Catlin & Catlin
[2025] FedCFamC1A 110
•24 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Catlin & Catlin [2025] FedCFamC1A 110
Appeal from: Catlin & Catlin [2025] FedCFamC1F 36 Appeal number(s): NAA 79 of 2025 File number(s): ADC 748 of 2014 Judgment of: HARTNETT, JARRETT AND CHRISTIE JJ Date of judgment: 24 June 2025 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – PROPERTY – Where the respondent brought an Application in an Appeal seeking that the appellant’s Notice of Appeal not be heard and dismissed on the basis that the appellant has not complied with his disclosure obligations – Where the appellant is seeking to appeal property orders made in the respondent’s favour – Where the court exercised its discretion to not hear the appellant’s appeal application on the basis that he was in contempt of court. Application in an Appeal allowed. Legislation: Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth) ss 79(2), 90D and 90XT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01(1), 6.03, 6.06(1) and 6.06(3
Cases cited: Fahmi and Fahmi (1995) FLC 92-637; [1995] FamCA 106
General Accident Fire and Life Assurance Corporation Ltd v Inland Revenue Commissioners [1963] 1 All ER 618
Hadkinson v Hadkinson [1952] 2 All ER 567
I Limited & Chester (2010) FLC ¶93–456; [2010] FamCAFC 251
Malpass & Mayson (2000) FLC 93-061; [2000] FamCA 1253
Moorcroft & Moorcroft (2018) FLC ¶93-881; [2018] FamCAFC 253
Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25
X Ltd v Morgan-Grampian (Publishers) Limited and Ors [1991] 1 AC 1
Number of paragraphs: 93 Date of last submission/s: 26 and 29 May 2025 Date of hearing: 5 June 2025 Place: Heard in Melbourne, delivered in Sydney (via videolink) Counsel for the Appellant: Mr Ower KC Solicitor for the Appellant: 1878 Elix Lawyers Counsel for the Respondent: Mr Bullock Solicitor for the Respondent: Howe Jenkin Family Lawyers & Mediators ORDERS
NAA 79 of 2025
ADC 748 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CATLIN
Appellant
AND: MS CATLIN
Respondent
ORDER MADE BY:
HARTNETT, JARRETT AND CHRISTIE J
DATE OF ORDER:
24 JUNE 2025
THE COURT ORDERS THAT:
1.The Appellant husband has leave to rely on his Affidavit filed 29 May 2025.
2.The Appellant husband not be heard on the Notice of Appeal filed 28 February 2025.
3.The Notice of Appeal filed 28 February 2025 be dismissed.
4.The Appellant husband pay the Respondent wife’s costs of and incidental to the Notice of Appeal filed 28 February 2025 and the Application in an Appeal filed 9 April 2025, fixed in the sum of $34,000 and payable within 28 days of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Catlin & Catlin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT, JARRETT & CHRISTIE JJ:
In the context of an Application – Enforcement brought by the respondent against the appellant to enforce certain obligations said to arise under a consent property adjustment order made on 22 July 2016, on 7 February 2025 a judge of the Federal Circuit and Family Court of Australia (Division 1) declared that:
(a)the appellant was liable to pay the respondent $724,426.49; and
(b)the respondent’s entitlement in the parties’ self-managed superannuation fund was $130,623.
The appellant appeals both declarations. Put shortly, he contends that the primary judge misconstrued the two orders upon which the declarations are based. He seeks that the declarations be set aside, an alternative declaration be made in respect of the respondent’s superannuation entitlement, the remittal of certain other parts of the enforcement application, the respondent pay his costs of the appeal and the enforcement application and the dismissal of the balance of the enforcement application.
The respondent opposes the appeal. She filed a Notice of Contention in which she argues that the first of the primary judge’s declarations may be supported on grounds other than those articulated by the primary judge.
The respondent also filed an Application in an Appeal on 9 April 2025 in which she seeks an order that the appellant not be heard on the appeal, that the appeal be dismissed and that the appellant pay her costs of the appeal and her application. To support that Application in an Appeal she relied upon an affidavit deposed by her and filed on 9 April 2025.
The appellant opposes the Application in an Appeal. He sought leave to rely upon an affidavit deposed by him and filed on 29 May 2025. We granted the respondent leave to rely upon this affidavit.
Given the nature of the relief sought by the respondent in her Application in an Appeal, we heard that application at the outset of the appeal hearing. At the conclusion of the hearing, we ordered that the appellant not be heard on his appeal and dismissed the appeal. After hearing the parties, we ordered the appellant to pay the respondent’s costs of and incidental to the appeal and the Application in an Appeal in a fixed sum. We indicated that we would subsequently deliver our reasons for so doing. These are our reasons.
SOME BACKGROUND
The parties commenced cohabitation and were married in April 1994. They separated in April 2013 after a period of 19 years of cohabitation. The respondent commenced an application for financial relief in March 2014 (“the principal proceedings”). By his Amended Response to Final Orders filed in July 2015, the appellant added a parenting cause to the proceeding.
Both parties have accounting qualifications and for some of their relationship the appellant was one of three owners of an accounting business seemingly conducted by S Pty Ltd. By themselves, or through entities associated with each of them, the appellant and his partners conducted the business, said to be a partnership, until it came to an end in 2014. By a document described as “Heads of Agreement” made in November 2014 between the partners and their respective interests, they agreed upon a mechanism for the collection and equal distribution between them of fees (described in the agreement as “WIP” and which we take to mean “work-in-progress”) then yet to be collected.
Prior to the trial of the principal proceedings in July 2016, the parties entered into a financial agreement pursuant to s 90D of the Family Law Act 1975 (Cth) dealing with potential spousal maintenance claims against each other. Additionally, the parties reached agreement about both the parenting and property adjustment applications and settled orders to be made by the Court with their consent. The proposed consent orders dealing with property adjustment were considered by the Court and made on 22 July 2016.
Shorn of the procedural and consequential provisions, the consent orders:
(a)required the appellant to pay $25,000 to the respondent’s lawyers and to discharge certain of the respondent’s credit card liabilities within 14 days of the making of the orders;
(b)subject to the transfer to and subsequent sale of a certain marina berth by the respondent, the payments referred to in the previous sub-paragraph, a further payment in respect of another credit card by 14 October 2016 and the release of the respondent from any liabilities secured over the property, required the respondent to transfer to the appellant certain real property at Suburb G;
(c)required the appellant and the respondent to do everything necessary to cause the appellant’s interest in S Partnership to cease and be realised;
(d)by order 17, required the appellant to pay to the respondent 60% of the net funds received by the appellant upon the winding up of S Partnership (which, the orders recognised, might be paid over time);
(e)required a distribution of motor vehicles held by a company associated with the parties – one to each party;
(f)required the appellant to pay certain taxation liabilities on behalf of the respondent;
(g)required the parties to otherwise be responsible for their own debts and to retain the personalty specified in the orders;
(h)required the respondent to resign from any position she might hold in certain nominated entities; and
(i)by order 36, provided for a superannuation splitting order in favour of the respondent in respect of the parties’ interests in their self-managed superannuation fund.
The orders also dealt with child support issues, but they are not relevant to this appeal and we say nothing more about them.
It is uncontroversial that the appellant has never paid anything to the respondent pursuant to order 17 of the consent orders. It is also uncontroversial that the appellant has received more than $1.6 million as “WIP” by reason of his interest in S Partners since 2014. Subject to the deductions set out in order 17, the respondent says that she is entitled to 60 per cent of whatever the appellant has received in that respect.
The parties also fell into dispute about the operation of order 36 of the consent orders and the amount to which the respondent is entitled from the parties’ self-managed superannuation fund.
THE APPLICATION BEFORE THE PRIMARY JUDGE
The respondent commenced an Application – Enforcement on 11 July 2023. There is no dispute that such an application is a financial proceeding as defined in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) or that the duty to make disclosure pursuant to rules 6.01(1), 6.03, 6.06(1) and 6.06(3) thereof applied to both the appellant and the respondent.
Relevantly, in the Application-Enforcement, the respondent sought:
1.That pursuant to Rule 11.10 of the Family Law Rules 2021 ("the FLR") the [appellant]:
1.1. Complete and file a Financial Statement within 14 days;
1.2.Disclose information and produce to the [respondent] copies of documents relevant to the [appellant’s] financial affairs and shall be provided by the [appellant] to the [respondent’s] solicitors within 14 days after the [appellant] files his answering documents;
…
3.That pursuant to Rule 11.07 (a) of the FLR a declaration be made as to the total amount payable by the [appellant] to the [respondent] pursuant (sic) the following paragraphs of the Order of the Honourable Justice Berman dated 22 July 2016 ("the Order''):
3.1. Paragraph 17;
3.2. Paragraph 47 (non-periodic child support);
It will be seen that from the outset of the enforcement application, the respondent sought details of the appellant’s financial circumstances and copies of documents that informed those circumstances.
On 21 August 2023 a judicial registrar ordered that the respondent file and serve a reply, a financial statement and supporting affidavit by 4 September 2023.
On 15 December 2023 the enforcement application came before a judge of the Federal Circuit and Family Court of Australia (Division 2). The appellant had not complied with the judicial registrar’s order and the Court ordered that:
(a)the respondent file and serve a response and an affidavit in accordance with the Rules within seven days of the order;
(b)the respondent file and serve a financial statement by 2 February 2024;
(c)on or before 2 February 2024, “the parties make disclosure of information and documents relevant to the proceedings”; and
(d)the proceedings be transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 14 February 2024 a judicial registrar listed the enforcement application for argument before a judge of the Federal Circuit and Family Court of Australia (Division 1) on 31 May 2024. Not having filed a financial statement as ordered, the judicial registrar again ordered the appellant to file and serve a financial statement within 21 days of that order. Further, within 14 days of the date of the order, the parties were required to exchange (to the extent that such documents had not already been provided):
(a)the documents mentioned in rule 6.06 of the Rules;
(b)statements for all bank or credit union accounts (including loan, mortgage and credit card accounts) in which the party has an interest for the period from 12 months before the date of separation to the date of the orders; and
(c)a range of other documents.
The hearing of the enforcement application did not proceed on 31 May 2024. On that day, further directions were made for its conduct. In particular, the appellant was relieved of the obligation to file a financial statement. The primary judge ordered that there be “a separate hearing and decision on an issue, namely the relief sought in paragraphs 3.1 and 13 – 16 of the wife’s enforcement application filed 11 July 2023”. We have set out paragraph 3.1 of the Application – Enforcement above. The relief sought by the respondent in paragraphs 13 – 16 of her application concerned her superannuation interest and the correct operation of order 36 of the July 2016 consent orders.
The hearing of the separate issue commenced on 24 July 2024 and continued into the next day. It was not completed. The hearing resumed on 9 December 2024 and was completed on 11 December 2024. The primary judge pronounced the impugned declarations and delivered reasons for them on 7 February 2025.
THE ISSUES BEFORE THE PRIMARY JUDGE
The foci of that part of the enforcement application dealt with by the primary judge were orders 17 and 36 of the consent orders.
Order 17
Order 17 is in the following terms:
17.The husband shall pay or cause to be paid to the wife 60% of the net funds received by the husband in his own capacity and/or as a director of [O Pty Ltd] from the [S Partnership] pursuant to clause 10 of the Heads of Agreement dated 07/11/2014 between the husband and his former [S Partners] or otherwise, after the payment of the following:
17.1Such sum as is required to pay the husband's one third share of the NAB liability in the name [O Pty Ltd] (noting that the total debt is approximately $420,000) until such time as the debt is paid in full;
17.2Any taxation liability and GST payable by the husband or by entities in which he has an interest, following receipt of income from [S Partnership];
17.3Any outstanding leave or other entitlements for staff owing by the husband to [S Partnership];
17.4Any other partnership liabilities;
17.5with the balance to be paid to the husband provided that should there be any shortfall in respect of the funds received and monies paid or to be paid pursuant to this Order such shortfall be borne by the husband and the husband do indemnify and keep indemnified the wife in relation to same.
This order refers to clause 10 of the Heads of Agreement. Relevantly, clauses 9 and 10 of the Heads of Agreement provide:
COLLECTION OF WIP
9.Notwithstanding those matters set out in paragraphs 2 to 7 above, all WIP that is realised and paid into [Mr Catlin’s] NAB WIP account and all WIP that is realised and paid into [Mr Q and Mr T’s] NAB WIP account is realised and paid on behalf of the old partnership. The parties agree that there will be monthly reporting to each of them of all WIP that is realised and a reconciliation as between [Mr Catlin, Mr Q and Mr T] as at 31 December 2016 or at such other times as the parties may agree.
10.The reconciliation is on the basis of one-third each and old partnership accounts will be struck on that basis as at 31 December 2016. The parties will agree any adjustments by 30 April 2017 or such other time as agreed to by the parties. Thereafter those accounts will be further reconciled bi annually, and agreed within 60 days of each six month period. Any negative adjustments will be paid by that party.
The WIP to be collected by the appellant pursuant to the Heads of Agreement was important because it represented the single largest asset available to the parties for division between them, notwithstanding that the recoverability of those fees might have been uncertain. No doubt, that is why order 17 deals with receipts, rather than a notional or contingent asset of fixed value.
It was common ground before the primary judge that S Partners had a liability to the National Australia Bank. By the Heads of Agreement, one third of that liability was to be discharged by the appellant and two thirds by the other partners. This is the liability identified in order 17.1 of the consent orders. There was no dispute that this amount was $416,667 or that it had been discharged by the appellant.
There was no dispute between the parties that the appellant had received fees, or WIP, for the purposes of the Heads of Agreement. The primary judge sets out between [117] and [126] of his reasons how the respondent derived the amount that she claimed the appellant had received by way of WIP.
At [127], the primary judge recorded that the respondent’s calculations were not subject to challenge. Although the total sum was not expressly agreed, the primary judge ultimately accepted the respondent’s case that between April 2014 and June 2020 the appellant had received $1,624,044.48 (exclusive of GST). This finding is not challenged on this appeal.
However, whilst the appellant might not have taken serious issue with the amount of the respondent’s claim, it was his case that his obligation to pay under order 17 had not yet arisen and so nothing was due to the respondent. It was uncontroversial that the appellant had paid the respondent nothing pursuant to order 17. He argued that before any liability arose under that order, there needed to be an adjustive payment to him under clause 10 of the Heads of Agreement. As counsel for the appellant puts it in this appeal (Appellant’s Summary of Argument, paragraph 1.9), “The Appellant contended that the obligation under paragraph 17 had not arisen as there had not been a reconciliation of the partnership(s) as required by the Heads of Agreement. He contended that “no net funds had been paid.” According to that argument, unless there was an adjustive payment to the appellant pursuant to clause 10 of the Heads of Agreement, nothing would ever be payable to the respondent.
Order 36
Order 36 purports to be a superannuation splitting order. The dispute about this clause concerned the amount that was to be paid to the respondent to have her exit the parties’ self-managed superannuation fund leaving the appellant to retain the residuary. We have said more about this clause and its related ground of appeal later in these reasons.
The Application in an Appeal
By her Application in an Appeal the respondent seeks to engage the principles identified in Hadkinson v Hadkinson [1952] 2 All ER 567, as applied in this jurisdiction. Senior counsel for the appellant took no issue with the respondent’s recitation of the relevant principles. They are not in dispute.
The authorities establish that the Court has a discretion not to hear a further application or appeal in the same proceeding or cause from a person who stands in contempt in that proceeding or cause: Fahmi and Fahmi (1995) FLC 92-637; Malpass & Mayson (2000) FLC 93-061; Watson & Watson (2013) FLC 93-530; Moorcroft & Moorcroft (2018) FLC ¶93-881. However, the Full Court in Malpass & Mayson repeated the words of Lord Oliver in X Ltd v Morgan-Grampian (Publishers) Limited and Ors [1991] 1 AC 1, emphasised by the Full Court in Fahmi (at 82,428), that “there must clearly be a strong indication in favour of preserving a litigant's right to appeal, even though he may be in contempt of court”.
In Watson, the Full Court set out the relevant principles as follows (at 86,964 to 86,965):
36.From the detailed discussion by the Full Court in Fahmi of the various authorities referred to, and the express or implicit acceptance of particular statements of principle or approach, the following propositions emerge as to the discretionary rule that a party in a contempt may not be heard when a court is exercising jurisdiction under the Act:
(a)Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;
(b)In courts exercising jurisdiction under the Act, the rule, when it operates, gives rise to a discretion not to permit a party being heard. That is, unlike other jurisdictions such as New South Wales and South Australia where the rule is to be applied as a strict rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd v Attorney General (unreported, Court of Appeal, Hutley JA, 11 December 1978); and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Short v Short (1973) 7 SASR 1 at 11);
(c)The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;
(d)The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred. If the application by that party is not in the same proceedings or in the same cause of action in which the contempt has been committed, no question as to the party in alleged contempt being heard arises;
(e)The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;
(f)No question as to a party being heard arises:
(i)if that party is defending, rather than bringing, an application;
(ii)on an appeal by the party to set aside the order on which the alleged contempt is founded;
(iii)where a party applies for the purpose of purging the party’s contempt;
(iv)where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.
(g)Where the discretion arises its exercise depends upon the balance between that party’s right to procedural justice, including the right to be heard, and public policy considerations. Those public policy considerations include that if the party’s disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth, or to enforce the orders which it may make, or the party’s further application constitutes an abuse of process in the circumstances, then the Court is unlikely to exercise its discretion in favour of hearing the party or entertaining the application of the party.
The Full Court endorsed these principles in Moorcroft.
CONSIDERATION
In her counsel’s written submissions, the respondent catalogues the appellant’s failures to comply with various orders and makes the submission that the appellant is in contempt such that the discretion identified in the cases above is engaged. We accept that submission for the following reasons.
The evidence demonstrates that the appellant is in breach of the consent order of 22 July 2016 and in particular:
(a)order 18 which imposes an obligation on the appellant to provide to the respondent all ASIC “Form 524 Presentation of accounts and statement” lodgements within one month of their lodgement;
(b)order 19 which imposes an obligation on the appellant to authorise the respondent’s access to the documents and records, including any bank account into which the appellant received monies, of S Partners; and
(c)order 21 which imposes an obligation on the appellant to provide to the respondent an annual statement of the gross and net funds received by the appellant from S Partners.
As to these orders, the primary judge found that by an email he sent to the respondent on 20 November 2020, the appellant told the respondent that:
(a)collection of the WIP of the S Partnership had been completed;
(b)consequently he had instructed his bank to revoke the respondent’s viewing access to the two bank accounts into which he received WIP;
(c)the requirement under the Corporations Act to lodge Form 524s ceased in August 2018 and that she had been provided with all applicable Form 524s;
(d)the only statement he had “received of the funds received and applied (other than year-end financial statements and tax returns) is (sic) respect of the [S Partnership] is the attached letter from [Y Financial Services], dated 18 March 2020”.
The primary judge found that the Form 524 documents were “likely the only reliable indicator for money received by the [appellant]…” (at [62]). His Honour recorded that whilst a change to the Corporations Act 2001 (Cth) dispensed with a Form 524 it was replaced with Forms 5602 and 5603 which contained the same information as the replaced Form 524. “As a result, I am able to find that the intention of paragraph 18 of the final orders namely, that the applicant would receive an ASIC document which would evidence the amount received by the respondent, was frustrated by the respondent ceasing to provide the equivalent ASIC document after 2018” (at [63]).
The appellant conceded that he had recovered WIP after 2020, but had not disclosed that fact to the applicant. So much appears from the appellant’s evidence in cross-examination at Transcript 9 December 2024, pg. 250; pg. 251 lines 18-26; pgs. 253-4; pg. 256 lines 10-34; pg. 258 lines 8-16 and pg. 259 lines 37 to pg. 260 line 20. There are other examples. It is not surprising then that the primary judge found, at [141], that “[t]he evidence of the respondent is a concession that he did recover WIP after 2020 but did not disclose that fact to the applicant but rather adopted the fiction that because the ASIC Form 524 was made redundant and replaced by Forms 5602 and 5603, there was no further obligation to provide documents which would have confirmed that the respondent had received WIP past the end date set out in exhibit “12”.”
The primary judge’s findings demonstrate non-compliance by the appellant with orders 18 and 19, at least after November 2020. There was never any compliance with order 21. The primary judge’s findings about these matters are not challenged by the appellant in his appeal.
At [128]-[130], the primary judge referred to the obligations imposed by rules 6.01(1), 6.03 and 6.06(3) of the Rules to provide full and frank disclosure of all information and documents relevant to the proceedings. After recording the relevant orders made in the enforcement application reinforcing the duties arising pursuant to rules 6.01(1), 6.03 and 6.06(3) of the Rules, the primary judge said at [135]:
The evidence was replete with admissions by the respondent that there were documents available to him that had not been disclosed or provided. The respondent’s explanation was that he considered the application for enforcement to be without merit and on his case, a range of documents that would have enabled a better understanding of the WIP received, irrespective of how the respondent considered it should be treated, were not provided.
This finding that there were documents available to the appellant that had not been disclosed or provided to the respondent is not challenged in the appeal.
Further, the primary judge recorded that the appellant’s position was that whilst he accepted that he had “recovered something in the order of $1.5 to $1.6 million dollars in WIP that had been invoiced” he did not consider that any amount was likely to be payable to the respondent (at [136]). To make good that proposition, the appellant gave evidence that he had instructed a firm of accountants to undertake the reconciliation required by clause 10 of the Heads of Agreement. Remarkably however, the appellant produced no report, draft or otherwise from those accountants (he gave evidence that a draft report at the very least existed). Nor did he produce the material that he had provided to the accountants to perform that work, or any documents brought into existence by those accountants as a result of his instructions to them.
The primary judge recorded the way in which the respondent had calculated the amount she claimed was due to her at [117]. He recorded that the appellant had not provided any evidence in respect of the various liabilities that fell for consideration in orders 17.1 – 17.4 and that the respondent’s calculation was uncertain because of a general lack of information from the appellant, particularly from June 2020 onwards. The effect of the appellant’s failure to disclose this information was summarised by the primary judge at [142] where his Honour said, “Whilst it is likely that WIP was received by the respondent after 2020, no information is available that would enable there to be a better understanding of what or how much WIP was actually received.”
None of the primary judge’s findings about the appellant’s failure to make proper disclosure of information or documents is challenged by him in his grounds of appeal. The failure is described by the respondent as egregious. We agree that is an apt description.
In answer to the claims of non-disclosure, the appellant sought to justify his position by suggesting that on the proper construction of order 17, he had no present liability to the respondent. In that event, disclosure of the information and materials about which the respondent now complained was irrelevant. However, to state the appellant’s argument is to immediately expose its flaw. The relevance of information or documents for the purposes for disclosure is not to be judged by reference to the argument or case put by the party liable to make the disclosure, but rather by reference to the issues joined in the proceedings. Here, part of the relief sought by the respondent was the quantification of the appellant’s liability to her under order 17. The information and documents withheld by the appellant were clearly relevant to that relief and the appellant’s opposition to it.
The orders made on 15 December 2023 and 14 February 2024 mirrored, by and large, the disclosure obligations upon the appellant under the Rules. There can be no doubt that the appellant was in breach of orders 1 and 4 of the orders made on 15 December 2023 and order 3 of the orders made on 14 February 2024.
We are satisfied that the appellant was, at the time of the hearing before the primary judge, in breach of:
(a)orders 18, 19 and 21 of the July 2016 consent orders;
(b)orders 1 and 4 of the orders made on 15 December 2023;
(c)order 3 of the orders made on 14 February 2024; and
(d)the obligations cast upon him by rules 6.01(1), 6.03 and 6.06(3) of the Rules.
The appellant’s evidence in cross-examination and the primary judge’s findings leave no room for doubt that the breaches in each case we have just identified were deliberate.
The breaches are clearly within the same cause. The July 2016 consent orders were made in the exercise of the Court’s jurisdiction over a matrimonial cause (within clause (ca) of that definition). The subsequent orders were made in furtherance of that cause and the enforcement of the decree made in that proceeding. The present appeal is brought within the proceeding which might be generally described as the proceeding brought to enforce the decree made in the initial matrimonial cause.
In argument, King’s Counsel for the appellant pointed to the primary judge’s reasons as follows:
143Although the applicant seeks that as part of any orders by way of enforcement the respondent provide further discovery (presumably to enable a further claim to be pursued), the proceedings have been on foot for 11 years and the litigation has been protracted.
144In those circumstances, I consider that there has been ample opportunity for the parties to consider the future conduct of the proceedings and as such, I do not propose to fall in with the applicant’s request for the respondent to provide further information.
145Accordingly, I find that the applicant is entitled to the sum of $724,426.
He argued that having regard to these statements, there could be no ongoing contravention of the relevant obligations by the appellant because the primary judge’s orders had brought these issues to an end. He had determined both the incidence of liability and the measure of that liability pursuant order 17. He argued that we should find that whatever breaches had occurred in the past, none could be said to be continuing breaches of the relevant orders or obligations.
However, we reject these arguments. Whilst it is true that in these paragraphs the primary judge purports to bring to an end any further pursuit of undisclosed WIP by the respondent, we do not consider that they bring to an end the relevant obligations upon the appellant. We reach that conclusion because:
(a)by rule 6.01(2) the duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised. The respondent’s enforcement application is not finalised;
(b)the relief sought by the respondent in the Application – Enforcement is not exhausted. The respondent seeks consequential orders for the payment of any sum found due to her and the orders that will best secure payment of the sum due to her may be informed by that information; and
(c)the appellant is in effect contending that the making of the declarations he seeks to appeal released him from disclosure obligations. If the appellant accepted that a declaration in the sum made was appropriate (as the primary judge explicitly did) then the argument may have some merit – but on the appellant’s case he continued to contest the appropriateness of the declaration and could not, in those circumstances rely on paragraphs [143]–[145] to explain his non-disclosure.
We are satisfied that the appellant’s breaches we have identified above are continuing and remain unremedied.
The respondent submits:
34.The husband’s breaches have directly interfered with the ascertainment of justice on the wife’s enforcement application. The wife, and the Court, have been unable to be comprehensive about the husband’s receipt of funds from [S Partnership] for the simple reason that he has concealed the evidence about that matter from them. The primary judge found that the intention of the disclosure requirements in the 2016 final orders had been “frustrated” by the husband’s non-disclosure and that the wife was “doing the best she can” to calculate the husband’s receipts in the absence of complete information. The impact of the respondent’s non-disclosure is exemplified by the primary judge’s finding that:
Whilst it is likely that WIP was received by the respondent after 2020, no information is available that would enable there to be a better understanding of what or how much WIP was actually received.
(footnotes omitted)
We accept this submission without reservation.
We are satisfied that the principles explained in Watson and Moorcroft are engaged in the circumstances identified by the respondent. The task for this Court therefore, is to balance the appellant’s right to procedural justice, including the right to be heard, with the relevant public policy considerations, including that the appellant’s disobedience is such that, so long as it continues, it impedes or is likely to impede the course of justice by making it more difficult for the Court to enforce the orders which it has made.
A relevant consideration in this balancing process is the strength of the appellant’s appeal. We think that the appeal is sufficiently weak that we can say that it enjoys poor prospects of success.
The prospects of the appeal
Although we heard no detailed oral argument about the prospects of the grounds of appeal, we have the benefit of the detailed written submissions prepared by each party’s counsel for the purposes of the appeal.
Both grounds advanced by the appellant assert an error of construction of each order (orders 17 and 36) by the primary judge.
It is uncontroversial that orders are to be construed objectively. The parties’ subjective intentions are irrelevant and evidence of them is inadmissible. In the case of consent orders based upon an agreement between the parties to compromise a claim or cause of action, the task of the court is to construe the relevant orders by reference to the surrounding circumstances, so as to divine the objective meaning of the orders: I Limited & Chester (2010) FLC ¶93–456 at [173], applying General Accident Fire and Life Assurance Corporation Ltd v Inland Revenue Commissioners [1963] 1 All ER 618 at 627-628.
An error of construction, if demonstrated, is an error of law sufficient to engage the court’s powers on appeal.
GROUND 1 - ORDER 17
The declaration made by the primary judge is in the following terms:
There be a declaration that [Mr Catlin] (“the respondent”) is liable to pay [Ms Catlin] (“the applicant”) the sum of SEVEN HUNDRED AND TWENTY FOUR THOUSAND FOUR HUNDRED AND TWENTY SIX DOLLARS AND FORTY NINE CENTS ($724,426.49).
His Honour concluded that by order 17 the appellant was required to pay a sum to the respondent because:
(a)by its terms, the appellant was to pay the respondent 60 per cent of the “net funds” received by him, not 60 per cent of net funds consequent upon a “reconciliation” (at [87] and [110]);
(b)the argument that in some way the appellant’s obligation to the respondent was limited to an adjustment amount paid upon a reconciliation, thereby ignoring a “base amount of WIP received, retained and spent by the respondent”, was not “credible” (at [94]);
(c)the reference in order 17 to “net funds” was not a reference to the amount to which the appellant might ultimately be entitled to after the reconciliation contemplated by clause 10 of the Heads of Agreement (at [113]) but to the amounts received by him (before any reconciliation) less the liabilities in orders 17.1–17.4; and
(d)the retention of the WIP received by the appellant to the exclusion of the respondent, in the context of the parties’ overall property adjustment orders was without foundation having regard to the basis upon which the consent orders were promoted to and then made by the Court (at [95] and [109]).
At [115] the primary judge concluded that on its proper construction, order 17 meant:
(1)The [appellant] shall pay or cause to be paid to the [respondent] 60 per cent of the net funds received by him less the liabilities in subparagraph 17.1 to 17.4 inclusive:
(a) in his own capacity; and
(b)as a director of [O Pty Ltd] from the partnership of [S Pty Ltd] or otherwise.
His Honour reached this conclusion having regard to the following background and facts as found by him, most of which were uncontroversial:
(a)in preparation for the trial in July 2016, the parties produced a balance sheet and, while not in complete agreement, the balance sheet revealed that save for the appellant’s interest in [S Partnership], the respondent considered that the total assets of the parties were approximately $26,000 whereas the appellant considered that the liabilities exceeded the assets by $120,866;
(b)the WIP to be collected by the appellant was the most valuable asset (or contingent assets at the least) available to the parties;
(c)the parties had a self-managed superannuation fund in which the parties had a combined interest of $352,022 according to the respondent and $248,374 according to the appellant;
(d)when the parties presented the consent orders for the Court’s consideration, both were legally represented;
(e)following an explanation of the orders proposed and submissions as to the justice and equity of the orders, the Court made the consent orders;
(f)by the time of the presentation of the consent orders in 2016, there had not been any compliance with the terms and conditions of the Heads of Agreement and in particular, clause 10; and
(g)that by the time the consent orders were made, the appellant considered that the WIP received by him or his company was able to be used by him and neither he nor his former partners were expected to account for the money so received.
By Ground 1 of his Notice of Appeal, the appellant contends that the primary judge made an error of law by construing order 17 in the way that he did because the primary judge:
(a)ignored the plain meaning of the words of that order;
(b)failed to recognise that the obligation under order 17 was “subject to the Heads of Agreement” and/or failed to recognise that “the Heads of Agreement were incorporated by reference in the Final Orders”;
(c)erred in taking into account “any consideration or material relating to the Final Orders being determined to be just and equitable when made”;
(d)erred in taking into account “the subjective knowledge and understanding of the parties and/or their conduct up to the time of the making of the Final Orders”; and
(e)erred in taking into account the subsequent conduct of the parties, and that of the other two partners of S Pty Ltd after the making of the consent orders.
Instead, the appellant argues, the primary judge ought to have held that “on the proper construction of para. 17, the appellant was only liable to pay to the respondent a sum received by him in accordance with cl. 10 of the Heads of Agreement made on 7 November 2014 (“the Heads of Agreement”) and that was further subject to paras. 17.1 to 17.5 of the Final Orders” and that “in circumstances where cl. 10 of the Heads of Agreement had not been performed, the appellant was not yet liable to pay any sum under para. 17 of the Final Orders to the respondent” (Appellant’s Summary of Argument, paragraphs 1.1 and 1.2).
However, each of these sub-grounds must fail.
First, the text of order 17 refers to the “net funds received by the [appellant] from the [S Partnership] pursuant to clause 10 of the Heads of Agreement dated 07/11/2014 between the husband and his former [S Partnership] partners or otherwise…”.
Clause 9 contemplates the collection over time of outstanding WIP by each of the partners, perhaps in differing amounts, and the quarantining of those collections in identified bank accounts (see clause 2 and 3 of the Heads of Agreement). The work done by clause 9 is to recite that partnership funds received by each of the partners remains partnership funds. It imposes a reporting obligation upon each partner and records an agreement that there would be a reconciliation as at a certain date or at such other times as they might agree.
Clause 10 supplies the mechanics for the reconciliation contemplated by clause 9. It contemplates agreement about any initial adjustment by a specified date or at such other agreed times. It recites that further reconciliations will occur “bi annually” and be agreed soon thereafter. The only payment contemplated by clauses 9 or 10 by one partner to another or the others, is an adjustive payment where one partner has received more than the other two – referred to in clause 10 as a “negative adjustment”.
The operation of clauses 9 and 10 make it clear that the collection of WIP by each partner represents that partner’s share of the partnership income subject only to the reconciliation process set out in clause 10. Depending upon any particular reconciliation, one or other of the partners might have to make a payment to the others to equalise a “negative adjustment”.
But the text of order 17 does not confine attention to such adjustive payments received by the appellant pursuant to clause 10. Order 17 operates more broadly upon amounts received by the appellant or his interests “from the [S Partnership]”. The phrase “pursuant to clause 10 of the Heads of Agreement dated 07/11/2014 between the husband and his former [S Partnership] partners” and the word “otherwise” are alternatives. So much is clear by the use of the word “or” between them. The primary judge recognised this at [112] of his reasons for judgment.
The phrase “or otherwise” makes it clear that the payments to which order 17 is directed are not confined to those that might be paid to the appellant pursuant to clause 10 to correct a negative adjustment. The phrase “or otherwise” includes within the operation of order 17 funds received by the appellant on behalf of the partnership and which he would otherwise retain in the absence of a negative adjustment that he would have to make good.
Recognition of the work done by the phrase “or otherwise” in order 17 provides the explanation for the primary judge’s finding and the appellant’s seeming acceptance (Transcript 11 December 2024, page 36 lines 5 – 15) that the funds received by him otherwise than into the NAB WIP Account established for the purposes of clause 3 of the Heads of Agreement constitute WIP received by the appellant for the purposes of order 17.
The primary judge’s construction of order 17 was entirely consistent with the plain meaning of the words of that order.
Second, order 17 was not “subject to” the Heads of Agreement. Whilst the content of its operation might be informed, in part, by events occurring in accordance with the Heads of Agreement, for the reasons we have given above, order 17 operated upon funds received by the appellant generally, not just upon adjustive payments to him pursuant to clause 10.
Third, as the authorities we have referred to earlier recognise, the primary judge was entitled to take into account the surrounding circumstances in which the consent order was made. The consent orders were an exercise of the court’s power pursuant to s 79(2) of the Family law Act (Cth). Whether the orders were just and equitable as between the parties and the reasons for so concluding are plainly part of the relevant “surrounding circumstances” for this purpose. We accept that the primary judge had reference to the justice and equity of the consent orders and the reasons advanced for concluding they were just and equitable (see for example [71], [72], [76], [95] and [109] of the reason for judgment). The primary judge was perfectly entitled to do so.
Fourth, the appellant’s argument that the primary judge impermissibly took into account “the subjective knowledge and understanding of the parties and/or their conduct up to the time of the making of the Final Orders” misunderstands the relevant principle. The examples relied upon by the appellant to make good this ground (at [59], [61], [71], [72], [76], [78], [82], [83] [84], [95] and [109] of the reasons for judgment) demonstrate the primary judge reciting or finding matters of fact. Reception of evidence about a party’s state of knowledge or other facts leading to the making of consent orders is not proscribed by principle. The principle sought to be invoked here by the appellant is a proscription upon evidence of the parties’ subjective intentions or those of their legal representatives about the meaning or effect of the relevant order: I Limited at [173] applying General Accident Fire and Life Assurance Corporation Ltd v Inland Revenue Commissioners [1963] 1 All ER 618 at 627-628. The primary judge relied upon no such evidence.
Finally, whilst we accept that as a general proposition evidence of post-contractual conduct of the parties to a contract is not admissible in aid of construction of the contract (and by extension the terms of a consent order), we do not accept that the evidence highlighted by the appellant (referred to in [57], [58], [62], [85], [91], [92], [107] and [108] of the reasons for judgment) was used by the primary judge to conclude the true meaning of order 17 of the consent orders. At best it went to inform the amount of the appellant’s liability to the respondent.
We consider that the prospects of success of Ground 1 are poor.
Ground 2 - order 36
The second declaration made by the primary judge is in these terms:
2. There be a declaration that the applicant’s entitlement in the [Catlin] Superannuation Fund is fixed in the sum of ONE HUNDRED AND THIRTY THOUSAND SIX HUNDRED AND TWENTY THREE DOLLARS ($130,623) inclusive of her member balance.
Order 36 of the 22 July 2016 consent orders is in the following terms:
SUPERANNUATION
36. That in accordance withs 90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable from the superannuation interest held by the wife in The [Catlin] Superannuation Fund ("The Fund"): -
36.1The Trustee shall do all such acts matters and things so as to pay to the wife the entitlement calculated in accord with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of ONE HUNDRED AND THIRTY THOUSAND SIX HUNDRED AND TWENTY THREE DOLLARS ($130,623) plus 6% calculated from 18 November 2015 to the date of the rollover referred to in paragraph 36.7.3 less the amount of the wife's member entitlements as at 30/06/2018; and
36.2 There shall be a corresponding reduction in the entitlement that the husband would have had in The Fund but for these Orders;
36.3That Order 36 shall have effect from the operative time;
36.4The operative time shall be on 30/06/2018;
36.5 That this Order binds and shall bind the Trustees of The Fund;
36.6Liberty to apply generally is reserved to the Trustee; and
36.7 Forthwith upon the preceding orders 36.1 to 36.5 having been carried out in full:
36.7.1 the wife shall resign as a trustee of The Fund;
36.7.2 the wife shall if necessary resign as a director and transfer all her shares in [K Pty Ltd] (the trustee of The Fund) and [K2 Pty Ltd] to the husband;
36.7.3the wife shall as soon as practicable after 30/06/2018 then rollover her member entitlements into a Superannuation Fund of her choice;
36.7.4the husband and wife will sign all such documents and do all such things as are necessary including but not limited to selling or encumbering any asset or calling in any liability to facilitate the said rollover; and
36.7.5the husband including in his capacity as trustee of The Fund shall thereafter fully indemnify the wife in relation to all claims against The Fund.
36.8Thereafter each party shall retain free of any further claim or demand or right or entitlement of the other their respective superannuation entitlements.
While we have some concerns about the manner in which order 36 was drafted, those concerns do not effect our analysis of the appellant’s contentions concerning the approach taken by the primary judge. On its face, this order provides for the respondent to receive the amount of the splitting order provided for in order 36.1 and the amount of her member balance provided for in order 36.7.3. The appellant’s argument however, was and remains that the effect of order 36.1 is to extinguish the respondent’s member’s balance such that when she rolled out her member’s entitlement, the amount she would receive is that provided for in order 36.1 rather than that amount plus her pre-existing member’s entitlement.
However, this argument is particularly weak. The function of s 36.1 is two-fold. It is an authorisation to the trustee of the fund to pay to the respondent an entitlement and it sets the amount of that entitlement. It does not provide for anything of substance in relation to the respondent’s members benefit and it certainly does not provide for the surrender or extinguishment of that underlying interest.
The appellant’s argument conflates the respondent’s member’s entitlement in the fund as at 30 June 2018 (said by him to be $74,355.21) with the amount the respondent is to receive pursuant to the splitting order. These are two separate amounts to which, by the terms of the agreed orders, the respondent is entitled. On the appellant’s own figures, the respondent would be entitled to $77,675.65 (ignoring any further adjustment for interest pursuant to the Regulations) together with her member balance as at 30 June 2018 ($74,355.21).
The primary judge was perfectly correct to opine that “If paragraph 36 was intended to extinguish the applicant’s member entitlement there would have been provision for a superannuation split from the applicant to the respondent of a base amount that equalled her member balance” (at [168]). That is so because without such an order, her member’s balance would remain intact.
We consider that Ground 2 also has poor prospects of success.
CONCLUSION
We are satisfied that the facts of the case engage the discretion not to hear the appellant on the appeal. We consider that the appellant’s right to procedural justice is outweighed here by the policy considerations raised by the circumstances we have set out above. The appellant’s breach of the relevant orders and the obligations arising under the Rules is calculated, deliberate and significant. Those breaches had a direct impact upon the Court’s ability to properly consider and determine the issues before it. They are likely to impede the Court’s ability to properly enforce its orders.
In Moorcroft, the Full Court said:
37.Aside from the wife’s interests, the broader public interest is served by courts ensuring that curial orders are duly observed. If breached orders are left unenforced, public confidence in the courts’ capacity to quell litigious disputes is undermined. The disobedience of orders almost inevitably involves, first, an innocent party incurring more cost and inconvenience to enforce the orders against the defaulting party, and second, the diversion of resources by the courts from other deserving disputes to entertain the enforcement applications. Litigants should not expect that the cost of their recalcitrance will be borne by the community. Courts are obliged to spend resources fairly and efficiently, which obligation may sometimes transcend the interests of parties to the litigation. The resolution of litigation serves the public as a whole, not merely the parties to the proceedings (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189-190, 211-215, 217).
38.If an appellate court willingly entertains an appeal by a defaulting party, despite the default being persistent and brazen, public confidence in the legal system is similarly sapped. Generally, the attribution of resources to entertain appeals of modest merit, which are unlikely to produce substantial change to the underlying result even if successful, brought by appellants in egregious and continuing breach of orders should desirably be avoided.
These observations are apt to the circumstances of this case.
DISPOSITION
The Application in an Appeal succeeds. The appeal must be dismissed. The appellant had nothing to say against a costs order in the respondent’s favour and after an opportunity to consider the amount claimed by the respondent for her costs, the quantum of them, as appears in the Court’s order, was not in issue.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett, Jarrett and Christie. Associate:
Dated: 24 June 2025
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