Archer & Starling
[2024] FedCFamC2F 1615
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Archer & Starling [2024] FedCFamC2F 1615
File number(s): CAC 288 of 2020 Judgment of: JUDGE MANSFIELD Date of judgment: 22 November 2024 Catchwords: FAMILY LAW - PRACTICE & PROCEDURE – CONTEMPT – Despite final orders made by consent over three years ago, a real property in Ireland has still not been sold and the proceeds have not been disbursed between the parties – Where the Court initiated a charge of contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) against the husband – Despite many findings made against the husband, the charge is bad for duplicity and is invalid - Charge of contempt dismissed Legislation: Family Law Act 1975 (Cth) ss 79A, 81, 112AP
Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 r 11.70
Family Law Act 1995 (Republic of Ireland).s 23Cases cited:
Abduramanoski v Abduramanoska (2005) 33 Fam LR 1; [2005] FamCA 88
Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98
Galvis & Galvis [2024] FedCFamC2F 429
Ibbotson and Wincen (1994) FLC 92-496
Lim v Comcare (2019) 165 ALD 217
Mead v Mead (2007) FLC 93-327
Medlow & Medlow [2017] FamCAFC 159
Rand v Rand (2010) 43 Fam LR 570
Repatriation Commission v Nation (1995) 57 FCR 25
Witham v Holloway (1995) 183 CLR 525
Division: Division 2 Family Law Number of paragraphs: 85 Date of last submission/s: 5 November 2024 Date of hearing: 5 November 2024 Place: Canberra Counsel for the Applicant: Mr Hogg Solicitor for the Applicant: Orman Solicitors Solicitor for the Respondent: Litigant appearing in person ORDERS
CAC 288 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARCHER
Applicant
AND: MR STARLING
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The charge of contempt against the husband dated 18 September 2024 is dismissed.
2.The parties are permitted to use these Orders and the Reasons for Judgment dated 22 November 2024 in connection with their proceedings in the Republic of Ireland.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
BACKGROUND
The parties commenced cohabitation in or about 2002 and married in 2004. In or about 2003, they purchased a residential property known as Property B in Region D, Ireland (“the property”). They renovated it and then moved in. In or about 2011, they moved to Australia and rented the property. They separated under the one roof in or around 2015 and on a final basis in April 2018. The relationship lasted 16 years. Following separation, the property remained tenanted by the same tenants. The Property B property is the only property of the marriage, real or otherwise, that is presently relevant. The property is in the sole name of the husband.[1]
[1] Affidavit of the Wife filed 10 May 2024 (Exhibit E), paragraph 73.
The wife commenced proceedings in February 2020. On 24 September 2021, final orders were made by consent (“the Final Orders”) under Part VIII Family Law Act 1975 (Cth) (“the Act”). Pursuant to the Final Orders:
(a)Within 28 days [22 October 2021], the husband was to pay the wife $250,000 to retain sole title to the property. That did not happen.
(b)The parties were then to do all acts and things to sell the property to the tenants for no less than €300,000 within 14 days [5 November 2021]. That did not happen.
(c)The property was then to be listed for sale by way of auction, with the reserve price set by the parties by agreement or absent agreement by the selling agent, and if not sold it was to be re-auctioned every 30 days. None of that happened.
(d)The net proceeds of sale were to be disbursed 50% to the wife and 50% to the husband. That has not happened.
It is now over three years since the Final Orders were made. Prior to the charge of contempt, the Final Orders have not been the subject of any application to have them set aside pursuant to s 79A of the Act nor have any of the subsequent orders been appealed.
The property remains unsold and is not listed for sale. Though since evicted by the husband, the ex-tenants still want to buy the property. They have signed a Contract of Sale for €350,000 and their deposit of €75,000 remains in the conveyancer’s trust account. It is convenient to still refer to them as the tenants in these reasons.
Pursuant to Orders made by another Judge on 18 September 2024, the matter was listed on 5 November 2024 for determination of an allegation against the husband of contempt.
THE WIFE’S CASE
Since the Final Orders, three times the wife has sought the assistance of the Court to give effect to the Final Orders. She has also commenced a proceeding in Ireland.
She filed an Enforcement Application on 10 February 2022 in order to sell the property to the tenants who still wanted to buy it. On 5 April 2022, that application was dismissed on the basis that the Final Orders already otherwise provided for the property to be sold by auction.
She filed another Enforcement Application on 15 July 2022. That was resolved on 16 December 2022 with orders including that the wife be appointed sole trustee for the sale of the property along with a costs order in her favour for a fixed amount calculated on an indemnity basis.
The orders appointing the wife as sole trustee were not recognised in Ireland such that the wife still needed the husband to sign the Contract of Sale in order to sell the property to the tenants. By June 2023, the husband had not and would not sign the Contract for Sale.
In early May 2024, the wife commenced a proceeding in the Region D Court in order to have this Court’s orders recognised in Ireland.
The wife filed another application on 15May 2024 in order to sell the property to the tenants who still wanted to buy it. That came before the Court on 10 July 2024 and orders were made that:
(a)The husband be restrained by injunction from engaging in any action, communication or activity relating to or touching upon the sale, rental or any other dealing of whatsoever type or kind associated with Property B; and
(b)He sign all documents necessary to effect the sale.
The husband signed the documents presented by the wife that day. Subsequently, the husband alleges that he signed those documents under duress.
In late July 2024, the husband filed a counter-claim in the Region D Court proceedings which has had an effect of preventing the sale of the property despite the documents being signed on 10 July 2024.
The wife says that not only has the husband done nothing to advance the sale of the property, he has been obfuscating, delaying and obstructing every step the wife seeks to take with the effect that he has successfully prevented the property being sold to date.
THE HUSBAND’S CASE
On a number of grounds, the husband denies that he has contravened any orders and that he is in contempt. He says:
(a)The Final Orders are not in fact final orders but were only ever draft orders.
(b)He did not and has not contravened any of the Final Orders or subsequent orders.
(c)The Final Orders were discharged by the Court on 5 April 2022.
(d)The sale of the property was taken out of his hands by Orders made on 16 December October 2022 appointing the wife as sole trustee. Further, he signed all of the documents that were presented to him on behalf of the wife on 10 July 2024 to effect the sale.
In addition, the husband’s evidence, his submissions and his narrative include that:
(a)The husband has always understood that the Final Orders require the house to be sold but he has not contravened the terms of any orders despite the house still not being sold.
(b)The wife, the tenants and the original conveyancer colluded against him with respect to the sale price. The agent and another conveyancer are also implicated and/or have breached their professional obligations. Under no circumstances will he permit the property to be sold to the tenants.
(c)He signed the documents on 10 July 2024 under duress on pain of being imprisoned otherwise.
(d)This Court, differently constituted, is biased and prejudiced against him.
(e)Orders of this Court are not enforceable in Ireland.
THE HEARING
On 18 September 2024, it appeared to the Court that the husband may be guilty of contempt within the meaning of s 112AP of the Act if he had failed to comply with the orders of the Court in a manner which involves a flagrant challenge to the authority of the Court. Pursuant to r 11.70(1) of the Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 (“the Rules”) he was ordered to attend before the Court on 5 November 2024.
I have had no involvement in these proceedings to date. The proceedings came before me for the first time on 5 November 2024. There is a live application for costs filed by the wife and also an application in a proceeding filed by the husband which are not before me. I am concerned only with the charge of contempt.
It is well established that in contempt proceedings procedural requirements must normally be strictly adhered to which was done in this case. Hard copies of s 112AP of the Act and r 11.70 of the Rules were provided to the husband on the day of the hearing.
The evidence consisted of:
(a)The Orders and Notations that have been made in these proceedings since (and inclusive of) the Final Orders made by consent on 24 September 2021;
(b)Exhibit A – The transcript of the proceedings on 10 July 2024;
(c)Exhibit B – The affidavit of Mr Starling deposed on 14 October 2024 (13 pages).
(d)Exhibit C – The affidavit of Ms Archer deposed on 28 October 2024 (47 pages).
(e)Exhibit D – The affidavit of Mr Starling deposed on 30 October 2024 (4 pages).
(f)Exhibit E – The affidavit of Ms Archer deposed on 10 May 2024 (313 pages).
Exhibits B-E were not received into evidence or read until after the husband was allowed to state his defence to the charge pursuant to r 11.70(2)(b) of the Rules. They were adduced, without objection, and read in determining the charge pursuant to r 11.70(2)(c) of the Rules.
THE LAW
Section 112AP is the sole provision in Part XIIIB of the Act. It relevantly provides:
(1) ... this section applies to a contempt of a 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.
...
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
...
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
...
Before proceeding to the steps set out at r 11.70 of the Rules, at hearing the following was said to the parties (citations omitted) which I repeat and refer to here as applicable legal principles derived from authorities.
(a)Contempt is a serious criminal offence (Witham v Holloway (1995) 183 CLR 525 at [530]).
(b)It involves a wilful disobedience of the Court’s order. This was explained by the High Court in Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98 at [113]:
It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.
(c)Proof of the contempt alleged against the person requires proof beyond reasonable doubt of acts done or not done in breach of court orders which wilfully and flagrantly challenged the Court’s authority. Integral to such proof is demonstration of the person’s knowledge of the terms and meaning of the breached orders (Mead v Mead (2007) FLC 93-327; Ibbotson and Wincen (1994) FLC 92-496 at 81,162).
(d)The use of the term "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. Ultimately, it is a question of fact and degree whether the stringent terms of the section are satisfied. (Ibbotson and Wincen (1994) FLC 92-496, cited with approval by the Full Court in Medlow & Medlow [2017] FamCAFC 159 at [42].
Applying the section and principles to this case:
(a)On any finding of fact essential to the charge, I must be satisfied to the criminal standard of beyond reasonable doubt;
(b)I must be satisfied that there has been a contravention of an order;
(c)I must be satisfied that the husband was aware of the terms of the order and understood it;
(d)I must be satisfied that the acts done or not done by the husband were deliberate and intentional.
(e)I must be satisfied that the conduct or omission amounts to ‘a flagrant challenge to the authority of the court.’
THE CHARGE
Pursuant to r 11.70(2)(a) of the Rules the husband was told of the contempt with which he was charged. That had been set out at Order 2 of the orders made by the Court on 18 September 2024 which was as follows:
2. The proceedings are adjourned to 5 November 2024 at 10:00am for the husband to show cause as to why he should not be held in contempt of Court on the following bases:
a.The husband entered into consent orders on 24 September 2021 which provided for the property “[Property B]” in [Town F], [Region D], Ireland, to be sold by the parties in the event a particular payment was not made by the husband to the wife within 28 days of the order;
b.The payment was not made within the required time;
c.The husband failed to take necessary steps for the sale of the property in accordance with the orders of 24 September 2021 and the subsequent enforcement orders;
d.The husband has obstructed the wife’s attempts to sell the property, including following her appointment as sole trustee for sale by the orders made on 16 December 2022; and
e.The husband declared in Court on 10 July 2024 that he will not comply with any orders for the sale of the property.
DEFENCES
Before proceeding to the next step of allowing the husband to state any defence to the charge, he was told that:
(a)He may object to the validity of the charge on the basis that it is defective in some way, such as an abuse of process or it is inadequately particularised; and
(b)He may submit that there is “no case to answer,” asserting the charge cannot be sustained on the evidence; and
(c)If any defence on these grounds was made out the charge would be dismissed; and
(d)Otherwise, he would be asked to state any defence he has to the charge which would proceed to be heard.
The husband objected to the validity of the charge, or in the alternative that he had no case to answer, on the following two grounds:
(1)The Final Orders are not in fact final orders but were only ever draft orders.
(2)The Final Orders were discharged by the Court on 5 April 2022.
With respect to the first contention, the husband points to page 3 of the Final Orders which towards the top of that page includes the words “DRAFT CONSENT ORDERS.” I reject that the charge is invalid or that he has no case to answer on this ground because:
(a)The first page of the Final Orders is a cover page only. On the second page, it says:
THE COURT ORDERS THAT:
1. Final orders are made by consent in accordance with the minute of orders dated 24 September 2021, placed on the Court file and annexed hereto.
2. All outstanding applications are hereby dismissed.
(b)The “minute of orders dated 24 September 2021” is the document which commences at page 3 which the husband points to and Order 1 on page 2 is clear that “Final orders” are made.
(c)An order is made when it is signed and sealed.[2] The document became final orders when it was signed and sealed on 24 September 2021.
(d)Order 2 makes clear that there was no further action before the Court at that time.
(e)It is self-evident that the Court does not make draft orders.
(f)Nothing about the husband’s conduct in the proceedings is indicative of him operating under a misunderstanding that the Final Orders were only ever draft orders.
[2] Family Law Rules 2021, Rule 10.19(1)(b).
With respect to the second contention, the husband points to Order 3 made by a Judicial Registrar on 5 April 2022 and says that “a line was drawn under them” at that time. When pressed as to what he meant by that, the husband made submissions to the effect that the Final Orders were discharged. The orders that were made on 5 April 2022 are:
1. The Application – Enforcement filed 11 February 2022 is hereby dismissed.
2. The Respondent’s oral application for costs is hereby dismissed.
3. All outstanding applications are otherwise dismissed and the matter is removed from the Court’s active pending cases list.
I reject that the charge is invalid or that the husband has no case to answer on this ground because:
(a)The words of Order 3 clearly and obviously do not pertain to the Final Orders which were not an “outstanding application” as at 5 April 2022.
(b)A Judicial Registrar does not have the power to discharge final orders and could never have made an order to the effect the husband submits.[3]
(c)Nothing about the husband’s conduct in the proceedings is indicative of him operating under a misunderstanding that the Final Orders had been discharged.
[3] Ibid, Schedule 4, Table 2, Item 4.6.
I was satisfied at that stage of the hearing that the charge was valid and the husband had a case to answer having had regard to:
(a)The Orders and Notations that have been made in these proceedings since (and inclusive of) the Final Orders made by consent on 24 September 2021 which included;
(i)The clear and obvious intent of the Final Orders for the property to be sold and the proceeds divided equally;
(ii)Determination of three separate enforcement applications brought by the wife;
(iii)The wife being appointed sole trustee for the sale of the property;
(iv)The husband being restrained by injunction from any dealing of whatsoever type or kind associated with the property;
(v)A costs order calculated on an indemnity basis against the husband;
(b)The undisputed fact that the property is still not sold; and
(c)Exhibit A – The transcript of the proceedings on 10 July 2024, in particular, Page 8 Line 24 through to Page 13 Line 38 wherein the husband repeatedly declares that he refuses to sell the property.
Pleas
Pursuant to r 11.70(2)(b) of the Rules the husband was allowed to state his defence to the contempt with which he was charged.
The husband agreed with the facts as stated at (a) and (b) in the charge. At (c) and (d) the husband is charged with contravening orders to which he expressly did not agree, and pleaded not guilty. The husband disagreed with the charge at (e) because he says, as it is stated it is out of context. Along with findings on determination of the charge at (c) and (d), findings with respect to (e) will go to whether or not any contravention involves a flagrant challenge to the authority of the court to which the husband also pleaded not guilty.
FINDINGS
There are many facts, matters or circumstances deposed to by the wife which the husband disputes either wholly or as to their effect. They have been distilled to the following six issues, posed as questions along with my findings.
i) Did the price need to be agreed?
The Final Orders included:
3. In circumstances where the Husband fails to pay to the Wife the principal payment within 28 days of the date of these Orders, the parties are to jointly do all acts and things to cause the property “[Property B]” to be sold in the first instance to its current lessees [Mr & Mrs G] at a price to be agreed, but not less than 300,000 Euro provided the lessees enter into a contract to purchase within 14 days of the due date.
On 28 October 2021, the wife’s lawyers advised the husband “the purchase price offered by the [tenants] has been €315,000.”[4] On 31 October 2021, the wife wrote to one of the three conveyancers proposed by the husband.[5] On 3 November 2021, the wife received correspondence from the conveyancer that:
Since writing to you I was telephoned by [Mr Starling]. [Mr Starling] has advised me that he does not believe that the proposed sale of the property at [H Street] to [Mr & Mrs G] is in compliance with Paragraph 1 of the Court Order which provides at Paragraph 3 that the property is to be sold to [Mr & Mrs G] at a price to be agreed. It is [Mr Starling]’s view that in order for any sale to [Mr & Mrs G] to proceed he must agree to the price. I am not entirely certain that this is a correct interpretation of Paragraph 3 but as I explained to [Mr Starling] it is not a matter for me to interpret the Court Order. In the absence of any clarification from the Court and in view of [Mr Starling]’s refusal to proceed with the sale, there is nothing further I can do in this matter.
I am therefore closing my file until such time as both of you have agreed to proceed with this sale. [6]
[4] Exhibit E – page 53.
[5] Pursuant to Order 7 of the Final Orders.
[6] Exhibit E – page 61.
I understand the husband’s position is that the Order mandated two things: That the price be agreed; and, that the price be no less than €300,000. Therefore, because he did not agree to the price of €315,000, then he is not in breach.
I find that:
(a)Within the window of time available, being 22 October 2021 until 5 November 2021, the wife and the tenants had done all acts and things to enter into a contract for the tenants to purchase the property for a price not less than €300,000.
(b)Before or on 3 November 2021, the husband frustrated the sale by telling the conveyancer that he was refusing to proceed with the sale because he did not agree with the price.
(c)The husband was aware of the terms of Order 3 of the Final Orders and understood it.
(d)The husband was acting deliberately and intentionally.
(e)The husband contravened Order 3 of the Final Orders by failing to do all acts and things to cause the property to be sold to the tenants “at a price to be agreed, but not less than €300,000” within the window of time provided by the orders.
I reject the husband’s defence for the following reasons:
(a)The first and foremost requirement of Order 3 was for the parties “to do all acts and things to cause the property to be sold.” The only thing the husband did in furtherance of compliance with the order was provide to the wife a list of three conveyancers.
(b)Orders must be construed objectively.[7]
(c)On the husband’s reading, the Order provided for the ability of either party to unilaterally frustrate the sale indefinitely by never agreeing to any price. Firstly, as matter of common-sense, I do not accept that is a situation that the parties sought to create when crafting that order. Secondly, interpreted that way would undermine the jurisdiction on which the parties sought them to be made – that they were just and equitable on anticipation of the property being sold and the proceeds divided.[8] Thirdly, interpreted that way would be inconsistent with the duty of the Court when making financial orders to finally determine the financial relationships between the parties and avoid further proceedings between them.[9]
[7] In a recent matter that involved construing orders that were originally made by consent and therefore without reasons for judgment, albeit parenting orders but nevertheless still by consent, Austin J in the Appellate Jurisdiction of Division 1 of the Federal Circuit and Family Court of Australia (Division 1) in Galvis & Galvis [2024] FedCFamC2F 429 [at 31] applied the proposition that Court orders must be construed objectively with reference to Repatriation Commission v Nation (1995) 57 FCR 25 [at 33–4] and Lim v Comcare (2019) 165 ALD 217 at [40]-[41].
[8] Family Law Act 1975 (Cth), s 79(2).
[9] Family Law Act 1975 (Cth), s 81.
ii) Did the agent need to be agreed?
On the wife not being successful in her application to still have the property sold to the tenants between February 2022 and April 2022, in April 2022 the wife contacted the same conveyancer and also the agent ‘[J Company]’to have the property listed. On 25 May 2022, the agent wrote to the wife and her solicitor:
Please be advised that I have just received the following email from [Mr Starling]:
"Hello [Mr K].
Please be advised, I will not be putting my home on the market with [J Company].
Regards,[Mr Starling] "
I am not sure how you wish to proceed in this regard as I do need agreement from both parties. [10]
[10] Exhibit E – Page 76.
In June 2022, the wife persisted with her attempts to progress with J Company. On 9 June 2022, the husband wrote to the wife’s solicitors which included his position with respect to J Company that:
… regarding the wording in Order 4 it states that “…listed for sale by way of auction with the agent to be ‘agreed by the parties’ for failing agreement with [J Company] ….” You omitted ‘agreed by the parties’ in your letter dated 8 June. [11] [Bold emphasis in the original].
[11] Exhibit E – page 81
Order 4 of the Final Orders relevantly states:
4. In circumstances where current “[Property B]’ lessees [Mr & Mrs G] fail to enter a contract to purchase the property for an agreed sum, the “[Property B]’ property is to forthwith be listed for sale by way of auction with the agent to be agreed by the parties for failing agreement with [J Company] to be dealt with as follows; …
I understand the husband’s position to be that because he did not agree with J Company, then the Orders reverted to ‘as agreed by the parties.’
I find that:
(a)The wife had done all of the acts and things available to her to list the property for sale by way of auction.
(b)The husband frustrated the sale by telling the agent that he would not be putting the property on the market with them.
(c)The husband took no steps towards listing the property for sale by way of auction.
(d)The husband was aware of the terms of Order 4 of the Final Orders and understood it.
(e)The husband was acting deliberately and intentionally.
(f)The husband contravened Order 4 of the Final Orders by not listing the property for sale by way of auction.
I reject the husband’s defence for the following reasons:
(a)The first and foremost requirement of Order 4 was for the property to “… forthwith be listed for sale by way of auction …” Even if the husband’s interpretation of the order was accepted, it does not explain his failure to otherwise comply with the order.
(b)Whilst I accept that, if tortured in a particular way, then the husband’s particular interpretation of the order can be understood. But for the word “for” in the fourth line, the husband’s interpretation would not be available. On the other hand, if the word “for” is a typographical error and should have been “or” then the Order makes perfect sense and aligns with the other but still equally available interpretation of the Order, which is, that the parties are to agree on an agent and failing agreement it is mandated to be J Company. In the context of all of the orders, of the two interpretations, the second is clearly and obviously the interpretation that advances the effect of the orders.
(c)Orders must be construed objectively.[12]
(d)Akin to the price issue, on the husband’s reading, the Order provided for the ability of either party to unilaterally frustrate the sale indefinitely by never agreeing to any agent. Again, I reject that as a matter of common sense and again, it is not consistent with justice and equity nor the duty of the Court when making final orders to end financial relations between the parties.
[12] See n 7 above.
iii) Why wasn’t the property sold by auction or otherwise?
Paragraph 101 of Exhibit E summarises the wife’s evidence with respect to the conduct of the husband between May 2022 and December 2022 as:
a. Failing to agree to sell the property to [Mr & Mrs G] for the sum of €315,000, even though the property was valued at €300,000 (the subject of my first Enforcement Application);
b. Refusing to agree to [J Company] being appointed as the selling agent until 7 October 2022 at a Court Hearing, despite the Court Orders of 24 September 2021 appointing them as the default agent;
c. Refusing to agree to appoint a new conveyancer until 7 October 2022, again only once the matter was being heard by the Court;
d. Arguing about an unrealistic reserve price of between €350,000-€390,000 (between $547,000-$610,000 AUD) when then the agent's advice clearly was that the property was worth between €300,000-€320,000 (between $469,000-$500,000 AUD);
e. Failing to respond to [J Company]'s emails for his consent to contact the tenants on 11 November and 5 December 2022, which was only remedied by my solicitor looking back through the file to provide earlier correspondence to [J Company] from [Mr Starling];
f. Contacting the tenants directly on 6 December 2022 stating he does not agree to the sale, without any reason, and after advising communication would take place via the agent; this delaying the marketing of the property;
g. Failing to sign and post the original Authority to Release the title deeds to [C Law Firm] until 4 November 2022, when it was first provided on 12 October 2022 (23 days). [Mr Starling] only signed it after it was raised in correspondence on two separate occasions by my solicitor;
h. Failing to sign the letter of engagement for [C Law Firm] to act in the conveyance until 27 October 2022 when it was provided on 12 October 2022 (15 days). [Mr Starling] was intending on not posting it to Ireland until 1 November 2022. This was only after my solicitor specifically advised him to send it electronically that he did so;
i. Failing to sign the letter of engagement for [C Law Firm] to act and prepare the documents to terminate the tenancy in Ireland until 16 November 2022, when it was provided on 4 November 2022 (12 days). [Mr Starling] only signed after he received two correspondences from my solicitor advising of its urgency; and
j. Failing to sign and post the original statutory declaration of the landlord required to terminate the tenancy until 7 December 2022, when it was provided to [Mr Starling] on 18 November 2022 (19 days). This was only signed after my solicitor sent four correspondences to [Mr Starling] requesting the same. This was in circumstances where [Mr Starling] was aware it was required to be done urgently in order to start the time period for the notice period.
Further to points (b) and (d) above, on 14 and 17 October 2022, a Property Services Agreement with J Company was duly signed. However in order to achieve that, with regards to price, the agreement states: ''The advised market value of the property is estimated at €300, 000. The property cannot be sold for less than €300, 000 as per Final Court Orders. The Guide price will be agreed between both parties prior to marketing the property."[13] That is despite Order 4(b) of the Final Orders clearly providing a mechanism for determination of the reserve price as “That the reserve price be set by the parties by agreement or absent agreement by the selling agent.”
[13] Exhibit E, paragraph 52.
There is evidence from the wife in support of each of the points summarised above. An example of contemporaneous and independent evidence of the husband’s direct obstruction summarised at (e) and (f) above is as follows.
On 5 December 2022, J Company emailed both parties stating:[14]
We can proceed and market the property immediately that's no problem at all. I am still waiting on [Mr Starling] to confirm I have his permission to contact the tenants to arrange the photos etc. [Mr Starling] can you please confirm I can proceed and contact them?
[14] Exhibit E, paragraph 66.
On 6 December 2022, J Company sent an email to all parties that [emphasis in original]:[15]
[15] Exhibit E, page 139.
I have just received a call from the tenant [Mrs G] and she has advised me that she has been in communication with [Mr Starling] this morning and he advised her that he has NOT given the go ahead for the sale.
Could you please advise me here?
I have everything booked in for Friday 16th December 2023 @ 11am.
I await your further instruction.
The evidence paints a clear picture of the husband engaging in a course of conduct to obstruct the sale process. It includes the husband obfuscating and delaying and conditioning his next steps on irrelevant factors such as demanding to be told what the wife’s own legal expenses are.[16] Or sending photos of addressed envelopes to the wife’s solicitor as supposed proof that he posted documents which of course does not prove what was in the envelopes or that they were posted.[17]
[16] Exhibit E, paragraphs 96-99.
[17] Exhibit E, paragraph 100.
On the wife’s second enforcement application filed on 15 July 2022, these matters were ventilated and on 16 December 2022 the Court made Orders including that:
(a)The wife be appointed sole trustee for the sale of the property; and
(b)The husband pay the wife’s costs of and incidental to the application on an indemnity basis fixed in the sum of $38,742.
On the evidence and the on the face of the orders of 16 December 2022, I find that during the period May 2022 and December 2022, in contravention of Order 4 of the Final Orders, the husband failed to take necessary steps for the sale of the property. I further find that he deliberately and intentional obstructed the wife’s attempts to take the necessary steps.
iv) Are the orders binding on the husband?
On or about 20 December 2022, the wife negotiated a price of €350,000 with the tenants.[18] On 2 February 2023, the previous conveyancer ceased to act and the wife engaged a different firm in Ireland. On 17 May 2023, the conveyancer advised the wife that they had received €75,000 deposit into their trust account and on 14 June 2023 a Contract of Sale was signed by the purchasers.[19]
[18] Exhibit E, paragraph 104, page 195
[19] Exhibit E, paragraphs 109-111
Despite the Orders of the Court appointing the wife a sole trustee for the sale, those Orders were not recognised in Ireland such that the husband was still required to sign the Contract of Sale.
On 20 June 2023, the husband wrote to the conveyancer including that he had written to each Attorney General in Australia and Ireland and:[20]
...It would appear that you the solicitor, the Judge in Australia and the [L Bank] do not seem to understand that an Order given in Australia is not legally binding in The Republic of Ireland.I therefore reiterate that you are in fact illegally seeking to sell my house in Ireland without any legal documentation from the Irish Family Law Court or the Irish High Court....I also intend to lake legal action against you and [E Law Firm]. You obtained the Deeds to the property without my knowledge, consent or permission.You have no mandate to take such actions on my behalf.Finally, you should be made aware that two other Irish law firms have dropped this case in recent times.
[20] Exhibit E, Page 203.
I refer to and adopt the summary of the law provided by Riethmuller J in Thomson Reuter’s Family Law about making Orders in respect of property located in other jurisdictions [citations omitted]:
Proceedings under s 79/90SM are in personam, and not in rem. In other words, proceedings under this section are always by one person against another person, and not by a person directly against property. By virtue of both this fact and the wide terms of s 79/90SM(1), the court can make an order under this subsection in respect of property wherever it may be located, whether in or outside Australia. The court is able to make an order in respect of property located abroad by making an order that a party to a marriage deal with it in a particular way.
The common law jurisdictional bar on domestic courts adjudicating upon rights to foreign land – commonly known as the rule in the Moçambique – almost certainly does not apply to proceedings for an alteration of property interests. However, it is not open to the court to order a party to perform an illegal act in the foreign jurisdiction, nor should the court exercise its discretion to make orders if it appears they will not be able to be enforced.
Enforcement of the orders may present practical difficulties in some cases as the orders made (as well as proceedings) under s 79/90SM(1) are also in personam, and not in rem. They accordingly bind only the parties to the proceedings which may lead to difficulties in enforcement of the orders in another jurisdiction.[21]
[21] Family Law 7th ed (2022), Page 692.
I find that:
(a)By June 2023, the husband no longer referred to or sought to rely on particular interpretations of the terms of the Final Orders.
(b)By June 2023, there is no doubt that the husband considered any orders made in this Court as not binding in the Republic of Ireland. That is an uncontroversial proposition. However, that does not render the Orders useless. They are still binding on him. It does not relieve the husband of his obligations to comply with them nor does it render them incapable of being complied with by the husband.
(c)The husband had formed the view that because orders from this Court are not binding in Ireland, then they are unenforceable and he can frustrate them without consequence.
(d)In the face of a Contract for Sale signed by the Purchaser for €50,000 above the floor price with €75,000 deposit paid, the husband deliberately and intentionally frustrated the sale.
v) Did the husband declare in Court that he will not comply with any orders for the sale of the property?
Extracts from the transcript of proceedings in court on 10 July 2024 include the husband saying:
•Page 9 Line 27: No. I will not be selling my house. I will not be selling my house.
•Page 10 Line 35: I have not been running interference. I’ve been standing up for myself and for my house, for myself and my children. At the start of this, I said that I was going to protect my house.
•Page 11 Line 16: I’m not going to sell the house. I’m not going to sell the house ... I refuse to sell it ... to those tenants.
•Page 12 Line 4: And I refuse to act – I refuse to sell the house under those conditions.
•Page 13 Line 23. I’m not interested in that. I am not going to sell my house ... under the conditions that are prevalent today, with the corruption and with the fraud, fraudulent activity in Ireland, I’m not willing to sell my house at all. I will sign no documentation ... I will stand and fight this.
On their face these extracts are damning of the husband in light of the Final Orders and the subsequent orders and the answer to the question ‘did the husband declare in Court that he will not comply with any orders for the sale of the property’ is yes, but that does not end consideration of the issue.
In his defence, the husband deposed at 4(e)(i) of his affidavit:
The Respondent did not state that he would not comply with the orders of the 10 July 2024. The Respondent in fact stated that he would not be selling the house and refused to sell it to those tenants under these conditions. The Respondent stated that he was not willing to move ahead on the sale of the property due to the collusion, ongoing collusion and corruption between the Applicant, the tenants and her Irish solicitor. [22]
[22] Exhibit B, page 5
The husband’s evidence, which was made clear by him in his submissions, is that the declarations that he made in Court on 10 July 2024 were only made with respect to a sale of the house to the tenants. I accept that the extracts, when read inside of the transcript as a whole, are capable of being accepted as limited to the circumstance of a sale to the tenants only. The husband’s position and his defence in that regard is open on the evidence and raise doubt, but again that does not end consideration of the issue.
The husband’s refusal to sell the house to the tenants he says is because the tenants, the wife and others including the wife’s solicitor in Ireland have colluded against him with respect to the sale price. He seeks an inference that the price they have all agreed to is more than what they are purporting so that the husband’s portion is less. I find that there are two problems with that:
(a)Firstly, it is a bald allegation based on his own conspiracy theory. He brings no independent or sensible evidence to support the allegation. Nor has he brought any kind of application to rectify the situation which would be the proper course;
(b)Secondly, by Order of this Court on 16 December 2022, the wife has been authorised to act as sole trustee for the sale of the property.
vi) The proceedings in Ireland
On or about 16 February 2023, the wife instructed Ms M of E Law Firm in Ireland, to act on her behalf in relation to advancing the sale of the property.[23] The wife deposed:
127. In or about September 2023, I received a telephone call from [Ms M] advising me that as [Mr Starling] has argued that the Australian Orders were not enforceable/ recognisable in Ireland, it was necessary for her to issue a Civil Bill in Ireland to have them recognised. As part of this process, under Irish Law, the Court only has jurisdiction to recognise and enforce Orders made on foot of a Divorce Decree and as such, I needed to file a Divorce application in the Federal Circuit and Family Court of Australia.
146. I am aware that a Civil Bill will give effect to the substantiate and 16 December 2022 Orders and it is my intention to continue with this process which if the contract of sale is executed in a timely manner, the process can move to finalise the sale of the property immediately.
[23] Exhibit E, paragraph 107.
After being served with the wife’s Application for a divorce, the husband took issue with the form of the application and then sought to have the application dismissed on grounds of his spiritual and religious beliefs. Despite his resistance, on 24 October 2023, the Divorce Application was granted with such Order to take effect and thereby terminate the marriage in late November 2023.[24]
[24] Exhibit E, paragraphs 127-134.
The wife further deposed:
15. On 23 July 2024, [Ms M] sent correspondence to [Mr Starling] serving the application filed in the [Region D] Court to have the Civil Bill approved in recognising the Orders of 16 December 2022. In this correspondence, it was a requirement of [Ms M] to state that in circumstances where [Mr Starling] contested the application, he was required to file further material with the [ Region D] Court within the timeframe specified.
16. On 29 July 2024, I received correspondence from [Ms M] enclosing documents filed by [Mr Starling] in the [Region D] Court which amongst other misrepresentations from [Mr Starling] regarding these proceedings, noted that [Mr Starling] was seeking for the Civil Bill to not be recognised stating words to the effect "I request that the [ Region D] Court does not recognize this civil bill as there are no Treaties or Reciprocal Agreements between Ireland and Australia in relation to the property settlement". Exhibited hereto and marked "[MSA]-1" at pages 28 to 31 is a copy of the Application filed by [Mr Starling] in the [ Region D] Court dated 29 July 2024.
18. ... I understand from advice from [Ms M] that as a result of the Defence filed by [Mr Starling], a full hearing in Ireland will be required necessitating me to incur further and unnecessary legal costs and delay in the sale of the property.
The husband deposed “The Respondent did not file any such objection in the Irish Court only a Response to an Application to a hearing”[25] and “I did not file an Objection as I have stated in point iii above.”[26]
[25] Exhibit B, paragraph 4(f)(iii), page 6.
[26] Exhibit B, paragraph 4(f)(iv), page 6.
During submissions, the husband made clear that he resists the wife’s application in the Irish Court. When asked by the Court what he understood the wife was trying to achieve by commencing the proceedings in Ireland, the husband gave two non-responsive answers but on the third time he said that he understood that what the wife was trying to achieve with her application is “the acknowledgement of the Orders of Judge Hughes in Ireland.”
At Page 28-31 of Exhibit C is the “Form” filed by the husband in late July 2024 which is his response and counter-claim to the wife’s application in that Court to have this Court’s orders recognised locally. It includes the following.
AND THE RESPONDANT CLAIMS:
(a) Since the Applicant began this legal battle in 2018, I have not been able to work in the manner that I am accustomed to. This is due to the pain and suffering caused by the ex-wife's affair and of the breakdown of the Family unit. I ask this Honorable Court in its discretion to allow for the allocation of compensation which reflects the yearly amount that a skilled craftsman like myself would make.
(b) A Declaration that the Respondent is entitled to claim relief pursuant to Section 23(2)(a) of the Family Law Act, 1995.
(c) I request that The [ Region D] Court does not recognize this Civil Bill as there are no Treaties or Reciprocal Agreements between Ireland and Australia in relation to property settlement. The Australian Federal Family Law Court did not follow proper procedure in relation to a settlement of property in a foreign country.
(d) An Order for the costs of and incidentals to the within proceedings.
Section 23 is within Part III – ‘Relief After Divorce or Separation Outside State’ of the Family Law Act, 1995 (Republic of Ireland). Section 23 is long and includes cross references to other sections and parts of that Act. It is neither helpful nor necessary to recite it here. By way of summary relevant to this case, the section applies to a marriage that has been dissolved under the law of another country and provides for a spouse to apply for any order under Part II which provides for orders after separation, including property adjustment and orders for sale of property.
I find that:
(a)The sole purpose of the wife commencing proceedings in Ireland is in order to give effect to the orders of this Court for the property to be sold by her as sole trustee and that the husband well understands that.
(b)Contrary to his evidence, the husband resists that application. Further, the husband seeks relief with a counter-claim which seeks to deny the wife of the effect of the property settlement orders that were determined by this Court to be just and equitable.
(c)Contrary to his submissions, the husband resists that application on more than a matter of law that “there are no treaties or reciprocal agreements between Australia and Ireland.”
(d)Contrary to his submissions, the husband is seeking to re-litigate property proceedings as between the parties.
(e)The husband’s conduct amounts to a deliberate and intentional attempt to subvert and avoid the Orders of this Court.
(f)In the absence of any application to stay orders of this Court, the husband’s counter-claim is in contravention of the injunction granted on 10 July 2024 restraining him, or from causing any third party or intermediary, to engage in any action, communication or activity relating to or touching upon the sale, rental or any other dealing of whatsoever type or kind associated with the property.
DETERMINATION
Having considered the charge, having heard the defence and having made findings, pursuant to 11.70(d) of the Rules I am to determine the charge.
I am satisfied beyond reasonable doubt that the husband was aware of the terms of the orders and understood them. I am so satisfied because:
(a)As to the Final Orders, they were made by consent.
(b)The husband has argued in writing and orally about interpretation of the Final Orders in a detailed and forensic manner.
(c)The husband has argued in writing and orally about the validity and jurisdiction of the Final Orders and the subsequent orders in a detailed and forensic manner.
(d)With respect to the subsequent orders appointing the wife as sole trustee for the sale of the property, in his defence the husband sought to rely on that as a circumstance excusing him from complying with the Final Orders thereafter.
I am satisfied beyond reasonable doubt that the husband has contravened the orders of 24 September 2021 and the subsequent enforcement orders by:
(a)Failing to take necessary steps for the sale of the property; and
(b)By obstructing the wife’s attempts to sell the property.
I am so satisfied because:
(a)In contravention of Order 3 of the Final Orders, within the window of time available to sell the property to the tenants pursuant to the Final Orders, the husband deliberately and intentionally frustrated the sale by telling the conveyancer that he was refusing to proceed with the sale because he did not agree with the price when such agreement was not a requirement of the Orders.
(b)In contravention of Order 4 of the Final Orders, the husband deliberately and intentionally frustrated the property being sold by way of auction by telling the agent that he would not be putting the property on the market with them because he did not agree with appointing them as agent when they were the agent the orders mandated to be appointed in the absence of agreement otherwise.
(c)In contravention of Order 4 of the Final Orders, the husband deliberately and intentionally engaged in a course of conduct to obstruct and delay the marketing and sale process with the effect of preventing the sale of the property.
(d)Despite Order 1 of the orders made on 16 December 2022 appointing the wife as sole trustee, in response to being advised of a Contract of Sale signed by the purchaser for €50,000 above the floor price and a deposit paid into trust, the husband deliberately and intentionally frustrated the sale by refusing to sign the contract and telling the conveyancer “that you are in fact illegally seeking to sell my house in Ireland without any legal documentation from the Irish Family Law Court or the Irish High Court.”
(e)In contravention of Orders 3 and 4 made on 10 July 2024 restraining him by injunction from, or causing any third party or intermediary to, engage in any dealing with the property, by his counter-claim in the proceedings in Ireland the husband seeks to have this Court’s orders compelling the sale of the property set aside and to relitigate the property settlement as between the parties.
I am satisfied beyond reasonable doubt that the conduct or omissions of the husband amount to a flagrant challenge to the authority of the court. I am so satisfied because:
(a)The husband has transitioned from his initial position of arguing about particular interpretations of the orders to now declaring absolute refusal to co-operate with selling the property to ready, willing and able purchasers and now challenges the jurisdiction of the orders.
(b)Despite a significant costs order on an indemnity basis fixed in the sum of $38,742 being made against the husband on 16 December 2022, he has been found to continue to obstruct the wife and contravene orders.
(c)The husband has declared in open court that he refuses to sell the property to a ready, willing and able purchaser without any proper basis. It is open to infer that the real reason is that he wants to deny the wife that to which she is entitled by not selling the property and I so infer.
(d)The sole purpose of the wife commencing proceedings in Ireland was in order to give effect to the orders of this Court for the property to be sold and the husband conceded his understanding is that is what the wife was trying to achieve in her application. Nevertheless, the husband resists that application and seeks to re-litigate property proceedings as between the parties.
(e)Each of the findings herein has been determined independently of the others. It has not been necessary to rely on any of the findings in order to make determinations on other issues. When all of the circumstances are considered together it cannot be said that the husband has accidentally or unintentionally prevented the sale of the property at a particular step or a particular time. It is not only open on the evidence, it is irresistible to find that the husband has intended to frustrate the effect of the orders and deny the wife that to which she is entitled to since at least October 2021 being only one month after he joined with the wife in asking the Court to make final orders that were just and equitable.
(f)The effect of the husband’s behaviour is not partial or negligible with respect to what the Final Orders sought to do. The property is the only property, real or otherwise, that is specifically dealt with in the Final Orders and the quantum is to 100 per cent of the wife’s entitlement.
Despite all of these findings against the husband, as a matter of law the charge of contempt against the husband cannot be found proved for the following reasons.
The charge is bad for duplicity and it is invalid. It does not specify the order (or orders by way of additional counts) which the husband is alleged to have contravened. Nor does the charge particularise the alleged acts done or not done by the husband. These are essential elements to a charge of contempt.[27]
[27] In Rand v Rand (2010) 43 Fam LR 570; (2010) FLC ¶93-444|; [2010] FamCAFC 167, the Full Court of the Family Court upheld an appeal against a conviction for contempt on the basis that uncertainty surrounding a term in the order alleged to have been contravened precluded a successful prosecution of a contempt application in which proof beyond reasonable doubt was required.
To proceed on the basis that the husband’s course of conduct constituted a contravention of the intended outcome of the orders, as opposed to specific orders, would be an error of law.
The findings that the husband has contravened particular orders were only able to be made on evidence adduced in relation to a faulty charge of contempt. Even though findings were made that could amount to contempt, that does not cure the manner in which the findings were made. To proceed otherwise would be an error of law.
The only conduct of the husband that is particularised in the charge is that he declared in Court that he will not comply with any orders for the sale of the property. Whilst findings have been made against him in relation to that conduct, it is not in contravention of a specified order. Rather, it is the type of conduct that might amount to contempt in the face of the Court pursuant to section 112AP(1)(a) of the Act but that is not what he was charged with.
In my view, the exceptional or striking nature of the husband’s conduct and omissions since the making of the Final Orders that differentiates it from what might be described as the general run of breaches is the course of conduct, or the cumulative effect of the conduct, is that he has successfully frustrated the orders for over three years now. A positive course of conduct designed to ensure orders would have no effect is a very serious matter and may of itself amount to contempt.[28] Undoubtedly, it is a factor relevant to punishment. However, each of the pieces of conduct that constitute a contravention of orders must still first be charged and made out according to law which has not been done in this case.
[28] See Abduramanoski v Abduramanoska (2005) 33 Fam LR 1; [2005] FamCA 88 at [56]-[59].
Accordingly, the charge of contempt against the husband cannot be found proved and needs to be dismissed.
Of course, this finding does not place the husband outside of the extant orders which remain in force and of effect. Nor does it place him in any different position than he would otherwise be with respect to a fresh allegation of contempt, fresh allegations of breaches, or claims for further costs orders against him.
Order 2 is made in furthering the implementation and enforcement of the property settlement orders already made in this Court and to assist with reducing the parties’ costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 22 November 2024
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