Gordon and Gordon

[2009] FamCA 891

FAMILY COURT OF AUSTRALIA

GORDON & GORDON [2009] FamCA 891

FAMILY LAW – CONTRAVENTION – Penalty

APPLICANT: Mr Gordon

RESPONDENT: Ms Gordon

FILE NUMBER: MLC 1760 of 2008

DATE DELIVERED: 4 September 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 4 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the second charge in the husband’s Application for Contravention filed 8 April 2009 shall be and is hereby dismissed.

2. That the first charge in the said application is found proven.

3. That the wife shall enter a 12 month bond to be of good behaviour pursuant to s 112AF of the Family Law Act.

4. That the wife shall pay the husband’s costs of this application fixed at $3,728 within 21 days.

IT IS NOTED that publication of this judgment under the pseudonym Gordon & Gordon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1760 of 2009

MR GORDON

Applicant

And

MS GORDON

Respondent

REASONS FOR JUDGMENT

1. Mr and Mrs Gordon are involved in property proceedings.  On 16 February 2009, Cronin J ordered that the wife provide various documents to the solicitors for the husband within 14 days.  His Honour also ordered that the wife pay the husband’s costs of $1412.  There was no stay. 

2. The husband filed a contravention application on 8 April 2009.  He alleges two breaches by the wife.  The first is that she, without reasonable excuse, failed to provide the documents as ordered on 2 March 2009.  The second is that she, without reasonable excuse, failed to pay the husband’s costs of $1412 by 23 February 2009.  His application is supported by his affidavit filed 8 April 2009, which, in turn, refers to his affidavit filed 29 January 2009.

3. The application is brought pursuant to section 112AB(1)(a) of the Family Law Act, which provides that:

   (1)A person should be taken to have contravened an order if, and only if:

   (a)where the person is bound by the order, he or she has:

   (i)     Intentionally failed to comply with the order; or

   (ii)    Made no reasonable attempt to comply with the order.

4. Section 112AC of the Act sets out the meaning of a reasonable excuse for contravening an order.  The relevant parts are set out in sub-section (2), which states that:

   A person (in this sub-section called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:

   (a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)The court is satisfied that the respondent ought to be excused in respect of the contravention.

5. The onus of proof is on the applicant to prove the contravention on the balance of probabilities. 

6. I have strictly followed the procedures set out in Rule 21.08 of the Family Law Rules. 

7. The wife has denied the allegations.  She gave evidence and she was cross-examined.  Let me put to one side, at this stage, the costs order.  I am not satisfied to the requisite degree that I can find that charge proven.  The wife has paid the costs.  She did not pay them immediately.  The simple answer to that is that, in due course, in one forum or another, it might well be taken into account.  But in the absence of an ordered date for payment, I am going to dismiss the second charge.  That leaves only the first charge in relation to her failure to produce documents. 

8. I am satisfied she was bound by the order, and made no reasonable attempt to comply with the order as she was required to do so within the time period specified.  I turn to whether she has a reasonable excuse for doing so. 

9. The wife’s evidence was that she could not recall if she was told of the order before she saw her solicitor on 25 February, or if she knew of the critical time constraints.  In light of the document produced after lunch, marked as exhibit H1, her evidence could not be supported.  It was quite clear that her solicitor had told her the precise nature of the orders. 

10. In any event, she says she was seeing doctors and having tests for health issues during February this year.  She referred to emails sent by her to her solicitor in April 2009 seeking answers as to what was happening, but I do note that was well after the contravention application was already filed and therefore of limited relevance to the matter before me today.  And she gave evidence that from 27 April, she was out of action for some two weeks after surgery to remove her ovaries and fallopian tubes.  Ultimately she forwarded some documents in late May. 

11. I note here that, despite an apparent shift of some blame to her solicitor, the wife neither changed her solicitor, nor called her solicitor who she said was overseas, nor did she call anyone else from her solicitor’s office.  Although I must determine only the particular allegations in this case, the wife’s prior conduct is relevant when I consider whether or not she has a reasonable excuse for contravening the order.  The surrounding circumstances are pertinent.

12. It is not disputed that on 25 August 2008 the husband’s solicitors wrote to the wife’s solicitors setting out the details of the disclosure sought, to prepare for a conciliation conference.  It is not disputed that on 4 September 2008, Registrar Sikiotis ordered production of the very same documents set out in that letter within 60 days, that is, by about early November 2008.  That time came and went without the production of documents.  The orders made by Cronin J, some three months later again, gave the wife 14 days to provide the very same documents as set out in the Registrar’s orders of 4 September 2008.  The order was made by consent.  The wife does not say that her solicitor entered the orders in any way contrary to her instructions, and nothing in the evidence today casts doubt on the orders being made properly by consent and being properly conveyed to the wife. 

13. I assess the reasonableness of the wife’s tardiness in the full context of many previous months’ tardiness before 16 February.  Her evidence of a reasonable excuse failed to impress me.  She referred to the complexity of the material she was required to produce, but it was material about which she had some six months’ notice.  There is no excuse for any vagueness on her part as to her responsibilities, and she has failed to satisfy me that there was a reasonable excuse. 

14. I emphasise that the wife’s claim in evidence that she did not realise the implications of not complying with orders does not constitute a reasonable excuse. 

15. The fact that non-compliance with orders has serious consequences is something that I hope is brought home to her.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  4 September 2009