K and S
[2003] FMCAfam 78
•19 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & S | [2003] FMCAfam 78 |
| FAMILY LAW – Contravention of orders to pay money – inability to pay a reasonable excuse. Family Law Act 1975 (Cth), s.112AD Attreed and Attreed (1980) FLC 90-907 |
| Applicant: | D P K |
| Respondent: | S J S |
| File No: | HBM3173 of 2001 |
| Delivered on: | 19 March 2003 |
| Delivered at: | Launceston |
| Hearing date: | 27 February 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. K.J. Waterhouse |
| Solicitors for the Applicant: | Grant Tucker |
| Counsel for the Respondent: | Mr. P.A. Welch |
| Solicitors for the Respondent: | Philip Welch |
ORDERS
That the Form 48 Contravention Application filed on behalf of D P K on 9th September 2002 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM3173 of 2001
| D P K |
Applicant
And
| S J S |
Respondent
REASONS FOR JUDGMENT
Background and applications
The Application before the Court is a Form 48 Contravention Application filed by D P K (“the Wife”). She seeks orders that S J S (“the Husband”) be dealt with for contravening orders dealt with pursuant to section 112AD of the Family Law Act 1975 (“the Act”) for failure to comply with orders made in the Family Court of Australia on 20th July 1999.
The Orders made in the Family Court of Australia on 20th July 1999 were made by consent and the relevant orders read as follows:
(1)That the husband shall indemnify and keep the wife indemnified in relation to the parties joint personal loan account number
L1 149501 in favour of Connect Credit Union of Tasmania Limited.(2)That the husband shall pay a minimum of Ninety Dollars ($90.00) to Connect Credit Union of Tasmania Limited each fortnight in reduction of the parties said joint personal loan account.
The Application alleges that the Husband has failed to indemnify the Wife in relation to the joint personal loan in favour of the Credit Union “in that the Wife’s mother as Guarantor of the loan has made the minimum payments of ninety dollars ($90.00) per fortnight to the Credit Union since the 3rd of February 2002.”
It also alleges that the Husband has failed to make minimum payments of $90.00 to the Credit Union in reduction of the joint personal loan account since on or before 3rd February 2002.
After the Wife had given her evidence, counsel for the Husband submitted that, in relation to the alleged contravention of Order No. 1 of the Orders of the Family Court of Australia of 20th July 1999 (i.e. in relation to the indemnity), there was no case to answer. He submitted that nothing in the Wife’s affidavit or her oral evidence supported that allegation. After hearing argument from both counsel, I ruled that there was no case to answer and dismissed the first alleged contravention.
The Husband gave evidence in his defence and his legal representatives had a subpoena served upon the Wife’s mother to require her to give evidence. After hearing some of her evidence, the Husband’s counsel submitted that, pursuant to section 38 of the Evidence Act, he should be able to question the Wife’s mother as though he was cross-examining her because she was an unfavourable witness. After hearing argument in relation to that, I ruled in favour of the Husband and allowed his counsel to cross-examine the Wife’s mother.
The Law
Pursuant to section 112AD of the Act, if the Court is satisfied that a person has, without reasonable excuse, contravened an order under the Act, the Court may make an order for the imposition of one or more of the sanctions available to it under subsection (2). Those sanctions include a bond, a fine or imprisonment.
It is clear therefore that the consequences of a finding of contravention without reasonable excuse are serious and the proceedings should be conducted in a formal matter as in the case of a person charged summarily with an offence. See Attreed and Attreed (1980) FLC 90-907.
Following the decision of the Full Court of the Family Court of Australia in Lindsey and Lindsey (1995) FLC 92 638, it is clear that a contravention of an order under the Family Law Act 1975 does not constitute an offence against or arising under an Australian law. It therefore follows that such proceedings are not criminal proceedings and the higher criminal standard of proof does not apply. The appropriate standard of proof to be applied is the civil standard.
Evidence and findings
It was clear that the Husband was relying upon a reasonable excuse, because he admitted that he had not made any of the payments to the Credit Union in accordance with Order No. 2 of the Orders of 20th July 1999 since before 3rd February 2002. It was also clear that since 3rd February 2002, the Wife’s mother had made all the minimum payments in her capacity as guarantor of the loan and, in fact, she had paid off the balance of the loan.
The Husband’s claim to a reasonable excuse was based upon two grounds.
The first ground was that the Wife’s mother had assumed the responsibility to make the payments to the Credit Union at a time when the Wife wished to relocate to Queensland with the children. At that time, the Wife was living in a women’s shelter, seeking refuge from an apparently violent boyfriend.
It was the Husband’s evidence that the Wife’s mother had virtually offered to make the payments to the Credit Union in return for her daughter and the children being allowed to go to Queensland. It was also his evidence that he had thanked the Wife’s mother for the payments that she had made.
It was the evidence of the Wife’s mother that the conversation claimed by the Husband to have taken place in a telephone call in relation to finances did not take place.
I note in passing, that the Wife’s mother claims not to have ever asked the Husband to repay the money that she has paid to the Credit Union. However, I do not believe that I need to determine whether the disputed conversation took place or not, because it is clear on the Husband’s own evidence that there was no “quid pro quo” for any offer alleged by him. His evidence was that he did not agree to the Wife taking the children to Queensland.
The Husband’s second ground for a defence of “reasonable excuse” relates specifically to his capacity to comply with the relevant Orders. He says that he has not had the capacity to pay the sum required by those Orders.
I accept the Husband’s evidence that he last had paid work in May 2000. Since that time he has been in receipt of Centrelink benefits, which are currently in the vicinity of $242.00 per week. From that sum, he must not only support himself by paying rent, motor vehicle expenses and all other general living expenses, but he must also support the three children of the marriage during those times that they are with him. They were born in 1989, 1990 and 1993.
It was the Wife’s evidence that the children are with her 65% of the time and with the Husband for 35% of the time.
Given that in relation to maintenance proceedings, the Court may have regard to the published research in relation to the costs of maintaining children, it is clear that I have had to consult that research frequently over the years. In addition, I can say from personal experience that I am aware of what it costs to raise three children.
It seems to me that I can therefore take into account that in addition to his own living costs, the Husband has to pay from his Centrelink benefits approximately 35% of the day-to-day living costs of the children.
Given that he receives only $242.00 per week, I have no difficulty at all in coming to the conclusion that the Husband simply did not have the financial capacity to pay a minimum of $45.00 per week to the Credit Union. That would have left only $197.00 per week for the full-time support of himself and for part-time support of his children.
In my view, a demonstrated inability to comply with an Order, must amount to a reasonable excuse for not complying. Consequently, I must come to the conclusion that the Husband had a reasonable excuse for contravening Order No.2 of the Orders of the Family Court of Australia of 20th July 1999.
As mentioned above at paragraph 5, I have already found that there was no case to answer in relation to Order No.1. I will therefore dismiss the Form 48 Contravention Application filed on behalf of the Wife.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Roberts FM
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