APSLEY and APSLEY
[2012] FCWA 52
•8 JUNE 2012
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: APSLEY and APSLEY [2012] FCWA 52
CORAM: CRISFORD J
HEARD: 22 MAY 2012
DELIVERED : 8 JUNE 2012
FILE NO/S: PTW 5413 of 2008
BETWEEN: APSLEY
Applicant -Wife
AND
APSLEY
First Respondent -HusbandAND
ABC CONTRACTING PTY LTD
Second Respondent
Catchwords:
CONTRAVENTION OF COURT ORDERS - Failure to facilitate valuations - Company and Director of the Company - Whether reasonable excuse - Charges proved
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr M Berry
First Respondent : Mr R Klimek
Second Respondent : Mr R Klimek
Solicitors:
Applicant: O'Sullivan Davies
First Respondent : Klimek & Co
Second Respondent : Klimek & Co
Case(s) referred to in judgment(s):
Fauna Holdings Pty Ltd and McGillivray & Ors v Mitchell (No 2) (2000) FLC ¶93-053
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1 [Melissa Patricia Apsley] [(“Mrs Apsley”)], the wife in Family Court proceedings, seeks to have her former father-in-law, [Barry Victor Apsley] (“Barry Apsley”), and a company in which he is involved, [ABC Contracting Pty Ltd], dealt with for contravention of court orders. Mrs Apsley alleges, in summary, that:
(a)At 10.24 am on 26 July 2011 at [a country town in Western Australia], each of Barry Apsley and ABC Contracting Pty Ltd, without reasonable excuse, failed to facilitate a valuation being conducted by an appointed single expert, [Ms B], in contravention of paragraph 4 of orders made 10 June 2011; and
(b)At 10.43 am on 26 July 2011 at [a country town in Western Australia], each of Barry Apsley and ABC Contracting Pty Ltd, without reasonable excuse, failed to facilitate a valuation being conducted by an appointed single expert, [Mr J], in contravention of paragraph 4 of the orders made 10 June 2011.
2Paragraph 4 of the orders made by this Court on 10 June 2011 reads as follows:
The Second Respondent (ABC Contracting Pty Ltd) and its officers, servants and agents do all things necessary to facilitate and allow the valuation of the property described in the Minutes marked “A”, “B” and “C” forming part of the Orders made 30 November 2010.
3In total, there are two contraventions alleged against ABC Contracting Pty Ltd and two contraventions alleged against Barry Apsley. Barry Apsley and ABC Contracting Pty Ltd have pleaded not guilty to each of the charges.
4It is alleged by counsel for the two respondents, Mr R Klimek, that there is no basis upon which Mrs Apsley can bring contravention proceedings against Barry Apsley personally as it is only ABC Contracting Pty Ltd who is a party to the present court proceedings.
5It is accepted by Mr Klimek that there has been a breach of the court orders by ABC Contracting Pty Ltd. Mr Klimek says that, in any event, if he is unsuccessful in his argument about the inability of Mrs Apsley to prosecute Barry Apsley, each of the named respondents has a reasonable excuse for breaching the court order.
Brief background and history
6Mrs Apsley and her husband, [Ivan Maxwell Apsley] [(“Mr Apsley”)], have been involved in Family Court proceedings relating to the division of their property and parenting matters since 3 November 2008. It is unnecessary for the purpose of these particular proceedings to canvass the progress of their court events, save to say there have been difficulties with the identification and valuation of the pool of assets.
7In an amended application in a case filed 6 April 2011 Mrs Apsley sought to join ABC Contracting Pty Ltd as the second respondent to the proceedings. If she was successful in that she sought orders that the second respondent facilitate and allow valuations of certain properties in the name of ABC Contracting Pty Ltd, the shares in ABC Contracting Pty Ltd and various plant and equipment of ABC Contracting Pty Ltd. Orders had previously been made to that effect by consent on 30 November 2010. Mr Apsley had then consented to those orders for valuations. However, there was a difficulty in enforcing those particular orders as the other director and shareholder of the company at that time, Barry Apsley, opposed such a course. He said that his son had no authority to bind ABC Contracting Pty Ltd.
8On 10 June 2011, after having heard Counsel’s submissions on 10 May 2011, the Court made orders joining ABC Contracting Pty Ltd as second respondent in the proceedings. Orders were also made at paragraph 4 compelling ABC Contracting Pty Ltd to facilitate and allow the valuation of the property previously described. Barry Apsley and ABC Contracting Pty Ltd have failed to comply with that order.
Relevant law
9The application in this matter is brought under s 112AD(1) of the Family Law Act 1975 (Cth (“the Act”), which states:
If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
10I must therefore be satisfied beyond reasonable doubt that Barry Apsley has contravened the order of this court of 10 June 2011 and that he did so without reasonable excuse. The definition of ‘contravene an order’ is given in s112AB:
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; or
(b) in any other case - he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
11The Act does not set out all the circumstances in which a person has a reasonable excuse for contravening a court order. Section 112AC(2) states that such circumstances include, but are not limited to a circumstance where:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
12Mr Klimek submits that Barry Apsley and ABC Contracting Pty Ltd fall within the circumstances described by s112AC(2), in that they did not understand the obligations imposed by the order.
Evidence in support of reasonable excuse
13Counsel for the Applicant, Mr M Berry, relies upon two affidavits affirmed by Mrs Apsley on 8 September 2011. He also relies upon an affidavit of service affirmed by [Ms E] on 3 October 2011. A minute of the orders sought at the final hearing was filed on 18 November 2011.
14Neither deponent of the affidavits was required for cross-examination. Barry Apsley elected to give evidence.
15A considerable amount of the evidence relied upon by each party was contained in the court file. It is useful to provide a chronology of the evidence referred to by one or both of the parties and contained on that file.
| Date | Event |
| 6 April 2011 | Wife files application to join ABC Contracting Pty Ltd and to obtain valuations in terms previously ordered on 30 November 2010. |
| 6 April 2011 | ASIC search – director, secretary and shareholder of ABC Contracting, Barry Apsley and Mr Apsley. (attached to wife’s affidavit) |
| 5 May 2011 | Form 2A and affidavit filed on behalf of Barry Apsley by [B Law Firm] (“BLF”), solicitors, who prepared the documents and insert their address as the service address. Barry Apsley opposes orders sought. |
| 10 May 2011 | Court date for argument of applications – Barry Apsley appears in person by telephone, unrepresented. Argument proceeds. |
| 9 June 2011 | Correspondence – Barry Apsley to the Family Court advising he wants his name withdrawn from any court proceedings and that he wants no involvement in the court proceedings. Letter not received by presiding judicial officer until after 10 June 2011 hearing. |
| 10 June 2011 | Written decision handed down. Emailed to Barry Apsley prior to court convening. Barry Apsley appears by telephone without representation. |
| 13 June 2011 | Barry Apsley again sends fax of 9 June 2011 to the Court. |
| 20 June 2011 | Correspondence - Barry Apsley in person and as director for ABC Contracting to Family Court advising he and the company have no interest in the Family Court case and “therefore no correspondence of any type or nature will be accepted or entered into from any person, companies, firms, court or by any means will be accepted or replied to”. |
| 4 July 2011 | Correspondence - Family Court to Barry Apsley advising ABC Contracting Pty Ltd is a party to the Court proceedings by virtue of the 10 June 2011 orders. |
| 5 July 2011 | An incorrectly completed Notice of Appeal is faxed to the Family Court by Barry Apsley on behalf of ABC Contracting Pty Ltd seeking to appeal orders 1 to 11 of 10 June 2011. The form is signed by Barry Apsley. |
| 26 July 2011 | Correspondence - Barry Apsley to Mr J, referring to phone call of 25 July 2011 that he will not allow valuations. “this letter serves as notice overruling any court or legal representation from any other partners.” |
| 26 July 2011 | Correspondence - Barry Apsley to Ms B, single expert, advising her services not required. |
| 28 July 2011 | Correspondence - Barry Apsley to [Ms O] (BLF) advising he has no interest in the Family Court proceedings and will not allow any valuations to take place “this letter serves as notice overruling any court or legal representation from any other parties. I hereby make it known that I will not be responsible for any damage which may occur for trespassing on any property.” |
| 26 Aug 2011 | ASIC company extract - director, secretary and shareholder of ABC Contracting are Barry Apsley and Mr Apsley. |
| 14 Sept 2011 | Mrs Apsley files applications for contempt against Barry Apsley and ABC Contracting Pty Ltd. |
| 19 Sept 2011 | Correspondence - Barry Apsley to O’Sullivan Davies (solicitors for Mrs Apsley) advising the Family Court does not make orders for valuations without his consent, copied to Judge’s Associate. |
| 22 Sept 2011 | Correspondence – Family Court to ABC Contracting Pty Ltd setting out correct procedure to be followed for the filing of an appeal. |
| 4 Oct 2011 | Correspondence - Barry Apsley to Family Court returning correspondence and demanding that no further correspondence be sent as it reflects a personal threat to Barry Apsley and his family. |
| 10 Oct 2011 | Correspondence - Family Court to Barry Apsley giving further advice in relation to instituting an appeal in the appropriate form and advising ABC Contracting Pty Ltd is a party to the proceedings. |
| 13 Oct 2011 | Directions hearing for contravention applications. Barry Apsley declined to take part in the proceedings when contacted by telephone. Matter adjourned to 21 November 2011 for directions and to 20 December 2011 for hearing. |
| 18 Nov 2011 | Mrs Apsley files Minute of Orders Sought on contravention applications. |
| 21 Nov 2011 | Barry Apsley did not attend the hearing. Leave granted to Mrs Apsley to issue a subpoena to Barry Apsley to personally attend at the hearing listed for 20 December 2011. |
| 20 Dec 2011 | Barry Apsley fails to attend. Matter adjourned to Tuesday 24 January 2012. Barry Apsley refused to involve himself in the proceedings when contacted by telephone. Court refuses to issue Bench Warrant. |
| 22 Dec 2011 | Court corresponds with Barry Apsley advising of possible consequences of his failure to attend. |
| 24 Jan 2012 | Barry Apsley contacted and declined to take part in the proceedings. A warrant issued for his arrest. |
| 25 Jan 2012 | Having been arrested, Barry Apsley undertakes to attend hearing on 26 January 2012. He is released from custody. |
| 22 May 2012 | Hearing of contravention application. Barry Apsley and counsel present in person. |
16At the trial Barry Apsley advised that his present partner was now a co-director of ABC Contracting Pty Ltd. He and the [Apsley] Family Trust were the shareholders. He could not remember when that change had been made.
Discussion
17It is conceded by Mr Klimek that Barry Apsley was aware of the obligations imposed on him and ABC Contracting Pty Ltd by the orders of 10 June 2011.
18The question is whether there are any circumstances that could constitute a reasonable excuse for contravening the orders. Mr Klimek says that Barry Apsley simply did not understand what was going on. He did not understand the nature of his obligation. No other circumstances were put to me in argument.
19It is common ground that considerable animosity exists between the parties to the contravention application. Barry Apsley has been frank about this. His views have been aired in the courtroom for all to hear. They have been captured on transcript. He has consistently said he does not consider himself to be involved in the proceedings personally or even in representing ABC Contracting Pty Ltd. In the main, he has refused to participate in the proceedings. His manner at times has been disrespectful to the court process and to counsel acting for Mrs Apsley.
20It was only after the Court reluctantly issued a bench warrant for his arrest that Barry Apsley involved himself in the court proceedings.
21Mr Klimek put to the Court that Barry Apsley had not had legal advice of any great moment until his firm became involved. Mr Klimek appeared at a Directions Hearing on 17 February 2012 and he filed a Notice of Address for Service on 22 February 2012. He said he had advised Barry Apsley of his obligation to abide by court orders. Whilst I accept that Mr Klimek was specifically instructed in relation to the contravention applications, I am satisfied that Barry Apsley did have some legal advice in relation to the issues which formed the basis of the order of 10 June 2011 prior to that time.
22Barry Apsley was aware from as early as about 30 November 2010 that properties and shares belonging to ABC Contracting Pty Ltd were sought to be valued by Mrs Apsley.
23Prior to Mrs Apsley filing her application to join ABC Contracting Pty Ltd in these proceedings, Barry Apsley had been involved in the proceedings and had engaged solicitors who appeared in Court. On 23 March 2011 and 5 April 2011 counsel from [K Law Firm] appeared on his behalf at two court events. A Notice of Address for Service was not filed and although Barry Apsley accepts he spoke to the solicitors and deposited $5,000 into their trust account, he says they were not actually instructed to appear for him.
24During the course of opposing the orders seeking to join ABC Contracting Pty Ltd as a party, B Law Firm assisted Barry Apsley in the preparation of his responding documents. A Form 2 response and supporting affidavit were filed on 5 May 2011 by that firm. In the affidavit he swore on 5 May 2011 opposing the joinder of ABC Contracting Pty Ltd in the proceedings he said:
18.I will not allow any person or agent on any property of mine, or any property controlled by me, for the purposes of conducting a survey to produce a valuation of any kind, including plant and equipment
25Whilst these issues were not related to any contravention of orders, they involved the joinder of parties and the making of orders for valuing property belonging to ABC Contracting Pty Ltd.
26Despite what I consider to be appropriate legal advice and knowledge about his obligations, Barry Apsley has said he will not abide by the court orders. At the hearing he was asked about his position. He said “I will never obey that order”.
27After the orders were made, Barry Apsley immediately sent correspondence seeking to distance himself and ABC Contracting Pty Ltd from the Family Court proceedings. The Court replied to him as early as 4 July 2011 advising that ABC Contracting Pty Ltd was a party to the court proceedings. A further letter to that effect was sent by the Court on 10 October 2011.
28Barry Apsley spent considerable time trying to reverse the obligations imposed on him. He was present by telephone at the hearing of 10 June 2011. Less than a month later he attempted to appeal all the orders made on 10 June 2011.
29At the trial Barry Apsley was asked what he considered to be the result of him lodging an appeal. He said that it did not achieve anything “good”. He said the Court ignored him.
30The mere filing of a Notice of Appeal is not a fait accompli of the appeal itself. It does not serve as a stay of the court proceedings.
31I do not accept Barry Apsley genuinely believed he could simply write a letter to the Court or file a Notice of Appeal and the orders of 10 June 2011, pronounced after considerable argument, would simply cease to exist.
32He asks the Court to accept as reasonable his position that a letter disavowing interest in court proceedings was sufficient to unilaterally reverse court orders and release him from obligations.
33From well before the actual alleged breach of the court orders on 26 July 2011 up to the present, Barry Apsley has maintained that he will not obey any orders for valuations as they have nothing to do with him.
34Having heard Barry Apsley’s evidence I find that he understood his obligations under the Court order, but did not agree with those obligations. He therefore did not comply with them. I agree with the submissions of Mr Berry that Barry Apsley has not been ignorant of his legal obligation, but simply defiant of it.
Finding on appropriate respondents
35Mr Klimek says Barry Apsley was not personally bound by the orders made on 10 June 2011. The order specifically includes not simply ABC Contracting Pty Ltd, but also its officers, servants and agents do everything needed to allow the valuations to be carried out. The manner in which the case was run coupled with the concessions of Mr Klimek, albeit very appropriate, had the effect of blurring the distinction between ABC Contracting Pty Ltd and Barry Apsley.
36The definition of contravention encompasses persons who ‘intentionally prevent compliance’ with an order or who aid and abet a contravention. This extends the power of the court to people who are not personally bound by an order but who assist in contravening it or prevent compliance. Natural persons who prevent a corporate respondent from complying with an order may be guilty of contravention in their personal capacity (Fauna Holdings Pty Ltd and McGillivray & Ors v Mitchell (No 2) (2000) FLC ¶93-053).
37Although Barry Apsley deposes in his affidavit of 5 May 2011 that he is the owner, controller, director and secretary of ABC Contracting Pty Ltd, this does not change the fact that the company is a separate legal entity from Barry Apsley. Barry Apsley’s correspondence to the Court and his various statements made in Court make it abundantly clear that he personally will do what it takes to prevent any compliance by ABC Contracting Pty Ltd with the order of 10 June 2011. I am satisfied that Barry Apsley, in many guises, including as shareholder and managing director of ABC Contracting Pty Ltd, intentionally prevented the “person” who was bound by it - ABC Contracting Pty Ltd – from complying with it.
38I am satisfied that both Barry Apsley and the company were appropriately named as respondents in the contravention proceedings.
Finding on reasonable excuse
39I am not satisfied on the balance of probabilities that Barry Victor Apsley or ABC Contracting Pty Ltd had a reasonable excuse for failing to comply with the court orders of 10 June 2011. Each failed to facilitate the two appointed single experts in the conduct of their valuations. There is no evidentiary basis provided to persuade me there was a reasonable excuse for their actions.
40I find all the allegations contained in the contravention applications proved to the requisite standard. What now remains is the issue of penalty. Mrs Apsley seeks the fines and costs set out in her minute filed 18 November 2011. I will adjourn the matter to 2 July 2012 at not before 2.15 pm in order for both counsel to address me further - either on penalty or on mitigation of penalty.
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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