CAMPBELL and LOUIS (CONTEMPT)
[2021] FCWA 34
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: CAMPBELL and LOUIS (CONTEMPT) [2021] FCWA 34
CORAM: MONCRIEFF J
HEARD: 19, 20 OCTOBER & 16 NOVEMBER 2020
DELIVERED : 10 MARCH 2021
FILE NO/S: PTW 4513 of 2009
BETWEEN: MS CAMPBELL
Applicant
AND
MR LOUIS
Respondent
Catchwords:
CONTEMPT – Where the alleged contemnor has systematically and deliberately contravened orders restraining him from dealing with superannuation and property interests consistently and failed to comply with orders for the financial support of the applicant – where 14 of the 15 alleged contraventions are found proven to the requisite standard of proof – where the contraventions so found constitute a flagrant challenge to the authority of the Court
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr R Hooper SC |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | FMD Legal Pty Ltd |
| Respondent | : | Self Represented Litigant |
Case(s) referred to in decision(s):
Campbell and Louis [2018] FCWA 113
Ganem v Ganem (No 2) [2013] FamCA 257
Re F Litigants In Person Guidelines (2001) FLC 93‑072
Rutherford v The Marshal of the Family Court of Australia (1999) FLC 92‑866
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Campbell and Louis has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1The Court is called upon to determine an application for contempt brought by [Ms Campbell], the applicant in this application and the primary proceedings between the parties, and [Mr Louis], the respondent.
2The contempt application alleges breaches of orders made in the course of proceedings between the parties which commenced on 31 August 2009 following the demise of their de facto relationship that existed between April 1999 and their date of final separation [in] January 2008.
3The proceedings have been the subject of numerous interlocutory orders and a trial which ran before me over 8 days in October and November 2017.
4On 25 June 2018, I both published reasons for judgment (Campbell and Louis [2018] FCWA 113) and made orders reflecting those reasons.
5The respondent subsequently appealed the orders so made, however his appeal was unsuccessful.
6Earlier in the course of proceedings and at a time when O’Brien J was managing the proceedings his Honour also, for the reasons he gave on various occasions, made orders that are relevant for the purpose of this application.
7The orders the subject of the application for contempt provide as follows:
Orders dated 2 December 2016
(Throughout these reasons, unless otherwise specified, all errors and emphasis in extracts are as in original).
1Until further order of the Court, and save and except with the prior written consent of the Applicant, [MS CAMPBELL], the Respondent, [MR LOUIS] be restrained and an injunction is hereby granted restraining him from:
(a)executing any power of appointment, entering into any deed, or otherwise doing any act or thing to change the corporate structure of any entities in which the Respondent holds a position or has an interest including but not limited to:
(i)adding to, or removing any directors of [Louisvale] Enterprises Pty Ltd (“[Louisvale Enterprises]”) save for taking all steps necessary to appoint the Applicant as a director;
(ii)adding to, or removing the trustee, appointor, guardian or beneficiaries of the [Louis] Family Trust (“the Family Trust”);
(iii)adding to, or removing the trustee, appointor, guardian or unit holders in the [Louis] Investment Trust (“the LIT”); or
(iv)adding to, or removing the trustee or any members of the [Sputnik] Superannuation Fund (“the Super Fund”);
(b)transferring, gifting, selling, assigning, encumbering, further encumbering or otherwise disposing of, any item of property, or part thereof, held by him or allowing any entity in which he has an interest to do so and including but not limited to:
(i)the interest held by [Louisvale Enterprises] (in whatever capacity) in the property situated at [Property 1, Southern Town A] in the State of Western Australia;
(ii)the interest held by [Louisvale Enterprises], (in whatever capacity) in the property situated at Lot [XXX] [Property 2, Southern Town A] in the State of Western Australia;
(iii)the interest held by the Respondent or [Louisvale Enterprises] (in whatever capacity), in the entity known as ‘[The Winery]’;
(iv)any shares or securities held by the Respondent or [Louisvale Enterprises] (in whatever capacity) in, or managed by, the companies known as ‘[Rodeo]’ or ‘[Regal]’;
(v)the money owed by, or any chose in action against, [Z International Audit and Consulting Pty Ltd] (“[ZIAC]”), or any other third party in relation to the sale of the business previously operated by [Z International Pty Ltd] (“[ZI]”); and
(vi)the interest held by the Respondent or [Louisvale Enterprises] (in whatever capacity), in the enterprise known as ‘[Bountiful Food Licence]’ or ‘[the Bountiful Licence]’;
(c)transacting on any accounts with any bank, building society or other financial institution held in the name of the Respondent, any other account not in his name but in respect of which he has signing authority, [Louisvale Enterprises] (in whatever capacity) or any other entity in which the Respondent has an interest save and except for:
(i)meeting his reasonable personal living expenses in the global sum of not more than $850 per week;
(ii)meeting his obligations to pay child support to the Applicant;
(iii)neeting his obligation to pay spousal maintenance to the Applicant;
(iv)making any other agreed payments to or for the benefit of the Applicant or the children; or
(v)upon giving the Applicant not less than 21 days’ written notice of the particulars of the purpose of the proposed transaction;
(d)communicating with any financial institution conducting accounts outside of Australia for any purpose unless he has firstly given the Applicant not less than 21 days prior notice of the intended communication and a copy of it;
(e)entering into any loan agreements, deeds, contracts, powers of attorney or other documents, which may, either directly or indirectly, have the effect of disposing of assets, or divesting of rights, held by the Respondent or any other entity in which he has an interest;
(f)giving any direction or notice, or doing any act or thing to remove cash or other property from the Super Fund including but not limited to giving any directions or signing any documents to effect:
(i)the transfer of benefits to any other superannuation fund;
(ii)a transition to retirement arrangement; or
(iii)the payment of any pension or lump sum out of the Super Fund;
(g)shredding, deleting, amended, altering or otherwise destroying any agreements, deeds, powers of attorney or other documents, whether electronic or paper, which relate to any property, liabilities or other rights held by the Respondent or any entity in which he has an interest;
(h)deleting any emails from any device, computer or email account routinely used by him, or to which he has access, or deleting any items from the “deleted items”, “trash bin”, “recycle bin”, “sent items” or other folder contained in such device, computer or email account; and
(i)exercising his rights under any power of attorney, including in relation to any property in the name of [Ms Louis Snr].
2Pursuant to Section 243(8)(g) of the Family Court Act 1997 (WA), the Applicant have liberty to disseminate a copy of the preceding paragraph of these orders to any third party controlling property, superannuation interests or liabilities referred to in these orders including but not limited to:
(a)any bank with whom the Respondent or [Louisvale Enterprises] (in whatever capacity) hold an account;
(b)any co-owners of any real estate referred to in these orders;
(c)any other members of the Super Fund;
(d)the investment companies known as ‘[Rodeo]’ and ‘[Regal]’; and
(e)the directors of [ZIAC], or any other third parties involved in the sale to [ZIAC]of the business operated by [ZI].
3The Applicant have leave to issue subpoenas to the following, returnable on Thursday, 5 January 2017 at not before 2.15pm:
(a)[Ms Louis Snr]; and
(b)[Mr A].
4The Applicant forthwith do all acts and things necessary to cause the Respondent to be served with a sealed copy of these orders.
5The Respondent have liberty to apply to set or vary the preceding orders made herein on giving no less than 48 hours prior notice to the solicitors for the Applicant.
6The proceedings otherwise be adjourned to the Judicial Duty List on Thursday, 5 January 2017 at not before 2.15 pm for hearing.
Orders dated 25 June 2018
8Paragraph 1 of the orders of 25 June 2018 pronounced orders in terms of the minute attached thereto as appears below:
MINUTE OF PROPOSED ORDER
25 June 2018
Setting Aside Transactions
1.The following transactions, payments, distributions or dispositions, made on behalf of the first Respondent to the [Sputnik] Superannuation Fund (“the Super Fund”), and any associated instruments, be set aside pursuant to Section 222 of the Family Court Act 1997:
(a)The following transfers purportedly made from the [Louis] Investment Trust (“[LIT]”) to the Super Fund:
(i)The transfer of securities in [Rodeo] Syndicate [A] from the [LIT] to the Super Fund on or around 31 August 2016;
(ii)The transfer of securities in [Rodeo] Syndicate [B] from the [LIT] to the Super Fund on or around 31 August 2016;
(iii)The transfer of securities in [Regal] Mortgage [A] from the [LIT] to the Super Fund on or around 31 August 2016; and
(iv)The transfer of securities in [Regal] Mortgage [B] from the [LIT] to the Super Fund on or around 31 August;
(b)All transactions leading to the $96,859 of non‑concessional contributions made by the Respondent to his member entitlement in the Super Fund in 2008; and
(c)All transactions leading to the non-concessional contribution to the Super Fund of $450,000 made in 2011.
2.Any instrument purporting to issue to, or transfer to, [Ms B] units in the [LIT] or other rights or entitlements in respect of the property of the [LIT] be set aside.
Consequential Orders
3.In respect of paragraph 1(a) hereof, there be consequential orders and declarations that:
(a)the amount to be repaid from the accounts of the [Sputnik] Superannuation Fund to the Respondent is $444,248.62;
(b)the parties in their capacities as directors of [Louisvale Holdings] Pty Ltd do all things necessary to forthwith cause $444,248.62 of the funds held by [Rodeo] on account of the [Sputnik] Superannuation Fund be paid to the Trust Account of the Applicant’s solicitors, [Law Firm D] Law Practice Trust Account BSB [xxx-xxx], account number [xxxxxxxxx]; and
(c)the balance of funds held by [Rodeo] on account of the Super Fund, and the proceeds of any investments made in the name of the Super Fund, upon maturity, be paid to the Super Fund’s National Australia Bank Account number ending [8760].
4.In respect of paragraphs 1(b) and 1(c) above, there be a consequential order that the parties in their capacities as directors of [Louisvale Holdings] Pty Ltd do all things necessary to forthwith cause the amount of $546,829 to be paid from the NAB account BSB [xxx-xxx], account number [xx-xxx-7124], currently held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the [Sputnik] Superannuation Trust [Fund] to the Trust Account of the Applicant’s solicitors, [Law Firm D]
Law Practice Trust Account BSB [xxx-xxx], account number [xxxxxxxxx].Distribution of Proceeds
5.Upon receipt of the funds referred to in the preceding two paragraphs, the Applicant’s solicitors cause the said funds to be disbursed as follows:
(a)In payment of the amount necessary to discharge the arrears of child support and maintenance owed by the Respondent to the Applicant as at 30 June 2018; and
(b)Otherwise as directed by the Applicant.
Maintenance
6.From 1 July 2018 until further order the maintenance payable by the Respondent to the Applicant be varied down to $1,100 per week with the first payment to be made on Monday
2 July 2018 and each Monday thereafter.
Section 221 Order
7.If a party fails, or is not physically available, to comply with a requirement to sign a documents or authorise any transaction pursuant to these orders, a Registrar of the Court be and hereby is authorised to sign any such documents on his behalf pursuant to section 221 of the Family Court Act 1997.
Super Fund Financial Statements
8.Paragraphs 4 and 5 of the Orders made on 2 November 2017 remain in force until further order.
9.The Applicant be authorised to withdraw funds from the NAB account BSB [xxx-xxx], account number [xx-xxx-xxxx], currently held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the [Sputnik] Superannuation Trust [Fund] to pay [Mr N’s] invoices as and when they are rendered.
Injunctions
10.Until further order, and save and except with the Applicant’s prior written consent, the Respondent be restrained by injunction, and an injunction hereby be granted restraining the Respondent from:
(a)Executing any power of appointment, entering into any deed, or otherwise doing any act or thing to change the corporate structure of any entities in which the Respondent holds a position or has an interest including but not limited to:
(i)Adding to, or removing any directors of [Louisvale Enterprises] Pty Ltd (“[Louisvale Enterprises]”) save for taking all steps necessary to appoint the Applicant as a director;
(ii)Adding to, or removing the trustee, appointor, guardian or beneficiaries of the [Louis] Family Trust (“the Family Trust”);
(iii)Adding to, or removing the trustee, appointor, guardian or unit holders in the [Louis] Investment Trust (“the LIT”); or
(iv)Adding to, or removing the trustee or any members of the [Sputnik] Superannuation Fund (“the Super Fund”).
(b)Transferring, gifting, selling, assigning, encumbering, further encumbering or otherwise disposing of, any item of property, or part thereof, held by him or allowing any entity in which he has an interest to do so and including but not limited to:
(i)The interest held by [Louisvale Enterprises] (in whatever capacity) in the property situated at [Property 1, Southern Town A], in the State of Western Australia;
(ii)The interest held by [Louisvale Enterprises], (in whatever capacity) in the property situated at Lot [XXX] [Property 2, Southern Town A], in the State of Western Australia;
(iii)The interest held by the Respondent or [Louisvale Enterprises] (in whatever capacity), in the entity known as ‘[The Winery]’;
(iv)Any money, shares or securities held by the Respondent or [Louisvale Enterprises] (in whatever capacity) in, or managed by, the companies known as ‘[Rodeo]’ or ‘[Regal]’; and
(v)The interest held by the Respondent or [Louisvale Enterprises] (in whatever capacity), in the enterprise known as ‘[Bountiful Food Licence]’ or ‘[the Bountiful Licence]’.
(c)Transacting on any accounts with any bank, building society or other financial institution held in the name of [Louisvale Enterprises] (in whatever capacity) or any other entity in which the Respondent has an interest, including adding or removing any signatories to the said accounts.
(d)Communicating with any financial institution conducting accounts outside of Australia for any purpose unless he has firstly given the Applicant not less than 21 days prior notice of the intended communication and a copy of it;
(e)Entering into any loan agreements, deeds, contracts, powers of attorney or other documents, which may, either directly or indirectly, have the effect of disposing of assets, or divesting of rights, held by the Respondent or any other entity in which he has an interest;
(f)Giving any direction or notice, or doing any act or thing to remove cash or other property from the Super Fund including but not limited to giving any directions or signing any documents to effect:
(i)The transfer of benefits to any other superannuation fund;
(ii)A transition to retirement arrangement; or
(iii)The payment of any pension or lump sum out of the Super Fund;
(g)Shredding, deleting, amended, altering or otherwise destroying any agreements, deeds, powers of attorney or other documents, whether electronic or paper, which relate to any property, liabilities or other rights held by the Respondent or any entity in which he has an interest;
(h)Deleting any emails from any device, computer or email account routinely used by him, or to which he has access, or deleting any items from the “deleted items”, “trash bin”, “recycle bin”, “sent items” or other folder contained in such device, computer or email account; and
(i)Exercising his rights under any power of attorney, including in relation to any property in the name of [Ms Louis Snr].
11.For the avoidance of doubt, and save as may be expressly authorised by the Applicant in writing, the Respondents in whatever capacity, including as directors of [Louisvale Enterprises], as an Attorney for [Ms Louis Snr], or by their agent, be restrained by injunction from doing any act or thing to cause or allow any funds to be withdrawn, transferred, or otherwise removed from, NAB account BSB [xxx-xxx], account number [xx-xxx-8760], currently held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the [Sputnik] Superannuation Trust [Fund].
12.Pursuant to Section 243(8)(g) of the Family Court Act1997, the Applicant have liberty to disseminate a copy of the preceding paragraph of these orders to any third party controlling property, superannuation interests or liabilities referred to in these orders including but not limited to:
(a)Any bank with whom the Respondent or [Louisvale Enterprises] (in whatever capacity) hold an account;
(b)Any co-owners of any real estate referred to in these orders;
(c)Any other members of the Super Fund;
(d)The investment companies known as ‘[Rodeo]’ and ‘[Regal]’; and
(e)The directors of [ZIAC], or any other third parties involved in the sale to [ZIAC] of the business operated by [ZI]
Westpac Account
13.The parties in their capacities as directors of [Louisvale Holdings] Pty Ltd do all things necessary to forthwith close Westpac Bank Account BSB [xxx xxx], Account number [xx-xxxx] held in the name of the [Louisvale Enterprises] as trustee for the [Sputnik] Superannuation Fund, and cause all funds to be transferred to NAB account BSB [xxx-xxx], account number [xx-xxx-8760], currently held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the [Sputnik] Superannuation Trust [Fund].
Supreme Court Proceedings
14.The parties have liberty to produce to the Supreme Court of Western Australia copies of this order, and the reasons for decision delivered [mid] 2018 in this matter.
15.The Respondent pay and indemnify the Applicant, and thereafter keep her indemnified against any and all actions, claims, debts or liabilities arising from, or in relation to Supreme Court proceedings CIV [xxxx] of [xxxx].
Service
16.Service on [Louisvale Enterprises], the [LIT] and the Respondents be dispensed with on the basis that a copy is sent to the Respondent by email to [omitted].
Adjournment
17.The proceedings stand adjourned pursuant to Section 205ZG(5) of the Act with liberty to relist when:
(a)Up to date financial statements have been prepared for the Super Fund, taking into account the terms of these orders;
(b)The Respondent, or his estate, (as the case may be) is entitled to receive his member entitlement within the Super Fund; or
(c)There are legislative amendments which would
allow this Court to split the Respondent’s superannuation entitlements.
18.The parties otherwise have liberty to apply in relation to the implementation of these orders upon giving the other short notice.
19.The Applicant’s costs be reserved with liberty to apply.
Orders made on 2 February 2017
9The orders of 2 December 2016 were clarified by further orders made by O’Brien J on 2 February 2017, paragraph 10 of which relevantly provided as follows:
10Nothing in these orders or the orders made on 2 December 2016 restrains the Trustees of the superannuation fund from paying as and when they fall due any proper taxation liabilities of the fund, any properly incurred accounting or audit fees of the fund and any premiums regularly paid by the fund for insurance on property owned by it or for an insurance policy already held on behalf of any member or former member of the fund.
Orders made on 31 March 2017
10Further orders were made on 31 March 2017 by O’Brien J, for the reasons he published that day which relevantly provided at paragraphs 3 and 4 as follows:
3The Respondent forthwith do all acts, sign all documents and give all directions and instructions necessary to cause any future payments to be made to him or for his benefit or to any third party or entity at his direction or request by [Z International Audit and Consulting Pty Ltd] (“[ZIAC]”) or any other third party in relation to the sale of [Z International Pty Ltd] (“[ZI]”), to be directed to the Applicant.
4From the funds received by the Applicant pursuant to the order contained in the immediately preceding paragraph, the Applicant be at liberty to disburse to her solicitors the sum of $100,000.00 by way of costs.
Orders made on 26 July 2019
11On 26 July 2019, I made further orders which relevantly provide in paragraphs 1 and 2 of the applicant’s minute of ex parte orders sought as follows:
Injunctions
1.Without in any way limiting the scope of the injunctions made at:
· paragraph 1 of the Orders dated 2 December 2016;
· paragraph 8 of the orders dated 2 February 2017;
· paragraph 3 of the Orders dated 22 June 2018;
· paragraphs 10 and 11 of the Orders dated 25 June 2018; and
· paragraphs 5 of the Orders dated 16 November 2019;
and until further order, the First and Second Respondents in whatever capacity, whether as directors of [Louisvale Enterprises] Pty Ltd, as Attorney for [Ms Louis Snr], or by their agent (including but not limiting the generality thereof by [Mr A], [Ms C], [Mr D] or [Child A]) be restrained by injunction from doing any act or thing to cause or allow the transfer, disposal, further disposal, encumbrance or further encumbrance of the proceeds of sale of the property at [Property 3, Southern Town A] or the withdrawals from the NAB Account [xx-xxx-8760] held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the [Sputnik] Superannuation Fund between 27 November 2017 and 14 June 2018.
2.For the purposes of the preceding paragraph, and in any event, the First and Second Respondents in whatever capacity, whether as directors of [Louisvale Enterprises]Pty Ltd, as Attorney for [Ms Louis Snr], or by their agent (and without limiting the generality thereof, including by [Mr A], [Ms C], [Mr D] or [Child A]) be restrained by injunction from doing any act or thing to cause or allow the transfer, disposal, further disposal, encumbrance or further encumbrance of:
(a)The fund held in Bankwest account number [xx-xx2356-x] held in the name of [Mr Louis]; and
(b)The funds held in Westpac account number [xxxxxx] [xx-1882] held in the name of [Ms B].
Was the respondent aware of the orders?
12The respondent was not present in Court when the orders of 2 December 2016 were made by O’Brien J, however and as seen directions were made for service.
13It was clear from evidence placed before O’Brien J, and referred to in his reasons for decision supporting the orders made on 2 February 2017 that the respondent was aware of the orders, and had convened a meeting of the directors of the trustee of the [Sputnik] Superannuation Fund, for the purpose of discussing the orders made on 2 December 2016.
14The respondent was present by telephone when the orders of 2 February 2017 were made. The orders of 2 December 2016 were not discharged nor varied, save as to paragraph 5 thereof as to the respondent’s liberty to set aside or vary on 48 hours’ notice.
15The respondent was present by telephone when the orders of 31 March 2017 were made.
16The respondent represented to the Court on not less than two occasions during the trial in 2017 that he was still restrained by injunction from certain activities, as found in the terms of the orders of 2 December 2016.
17The respondent did not attend for the delivery of judgment on 25 June 2018. The subject orders and judgment were served upon him at his then address for service in the manner ordered. The orders were the subject of an appeal in the Supreme Court of Western Australia, Court of Appeal.
18The respondent was not present in court on 26 July 2019 and directions as to service upon the respondent and other persons affected by the orders were made. Service of the orders of 26 July 2019 was effected in accordance with the directions given.
19I am satisfied that at all material times the respondent was aware of the terms of the orders the subject of the breaches alleged.
The conduct of the contempt proceedings
20The respondent was present in court for the commencement of the scheduled hearing of this application on 19 October 2020, at which time various interlocutory matters were also dealt with and the following procedural orders were made accordingly:
1The Form 2 application filed by the Sixth Respondent, [PIN HOLDINGS PTY LTD], Seventh Respondent, [MR A], and Eighth Respondent, [MS C], on 15 October 2020 be and is hereby dismissed.
2The subpoenas directed to the Seventh Respondent and Eighth Respondent filed on 2 October 2020 be and are hereby discharged.
3By consent, the Applicant, [MS CAMPBELL], have leave to amend the Form 19 contempt application filed on 7 April 2020 in terms of the amended Form 19 contempt application filed on 15 October 2020 and in terms of the document headed “charge sheet” handed up and filed in Court this day.
4By consent, the Applicant have leave to file and rely upon the affidavit of herself sworn on 15 October 2020.
5The Form 2 application filed by the Applicant on
15 October 2020 otherwise be and is hereby dismissed.
6The affidavits of:
(a)[Ms E] filed on 19 October 2017;
(b)[Solicitor K] filed on 7 April 2020;
(c)[Mr A] filed on 25 June 2020;
(d)[Ms C] filed on 25 June 2020;
(e)[Ms F] filed on 1 October 2020;
(f)[Ms G] filed on 1 October 2020;
(g)[Ms H] filed on 14 October 2020; and
(h)[Ms I] filed on 15 October 2020;
be and are hereby admitted by consent.
7Upon noting that the First Respondent, [MR LOUIS], elects not to cross‑examine the deponents of the affidavits referred to in the preceding paragraph, they are hereby released and any subpoena requiring their attendance is hereby discharged.
8The trial otherwise be adjourned to 20 October 2020 at 10:00am.
21In addition to the procedural orders made on 19 October 2020, I also made a ruling as to the applicant’s ability to rely upon a Notice to Admit Fact for the purposes of a contempt application.
22I held the view that the applicant could not rely upon such a notice to admit nor any response thereto, given that the respondent has the right, in the face of a contempt application to elect not to call nor provide any evidence, nor actively participate in the proceedings in the sense of providing evidence, cross‑examining or making submissions, unless he elected to do so; given that the applicant carried the burden of proof throughout.
23A Notice to Admit Fact is a creature of subordinate legislation, namely the Family Law Rules 2004 (Cth) and was in my view, arguably, creating an obligation upon the respondent to provide evidence, even to the extent of there being no admission, and as such, would be contrary to the principles applicable to the conduct of contempt proceedings and the quasi-criminal nature of those proceedings.
24I accordingly disallowed reliance upon the Notice to Admit Fact.
25The respondent was self represented and the applicant was represented by Senior Counsel. The respondent has been self represented throughout that portion of the proceedings during which the orders upon which the allegations are founded were made.
26In particular, the respondent represented himself throughout the 2017 trial before me. However in the course of the contempt application, the respondent has been reminded of his opportunity to seek legal advice, that he is not required to either file or give any evidence in the proceedings unless he so chooses, with a recommendation that should he so choose he seek advice about the evidence that he gives, and further, that during the course of the hearing of the application should he have any procedural questions or queries generally about the conduct of the proceedings, that he had an open invitation to seek guidance from the Court.
27That being said, the respondent is a sophisticated and intelligent self‑represented party, whilst that does not diminish the responsibility of the Court as considered in Re F: Litigants In Person Guidelines (2001) FLC 93‑072, I would observe that throughout the proceedings he was polite, appropriate and fully engaged, which is consistent with his level of sophistication and intellect, not only observed in the conduct of these proceedings but as I have also observed previously.
The “charge sheet”
28The application for contempt was filed on 7 April 2020.
29An amended application was subsequently filed on 15 October 2020, however to clarify, the amendments and the individual allegations of behaviour alleged to constitute a contempt were reduced to a document headed “charge sheet”, with the agreement of Mr R Hooper SC of counsel appearing for the applicant and the respondent appearing for himself. Both accepted that this course was the most convenient way of dealing with the individual allegations.
30I replicate the “charge sheet” below which was accepted as being read with the amended application filed on 15 October 2020, the particulars referred therein and the documents relevantly attached thereto. (Attachments omitted)
CHARGE SHEET
1.In breach of paragraph 1(c) and/or 1(f) of the orders made on 2 December 2016 (attached and marked “A”), the first respondent withdrew or caused to be withdrawn the following amounts from the NAB account ending [8760] held in the name of [Louisvale Enterprises] Pty Ltd (“[Louisvale Enterprises]”) as trustee for the [Sputnik] Superannuation Fund and each transaction was not authorised by the terms of the exemptions in paragraph 1(c) of the orders of 2 December 2016 or by paragraphs 8 or 10 of the Orders made 2 February 2017 ( attached and marked “D”) and which conduct constitutes a flagrant challenge to the authority of the Court:
(a)Count 1 - $900 on or around 27 November 2017;
(b)Count 2 - $1,500 on or around 28 November 2017;
(c)Count 3 - $1,500 on or around 22 December 2017;
(d)Count 4 - $900 on or around 19 February 2018;
(e)Count 5 - $1,700 on or around 22 February 2018;
(f)Count 6 - $4,950 on or around 7 May 2018;
(g)Count 7 - $2,500 on or around 7 May 2018;
(h)Count 8 - $4,875 on or around 6 June 2018;
(i)Count 9 - $3,100 on or around 7 June 2018; and
(j)Count 10 - $1,700 on or around 14 June 2018.
Paragraph 1(a) of the particulars.
11.In breach of paragraph 1(c) and/or 1(f) of the orders made on 2 December 2016 (attached and marked “A”), between 27 November 2017 and 25 June 2018 the first respondent withdrew or caused to be withdrawn not less than $179,500, in transactions particularised in the schedule attached, from the NAB account ending [8760] held in the name of [Louisvale Enterprises]Pty Ltd (“[Louisvale Enterprises]”) as trustee for the [Sputnik] Superannuation Fund and paid into Commonwealth Bank account held in the name of [Mr D], being account number ending [2813] (“the [2813] account”) and each transaction was not authorised by the terms of the exemptions in paragraph 1(c) of the orders of 2 December 2016 or by paragraphs 8 or 10 of the Orders made 2 February 2017 ( attached and marked “D”) and which conduct constituted a flagrant challenge to the authority of the Court.
Paragraph 1(b) and 2 of the particulars.
12.On or about 5 October 2018, the first respondent in his capacity as a director of [Louisvale Enterprises] signed a mortgage encumbering the interest of [Louisvale Enterprises] in the property at [Property 1, Southern Town A] and later allowed the registration of that Mortgage, being conduct in breach of paragraphs 10(b)(i) and/or 10(e) of the minute attached to orders made on 25 June 2018 (attached and marked “B”). The conduct of the first respondent referred to in paragraph 8 above represents a flagrant challenge to the authority of the Court.
Paragraph 8 and 9 of the particulars.
13.In breach of paragraphs 10(e) and/or 10(i) of the minute attached to orders made on 25 June 2018, or at least the clear intention of those orders, between December 2018 and 18 January 2019 the first respondent assisted with, and facilitated, the sale and settlement of the property situated at [Property 3, Southern Town A], held in the name of the third respondent (the first respondent’s elderly mother) but in which the First Respondent had an equitable interest, and caused the proceeds of sale of the said property to be paid into an account in the name of fourth respondent (the first respondent’s sister) being Commonwealth Bank account ending [5421] held in her sole name (“the [5421] account”) and which conduct constituted a flagrant challenge to the authority of the Court.
Paragraphs 12 of the particulars.
14.Between December 2018 and 18 January 2019 the first respondent assisted with, and facilitated, the sale and settlement of the property situated at [Property 3, Southern Town A], held in the name of the third respondent (the first respondent’s elderly mother) but in which the First Respondent had an equitable interest, and caused the proceeds of sale of the said property to be paid into an account in the name of fourth respondent (the first respondent’s sister) being Commonwealth Bank account ending [5421] held in her sole name (“the [5421] account”) and which conduct constituted a contempt of the Court.
Paragraphs 12 of the particulars.
15.In breach of paragraph 6 of the minute attached to Orders dated 25 June 2018, the first respondent has failed to pay maintenance to the applicant or to the Child Support Agency on her account, in the amount of $1,100 per week from 1 July 2018 to 15 October 2020. The arrears now stand at $131,853.97, in the circumstances of this matter, the conduct of the first respondent referred to in paragraph 18 above represents a flagrant challenge to the authority of the Court.
Paragraphs 18 and 19 of the particulars.
31A schedule, extrapolated as a table, of the alleged movement of funds for the purposes of counts 1-10 and 11 was provided thus:
[CAMPBELL] & [LOUIS] - TRANSFERS BETWEEN ACCOUNTS
CHARGE 1 TO 10
| Funds paid out of Super Fund account [8760] | Funds paid into [Mr D] account [2813] | |||
| Date | Amount Out | Description | Date | Amount In |
| 27/11/2017 | $ 900.00 | insurance | 27/11/2017 | $ 900.00 |
| 28/11/2017 | $ 1,500.00 | Rt | 28/11/2017 | $ 1,500.00 |
| 22/12/2017 | $ 1,500.00 | Rt | 22/12/2017 | $ 1,500.00 |
| 19/02/2018 | $ 900.00 | Insurance | 19/02/2018 | $ 900.00 |
| 22/02/2018 | $ 1,700.00 | Rt | 22/02/2018 | $ 1,700.00 |
| 7/05/2018 | $ 2,500.00 | Rt | 7/05/2018 | $ 2,500.00 |
| 7/05/2018 | $ 4,950.00 | Rt | ||
| 8/05/2018 | $ 4,950.00 | |||
| 6/06/2018 | $ 4,875.00 | Rt | 6/06/2018 | $ 4,875.00 |
| 7/06/2018 | $ 3,100.00 | Rt | ||
| 8/06/2018 | $ 3,100.00 | |||
| 14/06/2018 | $ 1,700.00 | Rt | 14/06/2018 | $ 1,700.00 |
| Total out to 26/06/2018 | $ 23,625.00 | TotaL | $ 23,625.00 | |
CHARGE 11
| A | B | C | D | E | |
| 2 | Funds paid out of Super Fund account [8760] | Funds paid into [Mr D] account [2813] | |||
| 3 | Date | Amount Out | Description | Date | Amount In |
| 4 | 28/11/2017 | $ 900.00 | insurance | 28/11/2017 | $ 900.00 |
| 5 | 30/11/2017 | $ 1,500.00 | Rt | 30/11/2017 | $ 1,500.00 |
| 6 | 4/12/2017 | $ 900.00 | Insurance | 4/12/2017 | $ 900.00 |
| 7 | 4/12/2017 | $ 1,500.00 | Rt | 4/12/2017 | $ 1,500.00 |
| 8 | 8/12/2017 | $ 1,500.00 | Rt | 11/12/2017 | $ 1,500.00 |
| 9 | 11/12/2017 | $ 900.00 | Insurance | 11/12/2017 | $ 900.00 |
| 10 | 11/12/2017 | $ 900.00 | Insurance | 11/12/2017 | $ 900.00 |
| 11 | 14/12/2017 | $ 900.00 | Insurance | 14/12/2017 | $ 900.00 |
| 12 | 14/12/2017 | $ 1,500.00 | Rt | 14/12/2017 | $ 1,500.00 |
| 13 | 18/12/2017 | $ 900.00 | Insurance | 18/12/2017 | $ 900.00 |
| 14 | 18/12/2017 | $ 1,500.00 | Rt | 18/12/2017 | $ 1,500.00 |
| 15 | 19/12/2017 | $ 1,500.00 | Rt | 19/12/2017 | $ 1,500.00 |
| 16 | 27/12/2017 | $ 900.00 | Insurance | 27/12/2017 | $ 900.00 |
| 17 | 27/12/2017 | $ 1,500.00 | Rt | 27/12/2017 | $ 1,500.00 |
| 18 | 28/12/2017 | $ 1,500.00 | Rt | 28/12/2017 | $ 1,500.00 |
| 19 | 2/01/2018 | $ 900.00 | Insurance | 2/01/2018 | $ 900.00 |
| 20 | 4/01/2018 | $ 1,500.00 | Rt | 4/01/2018 | $ 1,500.00 |
| 21 | 8/01/2018 | $ 900.00 | Insurance | 8/01/2018 | $ 900.00 |
| 22 | 11/01/2018 | $ 1,500.00 | Rt | 11/01/2018 | $ 1,500.00 |
| 23 | 15/01/2018 | $ 900.00 | Insurance | 15/01/2018 | $ 900.00 |
| 24 | 18/01/2018 | $ 1,500.00 | Rt | 18/01/2018 | $ 1,500.00 |
| 25 | 22/01/2018 | $ 900.00 | Insurance | 22/01/2018 | $ 900.00 |
| 26 | 25/01/2018 | $ 1,500.00 | Rt | 25/01/2018 | $ 1,500.00 |
| 27 | 29/01/2018 | $ 900.00 | Insurance | 29/01/2018 | $ 900.00 |
| 28 | 1/02/2018 | $ 1,500.00 | Rt | 1/02/2018 | $ 1,500.00 |
| 29 | 5/02/2018 | $ 900.00 | Insurance | 5/02/2018 | $ 900.00 |
| 30 | 8/02/2018 | $ 1,500.00 | Rt | 8/02/2018 | $ 1,500.00 |
| 31 | 12/02/2018 | $ 900.00 | Insurance | 12/02/2018 | $ 900.00 |
| 32 | 15/02/2018 | $ 1,500.00 | Rt | 15/02/2018 | $ 1,500.00 |
| 33 | 1/03/2018 | $ 1,700.00 | Rt | 1/03/2018 | $ 1,700.00 |
| 34 | 8/03/2018 | $ 1,700.00 | Rt | 8/03/2018 | $ 1,700.00 |
| 35 | 15/03/2018 | $ 1,700.00 | Rt | 15/03/2018 | $ 1,700.00 |
| 36 | 22/03/2018 | $ 1,700.00 | Rt | 22/03/2018 | $ 1,700.00 |
| 37 | 29/03/2018 | $ 1,700.00 | Rt | 29/03/2018 | $ 1,700.00 |
| 38 | 5/04/2018 | $ 1,700.00 | Rt | 5/04/2018 | $ 1,700.00 |
| 39 | 12/04/2018 | $ 1,700.00 | Rt | 12/04/2018 | $ 1,700.00 |
| 40 | 19/04/2018 | $ 1,700.00 | Rt | 19/04/2018 | $ 1,700.00 |
| 41 | 26/04/2018 | $ 1,700.00 | Rt | 26/04/2018 | $ 1,700.00 |
| 42 | 3/05/2018 | $ 1,700.00 | Rt | 3/05/2018 | $ 1,700.00 |
| 43 | 7/05/2018 | $ 2,000.00 | Rt | 7/05/2018 | $ 2,000.00 |
| 44 | 9/05/2018 | $ 4,851.00 | Insurance | 9/05/2018 | $ 4,851.00 |
| 45 | 10/05/2018 | $ 3,251.00 | Rt | 10/05/2018 | $ 3,251.00 |
| 46 | 10/05/2018 | $ 1,700.00 | Insurance | 10/05/2018 | $ 1,700.00 |
| 47 | 11/05/2018 | $ 4,925.00 | Rt | 11/05/2018 | $ 4,925.00 |
| 48 | 14/05/2018 | $ 4,956.00 | Rt | 14/05/2018 | $ 4,956.00 |
| 49 | 14/05/2018 | $ 4,915.00 | Insurance | 14/05/2018 | $ 4,915.00 |
| 50 | 15/05/2018 | $ 4,875.00 | Rt | 15/05/2018 | $ 4,875.00 |
| 51 | 16/05/2018 | $ 4,930.00 | Rt | 16/05/2018 | $ 4,930.00 |
| 52 | 17/05/2018 | $ 1,700.00 | Rt | 17/05/2018 | $ 1,700.00 |
| 53 | 18/05/2018 | $ 3,250.00 | Rt | 18/05/2018 | $ 3,250.00 |
| 54 | 18/05/2018 | $ 4,934.30 | Insurance | ||
| 55 | 21/05/2018 | $ 4,945.00 | Rt | 21/05/2018 | $ 4,934.30 |
| 56 | 21/05/2018 | $ 4,775.00 | Rt | 21/05/2018 | $ 4,945.00 |
| 57 | 22/05/2018 | $ 4,775.00 | |||
| 58 | 23/05/2018 | $ 3,885.00 | Rt | ||
| 59 | 24/05/2018 | $ 1,700.00 | Rt | 24/05/2018 | $ 3,885.00 |
| 60 | 24/05/2018 | $ 1,700.00 | |||
| 61 | 29/05/2018 | $ 4,760.00 | Rt | 29/05/2018 | $ 4,760.00 |
| 62 | 30/05/2018 | $ 4,565.00 | Rt | 30/05/2018 | $ 4,565.00 |
| 63 | 31/05/2018 | $ 1,700.00 | Rt | 31/05/2018 | $ 1,700.00 |
| 64 | 7/06/2018 | $ 1,700.00 | Rt | 7/06/2018 | $ 1,700.00 |
| 65 | 8/06/2018 | $ 4,850.00 | Rt | ||
| 66 | 11/06/2018 | $ 4,850.00 | Rt | 11/06/2018 | $ 4,850.00 |
| 67 | 11/06/2018 | $ 4,850.00 | |||
| 68 | 11/06/2018 | $ 4,925.00 | Rt | 11/06/2018 | $ 4,925.00 |
| 69 | 12/06/2018 | $ 4,775.00 | Rt | 12/06/2018 | $ 4,775.00 |
| 70 | 13/06/2018 | $ 4,910.00 | Rt | ||
| 71 | 14/06/2018 | $ 4,910.00 | |||
| 72 | 14/06/2018 | ||||
| 73 | 15/06/2018 | $ 4,875.00 | Rt | 15/06/2018 | $ 4,875.00 |
| 74 | 18/06/2018 | $ 4,875.00 | Rt | 18/06/2018 | $ 4,875.00 |
| 75 | 18/06/2018 | $ 4,873.25 | Rt | 18/06/2018 | $ 4,873.25 |
| 76 | 18/06/2018 | $ 4,628.00 | Rt | 19/06/2018 | $ 4,628.00 |
| 77 | 19/06/2018 | $ 4,886.00 | Rt | 19/06/2018 | $ 4,886.00 |
| 78 | 20/06/2018 | $ 4,665.00 | Rt | 21/06/2018 | $ 4,665.00 |
| 79 | 21/06/2018 | $ 1,700.00 | Rt | 21/06/2018 | $ 1,700.00 |
| 80 | 22/06/2018 | $ 4,815.00 | Rt | 22/06/2018 | $ 4,815.00 |
| 81 | Total out to 26/06/2018 | $ 186,044.55 | Total in to 26/06/2018 | $ 186,044.55 | |
The pleas
32The respondent formally denied each of the alleged breaches, with pleas of “Not Guilty” being entered in each case.
The composition of evidence
33For the purpose of the proceedings, the applicant sought to rely upon the following documents:
·affidavits of the applicant filed on 12 February 2020, 7 September 2020 and 15 October 2020;
·affidavit of [Solicitor K] filed on 7 April 2020. Solicitor K is a solicitor in the employ of the firm of solicitors representing the applicant;
·affidavit of [Ms J] filed on 13 March 2020. Ms J is the respondent’s sister and has been added to the primary proceedings as the fourth respondent;
·affidavit of [Mr A] filed on 25 June 2020. Mr A is a company director, business associate of the respondent and joint holder with the respondent through various entities in assets the subject of the primary proceedings. Mr A is the seventh respondent in the primary proceedings;
·affidavit of [Ms C] filed on 25 June 2020. Ms C describes herself as company director. She is the wife of Mr A and is the eighth respondent in the primary proceedings;
·affidavit of [Ms F] filed on 1 October 2020. Ms F is a law enforcement agency request specialist in the employ of the Commonwealth Bank of Australia (“CBA”);
·affidavit of [Ms G] filed on 1 October 2020. Ms G is in the employ of the National Australia Bank (“NAB”) as a statutory compliance associate;
·affidavit of [Solicitor A] filed on 14 October 2020. Solicitor A is a legal practitioner who was previously in the employ of the firm trading as “[Law Firm B]”; and
·affidavit of [Ms E] filed on 19 October 2017. Ms E is a process server.
34In addition to the affidavit material relied upon by the applicant, the following documents were accepted as exhibits:
| 1. | Email of 28/8/2018 commencing at 3:27pm and continuing to 5:32pm and the mortgage document between [Louisvale Enterprises]Pty Ltd and [Pin Holdings Pty Ltd] dated 22/9/2018 | App |
| 2. | Email from [Law Firm D] to the First Respondent of 27/6/2018 and the attached letter, email from [Law Firm D] to the First Respondent of 28/6/2018 and the attached letter and email from the First Respondent to Sam Fahey of 5/7/2018 | App |
| 3. | Certified copy of Certificate of Title Volume [XXXX] Folio [XXX] and certified copy of registered Mortgage [XXXXX XX] M | App |
| 4. | Certified copy of Certificate of Title Volume [XXXX] Folio [XXX] pertaining to [Property 3, Southern Town A] | App |
| 5. | Statements 1 and 2 of account last 4 numbers [8276] with Commonwealth Bank of Australia in the name of [Ms J] and one page list of transactions for the period 1/1/2020-1/2/2020 | App |
| 6. | Documents produced under subpoena from the Department of Home Affairs as to passenger movements in the name of the First Respondent | App |
| 7. | Last will and testament of [Ms Louis Snr]dated 24/10/2016 | App |
| 8. | Last will and testament of [Ms Louis Snr] dated 6/9/2018 | Res |
35The application for contempt having been filed on 7 April 2020 was required to be served upon the respondent.
36I was satisfied that the respondent had persistently avoided service and he was ultimately brought before the Court on an arrest warrant which I issued on 1 May 2020.
37Upon his presentation to the Court, he was released on a bond with a surety to reappear upon the further hearing of the application for contempt. Given the impact of the COVID-19 pandemic and the fact of the respondent’s residence in [Southern Town A], he was excused from attending personally at times when the Court was dealing with the primary proceedings, in which circumstance he was free to attend by telephone.
38Although there was no requirement upon the respondent to do so, he elected to provide written submissions filed on 10 November 2020 which contained matters that were properly the subject of evidence.
39Senior Counsel for the applicant however offered no objection to the same being received, to the extent that they constituted evidence and did not seek to cross‑examine the respondent thereon.
40The only witnesses who were sought to be cross‑examined by the respondent were the applicant who was available by video link, given the restriction of movement in place under the emergency powers legislation prescribed in response to the COVID‑19 pandemic and the respondent’s sister Ms J, who appeared by telephone.
The law and the principles to be applied
41These proceedings, as are all the proceedings between the parties, are conducted pursuant to the provisions of the Family Court Act 1997 (WA) (“the Act”) as the parties were not lawfully married.
42Part 10A of the Act provides as follows:
Part 10A— Contempt of court
[Heading inserted by No. 25 of 2002 s. 26.]
233A. Interpretation
In this Part —
contravene an order has the same meaning as in section 224;
maintenance order has the same meaning as in section 223;
order under this Act has the same meaning as in section 223.
[Section 233A inserted by No. 25 of 2002 s. 26.]
234. Contempt — FLA s. 112AP
(1)Subject to subsection (1a), 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.
(1a)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)Despite any other law, a court may punish a person for contempt of that court.
(3)The rules may provide for practice and procedure as to charging a person with contempt of court, the hearing of the charge and dealing with a person so charged.
(4)Where a natural person is in contempt of a court, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt of a court, the court may punish the contempt by sequestration or fine or both.
(6)For the purposes of this section, a 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 of a court, the court may order the person’s discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.
[Section 234 amended by No. 25 of 2002 s. 27.]
43For the purposes of s 233A, the relevant definitions are found in s 223 and s 224 as follows:
223. Interpretation — FLA s. 112AA
In this Part —
maintenance order, in relation to a court, means an order made by a court —
(a)under Part 5 Division 8 Subdivision 2; or
(b)under this Act that deals with the maintenance of a person;
order under this Act, in relation to a court, means —
(a)an order (however described) made under this Act by a court (other than a parenting order);
(b)an injunction granted by a court under section 235A except in so far as the injunction is for the protection of a child;
(c)an undertaking given to, and accepted by, a court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order;
(d)a subpoena issued under the rules in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order;
(e)a bond —
(i)entered into under an order of a court under this Act other than an order under Part 5 Division 13; or
(ii)entered into, for the purposes of section 227(5), on the direction of the court,
and includes an order, injunction or bond that —
(f)is an order under this Act made by another court because of paragraph (a), (b) or (e); and
(g)has been registered in the first‑mentioned court in accordance with the regulations.
[Section 223 inserted by No. 25 of 2002 s. 16.]
224.Meaning of “contravene an order” — FLA s. 112AB
(1)For the purposes of this Part, a person is to be treated as having contravened an order under this Act if, and only if —
(a)where the person is bound by the order, the person has —
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order;
or
(b)in any other case, the person has —
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
[(2)deleted]
[Section 224 amended by No. 25 of 2002 s. 17.]
44The Full Court of the Family Court of Australia in Rutherford v The Marshal of the Family Court of Australia (1999) FLC 92‑866 at 86,241 in its consideration of the equivalent to s 234 of the Act, namely, s 112AP of the Family Law Act 1975 (Cth), found the same to be a “complete code for dealing with contempt of the Court”.
45The approach to be taken by the Court in dealing with a contempt has also been judicially considered by the Full Court of the Family Court of Australia on numerous occasions and has been conveniently summarised in Ganem v Ganem (No 2) [2013] FamCA 257 where Aldridge J set out the principles to be applied in contempt matters as follows:
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent's actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a "flagrant challenge" involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): "the use of the term "flagrant challenge" … 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 a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
46I respectfully agree with and adopt his Honour’s summary of principles.
47I have been assisted greatly by Senior Counsel for the applicant and his instructor Mr S Fahey with a detailed and comprehensive outline of submissions, a hard copy of which was provided both to the Court and to the respondent.
The respondent’s submissions
48At the conclusion of the hearing on 20 October 2020, I adjourned the proceedings to 30 October 2020 to coincide with my Judicial Circuit in [Southern Town B], with leave to counsel and the solicitors for the applicant to attend by video link.
49As seen, the respondent resides in Southern Town A and it was convenient for him to attend personally in court in Southern Town B to the intent that he would provide written submissions and speak to those submissions in accordance with the orders made by me on 20 October 2020 and in accordance with the timeframe nominated by the respondent as follows:
1Within 7 days from the date hereof, the First Respondent, [MR LOUIS], file and serve written submissions in response to the Form 19 contempt application filed on 7 April 2020, as amended by paragraph 3 of the orders made on 19 October 2020.
2The trial otherwise be adjourned to 30 October 2020 at 9:30am in the Judicial Circuit at [Southern Town B], with leave to counsel and the solicitors for the Applicant, [MS CAMPBELL], to attend by video.
50On 30 October 2020 and at his request, the time for the respondent to file his written submissions was extended and the matter adjourned to 16 November 2020, upon which date I reserved my decision.
51The entirety of the submission (and evidence contained therein) provided by the respondent is as follows:
FAMILY COURT OF WESTERN AUSTRALIA FILE:PTW4513/2009
BETWEEN
[CAMPBELL] (APPLICANT)
AND
[LOUIS] (RESPONDENT)
COMTEMPT - RESPONDENTS OUTLINE OF SUBMISSIONS
MONCRIEFF J: 9 NOVEMBER 2020
CHARGE SHEET 1 TO 11.
The applicant has identified transactions resulting in the removal of funds from [Louisvale Enterprises] account [8760], the source of funds. The applicant has not however analysed how those funds have been applied to give effect to the exceptions in paragraph 1(c) of the orders of
2 December 2016 or by paragraphs 8 or 10 of the orders made
2 February 2017. Those exceptions include payments for taxes, rates, accounting and audit fees, insurance premiums, living expenses for the respondent, and expenses for the children. The parties son, [Child A] has been living with the respondent since April 2016. During cross examination the applicant conceded that some expenditure had been incurred on behalf on both children, for example school fees, but she never agreed to it. The children traveled several times from New South Wales to Western Australia with the applicant dropping them off and picking them up at [NSW] airport! The applicant was also in contact with the respondents sister, [Ms J] (as per her affidavit 12 March 2020 para 95 and 96) when [Child A] visited her in Canada. The respondent paid for those airfares and the applicant agreed to those payments. Other expenses such as passport application fees, uniforms, books, concert tickets, private tutoring, private health cover, dental and orthodontic expenses, driving lessons, fuel, car rego and repairs, iphones, telstra etc have been paid for by the respondent and agreed by the applicant. Both parties have been very generous in paying for children's expenses. It is probably the only point the parties have consensus.
The applicant contends that the provisions of all court orders overrides the expenditure exceptions allowed for in the 2 December 2016 and 2 February 2017 orders. That position cannot prevail as it would nullify the operation of those exception provisions and deny the respondent an ability to meet his reasonable living and child related expenses. The fact that those funds were transferred from account [8760] into a debit card account before being expended cannot in itself be a breach. The issue is what sort of expenses have those debit cards been used for? For example monies withdrawn from account [8760] and narrated “RT” being Retirement Transition. A cursory review of the debit card statement shows the applicant used those monies for expenses such as food, fuel, power, vehicle repairs, car rego, telstra, medical expenses, clothes, school fees and airfares The applicant has simply taken an englobo approach saying all of the monies withdrawn from account [8760] are a breach, regardless of what those monies have used for.
CHARGE SHEET 12.
Since July 2018 the applicant has traveled overseas seeking consultancy work in the audit field. No work has been secured. The respondents financial position became dire resulting in securing funds by way of a mortgage in October 2018 over [Property 1, Southern Town A]. Those funds were used for a range of expenses including living expenses for the applicant and [Child A], carer expenses for [Ms Louis Snr] and legal expenses. In December 2018 the respondent formed the view that the loan could only be used for living and child related costs (the exception in paragraph 1(c)) of the orders of 2 December 2016) and out of an abundance of caution, it be repaid and the mortgage discharged. In January 2019 the loan was repaid and instructions issued to [Law Firm B] to discharge the mortgage. The conduct was not flagrant but arose out of necessity and was remedied at the earliest opportunity.
CHARGE SHEET 13 and 14.
The equitable interest the respondent had in [Property 3, Southern Town A] arose through the respondents mothers 2016 will. There is no evidence that a deed of trust exists or the respondent paid for the property. The respondent did discuss the contents of [Ms Louis Snr’s] will with his sister [Ms J]. The respondent never said he owned the property. The discussion revolved around the respondents likely inheritance at the exclusion of his sister. In September 2018 [Ms Louis Snr] changed her will with the respondent now being a class of seven general beneficiaries to the residue of her estate.
The respondent approached his mother in December 2018 requesting financial assistance to discharge the [Property 1, Southern Town A] mortgage and secure ongoing funding for legal and living and child related expenses. The respondent until recently, had responsibility for the care of his mother since the death of her late husband, [Mr K] in [late] 2000. The respondent has helped [Ms Louis Snr] with her living and carer expenses. [Ms Louis Snr] agreed to assist. The respondent also discussed this arrangement with [Ms J]. The rationale for placing the proceeds of the sale in a Commonwealth bank account opened by [Ms J] for this purpose were numerous. Firstly, [Ms Louis Snr] banked with Bankwest, her account had been inadvertently frozen as a result of the bank providing incorrect information under subpoena that the respondent was the account holder (refer paragraph 39 to 41 of [Ms J’s] affidavit of 12 March 2020). Secondly, [Ms Louis Snr] was going to move to [a town in] New South Wales and the closest Bankwest branch was several hundred kilometers away. Thirdly, [Ms Louis Snr] was a compulsive spender. During the primary trial in 2017 the respondent detailed the steps he had to undertake to refund a $40,000 round the world cruise [Ms Louis Snr] had booked. [Ms J] also confirmed during cross examination that not all of the monies were used for the respondents benefit.
The respondent was restrained by the 2 December 2016 court orders from acting as [Ms Louis Snr’s] power of attorney. In the conduct of the sale of [Property 3, Southern Town A], the respondent would take [Ms Louis Snr] to meetings with the real estate and settlement agent. [Ms Louis Snr] was no longer driving. [Ms Louis Snr] signed all the relevant documents in her own capacity. In relation to the settlement, the respondent agreed that [Ms Louis Snr] could use his email address as [Ms Louis Snr] has never had one and the respondents phone number as she had difficulty in using her mobile. The postal address of [Property 2, Southern Town A] was an error and was crossed out and corrected to reflect [Ms Louis Snr’s] home address.
The statement by the settlement agent that the respondent gave some instructions is correct but only in the context of relaying or confirming [Ms Louis Snr’s] instructions. The respondent did relay and confirm two instructions on behalf of [Ms Louis Snr], namely repairs to the roller door and queries regarding the settlement statement. The respondent was not acting under his power of attorney and a copy of that power of attorney was never given to either the real estate agent or settlement agent.
During the primary trial the respondent was concerned about his mothers behaviour and mental health. [Ms J] a qualified nurse practitioner, under cross examination, confirmed that [Ms Louis Snr] had been hospitalised in November and December 2017 for several weeks to be treated for amongst other ailments, a urinary tract infection. [Ms J] also described to the court the detrimental effect that infection has on peoples mental capacity and general behaviour. On her discharge [Ms Louis Snr] returned to her home until September 2019 when she moved to [a town in] New South Wales.
CHARGE SHEET 15.
The Department of Human Services claims a debt is owed by the respondent. It refuses to provide a statement of account showing what payments have been made or how it has calculated the amount. The respondent believes there are no monies owing as a result of payments made by him since 2009 and a payment made by the applicants solicitors in June 2018 to discharge any so called arrears of child support and maintenance. The respondent believes that payment was in excess of $500,000. The 25 June 2018 court order does not quantify the amount to be paid. The respondent is a qualified auditor with 30 years experience and believes the account is in credit. The respondent also notes that the Department continues charge child support for the parties son, [Child A]. The applicant gave evidence during cross examination that [Child A] has been living with the respondent since April 2016. The Department is attempting to reverse the burden of proof and wont even correct child support charges for [Child A].
The respondent has worked for AusAID, World Bank and the Asian Development Bank for over 30 yrs in developing countries. Despite several international trips to secure new projects none have have been secured. The respondent is 60 years of age and in the current COVID environment there are no prospects of employment.
In June 2018 the applicant received $991.078 by way of interim payments. The applicant has also received other interim payments, child support and spousal maintenance since 2009.
[Mr Louis]
9 November 2020
The charges
52As seen, the alleged acts of contempt have been grouped by the applicant. The first group comprising the first ten counts of alleged contempt and I deal with the same as a group or individually as they appear in the charge sheet.
53I am satisfied beyond a reasonable doubt that the respondent was aware at all times of the relevant orders the subject of the alleged breaches, for the reasons given above.
54I am also satisfied beyond a reasonable doubt that the actions of the respondent in each and every case the subject of the application were both deliberate and intentional, having been undertaken by or at the direction or request of the respondent.
55That is not to say that the charges can be proven collectively as they must be proven individually, albeit that there are common features in the first ten counts and are to that extent conveniently dealt with as a group.
56In each case it is alleged that the respondent withdrew or caused to be withdrawn amounts from a NAB account with the relevant account being identified as being held in the name of [Louisvale Enterprises] Pty Ltd as trustee for the Sputnik Superannuation Fund and identified as account number ending in four numbers [8760] (“the [Sputnik] account”).
Count 1
57On 27 November 2017, the respondent using his internet user ID transferred the sum of $900 to a CBA account last four numbers [2813]. On the internet transfer he used the descriptor “[Sputnik] insurance”.
58The account to which the funds were transferred is an account operated by the respondent’s adult son [Mr D] whose relevant statements are annexed to and certified as ordinary statements of the bank prepared in the ordinary course of business in the affidavit of Ms F.
59Mr D resides in the State of Victoria.
60A credit of $900 is identified in Mr D’s account on 27 November 2017.
61The orders of 2 December 2016 permitted transactions within five classes, namely:
(a)meeting his reasonable personal living expenses in the global sum of not more than $850 per week;
(b)meeting his obligations to pay child support to the applicant;
(c)meeting his obligation to pay spousal maintenance to the applicant;
(d)making any other agreed payments to or for the benefit of the applicant or the children; or
(e)upon giving the applicant not less than 21 days’ written notice of the particulars of the purpose of the proposed transaction.
62The relevant orders were reinforced by the further orders of 2 February 2017 with the additional exception being added in paragraph 10 thereof to the effect that the trustees of the fund may pay “as and when they fall due … any premiums regularly paid by the fund for insurance on the property owned by it or for any insurance policy already held on behalf of any member or former member of the fund”.
63The addition of the identifier on the transaction as being “insurance” is not evidence of the true nature of the payment. The payment was made as seen to the account of Mr D. The account of Mr D so produced does not disclose any subsequent payment or transfer being made to any identified insurance company but rather discloses that which may be described as day to day transactions being conducted on the account in the region of Southern Town A and Southern Town B in the State of Western Australia, for supermarket items and wine and otherwise consistent with personal expenditure.
64I am satisfied beyond a reasonable doubt that the identification of the payment as “insurance” was intended to obfuscate the true nature of the payment.
65I am further reinforced in my finding by the separate identification of insurance payments within the statements of the [Sputnik] account, in particular, payments on 14 December 2017 to Elders Insurance and 18 December 2017 to Asteron Life, payments that are not the subject of any alleged breach.
66Further, I am satisfied beyond a reasonable doubt that the payment does not fit within the exception of global personal expenditure as a payment of the same amount, namely $900, with the same identifier, namely “insurance”, was made on the following day.
67Further the payment, the subject of count 2, was made the following day and between 4 December 2017 and 22 December 2017 a further 11 payments of either $900 or $1,500 were made from the Sputnik account to Mr D’s account to a total value of $13,500 in the space of less than four weeks; similarly identified and in excess of any permitted payment for personal expenditure and in the absence of any challenge to the assertion that the payments were not by way of child support, not by way of spousal maintenance or otherwise permitted by the orders of 2 December 2016 or 2 February 2017.
68The written submissions relied upon, by the respondent as to the first 11 charges do not assist him, but rather assists the Court in determining that the breaches constitute a flagrant challenge to the authority of the Court.
69If the transfers were made for any purpose suggested by the respondent, the question is begged as to why they were not so described? Instead the respondent has caused transfers from a superannuation fund to a person not beneficially entitled to receive funds therefrom and elected to conceal their true purpose.
70An additional option was available to the respondent to provide written notice of any proposed transaction not otherwise permitted. There was no evidence that he did so.
71All of the payments were styled as either “insurance” or “Rt”.
72I am satisfied that the breach is proven beyond a reasonable doubt.
73I am also satisfied that the same constitutes a flagrant challenge to the authority of the Court. Whilst it may be argued that each transfer, and those that followed, may not individually constitute a flagrant challenge, they are to be viewed in the context of the behaviour and not in a vacuum. In this case, it is the behaviour globally by the respondent (as identified in this count, and the remaining counts) that supports and informs the inquiry as to whether he has engaged in a flagrant challenge to the authority of the Court.
74My observations and finding as to the nature of the challenge is to be read in the context of each of my findings below, the pattern of behaviour pursued by the respondent and the total effect of such conduct.
Count 2
75Count 2 relates to a transfer of $1,500 between the Sputnik account to the account of Mr D on 28 November 2017.
76The transfer has been identified as being made by the respondent and is identified as being received into the account of Mr D.
77The respondent represented to the Court that the letters “Rt” stood for transition to retirement payments.
78Such a payment is as identified by the respondent, and accepted as such on his own admission.
79Payments by way of a transition to retirement were in breach of subparagraph 1(f) of the orders of 2 December 2016, specifically restraining “giving any direction or notice, or doing any act or thing to remove cash or other property from the Super Fund including but not limited to giving any directions or signing any documents to effect … a transition to retirement arrangement”.
80The payment was made at the respondent’s direction.
81I am satisfied beyond a reasonable doubt that the payment so identified was in breach of the order.
82I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 3
83On 22 December 2017, a payment of $1,500 was made from the Sputnik account to the account of Mr D. The same identifier on the transfer was “Rt”.
84The respondent was identified as the relevant internet user.
85The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
86Further, if in any event should the identifier as specified by the respondent be ignored, the same remains in breach in that it exceeds a permitted payment and the evidence that the same does not fall within one of the categories of permitted payments was not challenged by the respondent.
87I am satisfied that the charge is proven beyond a reasonable doubt.
88I am further satisfied that the same was a flagrant challenge to the authority of the Court.
89I repeat my observations made with respect to count 2 and again observe, less there be any doubt, that in the six weeks that followed, some 13 further transfers were made from the Sputnik account to the account of Mr D. Whilst they are the subject of a further specific charge of contempt, they are in my finding available to be considered in the reinforcement of my finding that the payment was not within the class of any permitted exception and I repeat my observations as to the nature of expenditure on Mr D’s account and as to the geographical location of expenditure.
Count 4
90On 19 February 2018, a transfer of $900 was initiated by the respondent from the Sputnik account to the account of Mr D. The identifier was “insurance”.
91I repeat my observations made with respect to count 1 and my observations earlier made as to the nature of transactions on the Mr D account and location thereof which remained consistent.
92There is no payment identified on the account of Mr D consistent with such identifier.
93I find the charge proven beyond a reasonable doubt.
94I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 5
95On 22 February 2018, the respondent initiated a payment to the account of Mr D in the sum of $1,700. The payment is identified as “Rt”. I repeat my observations made with respect to count 2 and incorporate the same for the purposes of my consideration of this charge.
96Similarly, I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D to which the funds were transferred.
97I am satisfied that the charge is proven beyond a reasonable doubt.
98I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 6
99On 7 May 2018, the respondent initiated a payment of $4,950 to the account of Mr D. The identifier on the transfer were the letters “Rt”.
100The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
101I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D, to which the funds were transferred.
102I am satisfied that the charge is proven beyond a reasonable doubt.
103I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 7
104On 7 May 2018, the respondent initiated a payment of $2,500 to the account of Mr D. The identifier on the transfer were the letters “Rt”.
105The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
106I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D to which the funds were transferred.
107I am satisfied that the charge is proven beyond a reasonable doubt.
108I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 8
109On 6 June 2018, the respondent initiated a payment of $4,875 to the account of Mr D. The identifier on the transfer were the letters “Rt”.
110The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
111I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D to which the funds were transferred.
112I am satisfied that the charge is proven beyond a reasonable doubt.
113I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 9
114On 7 June 2018, the respondent initiated a payment of $3,100 to the account of Mr D. The identifier on the transfer were the letters “Rt”.
115The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
116I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D to which the funds were transferred.
117I am satisfied that the charge is proven beyond a reasonable doubt.
118I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 10
119On 14 June 2018, the respondent initiated a payment of $1,700 to the account of Mr D. The identifier on the transfer were the letters “Rt”.
120The same was within the class identified by the respondent as a transition to retirement payment and accordingly in breach of the orders of 2 December 2016.
121I repeat my observations made with respect to earlier counts as to the nature of the expenditure transacted on the account of Mr D, to which the funds were transferred.
122I am satisfied that the charge is proven beyond a reasonable doubt.
123I am further satisfied that the same was a flagrant challenge to the authority of the Court.
Count 11
124I replicate for the convenience of the reader, the schedule of transfers between accounts said to comprise charge 11.
125In each case, the funds are transferred from the Sputnik account into Mr D’s account (last four numbers 2813).
CHARGE 11
| A | B | C | D | E | |
| 2 | Funds paid out of Super Fund account [8760] | Funds paid into [Mr D] account [2813] | |||
| 3 | Date | Amount Out | Description | Date | Amount In |
| 4 | 28/11/2017 | $ 900.00 | insurance | 28/11/2017 | $ 900.00 |
| 5 | 30/11/2017 | $ 1,500.00 | Rt | 30/11/2017 | $ 1,500.00 |
| 6 | 4/12/2017 | $ 900.00 | Insurance | 4/12/2017 | $ 900.00 |
| 7 | 4/12/2017 | $ 1,500.00 | Rt | 4/12/2017 | $ 1,500.00 |
| 8 | 8/12/2017 | $ 1,500.00 | Rt | 11/12/2017 | $ 1,500.00 |
| 9 | 11/12/2017 | $ 900.00 | Insurance | 11/12/2017 | $ 900.00 |
| 10 | 11/12/2017 | $ 900.00 | Insurance | 11/12/2017 | $ 900.00 |
| 11 | 14/12/2017 | $ 900.00 | Insurance | 14/12/2017 | $ 900.00 |
| 12 | 14/12/2017 | $ 1,500.00 | Rt | 14/12/2017 | $ 1,500.00 |
| 13 | 18/12/2017 | $ 900.00 | Insurance | 18/12/2017 | $ 900.00 |
| 14 | 18/12/2017 | $ 1,500.00 | Rt | 18/12/2017 | $ 1,500.00 |
| 15 | 19/12/2017 | $ 1,500.00 | Rt | 19/12/2017 | $ 1,500.00 |
| 16 | 27/12/2017 | $ 900.00 | Insurance | 27/12/2017 | $ 900.00 |
| 17 | 27/12/2017 | $ 1,500.00 | Rt | 27/12/2017 | $ 1,500.00 |
| 18 | 28/12/2017 | $ 1,500.00 | Rt | 28/12/2017 | $ 1,500.00 |
| 19 | 2/01/2018 | $ 900.00 | Insurance | 2/01/2018 | $ 900.00 |
| 20 | 4/01/2018 | $ 1,500.00 | Rt | 4/01/2018 | $ 1,500.00 |
| 21 | 8/01/2018 | $ 900.00 | Insurance | 8/01/2018 | $ 900.00 |
| 22 | 11/01/2018 | $ 1,500.00 | Rt | 11/01/2018 | $ 1,500.00 |
| 23 | 15/01/2018 | $ 900.00 | Insurance | 15/01/2018 | $ 900.00 |
| 24 | 18/01/2018 | $ 1,500.00 | Rt | 18/01/2018 | $ 1,500.00 |
| 25 | 22/01/2018 | $ 900.00 | Insurance | 22/01/2018 | $ 900.00 |
| 26 | 25/01/2018 | $ 1,500.00 | Rt | 25/01/2018 | $ 1,500.00 |
| 27 | 29/01/2018 | $ 900.00 | Insurance | 29/01/2018 | $ 900.00 |
| 28 | 1/02/2018 | $ 1,500.00 | Rt | 1/02/2018 | $ 1,500.00 |
| 29 | 5/02/2018 | $ 900.00 | Insurance | 5/02/2018 | $ 900.00 |
| 30 | 8/02/2018 | $ 1,500.00 | Rt | 8/02/2018 | $ 1,500.00 |
| 31 | 12/02/2018 | $ 900.00 | Insurance | 12/02/2018 | $ 900.00 |
| 32 | 15/02/2018 | $ 1,500.00 | Rt | 15/02/2018 | $ 1,500.00 |
| 33 | 1/03/2018 | $ 1,700.00 | Rt | 1/03/2018 | $ 1,700.00 |
| 34 | 8/03/2018 | $ 1,700.00 | Rt | 8/03/2018 | $ 1,700.00 |
| 35 | 15/03/2018 | $ 1,700.00 | Rt | 15/03/2018 | $ 1,700.00 |
| 36 | 22/03/2018 | $ 1,700.00 | Rt | 22/03/2018 | $ 1,700.00 |
| 37 | 29/03/2018 | $ 1,700.00 | Rt | 29/03/2018 | $ 1,700.00 |
| 38 | 5/04/2018 | $ 1,700.00 | Rt | 5/04/2018 | $ 1,700.00 |
| 39 | 12/04/2018 | $ 1,700.00 | Rt | 12/04/2018 | $ 1,700.00 |
| 40 | 19/04/2018 | $ 1,700.00 | Rt | 19/04/2018 | $ 1,700.00 |
| 41 | 26/04/2018 | $ 1,700.00 | Rt | 26/04/2018 | $ 1,700.00 |
| 42 | 3/05/2018 | $ 1,700.00 | Rt | 3/05/2018 | $ 1,700.00 |
| 43 | 7/05/2018 | $ 2,000.00 | Rt | 7/05/2018 | $ 2,000.00 |
| 44 | 9/05/2018 | $ 4,851.00 | Insurance | 9/05/2018 | $ 4,851.00 |
| 45 | 10/05/2018 | $ 3,251.00 | Rt | 10/05/2018 | $ 3,251.00 |
| 46 | 10/05/2018 | $ 1,700.00 | Insurance | 10/05/2018 | $ 1,700.00 |
| 47 | 11/05/2018 | $ 4,925.00 | Rt | 11/05/2018 | $ 4,925.00 |
| 48 | 14/05/2018 | $ 4,956.00 | Rt | 14/05/2018 | $ 4,956.00 |
| 49 | 14/05/2018 | $ 4,915.00 | Insurance | 14/05/2018 | $ 4,915.00 |
| 50 | 15/05/2018 | $ 4,875.00 | Rt | 15/05/2018 | $ 4,875.00 |
| 51 | 16/05/2018 | $ 4,930.00 | Rt | 16/05/2018 | $ 4,930.00 |
| 52 | 17/05/2018 | $ 1,700.00 | Rt | 17/05/2018 | $ 1,700.00 |
| 53 | 18/05/2018 | $ 3,250.00 | Rt | 18/05/2018 | $ 3,250.00 |
| 54 | 18/05/2018 | $ 4,934.30 | Insurance | ||
| 55 | 21/05/2018 | $ 4,945.00 | Rt | 21/05/2018 | $ 4,934.30 |
| 56 | 21/05/2018 | $ 4,775.00 | Rt | 21/05/2018 | $ 4,945.00 |
| 57 | 22/05/2018 | $ 4,775.00 | |||
| 58 | 23/05/2018 | $ 3,885.00 | Rt | ||
| 59 | 24/05/2018 | $ 1,700.00 | Rt | 24/05/2018 | $ 3,885.00 |
| 60 | 24/05/2018 | $ 1,700.00 | |||
| 61 | 29/05/2018 | $ 4,760.00 | Rt | 29/05/2018 | $ 4,760.00 |
| 62 | 30/05/2018 | $ 4,565.00 | Rt | 30/05/2018 | $ 4,565.00 |
| 63 | 31/05/2018 | $ 1,700.00 | Rt | 31/05/2018 | $ 1,700.00 |
| 64 | 7/06/2018 | $ 1,700.00 | Rt | 7/06/2018 | $ 1,700.00 |
| 65 | 8/06/2018 | $ 4,850.00 | Rt | ||
| 66 | 11/06/2018 | $ 4,850.00 | Rt | 11/06/2018 | $ 4,850.00 |
| 67 | 11/06/2018 | $ 4,850.00 | |||
| 68 | 11/06/2018 | $ 4,925.00 | Rt | 11/06/2018 | $ 4,925.00 |
| 69 | 12/06/2018 | $ 4,775.00 | Rt | 12/06/2018 | $ 4,775.00 |
| 70 | 13/06/2018 | $ 4,910.00 | Rt | ||
| 71 | 14/06/2018 | $ 4,910.00 | |||
| 72 | 14/06/2018 | ||||
| 73 | 15/06/2018 | $ 4,875.00 | Rt | 15/06/2018 | $ 4,875.00 |
| 74 | 18/06/2018 | $ 4,875.00 | Rt | 18/06/2018 | $ 4,875.00 |
| 75 | 18/06/2018 | $ 4,873.25 | Rt | 18/06/2018 | $ 4,873.25 |
| 76 | 18/06/2018 | $ 4,628.00 | Rt | 19/06/2018 | $ 4,628.00 |
| 77 | 19/06/2018 | $ 4,886.00 | Rt | 19/06/2018 | $ 4,886.00 |
| 78 | 20/06/2018 | $ 4,665.00 | Rt | 21/06/2018 | $ 4,665.00 |
| 79 | 21/06/2018 | $ 1,700.00 | Rt | 21/06/2018 | $ 1,700.00 |
| 80 | 22/06/2018 | $ 4,815.00 | Rt | 22/06/2018 | $ 4,815.00 |
| 81 | Total out to 26/06/2018 | $ 186,044.55 | Total in to 26/06/2018 | $ 186,044.55 | |
(b)Over the next five months, withdrew or otherwise disposed of, almost all of those funds, approximately half of which occurred by way of ATM withdrawals in [Southern Town A] of between $900 and $1,400 each day.
17.The conduct of the first respondent referred to in
paragraphs 10 – 16 above represents a flagrant challenge to the authority of the Court
168The relevant paragraphs of the orders are the orders I made upon the delivery of my judgment on 25 June 2018 and provided in paragraph 10 thereof for various injunctions. For convenience I replicate the relevant portions of the orders below:
Injunctions
10.Until further order, and save and except with the Applicant’s prior written consent, the Respondent be restrained by injunction, and an injunction hereby be granted restraining the Respondent from:
…
(e)Entering into any loan agreements, deeds, contracts, powers of attorney or other documents, which may, either directly or indirectly, have the effect of disposing of assets, or divesting of rights, held by the Respondent or any other entity in which he has an interest;
…
(i)Exercising his rights under any power of attorney, including in relation to any property in the name of [Ms Louis Snr].
169The respondent has in the course of these proceedings actively represented to the Court that Ms Louis Snr did not have testamentary capacity.
170The transcript of proceedings of 23 October 2017, as relied upon by the applicant for the purpose of this application, reveals that the respondent actively represented that he held and exercised an enduring power of attorney for his mother.
171The affidavit of Ms J, the fourth respondent and case guardian for Ms Louis Snr, informs thus:
8.I have been involved in [Ms Louis Snr’s] finances as follows:
…
(b)In late 2017, I was asked by [Ms Louis Snr] whether I would be her attorney jointly with [Mr Louis]. I agreed and signed
the acceptance of the power of attorney in
June 2018 (“POA”);(c)During a telephone call in late 2018, [Mr Louis] told me that [Ms Louis Snr] was planning to sell the property at
[Property 3, Southern Town A]. In January 2019, [Mr Louis] asked me to open a bank account for [Ms Louis Snr] to hold the proceeds of sale of [Property 3, Southern Town A]. [Ms Louis Snr] confirmed that she wanted me to do this;(d)I disbursed the proceeds of sale of [Property 3, Southern Town A] at [Mr Louis’s] request during 2019. Each time [Mr Louis] asked me to make a transfer using these funds, I confirmed with [Ms Louis Snr] that she agreed; and
(e)Since [Ms Louis Snr] has moved into residential care in New South Wales in September 2019, my husband [MR M] and I have contributed to her monthly expenses.
172She further deposed that Ms Louis Snr had represented to her in January 2019 that she “signed a document that says “[Ms Louis Snr’s] [Property 3, Southern Town A] house was held on trust for [Mr Louis]”. She deposed to not having seen the document but further deposed that both the respondent and Ms Louis Snr had stated to her that [Property 3, Southern Town A] was held on trust by [Ms Louis Snr] for the first respondent.
173It has long been the stated position of the applicant that the respondent was the beneficial owner of Property 3, Southern Town A and her claim in this regard was well known to the respondent.
174However, that claim of itself does not create any beneficial interest, such as would be captured by the restraint in subparagraph 10(e) of my orders of 25 June 2018. However, the respondent himself has made representations that lead to such a finding.
175On 28 August 2018, the respondent emailed Mr A, the seventh respondent in the primary proceedings, in the following terms:
Yes unfortunately [Ms Campbell] wants another million so I will need to borrow a $100,00 for legals and living expenses until I free up some capital. Mums old house is on the market and I expect to clear $400,000 in the next 3 to 4 months. I suggest the loan is secured by way of a mortgage over [Property 1, Southern Town A] and a 5 percent pa interest charge apply. Any idea when the kitchen will start
[Mr Louis]
176In his written “submissions” he asserts an equitable interest in the property.
177I am satisfied that the respondent actively represented that he had or held, on his own admission, either a beneficial entitlement to the proceeds of sale of Property 3, Southern Town A, or that he purported to exercise his rights or utilise his power under a power of attorney in relation to the property of his mother, who, on his own representation, to the Court did not have capacity.
178Following the settlement of the sale of Property 3, Southern Town A and at the request of the respondent, Ms J set up a separate account into which the proceeds of sale could be paid.
179Whilst the request on the face of it may seem unusual, she was not troubled by the request given the difficulties that had arisen as a consequence of earlier orders which had impacted upon Ms Louis Snr’s ability to access pension funds being paid into her then operating account.
180On 18 January 2019, the proceeds of sale in the sum of $382,979.30 were paid into the account so opened.
181Ms J further deposed: (exhibits omitted)
MY INVOLVEMENT WITH [MS LOUIS SNR’S] FINANCES AND THE [PROPERTY 3, SOUTHERN TOWN A] PROCEEDS OF SALE
9.Prior to being appointed as an attorney in late 2017 (accepting in June 2018), I was not really involved in [Ms Louis Snr’s] finances. [Ms Louis Snr] was able to support herself with her pensions and I did not contribute to the costs of her care.
10.I was asked to open a bank account in January 2019 by [Mr Louis] and [Ms Louis Snr] so the proceeds of sale from the [Property 3, Southern Town A] could be deposited into it.
11.I knew that [Ms Louis Snr’s] “Retirement Advantage Account” numbered [xx-xx2356-x] (“Frozen Bankwest Account”) had been frozen due to incorrect information being provided to the Family Court of Western Australia (“Court”). I was told that the Court believed that the funds in this account belonged to [Mr Louis], and an order was made by the Court “freezing” the funds. I was told this when I visited [Ms Louis Snr] in [Southern Town A] in October 2018.
12.As I was the joint POA with [Mr Louis], I did not see a reason not to help [Ms Louis Snr] in relation to the proceeds of sale of [Property 3, Southern Town A], given her inability to access her other funds in the Frozen Bankwest Account.
13.I had no involvement with the sale of the [Property 3, Southern Town A]. I understand that it was sold by [Truck] Real Estate in [Southern Town A], and I understand that [Ms Louis Snr] signed the documents required to sell the property.
14.I thought that [Ms Louis Snr] had a significant interest in the [Property 3, Southern Town A]. I thought this because:
(a)My parents originally contributed funds to the purchase of [Property 4];
(b)When that was sold, I was repaid my funds, but I understood that the remaining proceeds of sale were “rolled over” by [Mr Louis] and my parents to purchase [Property 5], where [Ms Louis Snr] and my father lived for many years; and
(c)When the [Property 3, Southern Town A] was purchased, I assumed that [Ms Louis Snr’s] “equity” in [Property 5] was “transferred” to that property, which was why it was purchased in her name. This is what I believed until I was told in January 2019 by [Ms Louis Snr] and [Mr Louis] that the proceeds of sale of the [Property 3, Southern Town A] belonged entirely to [Mr Louis]. At this time, [Mr Louis] told me, using words to the effect, that [Ms Louis Snr] held the [Property 3, Southern Town A] on trust for him. [Ms Louis Snr] then asked me, using words to the effect, if I could help [Mr Louis] pay various debts using the proceeds of sale from the [Property 3, Southern Town A].
15.I had assumed that once the [Property 3, Southern Town A] was sold, that the proceeds of sale would be used to assist with [Ms Louis Snr’s] ongoing care. However, only $11,000 of the proceeds of sale from the [Property 3, Southern Town A] have been transferred to [an Aged Care Facility], which is [in a town] in New South Wales (“Aged Care Facility”) to assist with [Ms Louis Snr’s] care.
16.I agreed to set up the bank account to hold the proceeds of sale for [Property 3, Southern Town A]. I opened an account with the Commonwealth Bank ending #[5421](“[Property 3] Bank Account”). Annexed hereto and marked Exhibit A is a copy of the statements for the [Property 3] Bank Account.
17.Once the money had been deposited into the account, [Mr Louis] asked me to make a number of payments with the funds. Before I transferred the payments out, I first transferred the funds to the following accounts:
Date
Transferred to
Amount
Comment
22.01.19
#[8276]
$19,548
22.01.19
#[8276]
$100,000
24.01.19
#[8276]
$20,000
24.01.19
#[8276]
$500
Notation “loan start fund”.
14.03.19
#[3287]
$9,200
08.04.19
#[3287]
$3,500
11.04.19
#[8276]
$10,000
09.05.19
#[8276]
$20,000
12.05.19
#[8276]
$10,000
Notation “[Louis] gift”
29.05.19
#[8276]
$34,000
Notation “[Louis] gift”
03.07.19
#[8276]
$8,000
Notation “[Louis] gift”
28.07.19
#[8276]
$140,000
Notation “[Louis]gift”.
31.10.19
#[3287]
$4,500
Transferred to Joint CBA #[3287] and then to Aged Care Facility on [Ms Louis Snr’s] behalf
18.11.19
#[3287]
$5,000
Transferred to Joint Account and then to Aged Care Facility on [Ms Louis Snr’s] behalf
TOTAL
$384,248
18.The reference above to “Gift” was an acronym for “Getting information for future transfer”. Some of the invoices I paid, mainly from [Law Firm A], [Mr Louis’s] solicitors, said that I would have to call them first to confirm that it was a valid invoice. So when I transferred funds with this acronym, I knew that I would have to call first before I paid the invoice.
19.The account ending #[3287] is a joint account that I share with [Mr M]. This account is a Commonwealth Bank ending #[3287]. This account, along with all of my accounts, were injuncted following the injunctions made by the Court on 3 March 2020.
20.I assume that the account ending #[8726] is the debit card account of mine. At the time of swearing this affidavit, all of my bank accounts with the Commonwealth Bank are injuncted which means that I cannot see my accounts at all on my internet banking.
21.I do not recall exactly, without being able to see my internet banking, why I transferred funds to this account first before I later transferred funds to pay invoices/bills/make payments on [Mr Louis’s] request. I expect that when I can see my accounts, there will be a clear trail of where the funds came in and then went out.
22.I recall that the payments I made on [Mr Louis’s] behalf are as follows:
(a)I transferred $110,000 to [MR A] [Ms Louis Snr] told me that this was the repayment of a loan that [Mr A] had made to [Mr Louis];
(b)I made various transfers to [Law Firm A], of a total of around $98,000, including a deposit into their trust account of $30,000 (mentioned at paragraph (h) below);
(c)I paid $7,000 to a [Metal Work] company in [Southern Town A] for a boat trailer;
(d)I paid $3,700 towards council rates for the property at [Property 2, Southern Town A];
(e)I paid $11,000 to the Aged Care Facility for [Ms Louis Snr’s] care;
(f)I paid $20,000 to [Mr M] and I to repay a loan we had made to [Mr Louis] from our “OFX” International account in December 2018 (discussed further below at paragraph 28);
(g)I paid a further $19,448 to [Mr M] and I to reimburse our account for the payments made to [Law Firm A] from mine and [Mr M’s] funds in our “OFX” International account in March, April and July 2019; and
(h)I paid $140,000 into the debit card account in my name, which I assume (without being able to check my internet banking) is the account ending #[8726]. [Mr Louis]/[Ms Louis Snr] were given the debit card attached to this account as well as the PIN number by me in January 2019. As [Ms Louis Snr’s] Bankwest account was frozen, I assumed she needed funds to assist her in paying the $2,400 costs per month for her home care nurse. I also transferred $30,000 from this debit card account to the trust account of [Law Firm A] as the [Property 3] Bank Account did not have enough funds to do this in November 2019. A copy of this email request is contained in the bundle of documents in Exhibit B.
23.I have asked [Mr Louis] to return the debit card as [Ms Louis Snr] says she does not have it. I have had no response from [Mr Louis] about this card. I note that the last time I looked in that account online, there was not much money left.
…
26.Every time that [Mr Louis] asked me to make a transfer to pay an invoice/bill/make payments with the [Property 3, Southern Town A] proceeds of sale, I always called [Ms Louis Snr] to ask whether she agreed for me to make the payment. Whenever I asked [Ms Louis Snr] about any of the requests to pay [Mr Louis’s] bills, she would always say, using words to the effect "none of that money was ever mine, it is all [Mr Louis’s]”.
27.While [Mr Louis]and [Ms Louis Snr] had told me that the funds from the [Property 3, Southern Town A] belonged to [Mr Louis], in my mind, I was still acting as [Ms Louis Snr’s] attorney, so I always checked with her before I made each payment.
28.There were also occasions when I paid an invoice/bill/make payments at [Mr Louis’s] request from mine and [Mr M’s] funds held in Canada. These funds are held in “OFX” International, and annexed in the bundle of documents called Exhibit A is a screenshot of the payments made from this account between 28 September 2018 and 19 July 2019. To summarise these payments:
(a)[Mr M] and I lent [Mr Louis] $20,000 in December 2018 as he was desperate for funds. These funds were paid directly to [Mr Louis’s] account. [Mr Louis] later repaid these funds to us from the proceeds of sale from the [Property 3, Southern Town A];
(b)3 payments were made to [Law Firm A] as follows - $10,012.96 on 11 March 2019, $1,436.60 on
11 April 2019 and $8,000 on 19 July 2019, totalling $19,448. These funds were later reimbursed to [Mr M] and I from the [Property 3, Southern Town A] proceeds of sale; and(c)One payment to [Solicitor F] of $1,936 on 12 April 2019.
29.When I agreed to open this account for [Ms Louis Snr], I had no idea how many transactions I would be asked to make for [Mr Louis].
182As seen Ms J was also cross-examined by the respondent.
183The reverences made in the respondent’s “submission” as to these grounds as to matters of his mother’s mental health and behaviour purport to include evidence that was disallowed. However, the cross‑examination did not address the primary assertions of Ms J, as to the respondent’s entitlement to the proceeds of sale, nor his representations to the witness as to the same. In this regard, her evidence stands unchallenged.
184The debit card referred to in subparagraph 22(h) above is linked to a separate account opened in the name of Ms J last four numbers [8726] with the CBA (“the 8726 account”).
185The statements produced and admitted into evidence show the payment of $140,000 into the 8726 account on 28 July 2019. The sum of $140,000 reduced the balance of the [5421] account to the sum of $10,260.53 and represented the last of the transfers to the benefit of the respondent.
186The balance that then remained in the 5421 account was transferred, as to $9,500 to Ms Louis Snr in two transactions, which represent the totality of the funds paid to her from the account between the receipt therein of the proceeds of sale and 30 December 2019, with the balance then remaining of $810.97.
187Otherwise in the period between 22 January 2019 and 28 July 2019, there had been transfers out of the account in discharge of the loan from the entity controlled by Mr A and Ms C, the amounts referred to in paragraph 28 of Ms J’s affidavit, and payments to the benefit of the respondent and generally styled as “[Louis] gift”. The only additional credits to the account were by way of interest.
188Following the payment into the 8726 account of $140,000 on 28 July 2019, there have been ATM cash withdrawals actioned in Southern Town A and transfers to other accounts identified as “[Louis] gift” together with transactions, both prior to and after 28 July 2019, undertaken [in an Asian country].
189The last transfer to the respondent of the sum of $140,000 also coincided with the service of orders made 26 July 2019 which, in part, specifically restrained the respondent from dealing with the proceeds of sale of Property 3, Southern Town A in his personal capacity and as attorney for Ms Louis Snr.
190Whilst not the subject of the current application, the coincidence is remarkable and the subsequent dealings on account 8726 after the payment in of $140,000 namely, 42 ATM cash withdrawals in Southern Town A and the transfer to another account, CBA last four numbers [3287], (which is earlier identified by Ms J as the joint account she has with her husband), or an unspecified account of $80,015.98. The transfers were styled, “[Louis] Gift” as to $43,515.98 and $36,500 as “[C Louis]” with a further payment $4,041.40 to an unspecified account.
191Of the funds transferred to the 3287 account, subsequent transfers were made from that account into an unspecified account identified on the statements as “other Bank CommBank app”, with the transfers styled as either “[Louis Gift]”, “[C Louis] Gift” or “From [Louis]”.
192From a balance at 28 July 2019 of $144,290.98, the same was reduced to $115,209.66 (primarily by ATM withdrawals) by 1 September 2019, further reduced to $98,004.30 by 1 October 2019, $57,358.95 by 30 October 2019 and $11,565.11 by 30 November 2019, with a statement closing balance at 30 December 2019 of $2,723.71.
193Given the representations as to Ms Louis Snr’s infirmity and mental capacity and her residence in New South Wales at all relevant times as deposed by Ms J, I conclude that the activity undertaken upon the account, and in particular, the beneficiaries of the payments are consistent with the respondent assuming or holding a beneficial interest in the proceeds of the sale of Property 3, Southern Town A; or in the alternative, utilising his mother’s power of attorney in a way directed to benefit himself, it being Ms J’s unchallenged evidence that the respondent, with her, exercised his power under the joint power of attorney to effect the transactions to which Ms J refers and to which I have referred above, irrespective of any interest that the respondent has claimed in the subject property, and has accordingly breached subparagraph 10(i) of my 25 June 2018 orders.
194I respectfully agree with the gravamen of the submissions made on behalf of the applicant at paragraph 67 of the outline of submissions given by Senior Counsel at the opening of the trial as follows:
67.It is the applicant’s ultimate submission that, having misled the Court about his mother’s capacity, and being well aware of the relevant orders, and the intent of those orders, the first respondent;
(a)Proceeded to cause, or at the very least facilitate, the sale of [Property 3, Southern Town A];
(b)Maintained to the Court that he had no interest in the property but later, with the support of his mother, represented to his sister that he was entitled to the proceeds of sale of the property;
(c)Liaised with, and instructed, the settlement agent to affect the sale;
(d)Directed how the sale proceeds were to be dealt with, including having them put in accounts in his sister’s name but which were controlled by him and/or on his instruction;
(e)Ultimately benefited from almost all of those sale proceeds; and
(f)Again, involved third parties, including his sister and his mother, in a scheme to:
(i)Remove assets from the purview of the Court; and
(ii)Circumvent the clear intention of the Court Orders;
(g)While failing to disclose any of his conduct, or the relevant documents arising from it, to the applicant or her advisors.
195I am satisfied beyond a reasonable doubt that the respondent’s conduct the subject of count 13 of the charge sheet constitutes a breach and further such as to constitute a flagrant challenge to the authority of the Court.
Count 14
196As to count 14, I make no separate finding as the same represents a shorter form duplication of count 13 and the same will therefore be struck out.
Count 15
197The particulars provide as follows:
D.Failure to Comply with Spousal Maintenance Orders
18.In the context of the matters set out above and in breach of paragraph 6 of the Orders dated 25 June 2018, the first respondent has failed to pay maintenance to the applicant in the amount of $1,100 per week from 25 June 2018 to date (in excess of $95,000).
19.In the circumstances of this matter, the conduct of the first respondent referred to in paragraph 18 above represents a flagrant challenge to the authority of the Court
198Paragraph 6 of the minute of proposed order attached to the orders made on 25 June 2018 provides as follows:
Maintenance
6.From 1 July 2018 until further order the maintenance payable by the Respondent to the Applicant be varied down to $1,100 per week with the first payment to be made on Monday
2 July 2018 and each Monday thereafter.
199The amount of the arrears was deposed to being the sum of $131,853.97 determined by reference to the information available to her on the “my gov” website, as accessible to persons either liable to pay or entitled to receive payments via the Child Support Agency.
200The unchallenged evidence of the applicant is that no payment has been made to her or the Registrar of Child Support in compliance with the order as registered pursuant to the provisions of the Child Support (Registration and Collection) Act 1988 (Cth).
201Although the relevant legislation is styled as the “Child Support” Registration and Collection Act, the same makes provision for the registration and collection of spousal maintenance liabilities in certain circumstances. As found in my reasons delivered 25 June 2018, the applicant has so registered the maintenance liability. In any event, the liability has been created pursuant to my said orders of 25 June 2018 and the evidence that the same has not been paid was not challenged by the respondent, despite his election to cross-examine the applicant.
202The payment of maintenance and child support was within the range of exception as ordered pursuant to the orders of O’Brien J of 2 December 2016, and whilst it may be arguable that the orders are no longer in force, they have not been specifically discharged and in any event, it was open to the respondent to seek the applicant’s agreement for such payments to be made within the scope of the orders with injunction made by me on 25 June 2018.
203The respondent has, albeit in breach of orders as found herein to constitute a contempt of the orders, had funds available to him that he has not applied in discharge of his obligations to pay maintenance.
204In his cross‑examination of the applicant, the respondent had the following exchange:
[LOUIS, MR]: [Ms Campbell], I’m going to run through a schedule of expenses that I incurred for [Child A] and [Child B]. Do you agree that I paid school fees for [Child A] and [Child B] since they moved to [a rural town in NSW]?
[CAMPBELL, MS]: To a point, yes.
[LOUIS, MR]: Thank you?
[CAMPBELL, MS]: It was ‑ ‑ ‑
[LOUIS, MR]: Do you agree that I paid for school uniforms of [Child A] and [Child B]?
[CAMPBELL, MS]: Some of them.
[LOUIS, MR]: Thank you. Do you agree that I also purchased clothes for them?
[CAMPBELL, MS]: Vaguely.
[LOUIS, MR]: Thank you. Do you recall I bought a set of golf clubs for [Child A]?
[CAMPBELL, MS]: Vaguely – for his birthday, I think, when he was going to visit you.
[LOUIS, MR]: Thank you. Do you agree that I have over a period of time bought several wetsuits for [Child A] and [Child B]?
[CAMPBELL, MS]: Possibly.
[LOUIS, MR]: Okay. Do you agree that I also bought [Child A] and [Child B] surfboards and surf covers and leg ropes?
[CAMPBELL, MS]: I’m not aware of that, no.
[LOUIS, MR]: Okay. Are you aware that I also paid for [Child A’s] senior first aid certificate? Do you agree to that?
[CAMPBELL, MS]: I’m not aware of that.
[LOUIS, MR]: Okay.
HIS HONOUR: [Mr Louis], I’m not going to stop you in the absence of an objection by counsel, but may I say that from my point of view, none of this is relevant to the determination that I have to make.
[LOUIS, MR]: Your Honour, what I’m trying to highlight to the court is that in the orders there were provision for expenditure to be incurred on the children. And I’m trying to identify the sorts of expenditure that have been incurred because it has relevance in relation to the use of the funds out of the [Louisvale Enterprises] account.
…
[LOUIS, MR]: I have identified them overnight by going through each individual transaction, but some of them I can’t identify. For example, expenditure for fuel, it could have been me or it could have been [Child A].
205The lacuna that is apparent from the cross‑examination is that the alleged breach does not relate to child support, but to the spousal maintenance obligation the subject of the relevant order; a breach of the respondent’s child support obligations was not the subject of the alleged contempt.
206The respondent was afforded the opportunity to identify payments that would have satisfied his obligation pursuant to paragraph 6 of my orders without objection from Senior Counsel for the applicant.
207The Court adjourned to enable him to identify payments so made to be put to the applicant.
208Upon the resumption of the Court, the respondent elected not to further cross‑examine the applicant.
209I am satisfied beyond a reasonable doubt that the respondent has failed to discharge his obligations pursuant to paragraph 6 of the orders of 25 June 2018.
210As to the nature of the challenge and in addition to the global finding as to the conduct of the respondent constituting a flagrant challenge, I am also satisfied that the conduct found with respect to the non-payment of maintenance is also a flagrant challenge; a finding in my view that is reinforced by not only the totality of the conduct by the respondent in his attempt to obfuscate transactions and place significant funds in the hands of others in breach of the orders, but that the payment of maintenance was a permitted payment, yet no payment was made, nor application, as available to vary or discharge the relevant order of 25 June 2018.
211I am satisfied accordingly that the conduct so proven constitutes a flagrant challenge to the authority of the Court.
212For the reasons I have given, I find that counts 1‑12 inclusive and 15 are all proven to the requisite standard of proof.
213As to counts 13 and 14, I am satisfied that count 13 is established. However, the conduct complained of in charge 14 is, in my view, more relevant as evidence of the nature of the benefit to which the respondent held himself out to be entitled and of behaviour consistent with that entitlement and is, in effect, a duplication of charge 13, as it does not specify any separate conduct constituting a breach. Accordingly, the same should be struck out.
214I will now hear from counsel and the respondent as to sentence and in the circumstances of my findings as to whether or not he should remain at liberty pending sentencing and the terms, if any, of any release of the respondent on bail.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
LB
Associate
10 MARCH 2021