CAMPBELL and LOUIS (SENTENCING)

[2021] FCWA 64

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CAMPBELL and LOUIS (SENTENCING) [2021] FCWA 64

CORAM: MONCRIEFF J

HEARD: 10 MARCH 2021 & WRITTEN SUBMISSIONS

DELIVERED : 15 APRIL 2021

FILE NO/S: PTW 4513 of 2009

BETWEEN: MS CAMPBELL

Applicant

AND

MR LOUIS

Respondent

Catchwords:

CONTEMPT – Sentencing – where a period of served imprisonment is ordered

COSTS – Where an order for costs is warranted – lump sum ordered

Legislation:

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Legal Profession Act 2008 (WA)
Sentencing Act 1995 (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):

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259

Campbell and Louis (Contempt) [2021] FCWA 34

Campbell and Louis [2018] FCWA 113

Myers and Myers (2006) FLC 93‑291

Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

Schwarzkopff and Schwarzkopff (1992) FLC 92-303

Tate & Tate (No 3) (2003) FLC 93‑138

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).

1On 10 March 2021 I delivered reasons (Campbell and Louis (Contempt) [2021] FCWA 34) for my findings that 14 of 15 alleged acts of contempt of the Court had been committed by [Mr Louis] (“the respondent”) and further, that the contraventions of orders found as proven to the requisite standard involved a flagrant challenge to the authority of the Court as required by s 234 of the Family Court Act 1997 (WA) (“the Act”).

2It is assumed for the purposes of these reasons that the reader has read and is familiar with those reasons.

3I must now determine the sentence to be imposed upon the respondent.

4The Court may punish a person for contempt “despite any other law” as provided by s 234(2). Accordingly, the provisions of the Sentencing Act 1995 (WA) do not apply.

5The Court may punish the contempt by committal to prison or fine or both as provided by s 234(4). (Throughout these reasons, unless otherwise specified, all errors and emphasis in extracts are as in original).

(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.

6Section 234 of the Act provides in subsections 6 and 7 that:

(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.

7As observed by the Full Court of the Family Court of Australia in Schwarzkopff and Schwarzkopff (1992) FLC 92-303, the Court has the “widest possible discretion to mould the sanction to the circumstances of the individual situation within the overall principles and philosophy of the [Act]”.

8The underlying principles in considering a contempt arising out of the disobedience of a contemnor with orders of the Court were comprehensively considered by the Full Court of the Family Court of Australia in Tate & Tate (No 3) (2003) FLC 93‑138 at paragraphs 57 and 59 to 66:

The Principles Underlying Proceedings for Contempt Arising out of Disobedience of a Non Monetary Order

57.Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, It is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

…

59.They further commented that the differences upon which the distinction between criminal and civil contempt are based are, in significant respects, illusory. In a separate judgment McHugh J expressed himself in similar terms on this issue.

60.In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) the purpose of proceedings for civil contempt was stated as follows:

“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”

61.The Australian Law Reform Commission (“ALRC”) in its 1987 report Contempt (Report No. 35) pointed out (at par 508) that it is important to recall that proceedings for disobedience contempt may serve one or both of two distinct functions: enforcement of the order and punishment of disobedience of the order. It similarly drew a distinction between situations where the primary aim is coercive as distinct from punitive. In the former case, the sanction imposed is expressed only to last until the occurrence of a specific event that is within the power of the person upon whom the sanction is imposed. In the latter the punishment (if custodial) is imposed for a finite period, usually after the relevant events have occurred.

62. It should be mentioned that the ALRC, in Chapters 13 and 14 of its report, did draw a distinction between the considerations associated with non-compliance in family law and general civil law. We agree that there is a distinction and in particular that resistance to compliance with orders made in family law litigation may be particularly strong, as this case exemplifies. At par 623 the Commission took the view that the purpose of punishment in family law proceedings was not so much upholding the Court’s authority as an end in itself, but in fulfilling the expectations of the litigant’s themselves that Court orders will be obeyed and imposing sanctions if this does not occur. We agree with this view which accords with that expressed by Evatt C in G and G (1981) FLC 91-042 at 76,361.

63.At par 515 of the ALRC report, it is pointed out that there are many cases where the primary goal is to punish the contemnor for past disobedience. It is stated that the sanction serves similar purposes to those imposed by the criminal law: in particular, deterrence (specific and general) and retribution.

64.In this case, the primary aim of the proceedings is clearly punitive and it is clear from the authorities that this is an appropriate aim, at least in circumstances where there has been a flagrant defiance of court orders. In Borrie and Lowe The Law of Contempt (3^rd Ed at 629) the following statement of principle appears:

“Blatant and aggravated contempts particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark both of the gravity of the contempt and the court’s disapproval and to deter contemnors and others who might be tempted to breach such an order.”

See also Lightfoot v Lightfoot [1989] 1 FLR 414 at 416-417 per Lord Donaldson MR.

65.At pars 516-7, the ALRC pointed out that in the past there had been a reluctance on the part of courts to impose punitive sanctions in the case of mere disobedience in the absence of contumacy, that is, stubborn resistance and defiance of authority. The Commission suggested that this situation has changed in recent times and that courts have increasingly imposed punitive sanctions in cases of disobedience of court orders where there was no flagrant or repeated disobedience or overt challenge to the court’s authority. While this has no direct relevance to the present case, in that we are not dealing with mere disobedience of court orders, it highlights the seriousness of contumacious disregard and defiance of court orders.

66.At par 519, the Commission said in terms that might be thought to be highly relevant in the context of this case:

“On the view just outlined (the need to uphold the authority of the Court), the imposition of punitive sanctions for disobedience is justifiable in terms of maintaining the effectiveness of court orders. In our society, courts are the ultimate arbiters of disputes. This system of dispute resolution depends upon, among other things, their making orders and, if necessary, enforcing them. Given that litigation can be frustrating, time consuming and costly, there would be no incentive at all in undertaking it, if there were no likelihood that orders made by the court in settlement of a dispute could not be enforced. The imposition of coercive sanctions is clearly directed towards this goal; the imposition of punitive sanctions re-inforces (sic) it .In circumstances where enforcement is no longer relevant, either because the order has since been complied with, or is no longer capable of being complied with, the imposition of a punitive sanction vindicates the claims of the aggrieved party, signifies the disapproval of the court, and acts as both as a specific deterrent (that is, to the particular contemnor) and as a general deterrent (that is to future would be contemnors). The Commission endorses the general principle that punitive sanctions should be available to the Court to the extent that they are necessary to uphold the effectiveness of court orders”.

9The passage referred to above from Tate & Tate (No 3) (supra) was considered in Myers and Myers (2006) FLC 93‑291 by the Full Court of the Family Court of Australia and observing with respect thereto in identical terms as at paragraph 66 in Tate & Tate (No 3) (supra).

10As Kirby J observed in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at paragraph 149: (footnotes omitted)

[149] Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law may result”.162 Obviously, the culpability of the contemnor is relevant to the order which must be made.163 The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.

11In Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259, Palmer J identified criteria of potential relevance in making a determination as to the appropriate punishment for contempt of an order involving property or fiscal provisions. The criteria include:

i)the seriousness of the contempt proved;

ii)whether the contemnor was aware of the consequences to himself of what he proposed to do;

iii)the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;

iv)whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 166;

v)the reason or motive for the contempt;

vi)whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

vii)whether there has been any expression of genuine contrition by the contemnor;

viii)the character and antecedents of the contemnor;

ix)what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court;

x)what punishment is required to express the Court's denunciation of the contempt.

12As held by the plurality of the High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at page 114:

At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made.

13As I have observed above, in Tate & Tate (No 3) (supra), the Court gave specific consideration to the applicability of an immediate custodial sentence in circumstances where the behaviour constituted in contempt is blatant and aggravated.

14I have found that the respondent has engaged in a course of conduct in defiance of court orders and that of the 15 alleged breaches that constitute a contempt, I have found 14 of them proven to the requisite standard and struck out one as it was in essence a duplication of another charge.

15The respondent has engaged in behaviour intended to conceal or obfuscate. His conduct has been systemic and repeated.

16The respondent’s regard for the orders of the Court has been limited only to his attempts at obfuscation by the use of descriptors for transactions that may on the face of the representation suggested that his actions were not undertaken in disobedience of the orders.

17In furtherance of his breaches he has engaged others. He has utilised the accounts of two of his now adult children. He has utilised the accounts of his sister and caused her embarrassment through her being unable to access funds, given injunctive orders that were put in place to restrain the respondent from this further conduct.

18He has utilised for his own benefit funds from the superannuation fund. He has utilised for his own benefit, what is, on his case, the property of his mother, by exercising, in breach of an injunction, a power of attorney held jointly with his sister and caused embarrassment to his mother in terms of the inability to access the provision of services required for her as she ages and has been at times consequentially dependent on the provision of necessities by others.

19His conduct has embarrassed a reputable firm of solicitors who he instructed to conduct an appeal from the orders of June 2018 and utilised funds found to have been taken in breach of relevant orders to fund the provision of those services.

20He has utilised his undoubted skill as an accountant and auditor and sought to enlist the aid of others, whether innocently or otherwise, with a seemingly complete disregard for the impact his actions may have upon them.

21He has shown no remorse and seeks to excuse his conduct, but in my finding, with the full knowledge that his conduct was in breach of the orders.

22As I observed in my reasons for decision Campbell and Louis (Contempt) (supra) counts 1‑10 of the charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property, which is the subject of a claim by the applicant in the primary proceedings, [Ms Campbell] (“the applicant”), and which proceedings are pending.

The applicant’s submissions

23Senior Counsel for the applicant submits that the Court should have regard to “the seriousness of the breaches, coupled with their studied and repeated nature” and submits that the Court should note that a fine would only serve to further reduce the pool of assets in this matter, leading to a conclusion that there should be no alternative to a custodial sentence.

24I respectfully agree with the submissions of Senior Counsel, which largely expand on the observations I have made above, namely:

·That the counts proven and taken together establish a studied course of conduct deliberately designed to thwart the orders of the Court and to deprive the applicant of proper financial support.

·Where the respondent, being an experienced accountant and auditor with a history of experience in legal proceedings, to which I refer in Campbell and Louis [2018] FCWA 113, knowingly procured the involvement of:

1.His elderly mother.

2.At least two of his adult children.

3.His sister.

4.His friend and former business partner [Mr A] and his wife [Ms C] and in doing so, potentially exposed them to criminal or civil liability.

·There has been no attempt made by the respondent to purge his contempt, apologise nor show any form of genuine contrition in relation to any of the counts established.

·Counts 1‑11 involved over 80 transactions each of which constituted a breach of court orders undertaken in such a way together having regard to the size and description of the transactions which were designed to mislead the compliance department of any bank which had been served with the order and thwart attempts to trace funds.

·Significantly, in my view and as commented by Senior Counsel, a substantial body of funds transferred from accounts to which I have referred in my reasons for decision remain unexplained or otherwise unaccounted for.

·As to count 12, the mortgage the subject of the breach has not been discharged notwithstanding the respondent’s positive assertion that he has repaid the advance secured thereby, albeit with funds found to be taken in contravention of orders and being the subject matter of count 13.

·Notwithstanding the acknowledgment of his actions in his “submissions” presented to the Court at the hearing of the application, the respondent entered a plea of not guilty in the face of such admission.

25As to count 13, I replicate the submissions made by Senior Counsel on behalf of the applicant with which I respectfully agree.

Count 13 – Sale of [Property 3, Southern Town A]

19.In circumstances where:

(a)the majority of the parties’ asset pool is held in superannuation in the Respondent’s name which, as the legislation currently stands, is beyond the reach of the Court; and

(b)the [Property 3, Southern Town A] property had a value of around $400,000;

the sale and disposal of the proceeds of the property as established in count 13 is particularly serious.

20.If, and to the extent that, such conduct did not constitute a contravention of the Court Order, that was only because the Respondent misled the Court at the first day of the final hearing of the property settlement proceedings in October 2017.

21.In any event, the Respondent was well aware of the effect of the transactions making up count 13, and intended to remove the sale proceeds of the property from the reach of the Court, and use them for his own benefit. So much is clear from the way in which the Respondent ultimately dealt with the proceeds of sale, including:

(a)The payment of $110,000 to [Mr A and Ms C]; and

(b)The payment of $118,000 to his solicitors in the unsuccessful appeal proceedings (being the $98,000 paid directly and the reimbursement of $20,000 to his sister).

22.What makes this count particularly egregious however, is the way in which the Respondent:

(a)withdrew the remaining proceeds of sale by way of large and repeated cash withdrawals commencing two days after he was served with the further and more specific injunctions made by the Court on 26 July 2019; and

(b)knowingly and deliberately involved his elderly mother who, on his own evidence and from the evidence of the settlement agent [Ms I], and the process server [Ms E], was clearly reliant upon him and trusted him to manage and/or assist her with her affairs.

23.Approximately $220,000 of the proceeds of sale of the [Property 3, Southern Town A] property have been captured in the trust account of the husband’s (sic) solicitors from the appeal proceedings. A large portion of the remaining funds were drawn by the Respondent in cash over a five-month period. The whereabouts of those funds have not been disclosed.

Count 15

26Senior Counsel submits on behalf of the applicant that the consequences of the breach of these orders has meant that the applicant has been required to draw against capital to meet the ongoing costs of herself and the parties’ daughter.

27She has had limited income whilst the respondent has had the benefit of funds which would have otherwise been available to be permissibly payable to the applicant pursuant to the terms of the orders breached.

28The breach continued over a period of two and a half years.

29As submitted by Senior Counsel:

29.Putting to one side all of the other money the Respondent had taken, all he needed to do was authorise the transfer of funds from one of the bank accounts under his control. He was well aware of this, because he conceded as much under cross‑examination at the trial of the substantive proceedings in October 2017.

30.The payment of spousal maintenance and child support are fundamental to ensure that the most vulnerable people in a family unit receive basic financial support upon relationship breakdown. There is a significant public interest in ensuring the penalty imposed in relation to this count:

(a)Unequivocally shows the Court’s denouncement of such conduct; and

(b)Provides sufficient deterrence for other would-be contemnors of such orders.

30I respectfully agree with and adopt such submission.

The respondent’s submissions

31On 10 March 2021, I made orders for the respondent to file and serve any written submissions as to penalty and any relevant antecedents, and in response to the application for costs, he has not done so, however, this morning I gave him the opportunity to make oral submissions.

32As to penalty, he submits his disagreement with the submission made by learned Senior Counsel that the payment or imposition of a fine may diminish the asset pool available for distribution between the parties, suggesting that there is the capacity for an adjustment to be made in his favour.

33Such a submission may have some merit if indeed it was possible to define the asset pool but for the actions of the respondent and his obfuscation apparent throughout the initial proceedings in this matter and continuing in the course of the proceedings the subject matter of the contempt application, the definition of the asset pool remains very much at large. Accordingly, I reject that submission.

34The respondent has taken the opportunity this morning for the first time to apologise for his conduct.

35He had the opportunity in the face of the contempt proceedings to apologise, he did not.

36He had the opportunity in the face of those proceedings, as I have observed, and in light of his admission made in his submissions to plead guilty, he did not take that opportunity. Whilst I accept that he makes an apology for his conduct, the Court is left with some concern as to the sincerity of the same as whether the same reflects the fact that he has been caught or whether he is genuinely contrite.

The respondent’s antecedents

37As to the respondent’s antecedents I observe that he is 61 years of age. It is not suggested that he is other than in good health.

38It is not known if he has any relevant history, nor is any mentioned by the respondent, although having regard to the employment he said he had undertaken, during the trial of the primary proceedings, I think it unlikely that he would have any criminal history as the same would have likely rendered him ineligible for such employment.

39As I have observed at various times in the course of these proceedings over the now 11 years of their currency, the respondent is clearly highly intelligent and articulate. He held, unsurprisingly, responsible positions and appears to have been highly regarded in his professional roles as an accountant and auditor.

40He has two children of a prior relationship, both of whom are adult and have been utilised by him to further his cause against the applicant, in the case of his adult daughter, to her embarrassment and inconvenience.

41He has two children of his relationship with the applicant, with their son now a young adult and I am told this morning this day that he is to commence employment in [a regional town in Western Australia] as a [mine worker], and their daughter who is still a student. I accept that the applicant’s imprisonment will embarrass and likely cause some distress to both of them, but particularly to their son who was residing with the respondent. This is an inevitable consequence of the respondent’s own actions, not the applicant nor the Court.

42Otherwise, the respondent has informed the Court that he has offered service in the community by way of assistance to [Community Service Provider A] in the support that they have given to long term prisoners and rendered positive assistance in that regard in the face of failing public support. Additionally, he has rendered service through the [Community Service Provider B] operated out of [Southern Town B].

43The tragedy for the respondent, in the context of these proceedings, is that he has utilised his intelligence and his abilities in a manner that has been arrogant, disrespectful of the applicant, her proper rights, the parties’ children, their half‑siblings, his sister and his ageing mother, not to mention the Court.

Sentencing conclusions

44I have observed in my reasons in Campbell and Louis (Contempt) (supra) that the individual transactions forming charges 1‑10 and the individual transactions cumulatively forming charge 11 are not to be viewed in a vacuum, rather they demonstrate systematic and persistent attempts to remove assets from the available pool for distribution by the Court for the benefit of the respondent.

45The systematic and continuing breaches and the circumstances and manner in which they were undertaken and the involvement of others takes these breaches, in my finding, towards the more extreme end of seriousness.

46In determining sentence, I must have regard not only to the circumstances of the offending and its seriousness and the punishment that is due to reflect that seriousness, but also to discourage others and demonstrate publicly that the Court enforces its orders and views a failure to comply with its orders with the utmost seriousness.

47I propose to cause to be published my reasons for decision and sentencing remarks to make it plain to others that such conduct will not be tolerated by this Court.

48As to sentence, Senior Counsel for the applicant submits that for the breaches of counts 1‑10 that each breach should attract a term of imprisonment of one month to be served cumulatively. I agree with Senior Counsel that such a penalty is appropriate.

49As to counts 11, 12 and 13, Senior Counsel submits that the respondent should be imprisoned indefinitely with a conditional release upon his purging his contempt. In the case of counts 11 and 12, the contempt may be capable of being purged, however I am not satisfied that count 13 could be purged in its entirety.

50In the circumstances, I propose to fix an additional term of imprisonment with the capacity for the respondent to request an early release upon demonstrating that he has either purged his contempt, or demonstrating the attempts that he has made to purge his contempt and a commitment to the future compliance with orders reinforced by a demonstration that he has complied with previous orders; particularly orders directed to the proper and meaningful identification and valuation of the asset pool, where he has not done so to this point.

51Absent a fulsome disclosure of the dealings with the funds the subject of count 13, the respondent could not bring such an application in an expectation of an early release.

52In those circumstances, and whilst it is that the fixing of a finite term may be seen as a discouragement to purging or of compliance, to imprison the respondent indefinitely may lead to a penalty that is disproportionate.

53As to count 15, I am satisfied that imprisonment is warranted and I reflect upon the observations made by Senior Counsel with which I have agreed as to the effect of the respondent’s disobedience.

54These are serious prolonged and sustained breaches of orders and in those circumstances the sentence should reflect the seriousness with which the Court views such breaches. Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that it is the only appropriate penalty in the circumstances and having due regard to the observations of appellate courts, and the objects of sentencing referred to therein.

55Accordingly, I am satisfied that an immediate custodial sentence should be imposed and I propose to impose by reference to the “charge sheet” referred to in my primary reasons for decision delivered on 10 March 2021 sentences as follows:

·Counts 1‑10 – term of imprisonment of one month for each offence cumulatively, that is to say ten months in total.

·Count 11 – an additional 12 months.

·Count 12 – an additional 12 months with both terms for counts 11 and 12 to be served concurrently.

·Count 13 – a further sentence of 12 months to be served cumulatively.

·Count 15 – a further sentence of 12 months to be served cumulatively.

56In other words a total served term of imprisonment of three years and 10 months, with such sentence to be calculated from 10 March 2021, being the date upon which I remanded the respondent into custody pending sentence.

57However, the key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders made in these proceedings requiring the production of accounts or information, such that the valuation of the parties’ superannuation interests in the [Sputnik] Superannuation Fund and the pool of assets can be properly and adequately determined. Further, that he disclose the location of funds withdrawn from all accounts or account for their expenditure in an objective and ascertainable way, including and in particular account, last four numbers [8726], in particular those transactions entered into after 28 July 2019.

Costs

58The applicant seeks costs in the sum of $62,707. The quantum is supported by a detailed schedule of costs and is consistent with scale costs. Costs have not been sought on an indemnity basis and are plainly less than those provided for in the scale of costs promulgated pursuant to the provisions of the Legal Profession Act 2008 (WA).

59In considering an application for costs I must have regard to s 237 of the Act, which relevantly provides in subsections (1), (2) and (3) as follows:

237. Costs — FLA s. 117

(1)Subject to subsection (2) and sections 205SB, 237A and 242, each party to proceedings under this Act is to bear the party’s own costs.

(2)If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.

(3)In considering what order (if any) should be made under subsection (2), a court must have regard to —

(a)the financial circumstances of each of the parties to the proceedings;

(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court;

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)such other matters as the court considers relevant.

60If I am satisfied that an order for costs should be made r 19.18 of the Family Law Rules 2004 (Cth), as adopted for the purpose of proceedings under the Act, permits me to make an order for a lump sum in circumstances where I am satisfied that it is appropriate to do so.

61As to the order for costs itself, I respectfully agree with and adopt the submissions made by learned Senior Counsel on behalf of the applicant as set out in paragraphs 6‑11 of his submissions.

The financial circumstances of the parties

6.The Respondent has not provided full and frank disclosure, and has not filed a Form 13 Financial Statement since August 2016.

7.While large amounts of funds are now the subject of injunctions, since swearing his last Form 13 the Respondent has removed large cash amounts from accounts in breach of Court Orders. In short, the Respondent’s financial position is not known, but that is solely because of his continued refusal to comply with his duty of disclosure.

8.The Applicant has minimal income, and is relying upon capital to support herself and the parties’ daughter. The Applicant has limited funds, partly on account of the Respondent’s failure to comply with maintenance orders and child support assessments.

The conduct of the parties

9.These proceedings arise out of the conduct of the Respondent which the Court has found constitutes a flagrant challenge to the authority of the Court. The Applicant does not propose to repeat it here.

10.The other category of conduct not yet referred to in these submissions is the Respondent’s conduct in putting the Application to the cost of having to prove each element of the offences alleged. Whist the Respondent is entitled to require the Applicant to prove every element of every charge, that does not diminish the Applicants claims for the costs arising from being so required.

Whether either party was wholly unsuccessful

11.It is the applicant’s submission that the respondent has in this application been wholly unsuccessful.

62As has been frequently observed by the Full Court of the Family Court in considering the equivalent section of the Family Law Act 1975 (Cth), on numerous occasions, the Court need only be satisfied that one of the circumstances prescribed in s 237(3) is satisfied such as to justify an order for costs.

63In fixing an amount of costs rather than referring the same for an assessment, the Court of itself makes an assessment of the reasonableness of the amount sought in the circumstances of the proceedings and avoids the further prolongation of proceedings through an assessment and the further costs associated therewith.

64I note the respondent’s submission, albeit in my view without merit, that he claims to have made an offer to settle the primary proceedings which would have avoided further costs. That submission is not accepted as being based in fact and indeed it is suggested that no offer was made. Irrespective of whether the offer was made, the terms of that offer are not before me appropriately, however it is clear that the primary proceedings were not resolved, and that in any event may not have brought an end to the contempt proceedings to which the costs orders relate.

65As I have already observed, I consider the costs claimed by way of solicitors costs to be reasonable and similarly, the counsel fees claimed by Senior Counsel are, in my view, modest having regard to the complexity of the work undertaken and the detailed consideration that had to be given to the matter overall.

66Having regard to the totality of the effort required in the prosecution of this matter, I consider the sum claimed globally to be entirely proper if not modest when reflection is given to the sheer volume of work properly so undertaken.

67I propose to make an order as sought.

68As to the timing of the payment of the costs I will hear from Senior Counsel and the respondent.

These reasons are the reasons for decision I delivered on 15 April 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LB

Associate

19 APRIL 2021