MEDAPATI & REVANKA

[2018] FamCA 385

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA [2018] FamCA 385

FAMILY LAW – PROPERTY – INTERIM – Where the husband has not complied with certain interim spousal maintenance orders requiring him to keep making loan repayments, rate payments and other utility charges – Where the interim spousal maintenance orders provided comprehensive provisions in the event of default by the husband – Where the wife brought an Application in a Case seeking a declaration that acknowledges her position as trustee for the purposes of sale of certain relevant properties – Where the husband has failed to persuade the Court that the default provisions which have been “triggered” should not apply – Where the wife’s Contempt Application is adjourned – Where the husband’s application for orders contained in his Response to Initiating Application is dismissed.

FAMILY LAW – COSTS – Costs order – Where the husband was wholly unsuccessful in defending the wife’s Application in a Case and seeking alternative orders – Where the Wife’s financial circumstances are meagre – Where the husband is ordered to pay the wife’s costs on a party and party basis.

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

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 31 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: Self-represented
(by telephone)

Orders

1. It is declared that in accordance with order 5(e)(i) of the Orders of this Court made 21 April 2017, the Applicant wife, Ms Medapati, is appointed trustee for the sale of the following real properties (“the properties”):

   (i)D Street, E Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);

   (ii)F Street, Brisbane, Queensland (described as Lot …, Building Plan …, Title Reference …);

   (iii)G Street, H Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);

   (iv)I Street, Melbourne, Victoria (described as Lot …, Plan of Subdivision …).

2. It is further declared that as the trustee for sale of those properties the Applicant wife is authorised to carry out the sale of any or all of the properties pursuant to this Court’s  Orders made 21 April 2017 (“the said Orders”), and further, in order to give effect to the said Orders:

   (a)the properties vest in the Applicant wife as trustee for sale;

   (b)the Applicant wife as trustee for sale (“the trustee”) is hereby appointed to execute all deeds, documents and instruments in the name of the Respondent husband, Mr Revanka, and to do all acts necessary to give full force and effect to the terms of these Orders should any party fail to comply with the terms of these Orders;

   (c)the trustee may incur reasonable advertising expenses in respect of any sale or auction of any of the properties;

   (d)the trustee may retain a real estate agency (or more than one real estate agency) to assist with the sale of any of the properties;

   (e)the trustee may appoint solicitors to act as solicitors for the vendors for any sale of the properties or any of them.

3. That a copy of these Orders, and the Orders of this Court made 21 April 2017, may be provided to any mortgagee of the properties and any other persons noted on the Register who may have an interest therein; and to the ANZ Bank in its capacity as mortgagee of the property at B Street, Suburb A (described as Lot …, Survey Plan …, Title Reference …) and its solicitors, T Lawyers.

4. That the husband’s application for orders contained in his Response to Initiating Application filed 3 April 2018 is dismissed.

5. That the husband pay the wife’s costs of and incidental to the hearing and determination of her Amended Application in a Case filed 17 April 2018 and his Application filed 3 April 2018 on a party and party basis in such amount as is agreed between the parties or assessed in accordance with the Family Law Rules 2004.

6. That the wife’s Application – Contempt filed 17 April 2018 be adjourned for hearing before his Honour Justice Forrest at 10:00 am on Tuesday, 13 November 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 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. On 21 April 2017, I made interim spousal maintenance orders in proceedings between these parties. Those orders provided for the husband to pay arrears owing to a bank on a liability secured by mortgage over the home in which the wife and child live and, thereafter, to keep making the loan repayments as and when they fell due. Those orders also provided for the husband to pay arrears of rates and utility charges owing in respect of the same property and to keep making those same payments as and when they fell due.

2. Those same orders also included comprehensive provisions for action by the wife to protect her occupation of the property with the parties’ child on an interim basis in the event of default by the husband in respect of the orders for him to keep making the loan repayments and the payment of rates and other utility charges for that property.

3. Relevantly, those orders provided as follows:

   5.That if any of the following happens:

   (a)the respondent husband fails to provide evidence to the wife’s solicitors of having made the payment to the ANZ Bank required pursuant to order 1(a) hereof by 4:30 pm AEST on Friday 28 April 2017 and, after that time, the ANZ Bank confirms that the arrears owing on the said mortgage have not been discharged as ordered; or

   (b)the respondent husband fails to make payments pursuant to order 1(b) such that the mortgage falls into arrears again and the ANZ Bank advises the wife of same; or

   (c)the respondent husband fails to provide evidence to the wife’s solicitors of having made the payment to the C Town City Council required pursuant to order 3 hereof by 4:30 pm AEST on Friday 28 April 2017 and, after that time, the C Town City Council confirms that the arrears owing in respect of rates, water and sewerage charges or any other such charges have not been discharged as ordered ; or

   (d)the respondent husband fails to make payments pursuant to order 3 on an ongoing basis such that the rates or water and sewerage charges owed to the C Town City Council fall into arrears again and the C Town City Council advises the wife of same;

   then, at the election of the applicant wife one or more of the following properties may be sold:

   (i)D Street, E Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);

   (ii)F Street, Brisbane, Queensland (described as Lot …, Building Plan …, Title Reference …);

   (iii)G Street, H Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);

   (iv)I Street, Melbourne, Victoria (described as Lot …, Plan of Subdivision …).

   (e)For the purposes of sale of any of the properties to be sold pursuant to order 5:

   (i)the applicant wife is appointed trustee for the purpose of sale and is hereby authorised to do all such things and sign all such documents necessary or desirable to enable the property to be sold;

   (ii)the property will be listed forthwith for public auction by a reputable agent and auctioneer chosen by the wife and if not sold at auction then listed for sale at a further auction one month from the date of the first auction with the terms of this order to apply;

   (iii)the reserve price for any auction will be set by the applicant wife at the recommendation of the selling agent;

   (iv)the property may be sold by private treaty at a price determined by the applicant wife as might be recommended by the selling agent;

   (v)the proceeds of sale of any such property will be distributed in the following manner and priority:

   A.to pay all costs of sale including advertising, commissions, and conveyancing;

   B.to pay any outstanding outgoings over the property including rates, utilities, and taxes;

   C.to discharge any mortgage or encumbrance over the property;

   D.to discharge any amount in arrears of the mortgage no. … over the property at B Street, Suburb A;

   E.the remainder to be distributed to the solicitors for the applicant wife, to be held on trust by them in an interest bearing account (if practicable) for both parties until further order subject to the next paragraph of these orders.

   (f)Any amount distributed to the solicitors for the applicant wife to be held on trust for both parties pursuant to order 5(e)(v)E may only be distributed:

   (i)by written agreement between the applicant wife and the respondent husband; or

   (ii)by further order of this Court; or

   (iii)to pay as and when they fall due, the periodic mortgage payments and any enforcement expenses in respect of the mortgage no. … over the property at B Street, Suburb A; or

   (iv)to pay rates, water and sewerage charges and other such charges levied in respect of the Suburb A property as and when they fall due.

4. Now before me for determination is the wife’s Amended Application in a Case filed on 17 April 2018 for a declaration that the wife is appointed trustee for the sale of the said properties in accordance with the provisions of paragraph 5 of those Orders made by me last year. Whilst in her Amended Application in a Case the declaration she seeks refers to “order 5(d)(i)” of those orders as being the operative order, I consider that to be incorrect. In fact, order 5(e)(i) is the operative order by which she is appointed trustee for the sale of properties in the event of any of the things set out in order 5(a)-(d) happening. However, I do not consider that typographical error to be fatal to her application.

The Wife’s Case

1. In her affidavit filed 27 March 2017, the wife asserts the husband has failed to make the payments required by Order (1)(b) of my April 2017 Orders and that, consequently, the liability secured by mortgage over the property in which she lives has fallen into arrears.

2. Exhibited to the wife’s affidavit is an email from solicitors acting for the mortgagee bank sent to the wife’s solicitors on 8 January 2018 in which they advise that as at 20 December 2017 the loan account balance was $362,968.45, making it $12,968.52 in arrears. There is a later email from the mortgagee bank’s solicitors sent to the wife’s solicitors on 8 March 2018 in which the writer says:

   We are instructed that no payments have been received to the Loan Account since 12 May 2017.

   As at 2 March 2018 the outstanding arrears were $16,825.38. …

3. The wife also deposed in that same affidavit to the fact that the husband had failed to make payments pursuant to Order 3 of my April 2017 Orders and, consequently, the rates owing on the property, too, have fallen into arrears. She also deposed to the fact that water and sewerage utility charges were also in arrears. Exhibited to the wife’s affidavit were copies of notices from the C Town City Council showing that the rates and water and sewerage utility charges were actually in arrears and that a few thousand dollars were owing.

4. Counsel for the wife submitted that, having proved the required default had occurred, the wife is now, in fact, the trustee for the purposes of sale of the relevant properties, but that she seeks a declaration from the Court acknowledging that as well as necessary machinery orders facilitating her acting in the role of trustee to sell any or all of the expressly listed properties and making it easy for her to demonstrate that to the bank, the Titles Office, real estate agents and others who may be involved in the sale of any of the properties.

The Husband’s Case

1. The husband appeared at the hearing by telephone after having previously obtained the leave of the Court to do so. In the affidavit he filed supporting his application for leave to appear by telephone, he deposed to living in Country J and not being able to come to Australia for two reasons. Firstly, he said that there is a Departure Prohibition Order put in place by the “Registrar of Child Services”. I consider he probably meant the “Child Support Registrar”. He told the Court at the hearing that is because he is currently held to be in arrears of child support owed to the wife in the sum of approximately $25,000. He told the Court that is the subject of dispute that was before the Administrative Appeals Tribunal of Australia (“AAT”) which is ongoing. He said that “there is no way, until this Order is lifted, that I can attend any session in Australia”.

2. Secondly, he deposed to being involved in proceedings in Country J in which he has been charged with insider trading. He said the High Court of Country J has impounded his passport. He said:

   Thus I cannot leave [Country J] without the Leave of Court.

3. The Court was told at the hearing of this application that the AAT had actually already decided the husband’s child support proceedings and that his attempt to have the arrears of child support discharged (presumably by departure from administrative assessment) was unsuccessful. The Court was told by the wife’s counsel that the AAT had made its decision on 3 April 2018. That was almost four weeks before the husband swore his affidavit in which he said the matter in the AAT was “ongoing”.  The father conceded that, but quickly told the Court he was appealing the decision, though he had not done that yet. A party appealing against a decision of the AAT has 28 days from receipt of the written statement of reasons within which to file the appeal. As the hearing before me was on 14 May 2018, he was already out of time to file an appeal unless he had not received the written statement of reasons from the AAT on or before 16 April 2018. The Court was not told when the husband received that statement of reasons, so the Court is unable to conclude that the husband was already out of time to lodge an appeal.

4. In any event, he had been given leave to appear by telephone by me and he appeared by telephone and made his submissions in response to the wife’s application. It was not clear where he was appearing from as he did not inform the Court of that. What he did tell the Court during the call-over in the morning on the day of the hearing was that he was boarding a plane in the morning and flying to an unnamed destination from where he would have to call in again in the afternoon. That happened, but it is not known from where he called.

5. Significantly, the husband did not challenge the wife’s evidence that the liability secured by mortgage over the property in which she was living had fallen into significant arrears, nor that the rates, sewerage and water charges in respect of the property had fallen into arrears.

6. The father instead made the following points through his evidence and reinforced them during his oral submissions:

   (i)That the liabilities of the parties or either of them in Australia and Country J exceed the total value of their assets and that this “matter should be at top of [the Court’s] mind when making any decisions affecting the parties’ interest”;

   (ii)He had not been able to pay anything towards the property (mortgage, rates and utilities) in which the wife and child live because of the wife’s own actions;

   (iii)That the wife had rejected reasonable settlement offers over the last two years, so she has come to Court with “unclean hands” and that her alleged ignorance of an anti-suit injunction he asserts he obtained from a Court in Country J also amounts to her not coming to this Court with “clean hands”;

   (iv)That if the Court allowed, he could “restructure [his] position to make certain cash-outs from the injuncted assets” that include all of the Australian properties.

7. In one of his affidavits filed 10 May 2018, the husband asserted the following:

   (i)That the wife and child have a roof over their heads on an interim basis;

   (ii)That the asset pool is protected until a proper decision has been made on the actual quantum of assets “decided by a competent forum”;

   (iii)That his proposal would allow both parties to be legally represented; and

   (iv)That neither party would be disadvantaged by his proposal;

   (v)That to “lock up” his “saleable assets” in favour of the wife would be a grave injustice as it prevents him from defending himself in these proceedings and in the insider trading proceedings in Country J.

8. The husband also asserted that the wife’s application should be stayed until 18 May 2018 when he said it was listed again in this Court for property settlement. He went on to assert that if that was unsuitable that the Court permit the wife to only sell one property, the unit situated in Brisbane, with both parties being involved in the sale. He said that that net sale proceeds (asserted by him to be no less than $150,000) be deposited into a neutral trust account in favour of both parties with that money then to be disbursed as follows:

   (i)In payment of mortgage arrears in respect of the property the wife is living in;

   (ii)In payment of all rates and charges that are owing on that same property;

   (iii)In payment of mortgage instalments in respect of the loan secured by that property as and when they fall due; and

   (iv)In payment of a sum of AUD$30,000 to each of the parties.

9. The wife opposed that course and, through her counsel, maintained the submission that the default giving rise to the operation of the trust for sale of any or all of the four named properties had been proved and, thus, the trust already triggered. He submitted that there was no good reason for the terms of the orders made in April 2017 to be altered now.

My Determination

1. The husband failed to persuade me that his default on the loan repayments was somehow caused by the wife’s “own actions”. There was an order in place that required him to do certain things. The husband did not appeal against it. He did not apply to discharge it or vary it. He did not comply with it and he concedes that. The default provisions in the order were triggered when that default first occurred and a long time has passed since, during which the husband faced the prospect that the wife would act on the default provisions. He did not seek to vary or discharge those orders in that time and has only responded to this application by the wife to seek formalisation of the default provisions so that her position as trustee is suitably clear to third parties with whom she may now deal.

2. I did not accede to his request to “stay” matters until 18 May as I was aware that the Court event scheduled for 18 May was a directions hearing before a Registrar dealing with this matter whilst it is still in the resolution phase within the Court before it is put in the pool of matters awaiting allocation to a trial judge’s docket to be readied and listed for trial. No property settlement was going to be determined by a Registrar on 18 May.

3. Furthermore, the fervent assertions by the father that the wife has “unclean hands” because she has rejected his reasonable offers of settlement are meaningless to the Court at this juncture. The Court cannot at this stage of the proceedings determine with any degree of clarity or certainty that offers the husband made to the wife were reasonable or that any decision on her part to refuse to enter a settlement with the husband on the terms he offered was unreasonable or not soundly based. That can only possibly be determined once all of the matters in dispute in the proceedings have been determined and the Court has made property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) that the Court is satisfied are just and equitable. The husband might yet be found to be correct, but with respect to him, that simply cannot be determined at this point in the proceedings.

1. Also, the assertion that she has not come to the Court with clean hands because she ignores an anti-suit injunction granted in the Country J Court is without merit. The husband’s evidence does not satisfy me that a Country J Court granted an anti-suit injunction against the wife when he says that it did. In any event, even if it did, that it was apparently done ex parte, without the wife being heard and without her knowledge, before her application to this Court for an anti-suit injunction was determined satisfies me that she cannot be said to come to this Court without clean hands because of that issue. 

2. In any event, the position now advanced by the husband is clearly based on an acceptance that it is appropriate for at least one of the properties situated in Australia to be sold and for the net proceeds to be used to discharge the arrears of the mortgage debt secured over the home in which the wife and child live and in payment of ongoing mortgage instalments on that loan. To his credit, he also concedes the appropriateness of the wife and child having a roof over their heads on an interim basis. Implicitly, he also concedes it is best to do what can be done to avoid the mortgagee acting and taking steps to realise its security in a way that might result in there being less equity realised out of the liquidation of that asset than if an orderly sale is conducted in the future.

3. Much of the balance of the husband’s proposal is, in my respectful judgment, demonstrative of inconsistency within his position. On the one hand he asserts that three other properties in Australia should be “protected”, and by that, he appears to be asserting that means “not sold” pending final property settlement being determined, whilst on the other hand he complains that “locking up” saleable assets “in favour of the wife” would be a grave injustice to him because it “prevents” him from defending himself and he asserts that if the Court allowed he could “restructure [his] position to make certain cash-outs from the injuncted assets”.

4. I consider that the husband’s position fails to recognise that whilst the existing orders, as now triggered, permit the wife to select which one or more of the properties she considers she should sell, they do not permit her to access any of the net proceeds of the sale of any of those properties save for as provided in the orders. That is, she is able to use some of the net proceeds to pay the arrears of mortgage owing on the property she lives in and to continue to meet the ongoing mortgage instalments as and when they fall due and also to meet the rates, sewerage and water charges on that property as and when they fall due. That should give her a chance to secure that “roof over [her] head” that the husband also supports her and the child having. The orders, however, provide for any other proceeds of any sale of one or more of the properties to be invested in an interest bearing account and held by the wife’s solicitors on trust for both of the parties pending further order.

5. Clearly then, save for the amount necessary to be disbursed to ensure the continued occupation of their home by the wife and the parties’ child pending finalisation of the proceedings or earlier order to the contrary, any conversion of real property to cash by the wife electing to sell the property will still result in the equivalent cash asset of the parties being “protected’ by being invested in an interest bearing deposit and not unilaterally disbursed by one or other of the parties before any further orders are made.  Accordingly, I do not accept that the orders the wife seeks “lock up saleable assets in favour of the wife”. The orders give both parties protection, as I am quite satisfied the wife will not act in a way that prejudices the husband’s interest in the equity in these properties as, prima facie, at this point in time, I accept she has as much interest in maximising the value of the capital assets represented by these properties as the husband does.

6. Furthermore, the husband’s assertion that the parties have a negative asset position overall is not lost on the Court. The accuracy, as well as the relevance, of that assertion remain matters for determination on another day, but for the moment I am satisfied the orders made, and now sought in further declaratory form by the wife, provide for preservation of as much of the parties’ assets as are located in Australia and within the jurisdiction of this Court as is necessary having regard to the interests of both parties and the interests of justice.

7. The husband asserts that his proposal would ensure both parties would be legally represented. That is an interesting assertion. Clearly, the wife is already legally represented in the proceedings. She has had the same solicitor and counsel each time she has appeared before me. Though the husband has appeared in the proceedings at the last few court events without legal representation, he did have representation on the first occasion. I understood him to have discharged that solicitor as he was not happy with the representation he provided. The evidence adduced by the husband also supports a finding that the husband has still been retaining lawyers in Country J to represent him. He pointed to recent offers of settlement sent to the wife by the Country J firm of solicitors that represents him. At this point, I also observe that the husband concedes that proceedings arising out of the breakdown of the marriage, that were commenced by him, are still on foot in Country J, notwithstanding this Court last year having made what is commonly called “an anti-suit injunction” against the husband.

8. The husband submitted that the Court should now make an order that out of the proceeds of sale of one Australian property to be sold by the wife, each party should be given $30,000. Though he does not expressly say so, the implication is that he intends to use such funds to pay for legal representation in these proceedings. It seems that he is asking for an interim litigation costs funding order and is prepared to let the wife have the same amount (presumably, to pay her lawyers some of what she probably owes them). The husband’s application, if it can be described as that, was not supported by the wife. That is understandable, I consider, as the husband did not adduce evidence sufficient to persuade me that if he is given $30,000 of the sale proceeds of any property, he will utilise it in paying for legal representation in these proceedings in this Court. Accordingly, for the time being, I will not make such an order.

9. Finally, considering the husband’s submission that only one property be sold and one in particular, I am not persuaded that it was demonstrated that the wife’s right to choose which of the properties she seeks to sell, what order they are to be sold in, when sales are to occur and such other related issues should be restricted in any way.

10. The continued occupation of their home by the wife and the child is, on the evidence, at some risk, given the arrears and the active current interest of the mortgagee. I consider it entirely appropriate, in these circumstances, to leave in place orders that give the wife the flexibility to choose one or more of the four properties to sell and the circumstances in which she sells it or them. Once she takes appropriate advice, it may become clear to her that the market in respect for the four properties is not necessarily the same and that one may be easier to sell in a shorter time-frame than others. I do not consider it appropriate to take that choice off the wife at this point.

11. I will make the orders the wife seeks.

Another application of the Wife

1. In a document that is a Response to Initiating Application (Family Law) filed by the husband on 3 April 2018, the husband seeks the following final order:

   (a)As the issue of “forum non conveniens” has not been decided conclusively by both the Country J and Australia courts as and such, the Applicant be restrained from taking any actions that could harm the Respondent’s position in a court of law, including the transfer of any Australian assets owned by the Respondent;

   (b)That the Applicant be restrained from pursuing any legal action in Australian involving the Respondent as she has been restrained by the Country J court from pursuing any legal action against the Respondent outside of Country J as of 15 May 2017 and her current actions are an abuse of the Country J court ruling;

   (c)That the Final Application by the Applicant filed on 5 September 2016 by stayed until the forum non conveniens is conclusively determined in Australia and Country J; and

   (d)A contempt charge by levied against the Applicant as she has breached the court order in Country J of 15 May 2017.

2. The wife sought an order that such application of the husband be dismissed. With apparent reasonable cause, counsel for the wife treated the application of the husband as if it was truly an Application in a Case. I consider that is what it was intended to be and so I will also treat it as such. Again, mistake as to the correct form of the application is not, in itself, fatal. However, I am satisfied there is absolutely no merit in the application.

3. Counsel for the wife correctly submitted that the forum issue has already been determined in this Court when the anti-suit injunction was granted ordering the husband to discontinue his Country J proceedings and restraining him from continuing to prosecute them. It is completely incorrect for the husband to assert that the forum issue has not been decided or “conclusively determined”.  It has. This Court is seized of the matter and has the jurisdiction to deal with it. The husband has raised this challenge to the appropriateness of the forum previously and he was unsuccessful. He did not appeal that determination. Whether he continues to prosecute his proceedings in the Country J Courts in defiance of this Court’s orders is a matter for him to decide, particularly when he now faces contempt proceedings in this Court for that very fact.

4. I do not intend to stay the wife’s proceedings. I do not intend to restrain the wife as the husband seeks in that application. I do not have the jurisdiction to “levy a charge of contempt” against the wife for an alleged breach of a Country J Court order (a sealed copy of which has not even been adduced into evidence in these proceedings by the husband).

5. I will dismiss the husband’s application.

The Contempt Application

1. The wife also filed an application effectively prosecuting the husband for contempt of the Court, alleging that he sold or disposed of property in deliberate breach of the April 2017 Orders, failed to make disclosure in deliberate breach of those same Orders, failed to provide copies of documents in deliberate breach of the same Orders, failed to deliver a motor car to the wife in deliberate breach of the same Orders and failed to discontinue his proceedings in Country J in deliberate defiance of this Court’s anti-suit injunction.

2. The husband made it clear that he intends to defend those proceedings.

3. The wife’s counsel acknowledged on 14 May 2018 that the Court could not hear those proceedings that day. He asked for the application to be listed for hearing on a later date. Counsel for the wife informed the Court, via email copied to the husband of the dates when he was not available in August, September or October to appear for the wife on the contempt application. The husband informed the Court, via email copied to the wife’s solicitors, that the “next suitable time to attend by telephone, for the contempt application would be 29 October and 13 November 2018.” He said that after those dates “the next date for me are in March or April 2019.” There was no accompanying explanation.

4. I did not inform the husband at the hearing on 14 May that he would be given leave to appear at the hearing of the wife’s contempt application by telephone. Nevertheless, I will list the wife’s application for hearing before me at 10:00 am on Tuesday, 13 November 2018 with the expectation that the husband will appear in person on that date and not by telephone. Deliberate and flagrant contempt of the Court by the husband is alleged by the wife. One of the allegations is that he has deliberately continued proceedings in Country J in defiance of this Court’s anti-suit injunction. I have already observed that the husband has admitted that the proceedings in Country J are still proceeding. Prima facie, the husband does appear to be acting in contravention of this Court’s Orders. If he is deliberately defying this Court’s orders, that is a serious matter. The consequences of a finding that he is acting in contempt of this Court can be serious. I make it clear, again. The husband’s personal appearance before the Court on Tuesday, 13 November 2018, with or without legal representation is expected.

Costs

1. The wife sought an order that the husband pay her costs of and incidental to the application that I heard on 14 May in the event that she was successful. She seeks them on an indemnity basis. Counsel for the wife included submissions in his written Outline of Submissions going to the issue of costs. The husband argued that costs should not be ordered against him in the circumstances of the case. He told the Court that, in any event, he could not afford to pay the wife any amount he might be ordered to pay.

2. Though the general principle is that parties to proceedings under the Family Law Act 1975 (Cth) should bear their own costs (s 117(1)), the Court is given a discretion, if satisfied that the circumstances justify it in doing so, to make such order for costs as the Court considers just (s 117(2)). Matters the Court shall have regard to in determining that satisfaction and whether any order is just are set out in s 117(2A).

3. The wife’s application was brought because of the husband’s failure to comply with previous orders of the Court. The husband has been wholly unsuccessful in defending the application and in seeking alternative orders. He has been wholly unsuccessful in the application he brought. Although the husband asserts impecuniosity, as counsel for the wife pointed out, in my reasons for judgment of 21 April 2017 I said:

   … in July 2015, the husband represented to the ANZ bank when seeking to borrow money to purchase the [C Town] property that he owned seven properties in Australia worth a total of $1,855,000, four motor cars worth $91,000, $300,000 worth of superannuation and $300,000 in shares and other funds. He listed his total assets at $2,806,000 and his liabilities at $800,500. He declared his income at $620,689 gross per annum.

4. I acknowledge that the husband says that is not reflective of his current financial circumstances. However, he has not put evidence before the Court that satisfies the Court that he is now as impecunious as he asserts. As counsel for the wife submits, the husband is still evidently flying around the world without satisfactory explanation for that or as to how that is funded. I observe that is at a time when he also asserts he cannot leave Country J without the leave of the Country J Court as his passport is impounded. I also observe that he asserted to the Court, without further explanation, that there are only two days where he could fit in appearances in this Court and, even then, only if by telephone.

5. I am not satisfied that the husband’s assertions of impecuniosity are truthful.

6. On the other hand, I accept that the wife’s financial circumstances are meagre and I do consider that the circumstances justify the making of an order that the husband pay her costs of and incidental to the application that was determined by this judgment.

7. The wife seeks indemnity costs. I am not persuaded that the circumstances justify an indemnity costs order and will not order they be paid. I will order the husband to pay the wife’s costs on a party and party basis as agreed or assessed in accordance with the Family Court Law Rules 2004.

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

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 31 May 2018.

Associate: 

Date:  31 May 2018