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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCAfam 694
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. Bashir filed an application against Mr. Bashir, alleging that he had contravened certain property orders made by the Court. Specifically, Ms. Bashir claimed that Mr. Bashir failed to transfer $117,000 from the Bashir superannuation fund to her nominated fund as ordered. She sought interest on the outstanding amount and her legal costs. Mr. Bashir admitted to the non-payment but argued that he should be excused due to Ms. Bashir's failure to provide him with specific items as per the orders. The central issues were whether Mr. Bashir's contravention was excusable and, if not, whether a sanction should be imposed.

The court examined relevant sections of the Family Law Act 1975 and the Federal Magistrates Court Rules 2001. Section 112AB of the Act defines contravention of an order, while s.112AC(2)(a) discusses reasonable excuse. The court also referred to relevant case law to clarify the intent behind the contravention. The interest claim was guided by s.117B of the Act and r.22.01 of the Rules, which set the interest rate based on the Reserve Bank of Australia's target cash rate.

After reviewing the evidence and submissions, the court concluded that Mr. Bashir's contravention was established, but partly excusable. The court found that while Mr. Bashir's actions were disproportionate to Ms. Bashir's partial non-compliance, they were not entirely without excuse. Therefore, the court ordered Mr. Bashir to pay Ms. Bashir $117,000 within 24 hours, along with interest of $4,680 and costs of $1,095, both within 60 days. The wife was also ordered to make available certain items to Mr. Bashir within seven days. All other applications were dismissed.

Orders