Bashir and Bashir
[2010] FMCAfam 694
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BASHIR & BASHIR | [2010] FMCAfam 694 |
| FAMILY LAW – Property – contravention application – costs – interest – Part 13A. |
| Family Law Act 1975, ss.112AA, 112AB, 112AD, 112O, 117B Family Law Rules 2004, r.17.03, Federal Magistrates Court Rules 2001, r.22.01 |
| Fauna Holdings & Mitchell [2000] FamCA 313, (2000) 27 Fam LR 81, (2000) FLC 93-053 In the Marriage of Hay [1998] FamCA 95; (1998) 23 Fam LR 247, FLC 92-819 Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299, (1999) 25 Fam LR 383, FLC 92-866 |
| Applicant: | MS BASHIR |
| Respondent: | MR BASHIR |
| File Number: | MLC 3610 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 10 May 2010 |
| Date of Last Submission: | 10 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 10 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mirabella |
| Solicitors for the Applicant: | Mirabellas Solicitors |
| Counsel for the Respondent | Self represented litigant |
| Solicitors for the Respondent: | Self represented litigant |
ORDERS
THE COURT FINDS THAT:
The Husband did contravene paragraphs 10, 11, 12 and 13 of the Final Orders made by consent in this Court on 16 February 2009 (“the Final Orders”) and was reasonably excused for doing so in part only.
AND THE COURT ORDERS THAT:
Pursuant to paragraphs 10 to 13 inclusive of the Final Orders, the Husband pay the Wife the sum of $117,000.00 within twenty-four (24) hours of the date of this Order.
The Husband pay the Wife interest on the sum in Order 1 herein fixed in the amount of $4680.00 within sixty (60) days of the date of this Order.
The Husband pay the Wife’s costs of these proceedings fixed in the sum of $1095.00 within sixty (60) days of the date of this Order.
The Wife make available to the Husband, through her solicitors, the items referred to in Annexure “A” to the Final Orders within seven (7) days of the date of this Order.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)The Wife has indicated to the Court today through her solicitor that she does not have the items referred to in paragraph 1 of Annexure “A” to the Final Orders.
IT IS NOTED that publication of this judgment under the pseudonym Bashir & Bashir is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3610 of 2008
| MS BASHIR |
Applicant
And
| MR BASHIR |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the Court is a contravention application, filed by MS BASHIR (“the wife”) on 24 March 2010. The wife alleges in her application that MR BASHIR (“the husband”) has failed to comply with paragraphs 10 through 15, inclusive, of the final property orders made, by consent, by this Court on 16 February 2009 (“the consent orders”).
More specifically, the wife alleges that the husband has failed to transfer the sum of $117,000 from the Bashir superannuation fund to her nominated superannuation fund, in accordance with the said orders. She is also seeking interest upon the moneys outstanding and her legal costs. In this respect the wife is seeking that the interest, pursuant to the relevant provisions, be fixed at $9, 360 and that her costs be fixed at $2,190. The wife is represented by her solicitor, Mr Mirabella, at today’s hearing.
This application is opposed by the husband. He has not filed an affidavit in response, but has provided submissions in his defence today and is self-represented.
The husband does not deny that he has not paid the wife the sum of $117,000 as provided for in the consent orders. In that sense, he admits the contravention. However, the husband asserts that he should be reasonably excused on the basis that the wife has not complied with paragraph eight (8) of the consent orders, in that he has not received the items referred to in “Annexure A” of the consent orders that is:
“The husband’s father’s memorabilia, inclusive of watches and medals; Family photo albums; and Oil painting in a dark wooden frame depicting [omitted]”.
This, was conceded by the wife, save for the exception that the wife asserts that she does not have the items referred to in paragraph one (1) of “Annexure A” in her possession.
Before considering this application any further, it is noted that;
(a)The husband has agreed he will pay the wife forthwith the sum of $117, 000, and that he has a bank cheque with him today;
(b)he has agreed that the wife can receive the benefit of the interest which has accrued on the said sum which, according to exhibit “H1”, is $1, 298.37; and
(c)the wife has agreed to deliver the items in paragraphs two (2) and three (3) of annexure A of the relevant orders to her solicitors, for the husband to collect them from her solicitors’ office within seven days.
Issues
The following issues are in dispute:
(a)whether the husband’s contravention is excusable; and, if not,
(b)whether a sanction should be imposed upon the husband. In this respect, it is noted that the wife is only seeking interest and costs in the outcome today.
The law
In respect to the law, Part 13A of the Family Law Act 1975 (“the Act”) ss.112AA to 112AO deals with sanctions for failure to comply with orders and other obligations which do not affect children.
Section 112AB states:
“That a person shall be taken to have contravened an order if, and only if, firstly, a person bound by the order has intentionally failed to comply, or has made no reasonable attempt to comply with the order; or, secondly, in any other case, a person has intentionally prevented compliance with an order by a person bound by it, or has aided and abetted a contravention.”
With respect to s.112AC and the question of a reasonable excuse the legislation makes it clear that a reasonable excuse includes, but is not limited to, the case where, firstly:
“…the respondent contravened the order because, or substantially because, he did not, at the time of the contravention, understand the obligations imposed by the order; and (b) the court is satisfied that he or she ought to be excused in respect of that contravention”.
Section 112AC(2)(a) is not relevant to these proceedings.
The breach must be shown to be intentional, that is, deliberate as distinct from inadvertent. However it does not require proof that a party has stubbornly, perversely or rebelliously, wilfully or obstinately refused to comply with the orders. There is a wealth of case law on that particular point.[1]
[1] Fauna Holdings & Mitchell [2000] FamCA 313, (2000) 27 Fam LR 81, (2000) FLC 93-053; In the Marriage of Hay [1998] FamCA 95; (1998) 23 Fam LR 247, FLC 92-819; Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299, (1999) 25 Fam LR 383, FLC 92-866.
Section 112AD(1) provides that:
“If a court is satisfied that a person has, without reasonable excuse, contravened an order under this Act, it may impose designated sanctions.”
These sanctions are referred to in s.112AD(2) and include a sentence of imprisonment, the imposition of bonds, the imposition of fines, and so forth. Moreover, s.112AD(4) enables the Court to:
“make such other order as it considers necessary to ensure future compliance with the order that has been contravened”.
In this respect, let me also note that in respect to the claim for interest, the Federal Magistrates Court Rules 2001 (“the Rules”) state, in r.22.01, that where s.117B(1) of the Act is invoked, the interest rate is the rate prescribed by the Family Law Rules 2004. When one reads s.117B of the Act together with r.17.03 of the Family Law Rules 2004, it is clear that the interest that may be claimed is the prescribed rate:
“…for each 12 months commencing on 1 July each year, the sum of (a) the Reserve Bank of Australia target cash rate on July 1 or, if there is more than one rate, the higher of them and 5 per cent”.
Lastly, the onus of proof is the civil standard on the balance of probabilities, having regard to the gravity of the allegation, and that onus falls upon the wife in this case. Although with respect to reasonable excuse, that burden is cast upon the person arguing the reasonable excuse.
Discussion
The exchange of correspondence between the parties and their lawyers, provide some assistance to the inquiry as to whether the husband has a reasonable excuse in not complying with the relevant superannuation orders. He asserts his decision was based upon a failure by the wife to comply with one aspect of her ‘end of the bargain’.
The parties’ actions in respect of both these matters appears to be less than businesslike. What is clear is that there was a minor aspect of the wife’s performance that the husband complains of. Whether one could describe the husband’s non-performance as minor is more questionable.
Conclusion
In the circumstances, the Court finds the contravention established, but that the husband’s actions were partly excusable on the basis of his belief, but were not wholly excusable. In other words, his actions were disproportionate to the alleged non-performance of the agreement by the wife.
The wife has lost considerable income relevant to her superannuation investment. This will be offset, to some extent, by the husband paying over the interest that has accumulated on those moneys.
In the circumstances, the Court finds that the wife should receive
50 per cent of the amount claimed under the Act and Rules. That being half of the $9, 360 that she has claimed, an amount totalling $4, 680. Moreover this sum represents the interest lost on the investment. That amount would, of course, be inclusive of the interest earnt, being $1, 291.51. After deducting that amount, the net amount to be paid by the husband is $3, 388.49.
Given this outcome, the claim for costs in the amount of $2, 190 will also be reduced by 50 per cent. Thus, costs will be fixed in the amount of $1, 095.
As to a formal finding, the Court finds there is a contravention and that the contravention is partly excused.
The right to settle the reasons for this decision is reserved.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 29 September 2010
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