Cluny and Skinner (No 2)
[2019] FamCA 519
•1 August 2019
FAMILY COURT OF AUSTRALIA
| CLUNY & SKINNER (NO. 2) | [2019] FamCA 519 |
| FAMILY LAW – CONTEMPT – CONTRAVENTION – Where the husband was found guilty of contempt and found to have contravened orders – Where the husband owed spouse maintenance, lump sum arrears and costs totalling in excess of $250,000 – Where the sanction imposed for the contempt was a fine of $30,000 – Where the husband was permitted the opportunity to remedy this contravention of orders – Where, in default of the husband remedying his non-compliance, a term of imprisonment of three months was imposed – Where the husband was given until 31 July 2019 to remedy his non-compliance – Where the husband paid a total of $673.12 of the total owing as at 31 July 2019, being $521,151.90 – Where the husband has failed to show cause as to why the term of imprisonment determined ought not be brought into effect – Where the term of imprisonment is enlivened. FAMILY LAW – STAY OF ORDERS – Where the husband made an oral application for a stay of the orders pending appeal – Where a temporary stay is granted to allow the husband 14 days in which to file a formal application for a stay of the orders – Where the matter is adjourned pending the filing of that application. |
| Family Law Act 1975 (Cth) pt XIIIA, s 112AC |
| Cluny & Skinner [2017] FamCA 255 Cluny & Skinner (No 2) [2017] FamCA 547 |
| APPLICANT: | Ms Cluny |
| RESPONDENT: | Mr Skinner |
| FILE NUMBER: | BRC | 812 | of | 2010 |
| DATE DELIVERED: | 1 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 1 August 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Feeney, Feeney Family Law |
| THE RESPONDENT: | In person |
Orders
(Amended on 2 August 2019 pursuant to rule 17.02 of the Family Law Rules 2004 (Cth))
The Husband is given leave to file and rely upon his affidavit sworn on 31 July 2019.
The Wife is given leave to file and rely upon her affidavit sworn on 1 August 2019.
IT IS FURTHER ORDERED:
In default of MR SKINNER (“the Husband”) having paid to MS CLUNY (“the Wife”) the entirety of the payments identified in Orders (1) and (2) of the Orders made on 31 July 2017 and pursuant to ss 112AD and 112AE of the Family Law Act 1975 (Cth), the Husband, MR SKINNER born … 1967 is sentenced to serve a term of imprisonment for a period of three (3) months.
from and including 1August 2019 to 10:00 am on 31 October 2019.To give effect to Order (3) of these Orders, a Warrant of Commitment forthwith issue in the usual form.
The operation of Orders (3) and (4) of these Orders be stayed pending the Husband filing and serving a formal application for a stay of Orders pending appeal within fourteen (14) days of today, and upon such filing the Orders will be stayed pending the hearing and determination of the formal application for a stay of Orders pending appeal.
IT IS FURTHER ORDERED:
The Husband forthwith surrender any passport he holds to the solicitors for the Wife.
The Husband pay to the Wife her indemnity costs fixed in the amount of $3,500.
The proceedings be listed for further hearing before the Honourable Justice Kent at 10:00 am on 16 August 2019.
NOTATION:
This Order has been amended pursuant to rule 17.02 of the Family Law Rules 2004 (Cth) as noted in Order (3).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cluny & Skinner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 812 of 2010
| Ms Cluny |
Applicant
And
| Mr Skinner |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 28 April 2017 I made orders and delivered reasons for judgment on the application of Ms Cluny (“the wife”) for Mr Skinner (“the husband”) to be dealt with for contempt, and the wife’s application that the husband be dealt with for contravention of orders.
Those orders included (in Order (3)) declarations as to the amounts owing by the husband to the wife pursuant to previous orders of this Court for child support, spouse maintenance, lump sum arrears and costs totalling in excess of $250,000.
With respect to the contravention application, as those reasons for judgment record, the husband asserted a defence of reasonable excuse for his acknowledged contravention of the orders essentially based upon asserted financial inability to pay.
For the reasons detailed in the reasons for judgment delivered on 28 April 2017[1] I rejected the husband’s proposition that “reasonable excuse” within the meaning of s 112AC of the Family Law Act 1975 (Cth) (“the Act”) was established. That conclusion, as is recorded in the reasons, rested upon the following central features set out at [65] of the reasons in summary:
65.For the reasons which follow, I reject the proposition that “reasonable excuse” within the meaning of s 112AC of the Act is established. In summary, and for the reasons which will be discussed more fully below, that overall conclusion follows upon the following central features:
a)I do not find the husband to be a credible witness nor his evidence generally to be reliable. As earlier noted, his assertions as to reasonable excuse largely rest upon his own evidence being accepted and his evidence being found to be reliable;
b)The evidence before me establishes, in my judgment, that the husband has elected to prioritise the payment, or its equivalent, of substantial child support for his child, [T], from his previous marriage with [Ms S], under voluntary arrangements with [Ms S] not the subject of court order or any formal legally binding obligation, as his preference to meeting the obligations imposed upon him by the subject orders;
c)The evidence establishes, in my judgment, that the husband has a demonstrated historical capacity to secure for his benefit very significant sums of money when needed and has elected to use those funds for a variety of purposes, including the payment of creditors he has elected to pay, in priority to meeting the obligations imposed upon him by the subject orders;
d)I do not accept the husband’s explanation of, or characterisation of, substantial funds received by him or entities within his control from offshore sources.
[1]Cluny & Skinner [2017] FamCA 255.
Whilst the whole of the reasons for judgment delivered on 28 April 2017 provide proper context to this matter and are incorporated here without full repetition, the following paragraphs bear particular emphasis:
68.In my judgment, an important matter of “context” not referred to by the husband concerning Orders (7) and (8) of the orders made on 16 April 2013, which is also relevant to the assessment of the husband’s credit, is that those particular orders were made by way of enforcement, pursuant to s 105 of the Act, of orders made previously by each of Young J (on 10 June 2011) and Murphy J (on 14 June 2011).
69.On 10 June 2011 Young J dismissed the husband’s contravention application and ordered that the husband pay costs fixed in the sum of $10,000 to be paid within 30 days of the orders. As the reasons delivered by Young J in support of those orders confirm, plainly the issue of costs of those proceedings was joined as between the parties and determined by that final order. The husband was represented by his then solicitor. It can be gleaned from the reasons for judgment delivered by Murphy J several days later on 14 June 2011 (at [69]), that at that time the husband was drawing approximately $21,000 per week from the Skinner Family Trust.
70.In my judgment the evidence clearly establishes that the husband had the capacity to pay the costs order that was made, but elected not to do so. Thus it was the discretion to enforce that order that was determined by Bell J as part of the orders made on 16 April 2013 at Order (8). Again, the issue of enforcement having been joined as between the parties, Bell J determined that issue.
71.There was no appeal by the husband from the order originally made by Young J. Nor was there any appeal by the husband from the orders made by Bell J. Notably, as the reasons for judgment of Bell J reflect, the husband was at the time of the trial proceedings before Bell J and prior to the making of the subject orders, asserting claimed impecuniosity, an issue likewise resolved by the proceedings before Bell J. That is, the same issue now sought to be agitated under the characterisation of “context” was raised by the husband before Bell J prior to the making of the 16 April 2013 orders.
72.Likewise, with respect to the proceedings determined by Murphy J on 14 June 2011, the issue joined before his Honour was in respect of costs (Order (6)), departure from the administrative assessment of child support and spousal maintenance. Those issues were determined by the orders made by Murphy J on 14 June 2011 for reasons his Honour delivered extemporaneously. As with the orders made by Young J, there was no appeal from the orders made by Murphy J, and it was those orders that came before Bell J for consideration of enforcement and the discretion to enforce provided by s 105 of the Act in the order Bell J made (at Order (7)) on 16 April 2013.
…
76.Relevant to the husband’s defence of “reasonable excuse” with respect to the orders made by Bell J on 16 April 2013, and also to the assessment of the husband’s credit, the husband’s evidence concerning his financial circumstances does not support a conclusion, with respect to the orders originally made by Young J and Murphy J respectively, other than that the husband elected not to comply with those orders over a lengthy period leading up to the subject enforcement orders made by Bell J on 16 April 2013, the subject of these proceedings.
77.In seeking to “contextualise” the reasons for judgment of Bell J of 16 April 2013, it is submitted on behalf of the husband, wrongly, that it was subsequent to the trial of the proceedings before Bell J that the husband’s company SPL was placed into receivership on 23 November 2012. As is clear from the reasons for judgment, the trial before Bell J commenced on 3 and 4 September 2012. As Bell J records at [13] of the reasons, the evidence in the trial was re-opened on 17 January 2013 pursuant to the husband’s application, which clearly post-dates the receivership.
78.Paragraph [13] of the reasons specifically records that the husband’s company had gone into liquidation and records the husband’s submissions concerning his financial position. The reasons also record a further re-opening of the evidence at the trial on 21 March 2013 (at [14]). As appears from [14] to [21] and other parts of those reasons, the issue agitated by the husband as to his asserted impecuniosity was squarely raised before, and determined by, Bell J. As has been demonstrated on the chronology outlined above, the relevant conduct of [the bank] which the husband contends imperilled his financial capacity commenced in late September 2012 and liquidators were appointed to SPL in December 2012. Those events transpired well prior to the conclusion of the trial before Bell J, and the orders of 16 April 2013, and indeed were facts upon which the husband proceeded in the re-opening before Bell J referred to.
79.The written submissions of the husband at paragraph 42 do no more than re-agitate issues raised before Bell J and determined by his Honour, and make some selective references to the reasons for judgment of Bell J which must be read as a whole.
80.The point is advanced in the written submissions that Bell J did not expressly make findings in relation to the husband’s credit. When the reasons for judgment of Bell J are considered it can be seen that at [27] Bell J stated:
It is the general practice of civil courts to not make adverse credit findings where the disposition of the case can be achieved by other means. I do not wish to displace that general proposition as the facts before me in relation to the Husband’s non-disclosure, when considered in light of the well-established body of case law relating to disclosure issues, allow me to make a determination in relation to the Husband’s capacity, without the need to make a finding as to his credit.
(Emphasis added)
81.Thereafter from [28] Bell J makes significantly adverse findings concerning the husband’s non-disclosure in the proceedings. Failure to disclose is a topic re-visited at [34] of the reasons in addressing the issue of the husband’s capacity to pay a maintenance order. At [38], for example, is a finding that in light of the husband’s non-disclosure that the trial judge was at liberty to make findings contrary to the husband’s evidence. At [41] and following are findings concerning the husband’s access to financial resources. The point is that whilst it may be strictly true to say that Bell J did not make specific credit findings described as such in his reasons for judgment, there were multiple and ample findings tantamount to the same thing when his Honour discussed the husband’s non-disclosure and his true capacity to meet financial obligations.
82.To the extent that the husband’s contention concerning “reasonable excuse” is directed at the legitimacy of the orders of 16 April 2013 having been made in the first place, when there was never any appeal from them, is rejected as illegitimate.
83.Whilst I am keenly aware that it is the orders of Bell J made on 16 April 2013 that are the subject of the contravention application, and not specifically the earlier orders of each of Young J (10 June 2011) and Murphy (14 June 2011), the fact is that Orders (7) and (8) made by Bell J were made by way of enforcement of those earlier orders pursuant to s 105 of the Act. In my judgment, relevant to assessing the husband’s assertions in these proceedings in respect of the orders of 16 April 2013, that it is only by reason of financial incapacity that he did not meet the obligations these imposed, and relevant to the assessment of the husband’s credit, is the fact that the husband’s longstanding non-compliance with those earlier orders prior to the enforcement orders being made by Bell J. On the husband’s financial circumstances, even putting his own evidence at its highest, it was not any financial incapacity that could explain the husband’s abject failures to comply with those Court-ordered obligations. Reference has already been made to the husband’s financial position as found by Murphy J. Reference has also been made to the husband’s own evidence that in the 2012/2013 financial year “[SPL] was on track to deliver approximately $2,000,000 in profit before tax”.
84.Reference has also been earlier made to the husband’s evidence that when [the bank] imposed the debt reduction requirement in September 2012, the husband had the financial means to cause no less than $850,000 to be repaid in a period of only seven weeks. All the while, for example, a costs order of $10,000 against the husband in favour of the wife made by Young J in June 2011 had remained unmet, as indeed did the requirement, for example, under Murphy J’s orders for the husband to pay a modest sum in costs and to pay spousal maintenance.
85.Taken from the husband’s affidavit filed on 5 August 2015 (at paragraph 56) at the time [the bank] appointed receivers to SPL (on 23 November 2012) that company was solvent and profitable. The husband’s own evidence overall establishes that at least prior to the onset of difficulties with the [the bank] commencing in September 2012, the husband must have had the capacity to meet in full the orders made by Young J and Murphy J respectively, but elected not to so do. As noted, on the husband’s own evidence, he had no relevant financial incapacity until September 2012 at the earliest when he says the bank imposed a “freezing” of the accounts of SPL.
86.Notably, on the husband’s own evidence in cross-examination, at the same time as he was continuing his longstanding breaches of the respective June 2011 orders, the husband was receiving a monthly wage of $74,000 (continuing as at November 2012) and was paying all of his daughter T’s private school fees and various extra-curricular activities.
87.There are numerous examples, post-dating the orders of 16 April 2013, of the husband electing to spend funds available to him on many things other than meeting his Court-ordered obligations under the subject orders. It is unnecessary to specifically traverse each and every example that could be given of this. The following examples suffice to demonstrate the point.
88.The husband conceded in cross-examination that in February or March 2014 he received AU$51,000 for the return of a security bond from the Federal Maritime Commission in the United States of America (“USA”) with respect to one of his numerous offshore entities, I Company Limited, registered in USA. Aside from the meagre sum of $400 the husband nominated in his oral evidence as being applied to his Court-ordered obligations, the husband chose to pay most of the balance to an unsecured creditor (American Express) and other (unnamed) unsecured creditors. The husband’s assertions in his oral evidence to the effect that threats from unsecured creditors and payments of personal debt ought take priority over his meeting Court-ordered obligations, were, in my view, remarkable in disclosing the husband’s true attitude to compliance with the subject orders.
89.Another example comes from the husband’s evidence concerning SS Pty Ltd. In the husband’s financial statement filed 5 June 2015 there is a “personal loan schedule” listing an amount owing to SS Pty Ltd of an estimated $600,000. That amount (not stated as an estimate) is sworn to by the husband in his affidavit filed 5 August 2015 (at paragraph 129) and a “schedule of personal loans” is Annexure “SPL 22” to the husband’s affidavit. Leaving aside that, when giving oral evidence on 16 September 2015 (only shortly after swearing his affidavit) the husband gave evidence that approximately $120,000 had been paid and that the then amount owing was “approximately” $500,000 (and not $600,000), the effect of his evidence is that from August 2014 he had been reducing the debt owing at the rate of $10,000 per month. Whilst the husband’s evidence chopped and changed as to the sources from which he met the debt, it appeared that ultimately he contended that the payments were met from the income he was then generating and, as to an estimated 90 per cent of the reduction, or about $100,000, from “loans”. In short, the husband had the capacity to apply $120,000 at the rate of $10,000 per month to this creditor and elected to do so in priority to even making some attempt at meeting any meaningful proportion of his Court-ordered obligations. Again, for example, it will be recalled that a costs order of $10,000 made as long ago as June 2011 was included in those obligations and remained unmet. Week by week the husband was continuing his non-compliance with various of the obligations cast by Bell J’s orders.
90.A further example are the levels and categorisations of the legal fees the husband deposes to in his affidavit filed 5 August 2015 at paragraphs 142 to 159. Obviously it is mostly the period since the 16 April 2013 orders were made that is relevant, but so too, for the reasons earlier discussed, is the period following the June 2011 orders of Young J and Murphy J respectively. Of course, some of this expenditure relates to parenting issues the parties have litigated but the point is that the husband has, one way or another, produced significant funds to pay substantial legal fees in priority to meeting his Court-ordered obligations. In cross-examination the husband estimated that in the previous 12 months he had spent $150,000 on legal fees for litigation in this Court; $50,000 to $60,000 on what is referred to as [the bank] litigation and $7,900 per month on the lease of his premises for his office. Later in his cross-examination about legal fees and an amount of $115,000 provided to the husband by companies/entities associated with the husband in his business, there was this exchange between counsel for the wife and the husband:
Yesterday I asked you some questions about legal fees in these proceedings, so the Family Court proceedings is what we’re talking about now?---Yes.
Family and Federal Circuit Court I should say. And I think we got to the point where in the period 10 August 2015 through to today you have paid in your lawyer’s trust account $115,000?---Barry Nilsson.
Sorry, that’s what I mean, yes. That $115,000 is from [V1]. That’s how it came into Barry Nilsson’s Trust Account?---Some from [V1] and some from [V3].
And those are both companies that you control because you’re making money come into your personal lawyer’s accounts?---I control [V1]; I don’t control [V] – [V3] on its own.
So did you not just get onto a bank and transfer money from the [V3] account into your solicitors? Is that not how the money occurred, the money transfer occurred?---It required agreement from the other director.
Who is the other director of [V3]?---[Ms MM].
So [V3], as a corporate entity I suppose, had no difficulty paying your personal legal fees?---No.
I’m sure you suggest that’s a loan?---Yes.
And this is another miraculous example of you being able to call in quite enormous sums of money at short notice, isn’t it; that is, $115,000 in about a month?---Yes.
At any stage did you offer to my client rather than to proceed to this hearing, to pay her $115,000 in full satisfaction of the debt that is outstanding?---No.
Anything in the vicinity of $115,000?---No.
That’s because you would rather fight these proceedings, no matter what the cost, than meet your obligations to the court, isn’t it?
HIS HONOUR: Obligations to who?
MR MINNERY: To court, your Honour. Sorry, to my client by way of court order is a better question. Thank you, your Honour.
Do you want the question again?---If you don’t mind, Mr Minnery, yes.
That is because you would rather fight these proceedings no matter what the cost than meet your obligations to my client by way of court order?---Yes, yes.
91.That ultimate admission flew in the face of the husband’s earlier evidence answering propositions to the effect that he had not, amongst all of these substantial borrowings, tried to borrow money to meet his obligations under the orders. The effect of the husband’s evidence was that he had attempted to do so, without success. That earlier evidence was itself inconsistent with the very substantial funds, totalling in excess of $1.5 million in capital amounts (without adding alleged interest) the husband contends to be loan funds obtained (on a completely unsecured basis) from the 12 individuals he identifies in his evidence – a topic I will shortly turn to. Indeed, in his oral evidence the husband gave an estimate that since his asserted problems with [the bank] arose in late 2012, he or entities associated with him had received loan funds which, with interest, would total in excess of $3 million.
92.As to child support for his daughter T from his earlier marriage, apart from what has earlier been referred to, the husband’s evidence on this topic (as with his evidence on many topics) appeared to be an exercise in obfuscation. In the end it seemed that between 3 February 2010 and 19 January 2015 (a period for which subpoenaed invoices were available) the husband had paid the “vast majority” or an estimated 85 per cent of T’s private school fees in substantial amounts. Obviously, the period of the invoices referred to encapsulates the period following the respective June 2011 orders earlier referred to. It is thus established that the husband voluntarily paid the private school fees of T under an informal arrangement with her mother, in priority to meeting most of his obligations under the subject orders. His efforts to distance himself from that conclusion did him no credit.
93.Further, on the husband’s evidence he was undertaking work in his former wife’s business on an agreed reduced level of remuneration, reduced as a means of his contribution to T’s support. He gave evidence of being paid $1,000 per month for his work. On the husband’s evidence the value of that agreed reduction and thus his contribution to T’s support is $1,800 per month. Thus, whilst not meeting his obligations under the subject orders the husband has been making an $1,800 per month equivalent contribution to his daughter T on a voluntary basis, together with meeting 85 per cent of her substantial private school fees.
(Footnotes omitted) (Emphasis as per the original)
At [94] of those reasons I set out a schedule of what the husband claimed to be funds received from him from time to time which he claimed to have been advanced to him by several individuals as personal loans. As to those loans I observed:
95.There is no dispute in the wife’s case that the husband received these funds. Indeed a substantial part of her case, via subpoena processes and disclosure, was directed to establishing that very substantial funds have historically come to the husband or to entities he controls, including via persons or entities located offshore, in support of the wife’s contention to the effect that these are not in fact loans but funds to which the husband is entitled. An alternative contention within the wife’s case, as already referred to, is that the husband’s demonstrated capacity to obtain funds as needed, even via loans, demonstrates his capacity to have complied with the subject orders had he chosen to do so.
96.Only 4 of the 12 individuals identified in the husband’s schedule provided affidavit evidence in the husband’s case (the witnesses PP, NN, YY and MM). Ultimately, none of those witnesses were required for cross-examination. However as to the other nominated individuals, my lack of confidence in the husband’s credit and as to the reliability of his evidence more generally, precludes in my judgment ready acceptance of his uncorroborated assertions. In this respect it is notable that an affidavit from PP was obtained to corroborate a loan for $5,000, yet other alleged loans of significantly greater sums are uncorroborated by evidence from the putative lenders.
97.On the husband’s case his reason for obtaining loans, and the sole reason he provides in his affidavit or oral evidence, is financial need created by [the bank’s] actions earlier referred to, which occurred in late 2012. Reference has already been made to what the husband says about the performance of SPL in the 2012/2013 financial year. Reference to the CC Accountants’ report to creditors dated 3 January 2013 and the annual report dated 13 April 2014 (Annexure “SPL 9”) to the husband’s affidavit filed 5 August 2015 includes the 2012 financial statements for SPL, disclosing that the company had an operating profit in the 2012 financial year of $1,481,819. In summary, the combined effect of this evidence is that there would have been no need for the husband to borrow funds, or at least no explanation for the borrowing, attributable to the actions of [the bank] in late 2012.
98.There is thus no explanation by the husband as to why four loans totalling in excess of AU$200,000 would have come from four offshore-based individuals in March 2012. Only one of those individuals, Mr YY, provided an affidavit in the husband’s case. At the time of trial Mr YY resided in Asia. Whilst he was available to be cross-examined by telephone the wife’s counsel ultimately confirmed that he was not required for cross-examination. Whilst it therefore can be accepted, absent challenge to Mr YY’s evidence, that he loaned the husband US$50,000 on an oral agreement and an unsecured basis, his affidavit is notable for its absence of illuminating any particulars such as the purpose of the loan or anything about recovery. Mr YY did not, on his evidence, apparently impose any requirement as to how the loan funds were to be directed. Mr YY describes himself as a business associate and friend of the husband and the accountant for two offshore entities associated with the husband’s business dealings that were the subject of evidence otherwise, V1 Limited and V2 Limited. As will be discussed, the husband is a co-director with Mr YY of offshore entities said to be owned by Mr YY. Despite having loaned such a substantial sum in March 2012, Mr YY’s affidavit is silent about recovery or any demands for repayment of the capital sum or the interest now said to have accumulated at the rate of 9 per cent per annum. Notably, the affidavit does not suggest that Mr YY does not expect full recovery of the sum loaned together with interest. Mr YY would seemingly be well placed to make such an assessment given the extent of his association with the husband on the evidence, and the fact that he is an accountant and undertakes accounting work for entities associated with the husband. Notably, Mr YY’s affidavit is silent as to substantial funds the husband says have been advanced to him by Mr YY’s Asian based company, V1 Limited, a matter further discussed below.
99.Obviously enough, Mr YY advanced his loan funds referred to in his affidavit subsequent to the respective June 2011 orders earlier referred to.
100.There is no affidavit or other source evidence from any of the other individuals, namely, Mr XX, Mr ZZ, or Mr WW to corroborate the husband’s evidence as to these being loans or, if they are loans, any evidence as to their purpose, or particulars about recovery.
101.Notably, with respect to the individual identified as Mr WW (otherwise referred to by the husband as Mr WW) this individual has allegedly advanced total loans in capital amounts exceeding AU$420,000. The husband describes having a “close, professional relationship” with this Malaysian-based national in his affidavit and as his being dependent on this individual’s ongoing financial support to pursue claims against [the bank] and the receivers. Yet it is that there was no affidavit evidence from this witness forthcoming in the husband’s case in circumstances where, at the same time, an affidavit of Mr PP to corroborate a loan of $5,000 was thought necessary or worthy of inclusion in the husband’s case.
102.As to Ms NN, she provided an affidavit to which was annexed a loan agreement confirming that, apparently on a completely unsecured basis, she advanced a capital loan of AU$484,000 to the husband. Her affidavit, as with the affidavit of Ms MM in respect of her loan of AU$200,000, is devoid of details as to any discussion with the husband as to the purpose of the loan and, perhaps more importantly, any demands for repayment or expectations of repayment or any discussions whatsoever with the husband, over the years since the loan funds were initially advanced, about any of these topics.
103.All of the alleged loans are advanced on an unsecured basis and many of them post-date the receivership and liquidation of SPL. The husband asserts that reputational damage occasioned to him in consequence of the actions of [the bank] has impacted upon his reputation and capacity to gain employment. That contention is to be contrasted with the feature that, mainly persons described as business associates, have apparently been willing to advance very substantial funds to the husband on a completely unsecured basis and, even accepting them to be loans, apparently are content to rely on the husband’s personal capacity to repay, not only the capital, but in many cases substantial interest amounts.
104.Whilst I have significant reservations about accepting the husband’s evidence on this topic where any of these alleged loans (the majority of them) are not the subject of corroborative evidence from the nominated lender, I have resolved that in the end result it is unnecessary to reach firm conclusions on this issue. In my judgment, in the context of the husband establishing a case of “reasonable excuse” within the meaning of s 112AC, the evidence overall overwhelmingly favours the conclusion that, one way or another, the husband has had ample means of accessing funds which would have been sufficient to meet his obligations under the subject orders, but has elected not to do so. The husband’s own evidence does not displace that conclusion and it is thus unnecessary to determine the wife’s contention that these funds, or any of them, are in fact funds to which the husband is beneficially entitled.
At [105] to [126] of the 28 April 2017 reasons I set out my specific findings concerning the husband’s credit. In summary, I found the husband not to be a reliable witness and not to be frank and truthful. I found him to deliberately obfuscate in his evidence and to give inconsistent evidence. I made reference to the husband’s conduct in acting illegally to obtain the replacement passport, which was the subject of the contempt proceedings, as being relevant to the assessment of the husband’s credit more generally.
Having concluded that the husband had not established “reasonable excuse” within the meaning of s 112AC of the Act for his longstanding and significant contraventions of orders, I set down a further hearing to determine the appropriate sanctions to be imposed.
There was no appeal by the husband from the orders made on 28 April 2017 and thus no challenge on appeal to any of the findings made supporting those orders as recorded in the 28 April 2017 reasons for judgment.
On 10 July 2017, I conducted a further hearing for the purpose of fixing a sentence for the contempt of orders I had found the husband to be guilty of as well as considering the question of sanction for the contravention of financial orders.
On 10 July 2017, I imposed the sanction of a fine of $30,000 with respect to the husband’s contempt. My reasons for judgment delivered on 31 July 2017[2] address both the sanction imposed for contempt and the sanction for contravention of orders.
[2]Cluny & Skinner (No 2) [2017] FamCA 547.
At [4] of reasons for judgment delivered on 31 July 2017 I recorded:
4.The hearing in respect of sanctions to be imposed took place on 10 July 2017. These reasons deal with the sanctions to be imposed. I incorporate, without unnecessary repetition of them, the reasons for judgment delivered on 28 April 2017 as part of these reasons for judgment, given that the reasons delivered on 28 April 2017 are an integral part of these reasons dealing with sanctions.
I would add that the reasons for judgment I delivered on 31 July 2017 for orders then made form an integral part of these reasons as will be explained and I incorporate, without unnecessary repetition of all of them, the reasons for judgment delivered on 31 July 2017.
As noted, the 31 July 2017 reasons deal with the sanction which was imposed upon the husband for his contempt of orders.
Relevantly for today’s purposes, those reasons for judgment also deal with the sanction for contraventions of orders imposed upon the husband commencing at [54] of those reasons. In those reasons for judgment I recorded:
54.As is referred to in the reasons for judgment delivered on 28 April 2017, the husband’s relevant contraventions of the orders of 16 April 2013 are substantial and enduring. As is reflected in the amounts declared in the orders of 28 April 2017, the husband’s contraventions have the consequence that a very substantial total sum is owed to the wife. On the evidence of the wife’s solicitor via her affidavit filed on 3 July 2017 for the hearing on 10 July 2017, as at that latter date the total amount outstanding, inclusive of interest, is $288,562.13. The husband did not challenge that figure.
55.However, it must be emphasised that the husband is to be sanctioned for, and only for, his contraventions of orders that were the subject of the wife’s application and which have been found to be established. The capital amounts declared in Order (3) of the orders made on 28 April 2017 total $256,055.52 plus interest on some of the components of that total from 20 August 2015, as identified in the declaration. Whilst it is the contraventions which fall to be sanctioned, it is to be noted that s 112AD(4) permits, where a sanction is imposed under s 112AD(1), the making of such other orders as the Court considers necessary to ensure compliance with the order that was contravened. That section thus authorises the Court making orders, as part of a sanction order or in addition to such an order, which address ongoing defaults or non-compliance with orders, as has occurred here.
56.It is important that it be understood that, as is reflected in the reasons for judgment delivered on 28 April 2017, the husband failed to establish reasonable excuse for his contraventions, within the meaning of s 112AC of the Act, given the evidence of the husband’s historical financial capacity, including via borrowing substantial funds, to meet liabilities he elected to meet in priority to meeting his Court ordered obligations. That is obviously not the same thing as a conclusion that the husband has the capacity to immediately pay to the wife the lump sum amount owed to her. Put another way, the findings recorded in the reasons delivered on 28 April 2017 to the effect that the husband and his evidence lacked credibility (including, for example, the finding at [113] that the husband has not fully and accurately explained transactions with offshore entities) do not translate to a conclusion that the husband has now the capacity to immediately remedy his breaches by paying in full the substantial sum now owed.
57.It cannot be doubted on the evidence that the husband has accumulated very substantial liabilities, aside from his liability to the wife. These are discussed in the reasons delivered on 28 April 2017 and having incorporated those reasons here, I need not repeat that discussion. Suffice to note that aside from substantial creditors such as SS Holdings, the evidence of each Mr YY, Ms NN, Ms MM and Mr PP was not sought to be challenged by cross-examination. Those witnesses alone attest to personal debts owing by the husband to them totalling $978,012, plus any additional interest accrued on the capital amounts of the debts since the time of the respective affidavits of those witnesses.
Thereafter, I set out the relevant provisions of Part XIIIA of the Act concerning sanctions which may be imposed.
The 31 July 2017 reasons for judgment relevantly include the following:
59.Section 112AE(2) prescribes that a court shall not sentence a person to imprisonment unless satisfied that in all the circumstances of the case it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).
60.Given the nature, extent and consequences of the husband’s contraventions, it could not sensibly be contended that requiring the husband to enter into a bond under s 112AF would be the most appropriate sanction in the circumstances of this case. In my judgment, it is not possible to conceive conditions of a bond that would render a bond a meaningful sanction of the contraventions involved here.
61.Neither party contended that a bond, or indeed another sentence of the kind prescribed in s 112AG would be the most appropriate sanction of the contraventions in this case.
62.Whilst s 112AD(2)(c) allows for the imposition of a fine, there are two obvious reasons that a fine would not be an appropriate sanction here. First, s 112AD(2)(c) prescribes a limit to a fine of 60 penalty units. Section 4AA of the Crimes Act 1914 (Cth) currently provides that “penalty unit” in Commonwealth legislation means the amount of $210, so the maximum limit of the prescribed fine is $12,600. A fine of that amount could not be characterised as appropriate, let alone the “most appropriate” sanction in this case. In circumstances where the subject contraventions entail non-payment by the husband of Court ordered obligations totalling the substantial sum of $288,562.13 earlier referred to, a fine even at the maximum of $12,600 would be relatively meaningless. Second, assuming multiple fines could legitimately be imposed for each of the husband’s multiple contraventions, to bring the overall total sum to a substantial sum, that imposition would only serve to reduce the husband’s capacity to remedy the non-compliance and be of no benefit to the wife. The subject orders are for the payment of money. It is counter-intuitive to the fact that the subject contraventions concern money payments to impose a substantial fine as the “most appropriate” sanction, whilst the contraventions remain unremedied.
63.I am therefore satisfied, within the meaning of s 112AE(2), that in all the circumstances of this case it would not be appropriate for the Court to deal with the husband’s contraventions pursuant to any of the other paragraphs of subsection 112AD(2) other than paragraph (d).
64.For the reasons identified in the reasons for judgment delivered on 28 April 2017, to the extent that the husband’s contraventions include the contravention of a maintenance order, it can be concluded that the husband’s contravention was intentional, for the purposes of s 112AD(2A).
65.For reasons about to be discussed, in this case particular emphasis needs to be placed upon s 112AD(3), s 112AD(4), s 112AE(1), s 112AE(4A) and s 112AE(8) and the combined effect of those provisions. The summary of those provisions relevant to the imposition of any sentence of imprisonment imposed pursuant to s 112AD(2)(d) is:
a)a term of imprisonment for a specified period, up to a prescribed maximum of 12 months (s 112AE(1)) may be expressed to take effect immediately, or at the end of a specified period, or on the occurrence of a specified event (s 112AD(3));
b)the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened (s 112AD(4));
c)the court may specify that a sentence of imprisonment ends when the person complies with the order concerned (s 112AE(1)(b)(i));
d)the court may suspend a sentence of imprisonment upon the terms and conditions determined by the court (s 112AE(4A));
e)the serving by a person of a period of imprisonment imposed for failure to make a payment of ordered maintenance does not affect the person’s liability to pay (s 112AE(8)).
66.These provisions fall to be applied under the over-arching requirement of s 112AD(1) that the sanction imposed “be the most appropriate in the circumstances” (of the individual case).
67.Aside from the obviously wide discretion conferred by them, these provisions reflect the principle that the imposition of penalties should be directed primarily to securing compliance with the subject orders of the Court (Gaunt and Gaunt (1978) FLC 90-468; Sahari and Sahari (1976) FLC 90-086 at 75,407).
Having set out those matters, I made specific reference to the husband’s evidence and submissions at that hearing of his intention to redeem himself by paying all that he owes to the wife pursuant to the orders. I referred to his evidence and submissions to the effect that if he was given sufficient opportunity to pursue those business prospects available to him which he identified in his evidence, he would likely have the means to discharge, in their entirely all of his debts to the wife pursuant to the orders. Counsel for the wife opposed the husband having that opportunity.
Commencing at [68] of those reasons for judgment I recorded the following:
68.That principle comes into focus in this case given the husband’s evidence and submissions that he fully intends to redeem himself by paying all that he owes to the wife, taken with his evidence and submissions that if given sufficient opportunity to pursue identified business prospects (including via necessary travel overseas with the restoration to him of his passport), the husband will likely have the means to discharge his debts to the wife (see paragraphs 47 and 48 of the husband’s affidavit filed on 26 June 2017).
69.Counsel for the wife understandably pointed out that the husband has had ample opportunity to remedy his longstanding non-compliance with orders and submitted to the effect that “we have heard it all before” in relation to the husband’s potential business opportunities, a reference to the husband’s evidence at the first stage of these proceedings. However, the husband urged propositions to the effect that restoration to him of his passport made a fundamental difference to him maximising his business opportunities in general, and in pursuing a particular opportunity identified in his affidavit evidence as referred to in particular.
70.In my judgment, highly relevant to assessing the husband’s expression of intention to see the wife paid, and also of central importance overall to the imposition of an appropriate sanction, is the fact that both at the first stage of these proceedings, and continuing, the husband has maintained an open offer to the wife to assign to her his lifetime accumulated interest in superannuation in extinguishment of his liabilities to the wife. As is recorded in the reasons for judgment delivered on 28 April 2017, this Court would only have power to activate the husband’s offer if the wife were prepared to consent to a variation of previously made final property orders pursuant to s 79A(1A) of the Act to enable the Court to make a splitting order with respect to the husband’s superannuation interest. The wife has not been prepared to consent for a range of reasons not relevant to the present discussion.
71.The husband’s affidavit filed on 26 June 2017, with the associated annexure, demonstrates that the current worth of the husband’s superannuation interest is $320,193.
72.The wife has elected not to accept that offer (with its associated terms and conditions) but the point of the offer being made on an open basis throughout these proceedings is an important one both as to assessing the husband’s intentions, and moreover as to his willingness to attempt to remedy his non-compliance with orders.
73.In my judgment, this feature is highly relevant to the appropriate term of any sentence of imprisonment of the husband and whether there ought be further opportunity for the husband to remedy his non-compliance before any term of imprisonment takes effect. It also dispels the proposition, contended for by counsel for the wife, that the maximum term of imprisonment of 12 months prescribed by s 112AE(1)(a) is appropriate in the circumstances of this case.
74.Moreover, a relevant consideration is that the wife sought an order that the husband pay her costs of and incidental to the contempt proceedings and the contravention proceedings (together with the associated applications made by the husband for variation of orders and return of his passport) on an indemnity basis fixed in the sum of $91,664. That is, the wife’s primary application was for costs to be ordered on an indemnity basis and ordered in a fixed sum rather than being assessed pursuant to the Family Law Rules 2004 (Cth). In the alternative, the wife sought her costs on a party and party basis.
75.It was explained to the husband at the hearing on 10 July 2017, the difference between an award of costs on an indemnity basis as compared with costs on a party and party assessment. It was also explained to the husband the difference between awarding costs in a fixed sum, as distinct from the amount of costs undergoing an assessment. Notwithstanding those explanations, the husband submitted that he would not seek to have the wife out of pocket for her legal costs of these proceedings, and that he was willing to consent to an order that he pay the wife’s costs on an indemnity basis and fixed in the sum as sought by the wife. What the husband sought was a timeframe to enable him to pay those costs, having regard also to the feature that he must pay the fine imposed for contempt within the six month period prescribed under the orders made on 10 July 2017.
It can be understood from the above references to costs that I assessed as relevant to the sanction to be imposed the husband’s agreement to meet the wife’s costs of proceedings on an indemnity basis. As will be discussed, in the result, the husband has not made any such payment.
As I recorded in the reasons for judgment delivered on 31 July 2017:
77.The primary position of counsel for the wife was that the only appropriate sentence would be one of imprisonment for 12 months. Counsel submitted that the sentence ought to be suspended after six months (or for such other period as amounts to half of the head sentence imposed by the Court) to afford the husband the opportunity to remedy his contraventions. It was submitted that such suspension ought be conditional upon the husband’s good behaviour and his repayment of the monies owed within a period of approximately six months. In the event that the husband does not repay the monies then outstanding, he would be remanded back into custody to serve the balance of the head sentence.
78.Upon exchanges between Bench and Bar as to incentivising the husband to remedy his contraventions and to afford the husband the opportunity to so do, counsel acknowledged (but could not be said to concede on the wife’s behalf) the availability of the option to suspend the sentence initially for a period of six months or possibly 12 months, and in default of the husband making payment by the end of such period, the husband could either be required to show cause as to why he should not be remanded in custody to serve his sentence of imprisonment, or alternatively the order could be self-executing.
79.The husband’s submissions included submissions to the effect that if his business opportunities yield desirable results in the immediate future, the husband will thereupon remedy his non-compliance with the subject orders in full as soon as he has the capacity to so do. The husband’s stated ambition is to achieve that in the immediate future. However, the husband pointed to the feature that this timeframe could not be guaranteed and moreover, as his evidence addresses, he has already fallen in default of his repayment obligations to SS Holdings and that entity or another of his creditors may take bankruptcy action against him such as to impede his business progression and ambition to produce sufficient funds in the immediate/medium term future to extinguish his liability to the wife in full.
80.The husband contended that if he was afforded a period of 24 months from the date of orders he would, subject to the contingency of action by creditors referred to, likely be able to discharge in full his obligations to the wife by the end of that period.
81.I have earlier made reference to the sentencing principles in relation to contempt, which apply with necessary modifications to consideration of the sanction to be imposed here for contravention. I need not repeat that discussion nor the references made to decided cases.
82.I have also earlier referred to, and need not repeat, relevant aspects of the husband’s antecedents, nor as to the effects not only upon the husband but upon his children, his employees, and his other creditors that a sentence of imprisonment to take immediate effect would have. In all likelihood, such a sentence would eliminate any real prospect of the husband ever remedying his contraventions.
83.Counsel for the wife contended that allowing the husband a period of 24 months from orders to remedy his non-compliance would be too long a period having regard also to the lengthy period now since the subject orders were made. Moreover, counsel contended that immediate actual imprisonment was a necessary penalty of the husband given the nature and extent of his contraventions.
84.But for the husband’s open offer to assign to the wife his substantial superannuation interests there would be some potency in these submissions. I do not consider that the significance of the husband’s open offer should be lost in terms of considering a further timeframe for the husband to remedy his non-compliance before a term of imprisonment is imposed.
85.In my judgment, in all of the circumstances of this case and giving the necessary primacy to orders which allow for the husband to remedy his contraventions, an allowance of 24 months from orders ought be made to afford the husband a final opportunity to remedy his non-compliance. Monies owing under the orders continue to accumulate in that period and interest on relevant components continues to accumulate. Obviously, provision needs to be made for the sentence of imprisonment not to take effect if the husband fully remedies his non-compliance with the subject orders as a means of incentivisation to the husband to so do.
86.As regards the term of imprisonment to be imposed, having regard to the maximum prescribed period of 12 months, in my judgment a period of three months imprisonment is appropriate in the circumstances of this case, particularly the circumstance of the husband’s now longstanding preparedness to assign to the wife his lifetime accumulated superannuation interest.
87.For the same reasons I would accede to the husband’s request that he be permitted the timeframe of 24 months from orders to enable him to discharge the order for substantial indemnity costs imposed by these orders. However, for that indulgence it would be unfair to the wife if she did not receive interest on the amount of her ordered costs in respect of any period the costs remain unpaid. Moreover, in my judgment it is within the discretion conferred by subsections (3) and (4) of s 112AD to include compliance with the costs order as part of the conditions to be met by the husband for the sentence of imprisonment to not take immediate effect. The husband is being afforded a period of 24 months to meet the obligations imposed by the orders he has contravened. This outcome is fortified by the feature that the husband’s willingness to pay the wife’s indemnity costs has been taken into account in his favour in deferring the sentence of imprisonment for the 24 month period.
As those reasons make clear, I determined that the appropriate sanction of the husband was a term of imprisonment of three months. However, in giving primacy to the husband being afforded a final opportunity to remedy his contraventions, the orders made on 31 July 2017 suspended the imposition of that term of imprisonment for the 24 months in which the husband sought to remedy his non-compliance.
The orders made on 31 July 2017 were thus in the following terms:
IT IS ORDERED THAT:
(1)MR SKINNER (“the husband”) shall remedy his non-compliance with the Orders made on 16 April 2013 by paying to MS CLUNY (“the wife”) on or before 4:00 pm on 31 July 2019 the entirety of the following amounts:
(a)the amount of $288,562.13 due and payable as at 10 July 2017, pursuant to the declaration made by this Honourable Court on 28 April 2017;
(b)any and all sums otherwise due and payable by the husband to the wife pursuant to the Orders of 16 April 2013 from the date of those Orders to 31 July 2019;
(c)interest on the said amounts or any of them that remain unpaid after 10 July 2017, such interest to be calculated in accordance with s 117B of the Family Law Act 1975 (Cth) (“the Act”) and r 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) from 10 July 2017 to the date of payment.
(2)The husband shall, on or before 4:00 pm on 31 July 2019, pay to the wife the amount of $91,664.00, being her costs of the proceedings, together with interest on that sum from the date of this Order to the date of payment, calculated in accordance with s 117B of the Act and r 17.03 of the Rules.
(3)In default of the husband paying to the wife the entirety of the payments identified in Orders (1) and (2) of these Orders on or before 31 July 2019, the husband shall attend at the Family Court of Australia at Brisbane at 10:00 am on 1 August 2019 before Kent J or such other Judge as his Honour nominates so as to:
(a)show cause why, despite his default he should not be imprisoned for a period of three (3) months from that date; and
(b)in default of showing cause in accordance with the preceding sub-paragraph of these Orders, the husband shall be taken into custody that day so as to commence the said period of three (3) months imprisonment.
(4)In default of the husband’s appearance in accordance with Order (3) of these Orders, pursuant to r 21.16 of the Rules a warrant of arrest shall issue to the Marshal and to all members of the Australian Federal Police and of all State and Territory police forces to arrest MR SKINNER born on … 1967 and to bring him before this Court.
(5)In the event that the amounts specified in Orders (1) and (2) of these Orders are paid in their entirety on or before 4:00 pm on 31 July 2019, Orders (3) and (4) shall be forthwith discharged.
(6)That all outstanding applications, aside from any applications for parenting orders, be removed from the pending cases list.
Show cause hearing today
There was no appeal by either party from the orders made on 31 July 2017. Hence, there has been no challenge on appeal to the findings recorded in the reasons for judgment delivered on 31 July 2017 in support of those orders.
It is obvious from a reading of the reasons for judgment delivered on 31 July 2017 that it was not the purpose of Order (3), providing for an opportunity for the husband to show cause, for it to be open to the husband to re-visit the determination of sanctions made on 31 July 2017 for his antecedent contraventions of orders. As explained in the reasons for judgment delivered on 31 July 2017, the husband’s contraventions of orders was found to attract the necessary sanction of three months imprisonment. Thus, as explained in the reasons for judgment, the sole purpose of deferring the immediate operation of that sanction/term of imprisonment was to afford the husband the opportunity he urged for himself to attempt to remedy his antecedent contraventions of orders. Conversely, the purpose of providing the husband with an opportunity to show cause was designed to afford the husband the opportunity to be heard in the event that he had achieved the objective of at least substantially or significantly remedying his antecedent contraventions of orders. In short, that primacy being given to secure compliance with orders had been fulfilled.
As the reasons for judgment of 31 July 2017 reflect, the husband had failed to meet various cash payments to the wife including by way of maintenance, child support, lump sum arrears and costs exceeding $280,000 in total. In addition, the husband was ordered, by consent, to meet the wife’s costs of the proceedings on an indemnity basis in an amount exceeding $90,000.
In accordance with directions made by the Registrar prior to today’s hearing each party filed an affidavit.
The wife’s affidavit filed on 31 July 2019 sets out that the husband has not complied with Orders (1) and (2) of the orders made on 31 July 2017 and deposes to the fact that the husband now owes the wife the total amount of $521,151.90 (as at 31 July 2019).
In paragraph 3 of that affidavit the wife sets out the total amount of $594.97 that has been paid to the wife by way of child support since 31 July 2017. On the hearing this morning the wife was permitted to file and read an amended affidavit varying the total received in the two years since the orders were made on 31 July 2017 to a total of $673.12. The total owing was varied to $521,073.89.
At paragraph 6 of her affidavit filed today, the wife tabulates the amounts owing pursuant to the various orders and the calculations of interest in arriving at the total amount of $521,073.89 unpaid by the husband.
The husband confirmed on the hearing today that he did not wish to take the opportunity to cross-examine the wife on her affidavit. Likewise the wife did not seek to cross-examine the husband.
For his part, the husband acknowledges in his affidavit filed on 31 July 2019 that he has not complied with Orders (1) and (2) of the orders made on 31 July 2017.
The husband asserts that he has “only succeeded in making partial payments and meeting various other expenses for [the child] since these orders were made.” The word “partial” in that sentence is apt to mislead.
The husband alleges at paragraph 63 of his affidavit the recent payment to the Child Support Agency of $498.70 which is presumably an amount over and above the approximately $670 in total which the wife refers to as having been paid by way of child support in the two years that have elapsed since the subject orders were made.
Beyond that, the husband asserts that he has paid other amounts for the benefit of the child although he does not appear to suggest that these are pursuant to any order or in compliance with any orders. In any event they are exceedingly modest in amount when compared to the very substantial overall total sums the subject of the orders made on 31 July 2017.
I reject, as an illegitimate attempt to re-visit the determination made on 31 July 2017, the husband’s attempt in his affidavit to re-visit the question of “reasonable excuse” on the sanction imposed on 31 July 2017 and the reasons for its imposition. I accept the submissions made on behalf of the wife that these matters have already been dealt with by the previous orders and reasons referred to. In short, it needs to be emphasised that the husband is not actually to be penalised or sanctioned for his failure to remedy or substantially remedy his non-compliance with previous orders in the two years which have elapsed since 31 July 2017. Rather, having failed to remedy in any substantial way his gross contraventions of orders historically, the sentence previously determined as at 31 July 2017 ought now take effect absent sufficient cause otherwise being demonstrated by the husband.
In my judgment, the husband does not demonstrate that he has remedied in any material way his historical non-compliance or contraventions of previous orders. He has therefore not shown cause to my satisfaction as to why the sanction determined on 31 July 2017 should not take effect.
In terms of the detail of the husband’s affidavit, he points to a summary judgment which has recently been entered against him in the District Court of Queensland. I refer to the husband’s deposition that this judgment was obtained against him in June of this year. That, of course, does not explain the whole of the period under discussion since the orders of 31 July 2017 were made.
Moreover, a significant difficulty I have with the husband’s affidavit filed for this hearing is its lack of detail concerning any of the husband’s attempts to earn income and his sources of income over the period since the 31 July 2017 orders were made and, in particular, his expenditure of funds available to him in that period. All that the husband does is annexe to his affidavit copies of his tax returns for the past two financial years. Those returns in fact disclose he has had available to him something in the order of about $170,000 given that he does not pay tax on these moneys because of accumulated losses. Beyond bare assertions, uncorroborated by any documents or detail, the husband does not account for his expenditure of all funds available to him in the period since the orders of 31 July 2017 were made without meeting the obligations under those orders beyond exceedingly modest amounts.
The husband points to his repeated offers to the wife for her to accept his accumulated superannuation interests totalling about $340,000 in value. The wife remains unwilling to accept superannuation in discharge of the husband’s obligations as was her position throughout the subject proceedings. As previously noted in previous reasons for judgment delivered, a splitting order in relation to the husband’s superannuation could only be made by this Court if the wife consented to a variation of earlier final property orders made. In any event, as appears from the reasons for judgment delivered on 31 July 2017, the husband’s offer has already been taken into account both as to the term of imprisonment to be imposed and as to allowing the husband two years following 31 July 2017 to remedy his contraventions.
I am not satisfied that the husband shows cause as to why the term of imprisonment determined on 31 July 2017 ought not be brought into effect.
I therefore propose to make an order for the term of imprisonment to take effect.
At the conclusion of today’s hearing it was explained to the husband who is
self-represented that he had the right to appeal this determination and the orders I make today and to seek a stay of these orders pending an appeal.
The husband ultimately advised that he did intend to appeal these orders and sought that there be a stay of these orders pending the determination of his appeal.
In my judgment, it is appropriate that the husband have 14 days from today in which to file a formal application for a stay of the orders made today, in terms of the imprisonment, and that the orders be stayed in that period. That will afford the opportunity for the husband to prepare a formal application for a stay of orders.
I will re-list the proceedings before me on Friday 16 August 2019 at 10.00 am to deal with any formal application the husband files for a stay of orders.
The wife agitated for the position that the orders for time the child is to spend with the husband be suspended. I declined that application on the basis that the wife should file a formal application if she seeks to vary parenting orders given the longstanding conflict I am aware of concerning those issues.
The wife also sought that the husband effectively surrender his passport pending further determination and the husband acknowledged his consent to forthwith delivering his passport to the solicitors for the wife.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 1 August 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 2 August 2019
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