Ebert & Liddy (No 2)
[2024] FedCFamC2F 1153
•12 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ebert & Liddy (No 2) [2024] FedCFamC2F 1153
File number(s): DGC 4992 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 August 2024 Catchwords: FAMILY LAW – Contempt application – Where contravention of financial obligation alleged to be contempt pursuant to section 112AP – Prima facie case established – Matter adjourned part-heard – Application for watchlist order – Watchlist order application refused – Where respondent has substantial ties to the jurisdiction. Legislation: Family Law Act 1975 (Cth) sections 102NA, 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rules 11.71(6) and (7).
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 8 and 12 August 2024 Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: Marshalls and Dent Lawyers The Respondent: In Person ORDERS
DGC 4992 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LIDDY
Applicant
AND: MR EBERT
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 AUGUST 2024
THE COURT ORDERS THAT:
1.These proceedings are adjourned part-heard to Friday, 6 September 2024 at 10.00am at the Federal Circuit and Family Court of Australia at Melbourne AND all parties must be in physical attendance on the adjourned date.
Watchlist Order
2.The Respondent, MR EBERT born in 1987 be and is hereby restrained from leaving or attempting to leave from the Commonwealth of Australia. This order ceases to have effect 2 years after the date on which it is made.
3.The Court requests that the Australian Federal Police give effect to this order by placing the Respondent, MR EBERT on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the Respondent is on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 2 years after the date on which it is made.
4.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
Return of X’s Passport
5.The Respondent do all acts and things to hand over and deliver the passport of the child X born in 2020 (‘the child’) to the Applicant’s Solicitor, Marshall + Dent Lawyers at 570 Bourke Street, Melbourne, 3000 OR to the Applicant herself, MS LIDDY.
6.When the Respondent delivers the child’s passport to the Applicant’s Solicitor OR delivers to the child’s passport to the Applicant herself, both parties are to immediately notify Chambers by email of the delivery of the child’s passport to Ms Liddy (when an order in Chambers will then be made to remove the Respondent, Mr Ebert, from the Airport Watchlist and discharge Orders 2-4 herein).
7.Upon the Respondents attendance at Court on 6 September 2024, the Applicant, Ms Liddy, do all acts and things to cause the return of the child’s passport to the Respondent at Court on that day.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
In the matter of Ebert & Liddy, as I conclude day two of a contempt application pursuant section 112AP of the Family Law Act 1975 (Cth) (‘the Act’), I am unable to conclude the case at this point. Section 112AP provides as follows:
Section 112AP Contempt
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
The matter had been booked in for a two-day hearing, and the first day was Thursday of last week. Only part of that day was able to be used in attending to this matter, partly because I had another matter listed before me in the morning and partly because Mr Ebert, the applicant in the substantive proceedings and the respondent to the contempt application, sought the assistance of the Legal Aid duty lawyer, and that advice-giving process was not available and concluded until about quarter to 3 in the afternoon. I sat late and then resumed the hearing this morning. The matter had originally been booked in for the Thursday and Friday of last week, but I had a personal obligation that I needed to attend to on the Friday which meant that I could not sit in this matter.
The matter has proceeded today in accordance with the procedure under rule 11.71(6) and (7) which are as follows:
Rule 11.71 Contempt applications
…
(6) When the person attends before the court, the court must:
(a) tell the person of the allegation; and
(b)ask the person to state whether the person admits or denies the allegation; and
(c) hear any evidence in support of the allegation.
(7) After hearing evidence in support of the allegation, the court may:
(a)if the court decides there is no prima facie case--dismiss the application; or
(b) if the court decides there is a prima facie case:
(i)invite the person to state the person's defence to the allegation; and
(ii) after hearing any defence, determine the charge.
The contempt application, that is, an allegation of a contravention of court orders together with a flagrant challenge to the authority of the court, has proceeded over most of the day, with a major part of the day taken up by the obligation to tell Mr Ebert the allegations against him, which I undertook by reading out the details, or the particulars, of the 23 allegations.
Three of the allegations have sub-particulars, or dot points, to them, in particular allegation 5 which refers to 13 different particulars, and allegations 22 and 23 have a similar number of particulars. Considerable time has been taken up with telling Mr Ebert the charges, which included reference to the various court orders, or parts of the court orders, that he is alleged to have contravened and contravened in a manner that challenges the authority of the court.
The long and short of it is that Mr Ebert has not paid all of the obligations to Ms Liddy, or the bulk of the financial obligations under what was originally a financial agreement that was then converted to court orders – but is alleged to have spent large sums on personal discretionary expenditure instead.
I also spent part of the day going through the occasions where the section 102NA provisions had been recorded, or attention drawn to them, in court orders or in the fact sheet annexed to court orders. There are 16 occasions when Mr Ebert or his previous lawyers have appeared where the court orders arising from that, and from the proceedings, have recorded the section 102NA obligations or the section 102NA obligations in the attached fact sheet. I made an order pursuant to section 102NA earlier today. Mr Ebert represents himself but pursuant to that section 102NA order he has the disadvantage that he is unable to cross-examine Ms Liddy personally.
Late in the day I was not satisfied that there was a prima facie case in regard to some of the particulars in regard to the allegations at allegation 5, and I struck out the reference to 3(b), 3(c)(i) and 3(d)(i). And in regard to allegation 22, I struck out the reference to the order 7(a)(i) and 7(b)(i) regarding those paragraphs of the orders of 25 March 2024 alleged to be contravened. All of that took a fair bit of time. However, I was satisfied that there was a prima facie case in regard to the remaining allegations.
Prima facie case
Save as to those matters struck out, I am satisfied that there is a prima facie case on the evidence provided, that Mr Ebert has contravened the orders as alleged and has done so in a manner that involves a flagrant challenge to the authority of the court. And I am satisfied of that because of the multiple opportunities to comply with the orders in regard to the financial aspects, and because at the same time as there is prima facie evidence of significant matters of personal and discretionary expenditure and Mr Ebert spending money that prima facie did not need to be spent in the face of a legal obligation to comply with an order of this court. That money being spent includes the personal expenditure discussed in submissions which includes the restaurant expenditure, the delivery of food and personal chef expenditure, the purchase of luxury items expenditure, and the apparently substantial transfers of moneys to a friend or partner.
In regard to the documents, I am satisfied there is a prima facie case, again because of the number of opportunities Mr Ebert has had to provide those documents as ordered, and there being evidence that indicates a prima facie case that the documents exist, and that Mr Ebert has chosen not to provide them. So, there is a prima facie case in regard to those charges.
To the extent of those matters where I have indicated there is no prima facie case, I dismissed that part of the application, but not the whole of the application, or not the whole of the allegation where it had multiple parts.
Application for watchlist order
It being late in the day indicated that I would not be able to conclude the matter today. Mr Ebert pressed that I do conclude the matter today and pointed out that he has a business obligation to travel overseas as soon as practical, and he expects to be away for at least a week or so. The next available date that I can hear the matter and provide Mr Ebert with the opportunity for some time to contemplate how serious this matter is, would be 6 September 2024.
Back on 23 June 2023, the application that Mr Ebert be dealt with for contempt asserted that he should be restrained from leaving the Commonwealth of Australia and placed on the watchlist. It was also pressed that Mr Ebert's contravention of the orders raise the prospect of a term of imprisonment and that was pressed on behalf of Ms Liddy. Having ruled that there is a prima facie case, there is the prospect, or the possibility, that I may sentence Mr Ebert to imprisonment. That possibility is said by Ms Liddy’s counsel to raise a real fear that Mr Ebert will leave the jurisdiction. He is a New Zealand citizen and holds a New Zealand passport.
Mr Ebert says to me, “Hang on. My son, [X], who is four, is here. I have been through the court process to be allowed to see [X], and [X] lives with me” on (what I understand to be) a 5/9 arrangement. Mr Ebert says that he has missed 23 days of that arrangement over the last year or so, but, by and large, he exercises every day the orders provide for. His mother and his father live here. His two brothers live here. He says, in substance, that he has substantial ties to the jurisdiction.
Mr Ebert also points out that back in October 2023, he did pay to Ms Liddy the sum of $13,000, which he alleges brought his obligations partially up to date, or completely up to date. And that is an issue in the proceedings.
He is currently alleged to owe Ms Liddy, together with interest, something in the order of $72,000 to $78,000. Plus, Ms Liddy is pressing for an order for legal costs in the order of $40,000. It is said that those circumstances provide a powerful motive to Mr Ebert to flee the jurisdiction, and hence, that I should, tonight, make an injunction and watchlist order.
After that application was made, at that point of the proceedings, I permitted Mr Ebert to give evidence and to tell me why he will return and be available in Court for the return date of 6 September.
It was also pointed out that Mr Ebert holds X's New Zealand passport and X is currently in the care of Mr Ebert. It was put in the alternative, that if I am not going to restrain Mr Ebert from leaving the country and put him on the watchlist, that he should only be permitted to go if X's passport is surrendered.
Hence, I am balancing all of these matters. Including that I have found there is a prima facie case. But I have not found either that any of the charges are proven on the balance of probabilities or beyond reasonable doubt, or that I will sentence Mr Ebert to imprisonment. I did take some time to tell Mr Ebert that I was troubled and concerned that he did not appreciate the seriousness of the position that he is in, and the gist of his response to that was that in relying upon the legal advice that he had had, that he was not really in that much trouble.
I indicated to him that legal advice can be completely wrong. It is only legal advice. It is not a guarantee of the future. And that if anyone had advised him that in all of the circumstances of his case (if they were known to the advisor), that there was no prospect whatsoever of him being sentenced to imprisonment, then that advice, if that is the advice he was given, could be described as foolhardy. Nonetheless, it is the case that we have only reached the prima facie stage and I have not heard Mr Ebert's defence and I have not determined whether I am satisfied beyond reasonable doubt of the charges, nor have I determined that it is appropriate to imprison him. Nonetheless, he is in a difficult spot.
In all of those circumstances, I am not satisfied that it is appropriate, tonight, to restrain him from leaving Australia. I am satisfied that there is a risk that he will either flee or not return to the jurisdiction, but I am satisfied that it is only a small risk. I am satisfied that he has substantial ties to the jurisdiction, and as he puts it, to not return to the jurisdiction, even if it is to avoid imprisonment, would not balance out. As he puts it, it is not worth it not to return, even to be imprisoned, in the circumstances where X is here, and his parents and two brothers are here.
In all of those circumstances, I am satisfied that that risk of Mr Ebert not returning or fleeing the jurisdiction (so as to avoid the penalties that he is at risk of) can be mitigated by him surrendering X's passport to Ms Liddy’s solicitor, Mr Story, prior to any travel. And I will so order.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 August 2024
0
0
2