Federal Circuit and Family Court of Australia
(DIVISION 1)
Munir & Munir [2022] FedCFamC1F 851
File number(s): SYC 6551 of 2020 Judgment of: SCHONELL J Date of judgment: 4 November 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Where the wife contended that the husband breached Court orders, including a bond – Where the husband contended that a prima facie case was not established and that if it was then he had reasonably attempted to comply or alternatively that he had a reasonable excuse – Where the standard of proof is on the balance of probabilities – Where a prima facie case was established – Where in respect of the charges it was found that the husband had a reasonable excuse, had made a reasonable attempt to comply and did not breach the bond – Wife’s application dismissed – Husband’s solicitor directed to provide submissions as to why his conduct should not be referred to the Law Society of New South Wales. Legislation: Family Law Act 1975 (Cth) Div 13A, Pts VII, XIIIA, ss 70NAF, 112AB, 112AC, 112AD Cases cited: Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Lindsey and Lindsey (1995) FLC 92-638; [1995] FamCA 117
Oswin & Oswin (2019) FLC 93-916; [2019] FamCAFC 164
Perkins and Perkins (1993) FLC 90-600; [1979] FamCA 4
Sutcliffe and Sutcliffe (1989) FLC 92-004; [1988] FamCA 19
Division: Division 1 First Instance Number of paragraphs: 75 Date of hearing: 1 November 2022 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Stowe Solicitor for the Respondent: Cambridge Law ORDERS
SYC 6551 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MUNIR
Applicant
AND: MR MUNIR
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
4 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant wife’s Application – Contravention filed 12 July 2022 be dismissed.
2.The respondent husband’s solicitor may file with my associate within 28 days such written submissions as he considers appropriate as to why the Court should not refer his conduct to the Law Society of New South Wales for investigation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Munir & Munir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS…
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- [2022] FedCFamC1F 851
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CaseChat Overview and Summary
Munir & Munir involved a dispute between the parties following their separation and the subsequent proceedings for parenting and financial orders. The wife alleged that the husband had failed to comply with several court orders, including reinstating children's insurance policies, paying costs, and entering a bond to comply with court orders. The wife filed multiple applications for contravention and enforcement due to the husband's alleged non-compliance. The husband argued that he did not understand the significance of the bond and only focused on paying his ex-wife. The court had to determine whether the husband had breached the bond and whether he had a reasonable excuse for his non-compliance with the orders. The court also considered whether to refer the husband's solicitor's conduct to the Law Society of New South Wales.
The primary legal issues in this case were whether the husband had breached the bond and whether he had a reasonable excuse for his non-compliance with the court orders. The court had to assess the husband's evidence and determine whether he had contravened the bond's terms. The court also had to consider whether the husband's failure to comply with the orders was due to a lack of understanding of the bond's significance or some other reasonable excuse. Additionally, the court had to decide whether to refer the husband's solicitor's conduct to the Law Society of New South Wales for potentially misleading the husband about the bond's terms.
The court found that the husband had not breached the bond as it had not been established that he had contravened an order without reasonable excuse. The court noted that the husband had not seen a copy of the bond and only became aware of its terms after receiving advice from his current solicitors in early 2022. The court also found that the husband had focused on paying his ex-wife, which he believed was the most important thing he needed to do. The court concluded that the husband did not have a reasonable excuse for his non-compliance with the orders due to his lack of understanding of the bond's significance. However, the court decided not to refer the husband's solicitor's conduct to the Law Society of New South Wales, giving the solicitor an opportunity to present written submissions within 28 days.
The court dismissed the wife's Contravention Application filed on 12 July 2022, finding that the husband had not breached the bond. The court also decided to give the husband's solicitor an opportunity to present written submissions regarding his conduct, with a deadline of 28 days.
The primary legal issues in this case were whether the husband had breached the bond and whether he had a reasonable excuse for his non-compliance with the court orders. The court had to assess the husband's evidence and determine whether he had contravened the bond's terms. The court also had to consider whether the husband's failure to comply with the orders was due to a lack of understanding of the bond's significance or some other reasonable excuse. Additionally, the court had to decide whether to refer the husband's solicitor's conduct to the Law Society of New South Wales for potentially misleading the husband about the bond's terms.
The court found that the husband had not breached the bond as it had not been established that he had contravened an order without reasonable excuse. The court noted that the husband had not seen a copy of the bond and only became aware of its terms after receiving advice from his current solicitors in early 2022. The court also found that the husband had focused on paying his ex-wife, which he believed was the most important thing he needed to do. The court concluded that the husband did not have a reasonable excuse for his non-compliance with the orders due to his lack of understanding of the bond's significance. However, the court decided not to refer the husband's solicitor's conduct to the Law Society of New South Wales, giving the solicitor an opportunity to present written submissions within 28 days.
The court dismissed the wife's Contravention Application filed on 12 July 2022, finding that the husband had not breached the bond. The court also decided to give the husband's solicitor an opportunity to present written submissions regarding his conduct, with a deadline of 28 days.
Orders
Orders of the court
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Background
Background to the litigation
Accordingly, I propose to apply the civil standard of proof.Background facts The parties married in 2000 and separated on a final basis on 29 March 2020. There are three children of the parties’ marriage. On 17 September 2020, the wife commenced proceedings for parenting and financial orders. The wife in her affidavit filed 16 May 2022 sets out a number of historical matters. Counsel for the husband was asked whether or not he wished to cross-examine the wife. He indicated that he did not wish to do so. I accept, therefore, the matters of history as recited in the wife’s affidavit. The wife says that on 16 November 2020, Stevenson J made orders in relation to interim spousal maintenance. The wife contends that the husband did not comply with her Honour’s orders. On 29 March 2021, the wife filed a Contravention Application. On 8 April 2021, the wife’s application came before a Registrar. On that date a number of orders were made, including Order 6 which provided:6.That by consent within seven (7) days of the date of these Orders, the Husband shall do all acts and things and sign all documents as necessary to reinstate each of the children’s health insurance policies, the children’s car insurance policies, the children’s [N Company] mobile telephone accounts, and [Y’s] gym membership. It is not in issue that the husband had not complied with this order. This order formed the basis of the first charge. On 14 May 2021, as a consequence of the husband's failure to comply with orders, the wife filed an Enforcement Application. That matter came before the Court on 18 May 2021 and orders for costs were made. The wife contends that the husband has not paid the costs order made on that occasion. On 21 July 2021, the matter came before Rees J and orders were made by consent that provided for the payment to the wife of a sum of money said to be outstanding pursuant to the orders made by Stevenson J. In particular, those orders noted as follows:D.In respect of the Husband’s obligation pursuant to Paragraph 6 of the Orders of [a] Registrar made 8 April 2021 by consent, the Wife has provided the Husband’s legal representatives today with all relevant details necessary in order for the Husband to make good his default. Notwithstanding providing those particulars to the husband, the husband remained non-compliant with the order. On 5 August 2021, as a consequence of the husband’s continuing failure to comply with the order, the wife filed an Application in a Case. Such application came before a Senior Judicial Registrar on 13 September 2021, who made an order in the following terms:4.The husband enter a bond without surety, to comply with all Court orders, for a period of 18 months from the date of these orders. It is not in issue that the husband entered into a bond. The bond formed the basis of the fifth charge. On 20 December 2021, the matter was before the Court again for the purposes of directions. On that occasion an order was made by consent in the following terms:1.That the parties shall do all acts and sign all documents necessary to facilitate the preparation of the valuations in respect to the parties’ real property and businesses, including but not limited to:a.providing the nominated valuers, [Mr D] and [Mr C] with all necessary documents; and b.providing reasonable access to the properties to be valuedAnd that it be noted that [Mr D] of [F Company] shall value the parties’ real property in February 2022 and [Mr C] of [Mr C & Co] shall value the parties’ businesses in April 2022.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
In relation to the bond, the husband says:31When I was put on a bond by the Court my best recollection is that, it was not explained to me at the time what this was on how significant it is. 32I was really only concerned with what I needed to pay to my ex-wife. This was what was told to me as the most important thing that needed to be done by me. I focused on getting that done and paid. That was what I thought I had to do. That is all I thought the Bond required me to do. 33It was not until I received advice from my current solicitors in [early] 2022, that I realised the breach of any order of the Court was a breach of the Bond. 34I do not remember ever seeing a copy of the bond the Court issued against me. I have seen Orders made by the Court about this issue, but do not recall seeing the bond. This was not the subject of challenge. The terms of the bond are not before me. In circumstances where it has not been established that the husband has contravened an order without reasonable excuse and in the absence of knowing the precise terms of the bond, I cannot find that he has breached the bond.Conclusion In light of the above findings, I will dismiss the wife’s Contravention Application filed 12 July 2022. I have made reference in these reasons to the advice given to the husband by his solicitor. The Court is considering referring the solicitor’s conduct to the Law Society of New South Wales. Before doing so, I propose to give the solicitor an opportunity to place before the Court by way of written submissions such matters as he considers relevant as to why I should not refer his conduct to the Law Society of New South Wales. I will direct that those submissions be sent to my associate within 28 days.
Ratio Decidendi
Legal Principle Established
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