Medapati and Revanka (No. 3)

[2018] FamCA 965

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA (NO. 3) [2018] FamCA 965

FAMILY LAW – CONTEMPT – Contravention of Court Order – Where the Respondent has acted in contempt of the Court on five counts in a way that involved a flagrant challenge to the authority of the Court – Where it was found that the husband has concocted documents and adduced them into evidence in support of his position – Where the matter is adjourned for further hearing of submissions as to the appropriate punishment to be administered to the respondent – Where the husband’s personal attendance is required on this court date.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 22 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: Self-represented
appearing by telephone

Orders

1. It is declared that the Respondent acted in contempt of the Court when he:

   (i)Sold or disposed of the real property located at Property 12, USA, in contravention of paragraph 6 of the Orders of this Court made 21 April 2017;

   (ii)Sold or disposed of the 2005 German motor car Country J registration number … in contravention of paragraph 6 of the Orders of this Court made 21 April 2017;

   (iii)Failed to make proper disclosure and provide documents to the wife’s solicitors as requested by them in contravention of paragraph 10 of the Orders of this Court made 21 April 2017;

   (iv)Failed to cause Motor car 1 to be forthwith delivered to the wife in contravention of paragraph 7 of the Orders of this Court made 21 April 2017;

   (v)Continued proceedings arising out of the breakdown of the marriage to the wife in the High Court of Country J in contravention of the Orders of this Court made 17 May 2017;

   and did so in a way that involved a flagrant challenge to the authority of the Court. 

2. That the matter be adjourned to 10:00 am on Wednesday, 12 December 2018 for further hearing of submissions as to the appropriate punishment to be administered to the respondent; as to the wife’s costs of and incidental to the proceedings; and as to the further conduct of the property adjustment proceedings that remain pending. 

3. That the respondent husband return to Australia and appear before the Court in person, with or without legal representation, on the further hearing of the matter on 12 December 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medapati & Revanka (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

REASONS FOR JUDGMENT

1. This is an application for a party to property adjustment proceedings to be found to have acted in contempt of the Court.

2. On 21 April 2017, I made Orders in the property adjustment and spousal maintenance proceedings between these two parties to a former marriage. Those Orders were interim and included an injunction restraining the husband from “selling, … or disposing in any way of any right, title and interest he has in any real property … and any motor vehicles held solely or partially by the husband”. They also included an Order that the husband forthwith cause a motor vehicle (Motor car 1 Qld Registration …) to be delivered to the wife for her use and that he forthwith notify the wife’s solicitors as to the location of the said motor car and its keys so that she could take it into her possession.

3. Those Orders also provided for disclosure by the husband, requiring him to file an affidavit within four weeks of the Orders:

   (a)Listing all documents that he is required to disclose pursuant to r 13.07 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”); and

   (b)Deposing in detail to the circumstances of sale or other disposition of any property in the period since 13 June 2014, wherever that property was situate.

   The Orders also required the husband to provide copies of any of the documents referred to in (a) hereof as requested by the wife’s solicitors as soon as practicable after such request was made.

4. On 17 May 2017, I also made Orders that included an anti-suit injunction against the husband restraining him from “commencing or continuing any proceedings arising out of the marital relationship between himself and the Applicant Wife in Country J”. In granting the restraint sought against the husband, I expressly referred to proceedings commenced by him in the High Court of Country J in Divorce Petition number …. That same day I extended the time within which he was to comply with the disclosure Orders I had made on 21 April until the close of business on Friday, 9 June 2017.

This Application

1. On 17 April 2018, the wife filed an Application – Contempt in which she alleges that the husband has committed contempt of this Court in seven particular instances. The Application is brought pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) (“the Family Law Act”) and alleges that the husband contravened the Court’s Orders and did so in a way that involves a flagrant challenge to the authority of the Court.

2. I heard the Application on Tuesday, 13 November 2018. The wife was represented by solicitor and counsel. The husband was without legal representation and appeared by telephone from his home in Country J, notwithstanding the fact that I had previously informed him that his personal appearance in the Court here in Brisbane was required and I had refused his application to appear by telephone.

3. With the expectation that the husband would not come to Australia and appear in person in any event, I caused the Court Officer to open a telephone link and the husband called in at the start of the hearing. Although I had told him he was to appear in person, I nevertheless permitted him to take part in the hearing by telephone. I had read the affidavits that had been filed and I wanted to hear the husband’s case.

4. When the alleged contemptuous contraventions were put to the husband he denied them all. He then spent all morning cross-examining the wife on her affidavit evidence before counsel for the wife cross-examined him for about two hours. I then heard oral submissions from counsel for the wife and the husband himself.

The Precise Alleged Contempt

1. The contraventions that the wife alleges the husband committed in contempt of this Court are as follows:

   1. That pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that on or around 12 October 2017, he sold or disposed of the real property located at [Property 12, USA] in deliberate breach of Order 6 of this Court made 21 April 2017.

   2. That pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that on or around 20 July 2017, he sold or disposed of a motor vehicle, namely a [German motor vehicle registration …], in deliberate breach of Order 6 of this Court made 21 April 2017.

   3. That pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that from 21 April 2017 the Respondent failed to make proper disclosure of his financial circumstances including the disposition of property in deliberate breach of Order 10 of this Court made 21 April 2017.

   4. Alternatively or further to the above paragraph, that pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that from 20 July 2017 the Respondent refused to provide copies of documents as requested by the Applicant's solicitors in deliberate breach of Order 10 of this Court made 21 April 2017.

   5. That pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that from 21 April 2017 the Respondent failed to cause the [motor car 1 registration …] to be delivered to the Applicant in deliberate breach of Order 10 of this Court made 21 April 2017.

   6. Alternatively or further to the above paragraph, that pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that from 21 April 2017 the Respondent failed to notify the Applicant's solicitors as to the location of the PMV registration ... and its keys and take all necessary steps to permit and facilitate the Applicant's access to those keys and the said car in deliberate breach of Order 10 of this Court made 21 April 2017.

   7. That pursuant to section 112AP(l)(b) of the Family Law Act 1975 the Respondent be found to have committed a contempt of the Court which involves a flagrant challenge to the authority of the Court, in that between 17 May 2017 and the date hereof, advanced parallel proceedings in the High Court of Country J in deliberate breach of Order 2 made 17 May 2017.

Alleged Contravention 1

1. At paragraph 31 of my reasons for judgment published on 21 April 2017, I observed that the husband had attached a schedule to an affidavit of his filed in March 2017 setting out the assets and liabilities that he asserted existed at that time. In paragraph 32 of those reasons I observed that he “includes a house in State X said to be worth $150,000”, unencumbered by debt. I also said that “[i]t appears that he asserts it is registered solely in his name.”

2. In her evidence, the wife deposed to a transfer of that property on 12 October 2017 that was found to be registered in local authority records. She adduced evidence of an internet based real estate search that showed her the property was listed as sold on that date for US$120,000. She adduced evidence of a certified copy of documents she obtained from the Official Records of the County of W, State X. Those included a copy of a Grant Deed purporting to record that the husband, Mr Revanka, had transferred title in the property to a woman, Ms U. It bore the husband’s signature and purported to be witnessed and sealed by an officer in the Consular Service of the United States of America in City P, Country J on 5 October 2017. Those also included a similar document recording the transfer date as October 12, 2017.

3. In an affidavit headed “Response to Contempt” the husband filed on 10 May, 2018, on which he relied, he told the Court the State X “property was legally sold on 6 May 2015 – almost 2 years before the date of the Order of 21 April”, 2017. He adduced a copy of a document dated May 6, 2015 headed “Sale and Trust Agreement”. It bears signatures said to be of Mr Z, the husband himself and Mr AA as a witness.

4. The husband asserts that he sold the beneficial interest in the property to Mr Z on 6 May 2015 to raise funds to help pay for his defence of an insider trading charge he faces in Country J. The said document notes that Mr Z legally purchased the property for US$100,000 “as of this date”. The document referred to the possibility that the property may be registered under BB LLC (“BB”) for the purchaser’s benefit as he was organising an inheritance, but then went on to state “[f]or ease of dealing with the property, Mr Z has requested Mr Revanka (and who has consented) to allow the registered title of the said property to remain in Mr Revanka’s name, holding it in trust, for Mr Z/BB”.

5. The document records that Mr Z licensed the husband to enjoy the occupation of the property as long as Mr Z desired or up until he sells the property in the future. It records that Mr Revanka confirmed that he would sign any future sale documents at the instruction of Mr Z. It also records that Mr Revanka agreed to keep the arrangement confidential unless required by the laws of any country to disclose it.

6. Then, having already said that the beneficial interest in the property was sold to Mr Z on 6 May 2015, the husband referred to a copy of the State X Association of Realtor’s Signature Disclosure form dated 29 October 2015 “showing the sale date as 10/17/2015”. He attached a copy of that document to his affidavit. It is a document that refers to a Residential Purchase Agreement dated 10/17/2015 between BB and the husband and it is signed by Mr CC, President of BB and by the husband.

7. The husband also attaches copies of what he describes as the “escrow company’s deposit receipt” showing the buyer’s and seller’s details, a cashier’s cheque of the same date and a “Trust Deed dated Dec 3, 2015”. There is a receipt dated 12/30/2015 noting $1,000 received from BB LLC as buyer and listing the husband as the seller. There is a copy of a Cashier’s check made out to that escrow company dated 12/30/2015 for $1,000. There is a copy of another document dated December 3 2015 which is headed “Note secured by deed of trust”. That document has the figure of $110,000 at the top and then records a promise to pay the husband the principal sum of $110,000 with interest from February 1 2016 at 6.0 per cent per annum with interest only payments in the sum of $550 per month from 1 February 2016 to 1 December 2016 at which time the entire balance of the principal and interest shall become due and payable.

8. The husband told the Court that the Deed of Trust that the Note dated December 3, 2015 refers to is the document dated May 6, 2015 headed “Sale and Trust Agreement”. I do not accept that. The “Note secured by deed of trust” expressly stated that the Deed of Trust securing the note contains a quoted provision. The May 6 document does not contain that provision. The Note also uses the terms “Trustor” (which we would describe as a trustee) and “Beneficiary” in a way that I consider refers to BB as the “Trustor” and the husband as the “Beneficiary”. I do not accept that the husband has attached the Deed of Trust to which this Note refers.

9. In her oral evidence, the wife agreed that the property in State X had been on the market in 2015. She did not agree with the husband when he suggested to her that he had told her in 2015 that he had sold the property to Mr Z (who she acknowledged had been the caretaker of the property). She said that she recalled the husband telling her in 2015 that he thought he had sold the property and that she recalled him telling her that he thought he had sold it to an organisation called BB but that he had told her the sale had fallen through. The wife denied that Mr Z had ever told her that he wanted to buy the property or that the husband had told her that Mr Z had told him that he wanted to buy the property.

10. I accept the honesty of the wife’s denials. Nothing ties the documents the husband adduced into evidence relating to BB (that look as if they are connected to a possible sale of the property in late 2015) with a purported sale to Mr Z in May 2015 other than the copy of the “Sale and Trust Agreement” of May 6 and the reference in that to BB. When asked about that document, the wife told the Court that she does not believe that is a genuine document.

11. The husband’s evidence does not explain the difference between the figure of $100,000 referred to in that Sale and Trust Agreement and the $110,000 referred to in the later BB document. It does not adequately explain why, if the husband was to remain the registered owner of the property, there was the reference to the possibility for BB to be the registered owner. It does not explain at all why there is no evidence from Mr Z confirming the purchase in 2015. It does not explain why copies of bank statements evidencing the receipt by the husband of any purchase monies into one of his bank accounts were not adduced into evidence by him.  

12. The affidavit of the husband filed on 7 June 2017 in purported compliance with the disclosure paragraphs of my Orders of 21 April 2017 was adduced into evidence and became Exhibit 3. It was extremely relevant. In that affidavit, the husband listed three properties in State DD in the USA that he asserted were not beneficially owned by him. He also listed other properties in Australia and Country J that he said were not beneficially owned by him. Significantly, he exhibited two tables as attachments to that affidavit. The first table was headed “Statement of Assets and Liabilities at 30 April, 2017”. That table includes the State X property. It does not include the other properties he asserted were not beneficially owned by him. The second table is headed “Assets disposed and funds utilisation since 13 June 2014”. It does not include the State X property.

13. Whilst under cross-examination, I asked the husband why the State X property appears in the first table if he had already sold the beneficial interest two years before. Rather unconvincingly, he said he included it as he believed he had to disclose property in which he held a legal or a beneficial interest. He said he did not disclose the fact that he had sold the beneficial interest because he did not want the wife harassing Mr Z.

14. I do not accept the honesty of the husband’s answer. I am satisfied that he lied to the Court about that. I am satisfied that he had never disposed of the beneficial interest in the State X property to Mr Z. I am satisfied that there were some documents that existed from late 2015 that support a finding that there was a sale that looked like it was put in place with the purchaser being BB, but I am satisfied that sale fell through as the wife asserts the husband told her back then. I am quite satisfied that had the husband no longer owned the beneficial interest in the State X property as at the time of the hearing that led to the Orders of 21 April 2017, he would have told this Court before I made the Orders on 21 April 2017 or, at the latest, in his affidavit filed 7 June 2017. I am satisfied that he did not tell this Court because he had not actually disposed of any of his legal and beneficial interest in the State X property at the time I granted the interim injunction restraining him from selling, inter alia, that property.

15. I am also satisfied that the husband did sell the State X property to a third person whose address is in Country J in October 2017. There are no documents adduced into evidence by the husband that support his assertion that Mr Z, as beneficial owner of the property, sold an interest in the property to this third person with the Country J address and simply directed the husband to cause the legal title to be transferred to this third person. The husband himself gave conflicting evidence about this third party who is recorded as having been the purchaser of the State X property, saying in one moment that she was in China but lives in Country J and in another moment saying that she has an address in Country J but lives in China.

16. Accordingly, I am quite satisfied that the husband sold the State X property in contravention of the injunction I ordered on 21 April 2017. I am further satisfied that he has gone to great lengths to present a false case that he had already sold the beneficial interest in May 2015 to Mr Z when he had not, including by fraudulently creating the document that he adduced into evidence bearing the May 6, 2015 date. I am more than satisfied this behaviour constitutes a flagrant challenge to the authority of this Court.

Alleged Contravention 2

1. In the first table attached to the husband’s affidavit filed 7 June 2017, he lists as assets a German motor vehicle 1 and a German motor vehicle 2 garaged in Country J. In his second table of assets disposed of since 13 June 2014, he lists a vintage German motor car as having been sold.

2. In her affidavit evidence, the wife asserts the husband sold a German motor vehicle 2 registration number …29 in Country J despite the injunction granted against him on 21 April 2017. She adduced a copy of a 2015 Insurance policy showing that the husband was the registered owner of a German motor car registration number …29, but which lists it as a 1 model.

3. The wife deposed to receiving information in July 2017 that the husband had sold a motor car in Country J. In September 2017, she caused a title search to be undertaken in Country J and found that the title to the German motor vehicle 1 registration number …29 had been transferred to Ms EE on 20 July 2017. The wife said that she knew that person to be a former business associate of the husband. She adduced into evidence a certified translation of the title search.

4. In his affidavit filed 10 May 2018 headed “Response to Contempt” the husband complains about the wife’s evidence and her reference to a 2 model car in the first instance before she then refers to a 1 model car. He complains about the quality of the evidence she has adduced to support her case. However, he then goes on to assert again that he had sold the beneficial interest in the German motor vehicle 1 registration number …29 to Ms EE on 30 April, 2015. He also adduced into evidence a copy of a one page document headed “Sale of Car - For JPJ transfer purpose …29”. The document bears the husband’s signature and a signature that is said to be Ms EE’s signature. He asserts that the document shows the date of sale as 30 April 2015 “and the reasons for her late transfer title (sic)”. It is not a pro forma document. It is a document simply typed up and printed out.

5. The document purports to acknowledge, presumably on the part of Ms EE, that she has purchased the car free of all encumbrances. It goes on as follows:

   As the insurance and road tax on this car only expires on 29 Dec 2015, so as not to waste the paid costs, you agree that you will transfer these to my name after the expiry and when I shall purchase the necessary insurance. In any case, you shall transfer the title to me upon my request at any time within 3 years hereof. After this date, you are no longer obliged to transfer.

   With this letter, I agree to indemnify you in case of any accidents or similar incidents. You may use this letter in court ONLY to exhibit as evidence in any insurance or police case involving me and the car while the insurance and title are in your name. This excludes any submission in a legal court anywhere.

6. Nowhere does the husband deny that the registration of the transfer of title was only effected in Country J on 20 July 2017, as asserted by the wife. Nowhere does he assert that the registration of title was actually effected prior to 21 April 2017. When the husband was asked again about the fact that the 2005 car was included in the table of assets as at 30 April 2017 and not in the table of assets disposed of since 13 June 2014 (there was a vintage German car included in the second table), he gave a similar answer to the one he gave to the same question asked of him about the State X property. Again, I did not believe his answer.

7. Again, he did not produce any copy of any bank statements to show the deposit of funds alleged to have been received for the sale of the car in 2015. I do not believe he received any money at that time for the car.

8. I am again satisfied that the husband contravened the injunction included in the Orders of 21 April 2017 by selling the German motor vehicle 1 in July 2017. I reject as a fanciful concoction the proposition that as a matter of coincidence at around the same time in 2015 an American man in State X would be content to only receive the beneficial interest in a real property and a Country J woman in City P would be content to only receive the beneficial interest in a motor car and neither would take legal title and possession of the property they had bought for a couple of years. Once again, I am satisfied that the husband has manufactured the document, the copy of which he adduced into evidence, that he said evidences the sale of the beneficial interest. At the same time, he has accused the wife of concocting pages and images from an internet based social network chat site and accused her of acting fraudulently and contemptuously in the process. In doing all of this, I am satisfied that it is the husband and not the wife who has flagrantly challenged the authority of this Court.

Alleged Contraventions 3 and 4

1. Paragraph 10 of my Orders of 21 April 2017 required the husband to file an affidavit listing all of the documents in his possession or control that he is required to disclose pursuant to r 13.07 of the Family Law Rules. That Rule is clear. It requires disclosure of each document that is or has been in the possession or under the control of the party that is relevant to an issue in the case. He was also ordered to provide copies of any such documents to the wife’s solicitors that they requested, but at their expense.

2. Paragraph 11 of those same Orders required the husband to file an affidavit in which he deposed in detail to the circumstances of sale or other disposition of any property in the period since 13 June 2014, wherever such property was situate. He was also to depose to the use of the proceeds of sale of all such property.

3. The wife asserts that the husband failed in respect of all these ordered obligations.

4. As already observed, the husband purported to comply with these obligations by filing an affidavit on 7 June 2017. In that affidavit, he referred to three properties that are registered in his name in State DD in the USA and said that they are not beneficially owned by him. He asserted that another man in Country J is the beneficial owner. He exhibited an affidavit purportedly deposed to by this other man in which he says he is the beneficial owner of these properties, referring to dealings between him and the husband, including the transfer of funds to the USA for use in purchasing the properties. The husband then simply says “[a]ccordingly, I did not provide any further information on those properties”. He does not list any documents that he has or had that would evidence those arrangements.

5. The husband then referred to two properties in Country J. He deposed that he did not fully own the properties and attached an affidavit by another Country J man in which that man deposes to certain business dealings with the husband in respect to their joint acquisition of these two properties. The husband simply says that he shows his share of the equity in those properties in the first table that he attached to the affidavit that I have already referred to. He does not list any documents evidencing any of these transactions or dealings.

6. The husband then refers to two properties in Australia and simply asserts that his current partner was the beneficial owner of those two properties, both of which have since been sold (one, by the wife, pursuant to Orders I made last year and earlier this year). He attaches an affidavit by his partner in which she confirms the sale of one of those properties in the Brisbane CBD and confirms that the husband paid the net proceeds of sale to her. The husband does not list any documents at all that relate to the purchase and ownership of either of these two properties or the sale of the Brisbane CBD one and the payment of the proceeds to his partner.

7. The husband then goes on, purportedly, to list documents. This is how he lists them:

   (i)Assets

   a)Copy of the title/quit-claim deed or where title is not available, an extract thereof showing ownership;

   b)If no title has been issued, a council bill evidencing ownership;

   (ii)Loans

   c)Where the property is mortgaged, a copy of the bank loan/statement showing the balance(s) owing currently;

   (iii)Credit card debts

   d)Credit card statements showing the approximate balances owing;

   (iv)Other liabilities and owing to individuals

   e)Affidavits from lenders with supporting documents, if relevant, confirming the loans made to me;

   f)Any other forms of evidence of debt due previously not already to the Applicant by way of affidavits in the past.

8. As for his obligation to depose to the circumstances of the sale of property and the use of the proceeds of sale, the husband simply referred to the second table that he attached that I have already referred to, which he described as “a list showing the disposal of properties since 13 June 2014 and the movement of funds thereof”.

9. The wife deposed that on 21 June 2017, her solicitors sent an email letter to the husband pointing out to him that his affidavit was inadequate and requiring proper compliance with paragraphs 10 and 11 of the Orders of 21 April 2017. The wife adduced that email into evidence. I accept it was sent. The wife deposed to her solicitors having sent the husband another letter on 20 July 2017 in which they were far more specific in their request for his compliance with the disclosure obligations. They wrote this:

   To be clear, we require, in an affidavit, a particularised list of all documents that have been in your possession or control related to the purchase, ownership, maintenance, insurance, sale, disposition, or any other relationship to all property and assets wheresoever located and in any form (including but not limited to real property, motor vehicles, bank interests, share investments, financial institution interests, cash, and other chattels) in which you have or have had a beneficial or legal interest for the period commencing 1 January 2011.

   Further, we require, in an affidavit, a particularised list of all documents that are or have been in your possession or control related to any employment, business, contracts, work and remuneration, in any form obtained or performed by you for the period commencing 1 January 2011. We require all documents related in any way to any such relationship or any sort of ownership or financing relationship you have or have had with the [Company N] and any other company wheresoever located.

10. The solicitors for the wife, in that same letter, requested copies of all such documents to be provided to them. In particular, they expressly said they required copies of the following documents:

    (a)Copies of title deeds/‘quit-claim’ documents/other ownership documents;

    (b)Council documents;

    (c)All mortgage documents, including current balances;

    (d)Credit card statements, including current balances; and

    (e)Supporting documents for alleged liabilities.

11. The wife deposed to the husband not having provided any further information in response to that letter. She adduced his email responses of 25 and 29 July 2017 into evidence. They do not provide any relevant response to her solicitors’ letter of 20 July, save for telling them that he had been advised “it is not necessary to respond to your letter”.

12. In his affidavit filed 10 May 2018, headed “Response to Contempt”, the husband effectively asserts that his affidavit of 7 June 2017, was compliance with the Orders. At one point in his affidavit of 10 May 2018, the husband says:

    It’s really contemptuous to say that my submissions were “nonsensical” when no attempt was made to ask for specific documents arising therefrom.

13. That is plainly incorrect. The wife’s solicitors told him in their letter of 20 July 2017 that they required copies of certain listed documents. He did not provide them and said that he did not need to.

14. In paragraph 30 of the husband’s affidavit filed 10 May 2017, he says:

    As to the bank, credit card and bank statements mentioned … I enclose a screenshot of the information that was provided (and the Applicant has) by me prior to this date. Appendix RR 12 shows that I have indeed provided all the bank details requested. In fact, [the wife’s solicitors] served subpoenas around 25 October 2017 to get further details from my bank accounts with [FF Bank] and ANZ Bank. This information was already obtained long ago I believe and their submitting this fictitious “claim” now is clearly an abuse of this court’s patience.

15. The said Appendix RR12 “screenshot” is of an email letter addressed to the AAT (in which there were child support related proceedings) and says “As requested, I enclose the requested documents (where available) in this mail”. He then lists some bank related matters. There were some eight attachments to that email, but what they include is impossible to determine with any clarity. However, whilst the husband asserted a belief that the wife would have been provided with those he did not satisfy me that she was. Indeed, the fact that he concedes the wife’s solicitors subpoenaed the FF Bank and ANZ Banks to “get further details from my bank accounts” adds weight to the wife’s evidence that the husband did not provide the disclosure list or the documents that were requested.

16. I am quite satisfied that the husband deliberately and wilfully contravened my Orders that he provide a list of documents in accordance with his disclosure obligations and that he provide copies of documents as requested by the wife’s solicitors. I am satisfied that his failure involved a flagrant challenge to the authority of this Court.

Alleged Contraventions 5 and 6

1. In paragraph 34 of my reasons for judgment published when I made the Orders of 21 April 2017, I referred to the fact that the husband had included in his schedule of property motor car 1 that he said was worth $11,000, which he had stored “somewhere unknown to the Court whilst he remains out of the country”. I ordered him to facilitate its immediate return to the wife. My Orders were clear. Relevantly, they said:

   That the respondent husband forthwith cause the [motor car 1 Registration …] to be delivered to the applicant wife and, until further order, the wife shall be entitled to the sole and exclusive possession and use of that motor car and to effect such delivery the respondent husband shall forthwith notify the applicant wife’s solicitors as to the location of the said motor car and its keys and take all necessary steps to permit and facilitate the applicant wife’s access to those keys and the said car so that she can take it into her possession as soon as she is desirous of doing so.  (my emphasis)

2. The evidence shows that on 20 July 2017, the wife’s solicitors wrote to the husband and asked him specifically:

   Regarding your awareness of the location of the [motor car 1], please provide to us all particulars of its last known location and when it was last seen by you. ... We require you to forthwith take all necessary steps to facilitate our client’s access and taking possession of said car, pursuant to paragraph 7 of the Orders made by the Honourable Justice Forrest on 21 April 2017, including delivering any and all keys of said car to us forthwith. We put you on notice that failure to do so may constitute a contravention of said Orders.

   If you are saying that the [motor car 1] has been moved and its present whereabouts are unknown to you, any such movement occurred whilst the [motor car 1] was in your control and possession and accordingly it is incumbent on you to take the appropriate steps to make a police report or otherwise facilitate our client’s access and taking possession. Our client has not taken yet possession of it and cannot do so while its whereabouts are unknown. We put you on notice that a failure to take all necessary steps to facilitate our client’s access and taking possession of said car may constitute a contravention of said Orders.

3. I have already observed that in a subsequent email to the wife’s solicitors the husband told them that he had been advised that it was not necessary to respond to their letter. In her affidavit evidence, filed 30 October 2018, the wife deposed to having read in the husband’s affidavit filed 10 May 2018 that the husband had “left the [motor car 1] in a car park in [Suburb GG] … in early April 2017”.  She said that the police located the vehicle in early April 2018 and it came into her possession shortly afterwards.

4. In his oral evidence, the husband denied the assertion that he had never delivered possession of the motor car 1 to the wife. I am satisfied that was a completely false denial. In his affidavit evidence, the husband asserted that the wife and her solicitors “continue to perjure” themselves by saying that he did not deliver the motor car 1 to her pursuant to the Orders. That is an outrageous allegation, on my view of the evidence. The husband deposed, without any detail or supporting email evidence, to having informed the wife’s solicitors “several times that the car was stolen sometime in early April 2017 when I left the car parked in [Suburb GG]”. In contrast, in his oral evidence, the husband made it clear what he had done, though he did not clarify when he had done it. He said that “sometime in early or late 2017”, as soon as he had found out that the wife had stopped the registration of motor car 1 from being renewed, he had left the keys in the glove compartment and simply left the car parked somewhere in Suburb GG. He said nothing to persuade me that the car had been stolen. He gave or adduced no evidence that persuaded me that he had complied with the clear obligation of my Orders after 21 April 2017.

5. In his defence, the husband did adduce into evidence a copy of an email he had sent to the wife’s solicitors on 5 April 2018, a year after my Orders for the car to be delivered to the wife. It said this:

   I received this message from an ananymous (sic) party a few minutes ago. I believe it’s the [motor car 1] that went missing some time ago in [Suburb GG].

   Please ask your client to check whether it’s the car in question and advise me accordingly.

   …

   “A [motor car 1] was spotted this afternoon parked in the lower outside carpark [in Suburb GG]. It’s been there for 2 days.”

6. That was, in my judgment, nothing more than a belated attempt to try and make it appear as if he was complying with this Court’s Order. Even if he had already left the keys in the glove compartment and left the car parked somewhere in Suburb GG prior to the Orders of 21 April 2017, the obligation imposed upon him by the Orders was patently clear. It was to forthwith notify the wife’s solicitors as to the location of the car and its keys and to take all necessary steps to permit and facilitate the wife’s access to those keys and the car so that she could take it into her possession. He could only have complied with that by immediately telling the wife’s solicitors where he had left the car and that he had left the keys in the glove compartment (if indeed that is what he had actually done). That is, at least, what the wife’s solicitors asked of him in their letter of 21 July 2017, that he said was not necessary to answer. He was clearly wrong about that.

7. In fact, I am quite satisfied that he wilfully contravened the Order and that his contravention was a flagrant challenge to the authority of this Court.

Alleged Contravention 7

1. I made an Order on 17 May 2017, restraining the husband from commencing or continuing proceedings arising out of the breakdown of his marriage to the wife in Country J.

2. There is absolutely no dispute that the husband was aware of that Order. There is absolutely no dispute that despite the Order he continued to prosecute the proceedings for divorce and property settlement orders in the High Court of Country J. It is common ground that the proceedings were dismissed by a Judge in that Court only as recently as 30 July 2018. They both told the Court that. The husband told this Court that he has refiled his Petition for Divorce in that Court. He asserted, without any supporting evidence, that the Judge who had dismissed his Petition had directed him to file another.

1. The defence he proffers is that he was first in time to obtain an anti-suit injunction against the wife in the Country J Court and, therefore, he has the right to ignore this Court’s Orders.

2. The wife’s application for the anti-suit injunction was listed and heard by me on Monday afternoon 15 May 2017. The husband appeared at that hearing by telephone. He opposed the wife’s application and made submissions against the granting of the injunction. He did not inform the Court that a lawyer was appearing in the High Court in Country J that very day on an ex parte application for an anti-suit injunction against the wife. He says that the Court granted that ex parte injunction on his application. He did not take any steps to inform this Court of that fact prior to the granting of the anti-suit injunction against him by this Court on Wednesday, 17 May 2017. He adduced a copy of a draft of the Country J Court’s Order said to have been made on 15 May 2017, but he has never adduced into evidence in this Court a sealed copy of that Order.

3. The husband told this Court during the contempt hearing that the anti-suit injunction granted by the Country J Court continued and continues. He did not adduce any evidence to support that. That was certainly not conceded by the wife. It would seem odd for it to continue when it was common ground that the husband’s Petition was dismissed on 30 July 2018.

4. Counsel for the wife informed the Court that his research revealed that an ex parte injunction granted by the High Court of Country J expires after three weeks and that the injunction could only continue if it was made after a hearing of which the wife was given notice and a right to be heard. It was not conceded that had happened.

5. I am not satisfied, simply on the assurance of the husband, that an anti-suit injunction granted by a judge of the Country J High Court continued since last May and continues to this day. In any event, as counsel for the wife submitted, even if it did, this part of these proceedings is about the husband’s wilful contravention of this Court’s anti-suit injunction and that would not be excused simply by the assertion that he obtained an anti-suit injunction against the wife before she obtained one from this Court against him. I accept that submission.

6. I am satisfied that by continuing the proceedings in the Country J Court after becoming aware of this Court’s Order of 17 May 2017, the husband contravened this Court’s Order. I am also quite satisfied that his contravention involved a flagrant challenge to the authority of this Court.

Some other relevant matters

1. During the course of the hearing of this contempt application, the husband made his flagrant challenge to the authority of this Court patently clear. He told the Court many times during the hearing that the proceedings were “moot” and that they did not matter to him. He told the Court that he was a citizen of Country J and not Australia and that it was Country J law and orders of the Country J Courts that he was obliged to follow, not Australian law or orders of this Court. He told the Court that the wife, who is a resident of Australia, is a citizen of Country J, too, and, as such, she is obliged to obey Country J law first and foremost.

2. The husband, I consider, sought to intimidate me, seemingly believing, I can only speculate, that he might be able to intimidate me into finding in his favour. He asserted many times that I was biased against him, that I had expressed racist and bigoted views against him. I reject those assertions. He informed me that his appeal against previous Orders I had made was still pending and that he was gathering a compendium of material to use against me in that appeal. He informed me that he had complained to the Chief Justice about me and would again. He insincerely said to me at one point “I forgive you for your ignorance”. When I asked him to confirm that he had said that, he asserted that he had not, but that he had said “I forgive you for my ignorance”. He did not. He clearly said “I forgive you for your ignorance”. He blatantly lied to the Court when he was asked to confirm that is what he said.

3. The husband challenged me to travel outside of Australia where I would be personally subject to Country J law (which I did not understand). He challenged me to travel to Country J, where, he said, he has the power and I would have none. When I asked him to desist from threatening me, he disingenuously asserted that he had not threatened me but rather would like to take me out to lunch with a Country J Judge.  

4. During the hearing of the wife’s application, he repeatedly asserted “she can rot in hell”. The wife was sitting in Court and heard that. When I politely expressed the Court’s opprobrium at his use of such language, he showed no remorse or regret at having said it.

5. I am quite satisfied that the husband has contemptuous feelings towards me and this Court and I am completely satisfied that he contravened the Orders of this Court of 21 April 2017 and 17 May 2017 and that his contraventions involved flagrant challenge to the authority of this Court.

The Consequences

1. The provisions of s 112AP confer power on this Court to punish contempt by committal to prison or fine or both. They also empower the Court to make an order for punishment on terms, suspension of punishment, or the giving of security for good behaviour.

2. Counsel for the wife, in his written submissions, urged the Court to sentence the husband to a term of imprisonment. The husband made it clear to me that he has no intention of returning to Australia, at least, in the short to medium term.

3. I will not determine the husband’s punishment unless and until he is personally before the Court. I will order the husband to return to Australia to personally appear before me, with or without legal representation. I will order him to do that within four weeks of the date of this judgment and I will list this matter for further hearing before me at 10:00 am on Wednesday, 12 December 2018. The husband is to appear before me that day, in person, with or without legal representation.

4. I will hear submissions that day as to the appropriate punishment to be administered for the husband’s contempt and as to the further conduct of the property adjustment proceedings and as to the question of the wife’s costs. I will not permit the husband to attend by telephone. No application for telephone attendance will be entertained.

5. I make the orders set out at the commencement of these reasons.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 November 2018.

Associate:

Date: 22 November 2018