BINNS & BINNS
[2011] FMCAfam 92
•20 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BINNS & BINNS | [2011] FMCAfam 92 |
| CHILD SUPPORT – Contravention – bond. |
| Family Law Act 1975, ss.112AD, 112AG Child Support (Assessment) Act 1989, s.100 Federal Magistrates Act 1999, s.63 |
| Applicant: | MS BINNS |
| Respondent: | MR BINNS |
| File Number: | PAC 5352 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 20 January 2011 |
| Date of Last Submission: | 20 January 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 20 January 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr McCulloch |
| Solicitors for the Respondent: | Mr Kilpatrick |
ORDERS
The Court DECLARES that it is satisfied pursuant to s.112AD of the Family Law Act 1975 that Mr Binns has, without reasonable excuse, failed to comply with orders made 13 January 2011.
Mr Binns be sentenced pursuant to s.112AE of the Family Law Act 1975 to a period of 6 Months imprisonment such period to be suspended pursuant to s.112AE(4A) upon the following terms and conditions:
Mr Binns is to forthwith and by close of business today enter into recognizance for a period of 12 months to do the following:
(a)To be of good behaviour;
(b)To comply with the balance of orders made 13 January 2011 and orders made by me today;
(c)To pay into this court to be held by this Court by either a Registrar or the Marshall to occur by close of business 25 January 2011 a sum of not less than $270,000 in the form of a bank cheque made out to the Collector of Public Monies or in cash.
(d)To forthwith and within 7days attend to payment of outstanding arrears of child support being, to date, a sum of $967 such amount to be paid direct to the Child Support Agency;
(e)To pay whether directly to Ms Binns (by electronic funds transfer) or to the Child Support Agency a sum of $240 per week by way of interim child support;
(f)To attend Court on all occasions that this matter is listed before the Court unless excused.
Pending further order and on an interim basis Mr Binns is to pay Child Support for the child [X] born in 1998 in the sum of $240 per week first payment to be made within 7 days of today’s date and thereafter weekly.
Order and direct Mr Binns to forthwith be taken into custody and to be held by the NSW Police and escorted to the Registry Manager’s office and to be so held in custody until such time as he has executed the recognizance referred to above and provided that upon execution of such recognizance Mr Binns shall be released and remain at liberty subject to his compliance with the above recognizance or the issue of a commitment warrant calling for him to commence and serve the period of imprisonment referred to in paragraph 2 above.
Mr Binns is to attend court in person whether legally represented or not unless excused on all occasions otherwise a warrant for his arrest and/or a commitment warrant may be issued.
In the event that Mr Binns does not comply with or satisfy all of the above orders in the timeframes provided (being entering into a recognizance today and, with respect to payment of not less than $270,000 to this Court, by close of business 25 January 2011) then the suspension of above sentence of imprisonment shall be discharged and a commitment warrant is to be issued by me in chambers authorising NSW Police to apprehend Mr Binns and holding him in custody until that sentence has been completed.
Mr Binns shall do all things, sign all documents and give all consents and authorities necessary to cause the sum of not less than $270,000 to be paid into Court (being the Parramatta Registry of the Federal Magistrates Court by way of Bank Cheque made out to the Collector of Public Monies or in cash) and to be thereafter held and/or invested in such manner as the Court may arrange pending further order.
Pursuant to s.106B I set aside transactions and each of them that occurred between Mr Binns and Mr I Binns on or from 29 September 2010 to 1 October 2010 being payments in the total sum of $290,000.
Order and direct that each of the Husband and Mr I Binns shall forthwith and by close of business 25 January, 2011.
(a)Deposit to the exhibits section of this Court all statements, pass books or other records relating to any account of Mr I Binns or any other account to which the cash funds of $290,000 or any portion thereof were deposited; and
(b)Cause funds of not less than $270,000 to be paid into Court and being the initial deposit of funds and any interest accrued thereon (and with the intention that the total funds held in that account but, in any event not less than $270,000, are, in fact, to be paid into Court and the account closed).
Mr Binns shall no later than close of business 10 February 2011 cause copies of all documents called for by paragraph 13 of Orders made
13 January 2011 be forwarded to the Solicitors for Ms Binns and a copy lodged with the exhibits section of this court.
Reserve the costs of Ms Binns with respect to proceedings to date and of today’s appearance such costs to be determined on next occasion.
Adjourn the proceedings for further mention and directions before me 9.30am 17 February 2011.
Order 6 of orders made 13 January 2011 (being an order restraining Mr Binns dealing with any account in his name is varied to add):
“Provided however Mr Binns shall be entitled to deal with such accounts for the purpose of complying with these orders regarding payment of arrears of Child Support and ongoing weekly Child Support”
Direct the Solicitors for the Mother to forthwith serve upon the [omitted Bank] a copy of the Orders made 13 January 2011 and, once available a copy of today’s orders.
IT IS NOTED that publication of this judgment under the pseudonym Binns & Binns is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5352 of 2010
| MS BINNS |
Applicant
And
| MR BINNS |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to applications regarding child support.
The matter had been before the court last Thursday, 13 January, on which date judgment was delivered by me and a number of interim orders made. Those orders were somewhat extensive and included, at order 13, a provision for Mr Binns to produce to this court, no later than 12 noon today, a list of specified documents. No documents have been produced.
With respect to each of the four categories of documents required, they were as follows:
(a) Income tax returns and notices, for the period 1 July 2002, to date.
Mr Binns had indicated to the court, earlier today, that he had not lodged tax returns for any of those relevant years, until yesterday when he saw his accountant to finalise the returns and sign them. He then, somewhat incredulously, indicated that he was not able to obtain a copy from his accountant, and I observed that his evidence was not that he could not obtain a copy, or did not ask for a copy, but that his accountant indicated that he could not give him a copy. I do not accept that evidence.
(b) Bank statements.
Mr Binns indicates in his sworn evidence, that he does not use internet banking and cannot print off statements. He indicates that he has been to the bank to request copies of statements, however, that also ignores the fact that the bank regularly, and as a requirement of law, issues bank statements to customers. There is no suggestion that there have never been such documents in existence. But, in any event, if I am to accept that Mr Binns has now made the request of the bank to obtain those documents, which would incur payment of fees, then those documents will be available in the near future: one would think.
Mr Binns suggests that the documents could not be obtained in the week he has had. I am aware, from experience as a customer with the same bank as Mr Binns, that he can obtain the statements in persona and whilst at any branch at least for the last 12-18 months.
(c) Documents evidencing withdrawals on specified dates by Mr Binns.
The withdrawals that were undertaken are probably the gravamen of the issue before this court today.
These proceedings relate to a review of child support years, for the period from 1 March 2003 up and until the 18th birthday of the younger of the two children of this marriage [X], the elder child, [Y], having already turned 18. Both children have significant disabilities. Neither child has received any significant financial support or assistance from Mr Binns, during the periods that are referred to, from 2003 to date.
However, as a consequence of the evidence led on the last occasion and the judgment delivered by me, I am and was satisfied that Mr Binns has, during that period, engaged in what might be referred to as a scheme of property development and has realised gross profits in relation to properties, although, as is quite correctly pointed out by his legal representative today, but due entirely to Mr Binns’ failure and refusal to engage in these proceedings, there has been no evidence of costs in relation to refurbishment of the properties and sale and they have not been taken into account.
But the gross amounts received, as a consequence of searches undertaken with the Land and Property Information Office, and after deduction of mortgages – mortgages which were obtained by a person who, throughout the entire period, had told the Child Support Agency he was not working and had no income, but yet was able to make successful finance applications to a major bank – was in excess of $800,000.
Evidence has been given by Mr Binns specifically with respect to those amounts, and he indicates that the amounts were transferred from one account into another and thereafter withdrawn in cash. The withdrawals total $290,000. I am told $270,000 of that remains. Mr Binns’ evidence, which, put bluntly, and as will be abundantly clear as a credit finding, beggar’s belief, is initially that he wanted the cash to be kept in safe keeping by his brother while he was overseas. Presumably the [omitted Bank] cannot be trusted to keep money in safekeeping.
Ultimately, Mr Binns’ evidence changed, however, and it became clear from Mr Binns’ evidence that: (a) he was aware of these proceedings, although he asserts he had never seen a document with respect to them, but was aware that proceedings had been instigated by Ms Binns with respect to child support; and (b) was afraid that whilst he was away overseas in Thailand, intending to leave a little over a month after the withdrawals happened, that “something might have happened to his account” as a consequence of the proceedings, such as the account being frozen.
I am perfectly satisfied that the actions undertaken by Mr Binns, were a deliberate, fraudulent attempt to undermine the subject matter of Ms Binns’ application, to frustrate the proceedings and a contempt of this court.
In any event, Mr Binns, ultimately, was clear in relation to his evidence.
(d) Documents evidencing the purchase and sale of the various parcels of real estate that have happened:
Documents were required with respect to not less than five properties which showed up on a purchaser’s index search for Mr Binns. There are other deposits to these accounts, portions of which are subpoenaed and were tendered on the last occasion, which suggest other properties.
Mr Binns’ evidence is that after he left the [omitted] property in which he was residing, which was sold in June of 2010 that he disposed of all of the documents. That would be entirely in breach of his legal obligation and one would question, seriously, how his accountant has completed returns that are in any way accurate or, indeed, satisfy Mr Binns’ legal obligations to the Commissioner for Taxation and ultimately the Australian community in the absence of those source documents and to the extent that they deal with any of these investment properties and the very substantial capital gains tax that would be due to the Commissioner of Taxation. That is a matter that will be dealt with, no doubt, by the Commissioner, after I refer the papers to him, as I intend to do in due course.
More significantly, though, in my mind, are two issues.
Firstly, Mr Binns, from his evidence, is very clear as to the reason and the basis for his transfer of funds. However, there was no order to restrain him from doing that. It simply, in my mind, reflects entirely his wilful approach towards these proceedings and his absolute obstinate opposition to providing support for his children. Support for children which, pursuant to the objects of the child support legislation, is his responsibility, not the taxpayers of Australia’s responsibility, or entirely Ms Binns’, although Mr Binns, through his attitude, has demonstrated quite clearly that he is more than content for that to be the case, including for a period of time when he has travelled for nearly two months to Thailand and expended what one can only infer from the diminution in cash funds that are withdrawn of $20,000. $20,000 at a time that he was fully aware there was a child support debt of $30,000.
That debt will or may increase. It certainly will increase if Ms Binns is successful, in whole or in part, with her application presently before the court, to deal with seven years of past child support years, by way of departure and future child support years by way of departure and, ultimately, lump sum relief in that regard.
The greater concern in this regard, and for which no satisfactory explanation has been given, is Mr Binns’ failure to comply with order 13 of the orders that I have made or his obligations generally as to disclosure in these proceedings.
The evidence that Mr Binns gives, in relation to the bank account and its withdrawals, impacts on that to some extent. Mr Binns not only was cognisant of these proceedings, took active steps in light of the proceedings and his, I presume, knowledge of what could or might happen as a consequence of the proceedings, ie., freezing bank accounts, but suggests that he then paid those funds in cash, $290,000, to his brother, Mr I Binns, who then deposited those funds into an account with a credit union in his name, rather than the husband’s, which, again, can only be perceived as a wilful act to ensure that funds are removed from the Court’s reach and the proceedings frustrated.
I certainly propose to address also that transaction and will do so shortly.
As a consequence of the non-compliance with order 13 of the orders I have made on 13 January, I had indicated before the lunch adjournment, and at which time Mr Binns had one rather than two legal representatives attendant to the proceedings, that I proposed to deal with him pursuant to s.112AD, on the basis of his wilful contravention of an order of this court under Part XIIIA of the Act.
Whilst these are child support proceedings, s. 100 of the Child Support (Assessment) Act1989 applies all provisions of the Family Law Act 1975, to the extent that they act in aid of jurisdiction, to these proceedings.
To that extent I am satisfied that imported into the Child Support (Assessment) Act 1989 is the power to set aside transactions pursuant to s.106B but also the power to deal with a person for wilful contravention of an order made by this court, (under s.112AD), and I propose to proceed to do so.
The powers that are available to the court consequent upon a finding of contravention are broad. The court has a power under s.112AD(2), to deal with any finding on the following bases:
a)to require a person to enter into a bond;
b)to impose a sentence or make an order directed to the person, in accordance with s.112AG, being an alternative sentencing option: they are not available in New South Wales;
c)to fine a person up to 60 penalty units; or
d)to impose a period of imprisonment.
A period of imprisonment cannot be imposed, unless the court is satisfied that there has been an intentional or fraudulent non-compliance. I am so satisfied.
A sentence of imprisonment similarly cannot be imposed under the legislation with respect to non‑compliance with a maintenance obligation, unless, similarly, the court is satisfied that there has been a wilful non‑compliance. I am so satisfied.
However, sentencing under the Family Law Act 1975 should be in aid of jurisdiction primarily. There is also an important message to be sent to the community through the use of sentencing and, as I have often remarked, this court and the Family Court are greatly criticised for the attitude which it is perceived we demonstrate towards noncompliance with our orders or, in this case, child support assessments.
The community needs to be disabused of that notion, and the message sent very clearly that there are harsh consequences for failing to comply with orders, and even harsher consequences for engaging in a course of conduct that one can only describe as being, in the terms that I have and which words I have chosen wisely, contemptuous.
I am perfectly satisfied that Mr Binns was fully aware that there were proceedings with respect to child support on foot. That follows from his own evidence. Whether he had seen documents or not is a matter entirely for him and his mother, as orders were made in mid‑2010 for substituted service, after Mr Binns could not be located through expensive inquiries by private process servers at both the address of his mother at which, he has indicated today, he resides from time to time and at the address at which he otherwise resides being a moored yacht.
Here is a litigant who suggests he doesn’t earn income, doesn’t pay tax, doesn’t pay child support and yet lives on a yacht, purchased a little while ago and in 2010 for $20,000. That is not a lifestyle that many who are unemployed get to enjoy. Indeed, not a lifestyle that many who are employed and meet their legal obligations get to enjoy.
Mr Binns will learn to understand that there are legal obligations imposed by his being a member of a functioning democracy, as well as being a parent of a child that he should support. Indeed, he should meet those obligations voluntarily, but if he does not the law imposes sanctions for failing to meet them.
I am satisfied that a period of imprisonment is appropriate.
The Federal Magistrates Act1999 provides for a number of offences and periods of imprisonment are prescribed as penalties, and including imprisonment for six months for failure to answer a question, pursuant to s.63 of the Act.
It is not suggested that Mr Binns has failed to answer a question, save in this respect. Many questions arise in relation to Mr Binns’ financial affairs. They have remained unanswered for eight months that these proceedings have been on foot, because he has chosen to ignore the proceedings. Accordingly, I am satisfied that his failure to provide the information that he was ordered to provide, represents something analogous to a failure to answer a question and, accordingly, I will use six months as the comparable period of imprisonment to which I ought sentence Mr Binns today.
However, he will have one final opportunity, and I am satisfied that that is appropriate on this basis. On 13 January I cancelled his passport, I placed him on the airport watch list, and I made a number of orders restraining him dealing with any bank account that he holds.
Whilst I have not elicited from him today any information as to where he presently banks in addition to [omitted Bank], I am certainly fully aware of the account that is now opened in his brother’s name with his money to frustrate these proceedings. And I propose to make orders for payment of that money into court within a very short timeframe, being told that Mr I Binns returns to the jurisdiction tomorrow.
I intend to suspend the sentence of imprisonment, subject to Mr Binns today entering into a bond and complying with all of the orders I am going to make today, some of which will involve him having to cajole his brother into cooperation. If Mr Binns has not done so by next Tuesday I will issue a commitment warrant and he will commence serving his period of 6 months imprisonment.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 3 February 2011
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