Mancuso and Mancuso
[2010] FMCAfam 257
•3 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANCUSO & MANCUSO | [2010] FMCAfam 257 |
| FAMILY LAW – Contravention application – alleged breach of property orders – no appearance by Respondent – matter dealt with in her absence. |
| Applicant: | MR MANCUSO |
| Respondent: | MS MANCUSO |
| File Number: | BRC 2567 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 3 February 2010 |
| Date of Last Submission: | 3 February 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 3 February 2010 |
REPRESENTATION
The Applicant appeared on his own behalf.
There was no appearance by the Respondent.
AND UPON THE COURT finding that the Respondent has, without reasonable excuse, contravened the Orders made under the Family Law Act 1975 in the Family Court of Australia at Brisbane on 30 May 2005, in that:
a.in contravention of Order 15(e)i. thereof she failed to pay to the Applicant an amount equal to 10% (ten percent) of the sale price of the interest in the business.
THE COURT ORDERS:
That the Respondent do pay to the Applicant the sum of $13,000 within 28 days of the date hereof.
That this matter be adjourned for sentencing/penalty to 26 March 2010 at 9.30am in the Federal Magistrates Court of Australia at Brisbane.
That the Respondent have liberty to apply on the giving of seven (7) days notice to the Court and to the other party.
That the Applicant have leave to withdraw the Application for Contravention filed on 14 October 2009.
IT IS NOTED that publication of this judgment under the pseudonym Mancuso & Mancuso is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2567 of 2009
| MR MANCUSO |
Applicant
and
| MS MANCUSO |
Respondent
REASONS FOR JUDGMENT
This is a contravention application brought by the applicant (hereafter “the husband”) in which he seeks to contravene the respondent (hereafter “the wife”).
The allegation is that the wife has contravened paragraph 15(e) of the orders of Buckley J made on 30 May 2005.
The order in paragraph 15 provides, at least initially, for the wife to pay to the husband spousal maintenance in the sum of $100 per week which was to continue until:
the Trust sells its legal or beneficial interest in the business known as [P], [S] and the [F].
Paragraph 15(e) of the orders provides as follows:
Upon the earlier of the death of the wife if it occurs before the death of the husband and the Trust being deemed pursuant to this clause to have sold the interest in the business, the wife shall pay to the husband if the interest in the business has been sold, for market value by an arm’s-length contract, then an amount equal to 10 percent of the sale price of the business; in any other case, then an amount which is equal to 10 percent of the market value of the business as a going concern with such value to be determined as at the date of the wife’s death or the deemed sale by an accountant selected by the wife or by the husband if the wife fails to make a selection within seven days of being requested to do so by the husband from a panel of three accountants nominated by the husband.
The application was served on the wife on 14 December 2009. It was served though by prepaid post in an envelope addressed to the wife. The wife has apparently forwarded to the Court a statutory declaration which is dated 20 January 2010.
She has not appeared on this application today and, whilst I cannot be satisfied that she has been personally served with the application, it would appear from the statutory declaration that she had notice of these proceedings. She says in this statutory notice that:
In compliance with the above consent orders and 15(e)(2) I will at the close of 2010 financial year distribute funds at my discretion as the sole director of the trustee company of the Mancuso Family Trust $13,000 to be paid to Mr Mancuso as a distribution of profits as a beneficiary of the Trust in accordance with the consent orders 15(e).
The applicant swears in his affidavit that, to his knowledge, the business was sold on 30 November 2009 for a price of $130,000 and he therefore claims that he has an entitlement to $13,000.
Insofar as service is concerned, the respondent was not personally served with the contravention proceedings and that causes me some concern. However, I am satisfied that the documents were sent to her by post and by her statutory declaration she seems to acknowledge notice of these proceedings and also makes some admission about the sale of the company and a requirement to pay the $13,000.
The concerns I have about service can be dealt with by giving the respondent liberty to apply. I have raised with the applicant the prospect of dealing with this application in the absence of the respondent or issuing a warrant for her to be brought to the Court to answer the contravention. He submits that the matter ought to be dealt with in her absence and that I should not go to the trouble of issuing a warrant for her arrest.
I am satisfied that this is a matter that can appropriately be dealt with by way of dealing with the contravention in the absence of the respondent and as I indicated I am satisfied that she has had notice of these proceedings.
Insofar as the application is concerned, I am satisfied that the respondent did have an obligation to pay the sum of $13,000 to the applicant upon the sale of the business and while the orders provide no specific timeframe in relation to that, it is a mandatory requirement of the wife to pay the money on the sale of the business.
The evidence indicates that the business was sold in November 2009 and I would construe the orders as indicating that it was the intention of those orders that the wife would pay the moneys within a reasonable time after the sale of the business.
It is now February 2010 and the wife apparently has no intention of making payment until, at least on her statutory declaration, the end of the financial year 2010.
In the circumstances, I am satisfied that she is in breach of the orders. I am satisfied that she has contravened the orders.
As to a reasonable excuse, the wife does not appear in answer to this particular contravention application. Her statutory declaration, which I have relied on for the purposes of this application, does not indicate any reason upon which she refuses to pay the moneys that seems to be owing to the applicant in accordance with the orders and in those circumstances I am not satisfied that she has demonstrated a reasonable excuse in relation to the matter.
Insofar as the application is concerned, I am satisfied that the applicant has proved the breach and I am satisfied that the wife has contravened the orders.
The applicant, as I understand it, does not seek any further punishment in relation to the matter. He simply requires that the wife make good the payment within reasonable time in relation to this matter.
In relation to the matter I will order the wife to pay to the applicant the sum of $13,000 within 28 days of the date hereof and I will adjourn the sentencing in relation to this matter for a period of six weeks to see whether the wife has complied with the terms of the orders.
I will give the wife liberty to apply if she wants to make some application arising from her non-appearance today.
I will adjourn the sentencing or the penalty phase of it to 26 March but I make that order insofar as the payment of the money is concerned.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Slack FM
Associate: Karen Smith
Date: 3 February 2010
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