DOUGAL & DOUGAL

[2013] FamCA 83

FAMILY COURT OF AUSTRALIA

DOUGAL & DOUGAL [2013] FamCA 83

FAMILY LAW - ORDERS - Contravention

Family Law Act 1975 (Cth)

APPLICANT: Ms Dougal

RESPONDENT: Mr Dougal

FILE NUMBER: MLC 9600 of 2009

DATE DELIVERED: 24 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Peter Falconer And Assoc

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

UPON FINDING THAT THE HUSBAND HAS INTENTIONALLY FAILED WITHOUT REASONABLE EXCUSE TO COMPLY WITH PARAGRAPHS 3 AND 4 OF THE ORDERS MADE BY JUSTICE MACMILLAN ON 12 SEPTEMBER 2012

IT IS ORDERED THAT

1. The Contravention Application filed 22 October 2012 with respect to the contravention of paragraph 1 of the orders made 12 September 2012 and the determination of the sanctions (if any) to be imposed with respect of the contravention of paragraphs 3 and 4 of the said order be adjourned part-heard before Justice Macmillan at 10:00 am on 15 March 2013.

2. By 4:00 pm on 15 February 2013 the husband file and serve any affidavits upon which he seeks to rely in relation to the assertion contained in paragraph 3 of his affidavit filed 27 November 2012 that he does not have the financial resources to make the payment pursuant to paragraph 1 of the orders made 12 September 2012.

3. By 4:00 pm on the 8 March 2013 the wife file and serve any further applications and affidavits in support of such applications upon which she seeks to rely.

4. All questions of the costs of this day be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dougal & Dougal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9600 of 2009

Ms Dougal

Applicant

And

Mr Dougal

Respondent

REASONS FOR JUDGMENT

1. On 12 October 2012 I made orders by consent in the following terms: 

   That on or before 12 October 2012 ("the Date") the Respondent pay to the Applicant's solicitor, Peter Falconer & Associates the sum of $25,526.50 ("the Payment") being all monies due and payable to the Applicant pursuant to paragraph 1 of the Orders of the Court made on 7 December 2009, interest thereon to date and the Applicant's costs of this Application.

   That in default of the Husband making the whole of the Payment by the Date the Husband pay to the Applicant interest on the Payment or so much thereof as remains unpaid at the rate of 10 per centum per annum adjusted monthly from the date of the date of the Payment.

   That on or before the Date pursuant to paragraph 3(c) of the Orders of the Court made on 17 January 2008, the Respondent, in his capacity as Director of [V] Pty Ltd ("the Company") provide to the Applicant a copy of the financial documents of the Company for the financial years ending 30 June 2010 and 30 June 2011 and in each year thereafter such financial documents in each year be provided by the Respondent to the Applicant on or before 31 December commencing on 31 December 2012.

   That on or before the Date, pursuant to paragraph 6 of the Orders of the Court made on 17 December 2008, the Respondent provide to the Applicant a copy of the Respondent's income Taxation Return for the financial year ending 30 June 2009.

   That the Applicant's Application filed 11 July 2012 be otherwise dismissed.

   It is certified for the attendance of Counsel.

2. The Application before me today is the wife’s Application for Contravention filed 22 October 2012.  This Application was listed for hearing on the first occasion on 30 November 2012.  It did not proceed that day and was adjourned to today’s Judicial Duty List.  The wife, in her Application, alleges that the husband has without reasonable cause or excuse contravened the order of 12 October 2012 as follows:

   The respondent husband failed to pay to the applicant wife’s solicitors, Peter Falconer and Associates, the sum of $25,526.50 on or before 12 October 2012 as per order 1 of the orders made by Macmillan J on 12 September 2012. 

3. When this allegation was put to him the husband admitted that he had not paid that amount, however, it is also clear that that admission was made in the context of him saying that he did not have the financial resources to do so. 

4. The second count is that the respondent husband, in his capacity as a director of V Proprietary Limited, failed to provide to the applicant wife a copy of financial documents of the said company for the years ended 30 June 2010 and 30 June 2011 on or before 12 October 2012 as per order 3 of the orders made by Macmillan J on 12 September 2012.

5. This contravention was put to the husband and whilst it is clear that he did not produce the documents by the due date I took it as a denial insofar as he had some explanation to put to me for not having done so.  The third count is that the respondent husband has failed to provide to the applicant wife a copy of the respondent husband’s income tax return for the year ended 30 June 2009 on or before 12 October 2012 as per order 4 of the orders made by Macmillan J on 12 September 2012.  I have treated this similarly as a denial.

6. The wife relies upon her affidavit, which was filed on 22 October 2012 and the affidavit of her solicitor, Mr Peter Falconer, filed on 29 November 2012.  The husband did not seek to cross-examine either of these witnesses.  The husband has also filed an affidavit in these proceedings.  Returning to the issue of the payment of the moneys, whilst the husband admits not paying the money pursuant to the orders and not producing the documents in accordance with those orders he says he has a reasonable cause for not doing so or that he had not intentionally done so.

7. The first is the suggestion that he was not present at the hearing and did not consent to those orders.  The Court file confirms that the husband was not present at Court that day however he was represented by Counsel, as was the wife.  The handwritten minute of consent orders appears to have been signed on his behalf by his solicitor.  The husband himself confirmed that he spoke to his solicitor that day.  Although the husband ultimately determined that he would not pursue this issue had he done so it would of necessity, almost certainly, have required an adjournment of the matter as these are not matters that have previously been raised either in his affidavit or when the matter was last listed for hearing. I also note that the husband has not sought to set aside the orders on the basis of them having been made without his consent.

8. To the contrary, in his affidavit he has not only acknowledged that the orders were made by consent, he has deposed to the fact that he would say he has complied with some of the requirements imposed upon him by those orders, albeit not within the prescribed time.  The husband’s solicitor continued to act for him until at least 14 November 2012 when he forwarded documents to the wife’s solicitor.  The terms of the orders are, in my view, clear.  In all of the circumstances, notwithstanding the husband’s assertions that the relevant date for the purposes of paragraph 3 was 31 December 2012 and not 12 October 2012 and that there was no date specified in paragraph 4, not an argument he pursued before me today, I am satisfied the husband was aware of the orders, that they were made with his consent and that he understood the obligations imposed upon him by those orders.

9. The other issue raised by the husband, which relates to the first of the three contraventions, is that he does not have the financial resources to comply with the order and that accordingly it could be said that he has a reasonable excuse for contravening the order or had not intentionally contravened the order.  I am, however, also mindful of the fact that although this assertion was made in his affidavit there is no evidence that would support that assertion.  The husband however submitted during the hearing that he did not have the money at the time he consented to the orders to meet that order.

10. The issue of the evidence in relation to the husband’s financial position is not, of course, relevant to the second and third contraventions.  The orders provide that the husband is required to provide the applicant with a copy of the financial documents of V Proprietary Limited for the financial years ending 30 June 2010 and 2011 on or before 12 October 2012 and in each year thereafter by 31 December commencing on 31 December 2012.  The third contravention related to the husband’s income tax return for the financial year ending 30 June 2009, similarly to be provided to the wife by 12 October 2012.

11. Although the husband asserts in his affidavit, and I am satisfied incorrectly, that the company documents were to be produced by 31 December 2012 and that there was no date specified in paragraph 4 of the orders for the production of the tax returns, Mr Falconer deposes that on 14 November 2012 he received unsigned drafts of the relevant documents from the husband’s then solicitor.  I am now told by the husband that he can, if necessary, provide copies of the relevant documents.  Apart from the assertion that he was not required to produce the company documents until 31 December 2012 and that there was no date by which he was required to provide his tax return the husband has offered no other explanation as to why even the unsigned documents were not provided to the wife’s solicitor until 14 November 2012.

12. If, as he said, the date was 31 December 2012 or that, at least for the tax return, there was no date by which they were to be produced, one might well ask why the husband produced them when he did at all.  Having already found that the husband understood his obligations pursuant to the orders I am satisfied on the balance of probabilities that the husband has without reasonable excuse intentionally contravened paragraphs 3 and 4 of my order of 12 September 2012 and I so find. 

13. With respect to the balance of the application I am satisfied that the husband should be given an opportunity, if he chooses to do so, to produce evidence or file affidavits in relation to his financial position and what he says is his lack of financial resources to meet his obligations pursuant to the orders.

14. That evidence arguably may go to the issue of whether he intentionally contravened that order or whether there was some reasonable excuse why he could not meet his obligations pursuant to that order.  Having regard to the fact that the husband is representing himself I propose to adjourn the matter.  I have also had regard to the fact that these are contravention proceedings.  It is almost inevitable, and I think conceded, that the wife will need to bring enforcement proceedings in order to enforce the order that was made by me on 12 September 2012 and to that end will not be significantly disadvantaged by an adjournment.

15. There will obviously be cost issues in relation to that, however, subject to any submissions by Mr Hutchins I would be proposing to reserve all questions of costs until the next hearing of the matter.  And I will also make directions with respect to the filing of any further applications by the wife and any material in support of those.  And, finally, I will adjourn the question of any penalty, given that I have found that the orders have been contravened, until the next hearing, because I propose to deal with that issue when I have dealt with the remaining contravention. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 January 2013.

Associate: 

Date:  21 February 2013