C and S
[2001] FMCAfam 277
•14 December 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & S | [2001] FMCA fam 277 |
| FAMILY LAW – Contravention – section 112AD – “reasonable excuse”. |
| Applicant: | J M C |
| Respondent: | R G S |
| File No: | ZH 2451 of 2001 |
| Delivered on: | 14 December 2001 |
| Delivered at: | Hobart |
| Hearing Date: | 22 & 23 November 2001 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. F. Dixon |
| Solicitors for the Applicant: | Murdoch Clarke |
| Counsel for the Respondent: | Mr. R. Blissenden |
| Solicitors for the Respondent: | Avery Partners |
ORDERS
That the Court finds that R G S has without reasonable excuse contravened subparagraph (b) of Order No. 3 of the Orders of the Family Court of Australia of 20th November, 2000.
That the said R G S be fined the sum of $100.00, such fine to be wholly suspended upon his compliance with Order No. 3 hereof.
That within fourteen days the said R G S pay to J M C the sum of $5,000.00 together with interest thereon in accordance with the relevant Family Law Rule or Federal Magistrates Court Rules from 27th November, 2000 until the date of payment.
That compliance with the preceding Order hereof shall be in full satisfaction of the obligation of R G S to comply with subparagraph (b) of Order No. 3 of the Orders of the Family Court of Australia of 20th November, 2000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
ZH2451 of 2001
| J M C |
Applicant
And
| R G S |
Respondent
REASONS FOR JUDGMENT
Background
On 14th November, 2000 R G S (“the Husband”) filed an Application for Consent Orders in the Family Court of Australia at Hobart. The Respondent to that Application was J M C (“the Wife”).
That Application discloses that the parties commenced cohabitation in April, 1995 and were married on 4th November, 1998. They separated on 26th April, 2000. The Application annexed a copy of a Restraint Order obtained by the Wife which, inter alia, prevented the Husband from approaching the Wife, either directly or indirectly.
The Orders that were made by consent of the parties were reasonably complex and I detail the relevant Orders below:
(1)That within seven (7) days of the date of this Order (“the Vacation Date”) the Wife shall vacate the property situate at 40 D T, N N (Certificate of Title Volume 63304 Folio 22) (“the Property”) and at the time of vacation shall hand to either R P or R G (“the Inspectors”) all of the keys to the said Property at the date hereof in her possession or under her control including any keys in the possession of J G or R. & J. W and including master key numbered JC1151MKI.
(2)That on or before the Vacation Date and prior to handing the said keys to the Inspectors the Wife shall remove from the Property, to the intent that she shall be the sole and absolute owner thereof, all furniture and household contents and items of personal clothing and adornment situate within the Property save and except for the chattels specified hereunder (“the Husband’s Chattels”):
(A detailed list of chattels then followed as part of that order).
(3)That the Husband shall pay to the Wife the sum of TWENTY THOUSAND DOLLARS ($20,000.00) as follows:
(a)$15,000.00 to the Wife or her Solicitors prior to the Vacation Date, to be held by those Solicitors in escrow pending the Wife’s vacation of the Property.
(b)$5,000.00 to the Husband’s Solicitors prior to the Vacation Date, the Husband to direct the Husband’s Solicitors to pay the said monies to the Wife or her Solicitors forthwith upon the Inspectors advising the Husband that:
(i)the Husband’s Chattels are at the said property
(ii)the Property is in a neat and tidy condition
(iii)there is no apparent damage to the Property save and except for damage to the front door lock and missing back door handle.
WITH
(c)The Husband to ensure that the Inspectors undertake their inspection and provide their advice on the matters referred to above, to him, on the Vacation Date
(d)In the event that the Inspectors advise the Husband that:
(i)some of the Husband’s Chattels are not at the said Property; and/or
(ii)the Property is not in a neat and tidy condition: and/or
(iii)there is no damage to the Property other than damage to the front door lock and missing back door handle
then the Husband shall direct his Solicitors to withhold the said payment of $5,000.00 to the Wife pending negotiation between the Parties’ Solicitors as to what sum shall be deducted from the said $5,000.00, before payment is made to the Wife, in consideration of such matters AND failing agreement as to that deduction within fourteen (14) days of the Vacation Date the dispute shall be referred to a nominee of the President of the Law Society of Tasmania, at the joint cost to the Parties, whose decision as to the sum to be paid to the Wife shall be final.
As mentioned above, there was a detailed list of chattels at the foot of Order No. 2 specified as “the Husband’s Chattels”. That list included some clearly identifiable chattels but it also included some chattels that were referred to by use of the word “all”. For example, it included “All truck and boat parts” and “All items of the Husband’s personal clothing and adornment”. The use of the word “all” in relation to five groupings of chattels assumed some significance in relation to the hearing that I shall refer to below.
There were other orders but the three orders detailed above are the orders relevant to these proceedings.
The current application
On 14th March, 2001 the Wife filed a Form 48 Contravention Application in which she alleged that under section 112AD(1) of the Family Law Act the Husband had without reasonable excuse contravened the Orders. In Part C of the Application, the detail of the order allegedly contravened is “That the Respondent Husband has failed to comply with Order 3(b)”.
The detail of the alleged contravention is said to be:
“The Respondent Husband has consistently and persistently failed to comply with Order 3(b) of the Orders made in the Family Court of Australia at Hobart on 20th November, 2000…. in that the Respondent Husband has failed to pay the amount of $5,000.00 to the Applicant Wife”.
The law
Subsection (1) of Section 112AD of the Family Law Act provides that if the Court is satisfied that a person has, without reasonable excuse, contravened an order made under the Family Law Act 1975, the Court may impose one or more of the sanctions that it considers to be most appropriate under subsection (2).
The sanctions available to be imposed under subsection (2) are:
a)To require the person to enter into a bond;
b)To impose a sentence in the nature of “work orders”;
c)To fine the respondent; or
d)Impose a sentence of imprisonment
It is clear from subsection (2A) that the Court must not impose a sentence of imprisonment unless the Court is satisfied that the contravention was intentional or fraudulent.
The evidence
The Wife relied upon her affidavit filed 13th March, 2001 and that of one of “the Inspectors”, R P, which was also filed on 13th March, 2001. Both the Wife and Mr. P were cross-examined.
The Husband relied on his affidavit filed 24th April, 2001 and that of the other “Inspector” R I G filed 11th April, 2001. Both the Husband and Mr. G were cross-examined.
It is clear from the evidence of the Wife, Mr. P and Mr. G that “the Vacation Date” for the purpose of the Orders was 27th November, 2000. On that day Mr. P and Mr. G attended at the former matrimonial home and inspected the premises. It is quite clear that Mr. G’s inspection of the premises was more thorough than that of Mr. P because he had obtained property inspection reporting documentation from a real estate agent and he was completing that documentation throughout the inspection.
Towards the end of the inspection the Wife presented a document to both Inspectors for signing. It is also clear from the evidence of both Inspectors that they signed that document without any duress. It is equally clear that Mr. G’s affidavit is incorrect in that part of the affidavit where he says: “The only part of the document I read before signing it was that section which listed the keys in question. I did not read the rest of the document. My only thought at the time of signing the document was that I was signing for the keys that Ms. C had handed over, that is a receipt.”
In cross-examination, Mr. G clearly conceded that he had read the document before signing it.
The particular document signed by both Inspectors indicates that they inspected the former matrimonial home and “found it to be neat and tidy”, and that “All items as per family court (sic) orders are on the premises”. The document goes on to list seven keys that were handed over by the Wife.
After the completion of the inspection, the Wife left the premises and so did Mr. P. Shortly thereafter, Mr. G telephoned the Husband to let him know that the Wife had left and that he was at the property in possession of the keys. It appears that the Husband then went to the property.
It is clear from the evidence of the Husband that he was not satisfied that “all” his chattels were left at the former matrimonial home at the time that it was vacated by the Wife. He uses that as his reason for not complying with the orders.
At this point, I should say that I found the Husband to be arrogant in the way that he approached this matter, and his witness, Mr. G, was clearly unreliable. In this regard, it was clear that Mr. G’s affidavit was not correct. However, my findings about the husband and Mr. G may all be somewhat academic, in view of my findings in relation to the law.
Findings
The complicated orders that these two parties chose to adopt required a number of steps to be undertaken. Those steps were as follows:
a)The wife needed to vacate the former matrimonial home within seven days of the Orders;
b)At that time she needed to hand all keys of the former matrimonial home to Mr. P and Mr. G;
c)Prior to her vacation of the former matrimonial home she needed to remove all her property, but leave all the property specified in Order No. 2 to as “the Husband’s Chattels”;
d)The Husband was to pay $15,000.00 to the Wife prior to the date of vacation of the former matrimonial home;
e)The Husband was to pay to his solicitors a further sum of $5,000.00 and direct his solicitors to pay that sum to the Wife or her solicitors upon the Inspectors advising him that his chattels were at the property, the property was in a neat and tidy condition and there was no apparent damage apart from damage to the front door lock and a missing back door handle.
However, what follows in the complicated orders is crucial. The Husband was pursuant to paragraph (c) of Order number three “to ensure that the Inspectors undertake their inspection and provide their advice on the matters referred to above, to him, on the Vacation Date”. In short, that placed a positive onus upon the Husband to make sure that the “Inspectors” were able to perform their specified duties.
It is clear that the Husband did not provide to the Inspectors a list of the chattels that should have been left at the former matrimonial home. It is equally clear, that the onus pursuant to subparagraph (c) of Order No. 3 was on the Husband.
It is equally clear from subparagraph (d) of Order No. 3 that if the Inspectors did not advise him that:
a) “Some of the chattels were not at the property; and/or
b) The property was not in a neat and tidy condition; and/or
c) There was damage to the property other than damage to the front door lock and missing back door handle”
the Husband had no reason to direct his solicitors to withhold payment of the balance sum of $5,000.00.
From the evidence, I find that the Husband did not ensure that the Inspectors were able to properly undertake their inspection and provide the appropriate advice. Consequently, the Inspectors did not advise the Husband in accordance with subparagraph (d) of Order No. 3.
It logically follows that the Husband has therefore contravened subparagraph (b) of Order No. 3.
It was put to me by the Husband’s counsel that because the Inspectors could not possibly know whether “all” of the Husband’s chattels were there at the time of the inspection, it was impossible for there to be compliance with the Orders. I do not accept that, because the onus was on the Husband to provide a list of every chattel that he owned. In this regard, subparagraph (c) of Order No. 3 required the Husband to ensure that the Inspectors undertook their inspection and provided the relevant advice. He therefore needed to make it possible for them to provide that advice.
Consequently, the allegation that some chattels may have been missing when the Husband attended the property is irrelevant. That allegation would only become relevant if the Husband had properly done what he should have done in accordance with subparagraph (c) of Order No. 3. He did not do that.
It is clear, therefore, that he is in breach of subparagraph (b) of Order No. 3 because of his own failure to comply with the requirements of subparagraph (c).
Conclusions
It is clear from the above, that I conclude that the Husband is in contravention of subparagraph (b) of Order No. 3 because of his own failure to comply with subparagraph (c) of that Order.
It is clear from the submissions put to me by the Wife’s counsel that she is not really seeking any punishment of the Husband. What she requires is compliance with the Order requiring the payment of $5,000.00. She also seeks interest in accordance with the Rules.
Section 112AD(4) of the Family Law Act provides that where the Court makes an order under subsection (1), the Court may make such orders as the Court considers necessary to ensure compliance with the Order that was contravened. It is clear from that subsection that the Court must first make an order imposing a sanction. Seeing that the Wife is not really seeking any punishment, the appropriate course is for the Court to impose a minimal fine and then suspend that fine, provided that the Husband pays the sum of $5,000.00 to the Wife within a reasonable period.
The Orders that I make in this matter take account of those factors.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 14th December, 2001
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