advertising the property for rent she was simply seeking to stop the property from being, as she described it, encumbered. The respondent referred to Order 24 of orders made on 8 February 2022, which stated:
24.BY CONSENT of the Applicant and the First Respondent, both the Applicant and First Respondent are restrained, by injunction, from selling, distributing, transferring, disposing of, encumbering or otherwise dealing with any of the assets of the relationship unless expressly agreed in writing between the Applicant and the First Respondent or by Order of the Court.
The meaning of encumbering there is obvious by its context, and the question of whether a property is falling into disrepair or not being maintained, is plainly not covered by the expression ‘encumbering’. That is plainly a reference to using the property as security for a mortgage or like financial instrument. The respondent’s excuse involves a strained reading of the order which I do not accept. The respondent presents as an intelligent person and has referred to herself being in business. There respondent has not established that there is a reasonable excuse for breaching the order and the contravention is made out.
And in relation to alleged contravention 21, that on 9 February 2023 the applicant requested specific information, that is also made out, and there is no reasonable excuse for the contravention for the same reasons that I have given in relation to the earlier contraventions where a failure to provide information is alleged.
DISPOSITION
The Court finds that the respondent has contravened orders of the Court but finds that they are less serious contraventions and ss 70NEA and 70NEB of the Act apply. The Court orders that the mother enter into a bond of 12 months’ duration to be of good behaviour and to comply with the orders of the Court, and that is for a period of 12 months. That order is appropriate having regard to the lack of any prior orders being made in relation to contravention of orders by the respondent. An order of this kind is required so as to stress the importance on the respondent in complying with Court orders and to specifically deter breaches of future orders.
COSTS
The applicant applied for costs on the grounds that he had been successful in his application on the alleged contraventions that proceeded. None of the parties are in receipt of legal aid. In relation to financial circumstances, I have no information before me as to the financial circumstances of the applicant, but presumably, the amount of money that he is paying in costs is very significant for him, and he was entitled to bring this application. I am not aware of the financial circumstances of the respondent although, from what I have been told today, she is in receipt of rents in relation to two properties, but I am not aware of the detail of that or how those funds are expended. The application was necessitated by the respondent’s failure to comply with orders.
There has been repeated and quite detailed correspondence sent to the respondent in order to encourage her to comply. She has known exactly what she needed to do to comply with orders. She has been encouraged by a registrar to comply. There is no evidence that there has been compliance with orders for disclosure. I am not aware of whether there has been any offer in writing. That is certainly not before the Court. It is appropriate for there to be an order that the respondent pay the applicant’s costs fixed in the sum of $6,000 and with a stay on payment of 60 days. I take into account that the hearing took a day. I fix that amount having regard to the scale of costs for the preparation of an application and affidavits and for counsel’s appearance this day.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 30 November 2023
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