Munir & Munir
[2022] FedCFamC1F 851
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 FOR JUDGMENT
SCHONELL J:
By way of Application – Contravention filed 12 July 2022, the applicant wife (“the wife”) seeks that the respondent husband (“the husband”) be dealt with by the Court for failing to comply with a series of orders. The application is part of wider parenting and property proceedings.
In broad terms, the wife contends that the husband, without reasonable excuse, contravened a series of orders for the production of documents and other financial orders and, in addition, that the husband contravened the terms of a bond that had been imposed upon him for a period of 18 months. The wife sought orders that the husband be imprisoned for a period of six months, with such imprisonment to be suspended upon his compliance with the orders. The wife also sought orders for the issue of a warrant to lie in the registry in the event of the husband’s failure to comply with the conditions of his suspended sentence.
The husband contended that the Court could not be satisfied that there had been established a prima facie case and that, in the event of a finding of a prima case, the Court would not be satisfied that the husband had made no reasonable attempt to comply with the order and that in the event of a contrary finding that he had a reasonable excuse for non-compliance.
The wife relied upon the following documents:
(1)Application – Contravention filed 12 July 2022;
(2)Affidavit of wife filed 16 May 2022;
(3)Affidavit of wife filed 12 July 2022;
(4)Documents comprising tender bundle (Exhibit 1); and
(5)Case Outline.
The husband was not required to file any evidence until such time as a prima facie case had been established and even then was not obliged to file an affidavit unless he elected to do so.
Notwithstanding this position, his counsel indicated that in relation to the question of prima facie case, no reasonable attempt to comply and whether he had a reasonable excuse, he sought to rely upon the following:
(1)Affidavit of husband sworn 31 October 2022;
(2)Affidavit of husband’s solicitor sworn 31 October 2022;
(3)Exhibits to the husband’s affidavit (Exhibit 2); and
(4)Written Submissions.
Standard of proof
The husband’s counsel contended that the wife needed to establish beyond a reasonable doubt each of the elements of ss 112AB and112AC of the Family Law Act 1975 (Cth). The husband’s counsel submitted that there was no basis for any finding establishing beyond reasonable doubt any of the elements of ss 112AB or 112AC. The husband contended that, in circumstances where the wife sought an order for imprisonment, the standard of proof was the criminal standard, namely beyond a reasonable doubt.
The husband relied upon the observations of the Full Court of the Family Court of Australia (as it then was) in Oswin & Oswin (2019) FLC 93-916 (“Oswin”), where their Honours said:
20.Before an order for imprisonment can be made in contravention proceedings under Division 13A of Part VII of the Act the Court must be satisfied beyond reasonable doubt of:
•All the factual matters that relate to the finding of contravention;
•That the contravention is a “more serious contravention” to which the more serious and more punitive powers contained in Subdivision F of Division 13A apply; and
•The inappropriateness of other available sanctions.
I am not satisfied that their Honours observations in Oswin have any application to the current proceedings. Oswin was an application in relation to proceedings under Div 13A of Pt VII of the Act. In particular, s 70NAF provides as follows:
70NAF Standard of proof
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
These are not proceedings under Pt VII. These are proceedings under Pt XIIIA of the Act. The standard of proof is the civil standard. In that respect, the Full Court in Lindsey and Lindsey (1995) FLC 92-638 in the context of a case stated to the Full Court, determined that the standard of proof in proceedings pursuant to s 112AD of the Act is the civil standard of proof. Their Honours said the following at 82,431–82,440:
The relevant law
The standard of proof to be applied in federal Courts (including the Family Court) is set out in ss 140 and 141 of the Evidence Act. The provisions are as follows:-
Civil proceedings: standard of proof
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
…
We are also of the opinion that the breach of an order of the Court to which s 112AD applies does not constitute “an offence against or arising under Australian Law”. It follows that such proceedings are not criminal proceedings and therefore the criminal standard or proof does not apply to them. The appropriate standard of proof to be applied is the civil standard.
Having said that however, we arc nevertheless of the view that s 140(2) of the Evidence Act specifically incorporate the dicta to which we have already made reference in cases such as Rejfek v McElroy (supra), Hilton v Allen (supra) and Briginshaw v Briginshaw (supra) all of which state, albeit in slightly different ways, that the degree of satisfaction which the civil standard of proof calls may vary, having regard to the gravity of the facts to be proved.
What we have said however, is limited to proceedings under s 112AD heard by the Family Court and may not apply to proceedings heard in a court which is not a Federal court or to appeals from a court of a State, including an appeal from a court of a State exercising Federal jurisdiction (see sections 4(1) and 4(5) of the Evidence Act).
…
The effect of s 140( I) of the Evidence Act is to make the standard of proof for all civil proceedings covered by the Act the c1v1l standard on the balance of probabilities 111erefore the crux of the issue before this Court is not the distinction, if any, between the burden of proof applicable to civil and criminal contempt proceedings at common law, but rather, are proceedings under s 112AD of the Act civil proceedings as defined in the Evidence Act? In our opinion they are and therefore, for the reasons which we have already given (subject to the provisions of ss 4(1) and 4(5)), the breach of an order of the Court to which s 112AD applies does not constitute "an offence against or arising under Australian Law”, and therefore the standard of proof to be applied is the civil standard.
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 valued
And 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.
This order formed the basis of the second charge.
On 28 July 2021, the wife’s solicitors sent to the husband’s then solicitors a number of documents said to be the documents that would enable the husband to comply with Order 6 of the orders made on 8 April 2021. It is not in issue that there was no response to the wife’s letter.
On 13 January 2022, a further letter was sent by the wife’s solicitors, this time to the husband’s current solicitors Cambridge Law. That letter again provided information said by the wife to enable the husband to comply with his obligations under Order 6 of the orders made on 8 April 2021. The letter indicated that if there was no compliance with the order a contravention application would be filed.
On 13 January 2022, the husband’s solicitor responded to that letter. The content of that response is said to be relevant to part of the application before the Court. The letter says the following:
Dear Colleague
Having not been in the matter at the time these Orders were made, what is it our client is required to do? What is meant by “re-instate”? By children, is the reference being made to the adults which still reside with your client?
Surely, given the age of the “children” they are able to take out their own policies. It is not clear how our client can reinstate a policy that may have lapsed and why new policies cannot be taken by the adult “children”.
In relation to the Gym membership, are you able to point to where “re-instate” conveys an obligation for our client to pay a sum of money. That is not clear on the face of the Order you have provided or from the word itself.
With respect, if the genuine intention of your client, as indicated in prior correspondence, is to attempt to reach an amicable resolution to these proceedings, then trawling through prior Orders in an attempt to see which have not been complied with (especially Orders as obscure as the ones quoted) is not the manner in which to achieve it. We appreciate these are standing Orders and our client will do what he can to try comply with them, however, the question must be raised is that how do these Order impact the progression of the proceedings, or in deed, how does making an application for the enforcement of these Orders (assuming you can provide clear answers to the above) do anything but incur costs for the parties. In the time spent sending the correspondence, obtaining instruction and responding the “children” could have obtained their own policies online.
In any event, please provide answers to the above so that we can obtain instructions from our client. If the Order is capable of being complied with then he will, if it is not, then we will make, as part of our clients application to discharge the spousal maintenance, an application to discharge this Order. In the interim (given nothing actually turns on these Orders) we trust that no applications will be made about the non-compliance. If such an application is made then we will rely on this correspondence as to the question of cost.
We look forward to hearing from you.
(As per the original)
(Wife’s affidavit filed 16 May 2022, Annexure MO-8)
Relevant to the current application is the assertion in the fourth paragraph of “[w]e appreciate these are standing Orders and our client will do what he can to try to comply with them”.
There is no evidence that the husband has made any attempt to comply with the order.
On 9 February 2022, Mr C, the single expert accountant, sent an email to the husband’s solicitors identifying a number of documents that he required be provided.
On 21 February 2022, a letter was sent to the husband’s solicitor seeking that he comply with Mr C’s request.
On 21 February 2022, the husband’s solicitor responded in the following terms:
4. Our client will endeavour to have the documents required by the check list provided. We note that what is requested is significant and will take time. We confirm that while our client is required to make payment by the 25th, he is not obligated to have all documents signed and provided by that date. Our client will do what he can to ensure items requested are provided, however, any application for a contravention on this point is both premature and misconceived in light of the Orders.
(Wife’s affidavit filed 16 May 2022, Annexure MO-12)
The matter came before the Court again on 28 March 2022. On that occasion, the Court made the following orders:
1.IT IS NOTED THAT the matter has been relisted today at the request of the Applicant Wife in relation to further difficulties implementing the orders made by consent on 20 December 2022.
2.By consent, by not later than 4pm on 6 April 2022, the Respondent Husband is to provide [Mr C] with all documents requested from him by [Mr C] to allow for the completion of his valuation of the husband’s businesses.
It is not in issue that the husband did not comply with this order by the due date. This order formed the basis of the third charge.
On or about 24 May 2022, Mr C sent another letter to the husband's solicitor seeking responses to some information.
By letter dated 25 July 2022, the husband’s solicitor responded in part to some of the questions. In particular, he responded as follows:
1. We note your observation of the “that the surplus rent after expenses is accounted to the estate beneficiaries 1/3 each” does not accord with our instructions. We advised its role was “to account” to the beneficiaries not that “it had accounted” to them. As the administration of the estate was not completed within those financial years no such account has yet occurred. In any event we note that this issue is outside the scope of your engagement and valuation services as further clarified below.
(Exhibit 1, page 17)
The letter went on to make reference to various parts of the letter of engagement from Mr C and then contended the following:
3. …
(c) With respect, your questions are in the look behind the document and information provided nature of an audit investigation contrary to the above scope of your engagement;
…
(d) we are concerned as to the extension of the scope of your engagement without both parties instructions to do so. Please advise what communications you have had with the solicitor for the applicant wife other than the joint correspondence from or to you by both parties’ firms.
It is unexplained why it took until 25 July 2022 for the husband’s solicitor to form these views.
On 5 September 2022, further orders were made that the husband provide information to Mr C by 26 September 2022. This order formed the basis of the fourth charge.
At the hearing, counsel for the husband made the concession that “there has been no correspondence with [Mr C] between 25 July 2022 and 6.50 am this morning”. Such concession arises in the context where the husband’s solicitor swore the following in his affidavit on 31 October 2022:
14.It is my understanding that as far as Orders which are required for the progress of the proceedings, the information that was needed to be provided to the experts for the purposes of the valuations are now provided (Order 1 December 2021) and 28 March 2022).
It is unexplained why, by remarkable coincidence on the morning of the hearing, there has been asserted compliance with orders which have been outstanding for many months.
In circumstances where the documents were not provided until the morning of the hearing, the wife is not in a position to say whether or not there has been complete compliance with the orders.
The contravention application
The procedure in relation to an application for contravention is not controversial. It is undoubtedly the case that an applicant who asserts that a party has contravened an order is required to establish to the satisfaction of the Court on the balance of probabilities all of the relevant elements. The elements include establishing either an intentional failure to comply or making no reasonable attempt to comply and the absence of reasonable excuse.
In particular, the sections provide as follows:
112AB Meaning of contravene an order
(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
…
112AC Meaning of reasonable excuse for contravening an order
…
(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
Counsel for the wife conceded that her case was pressed under s 112AB(1)(a)(ii). That is, that the husband had made no reasonable attempt to comply with the order.
The burden of proof rests with the wife throughout the proceedings. The husband contended that the obligation to establish all of the elements of the contravention fell upon the wife at all times.
Whilst I accept that the burden of proof rests upon the wife, I am also of the view that once a prima face case has been established, a tactical onus falls to the husband. In that respect, albeit in the context of a parenting case but nevertheless of general application, the Full Court in Sutcliffe and Sutcliffe (1989) FLC 92-004 said at 77,183:
… once it is established that the children were not delivered to the applicant in accordance with the order and no excuse or explanation was offered by the respondent, the prosecution does not carry any further tactical burden of establishing facts from which the absence of just cause or excuse or reasonable cause could be inferred. The tactical burden of adducing evidence of the existence of such exculpatory circumstances rests upon the respondent. …
The Charges
The charges as formulated by the wife were as follows:
1. That the Husband without reasonable excuse failed to 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 pursuant to Order 6 of the Orders made on 8 April 2021.
2. That the Husband without reasonable excuse failed to do all acts and things and sign all documents as necessary to facilitate the preparation of the valuations in respect to the parties’ businesses pursuant to Order 1 of the Orders made on 20 December 2021.
3. That the Husband without reasonable excuse failed to provide [Mr C] with all documents requested from him by [Mr C] to allow for the completion of his valuation of the Husband’s businesses pursuant to Order 2 of the Orders made on 28 March 2022.
4. That the Husband without reasonable excuse failed to respond to any outstanding requests for documents and information made by [Mr C] for the purposes of completing his Single Expert Report in this proceeding by 4pm on 26 September 2022 pursuant to Order 7 of the Orders made on 5 September 2022.
5. That the Husband without reasonable excuse failed to comply with the provisions of Order 4 of the Orders dated 13 September 2021 (as amended on 23 September 2021), namely the Bond imposed upon him and which required him to comply with all Court Orders for a period of 18 months, in that the Respondent has continued to breach various Court Orders requiring him to do certain things, including but not limited to, Order 6 of the Orders dated 8 April 2021, Order 1 of the Orders dated 20 December 2021, Order 2 of the Orders dated 28 March 2022 and Order 7 of the Orders dated 5 September 2022.
In response to each of the charges, the husband indicated through his counsel as follows:
·As to Charge 1 – that the husband has a reasonable excuse
·As to Charge 2 – denial
·As to Charge 3 – denial
·As to Charge 4 – denial
·As to Charge 5 – denial, or in the alternative that the husband has a reasonable excuse.
I formed the view that Charge 2 was subsumed by Charge 3 and indicated to counsel for the wife that in my view it gave rise to the same breach. He did not demur from such proposition and I determined to therefore not proceed with that charge.
I then proceeded to deal with whether the wife had established a prima facie case.
As stated earlier, the husband’s counsel declined the opportunity to cross-examine the wife. Whilst the husband was not required to give any evidence prior to the establishment of a prima facie case, his counsel sought to read two affidavits that had been filed that day. I extended an invitation to the wife’s counsel as to whether or not he wished to cross-examine the husband on the issue of prima facie case. Her counsel indicated that he did not.
A prima facie case is usually established on the evidence of the applicant, the general principle being that the Court proceeds on the evidence of the applicant, and unless it is inherently unbelievable or contradictory it should be accepted and the Court thereafter decides whether or not on that basis a prima facie case has been established.
A prima facie case has, in one context, been described as a case with “a reasonable probability of that claim being successful in some measure” (Perkins and Perkins (1979) FLC 90-600 at 78,054). In the context of an application for an interlocutory injunction, it was described by the High Court in Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 in the following terms:
… whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief …
(Citations omitted)
The wife submitted that a prima facie case has been established.
The husband submitted that whilst there was no contest that the husband had not complied with the various orders, the Court could not be satisfied beyond a reasonable doubt that there was a prima facie case. As indicated earlier, I am not satisfied that that is the appropriate standard of proof.
In the absence of cross-examination, I was unable to resolve the competing factual determinations. I indicated to the parties that I was of the view that on the wife’s material, she had established a prima facie case. Of course, the finding of a prima facie case does not inevitably lead to the conclusion that there has either been a contravention of an order or a failure to establish a reasonable excuse.
Having determined that the wife had established a prima facie case, the husband was cross-examined by counsel for the wife. Counsel for the husband conceded that he was “a terrible witness”. Counsel for the husband agreed that it was open to conclude that he refused to answer questions and insisted on making speeches. My observation of the husband during the course of his evidence was that he was more intent on denigrating his former partner as well as the solicitors and counsel for his former partner. I have no difficulty accepting the frank concession made by his counsel. However, no matter how appalling his oral evidence, it was not established that the husband was either an unreliable or an untruthful witness as to the matters set out in his affidavit.
Almost all of the cross-examination was directed to addressing the orders that had been made to establish that the husband had knowledge of the orders and the obligations under the orders. That said, however, there were significant aspects of his evidence that was not the subject of challenge, including the evidence going to his mental health issues and his attempts to have others provide documents in circumstances where he contended he could not.
The Wife’s Submissions
The wife’s counsel submitted that there had been a history of non-compliance with the orders, including that a bond had been entered into on 13 September 2021. Her counsel in his Case Outline submitted:
4.6 It is contended that the Husband has consistently engaged in contumelious conduct in relation to the orders made in these proceedings in that the contraventions by the Husband of orders made in these proceedings are “serious, substantial and enduring”.
4.7 The effect of the ongoing conduct by the Husband in this regard is that the Applicant Wife’s attempts to progress the proceedings towards completion of a balance sheet and the ability to mediate when the matter is ripe for such, have been thwarted since her commencement of them in September 2020.
(Footnote omitted)
He contended that the husband has not demonstrated that he made a reasonable attempt to comply with the orders nor has he demonstrated a reasonable excuse. He said the husband has not brought to Court either Ms P or Ms Q and that the evidence demonstrates that, notwithstanding correspondence sent by the wife on 13 January 2022 providing the documents for the husband to re-instate the various insurance policies the subject of the first charge, there is no evidence of the husband attempting to comply with the order.
The husband’s submissions
Counsel for the husband submitted in relation to the first charge that it was not reasonably possible for the husband to comply with the order in reliance upon his solicitor's correspondence of 13 January 2022. He also submitted that the husband did not understand the obligations that were cast upon him by the orders and referenced the husband’s evidence in his affidavit that it was his understanding that it was not necessary for him to comply with the order in circumstances where his solicitors had filed an application to vary the order. It was submitted that the husband ought, consistent with s 112AC(2)(b), be excused in circumstances where he had relied upon legal advice.
In relation to Charges 3 and 4, his counsel submitted that the evidence reveals that the husband intended to and made reasonable attempts to comply with the orders. He makes reference to the husband’s evidence that the husband had a vulnerable pattern of dependency and that he was dependent on others to assist him. He says that the evidence reveals that the husband took some steps to comply with the orders, relying on the husband’s evidence to the following effect:
44. …
(a) With the help of [Ms P], I chased the company accountant, spoke to family members to try and get information I needed to provide to any expert and the others side. However, I was substantially reliant on the support of [Ms P], and I was told by [Ms P], more times than I can remember, that things were being worked on and she was getting the information required. I trusted her and had no reason to doubt her. I am not trying to say that I am completely without fault and I am not trying to say that I should not have done more. I am saying that with my limited understanding and ability to do things like this, I would call and push and ask that things be done and when I was told it was under control, I believed that and maybe I should not have but really I did not know what else to do at the time.
He says that this demonstrates that the husband did attempt to comply with the orders. He also makes reference to the evidence at paragraphs 44(b) and (f) of the husband’s affidavit.
In relation to Charge 5, counsel for the husband contended that the husband had a reasonable excuse for not complying with the order. He referred to the husband’s unchallenged evidence to the following effect:
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 around February/March 2022, that I realised the breach of any order of the Court was a breach of the Bond.
He submitted that this established that the husband had thought that he had done all that was required of him in relation to the bond, particularly in circumstances where the evidence of the husband is that the bond was not explained to him and he never received a copy of the bond.
Findings in relation to each charge
The evidence establishes that the husband has not complied with Order 6 made 8 April 2021, Order 2 made 28 March 2022 and Order 7 made 5 September 2022.
The issue is whether or not I am satisfied that he made no reasonable attempt to comply with the orders, and in the event that I am satisfied that he did not whether he has a reasonable excuse for not complying with the order.
Charge 1
The order made 8 April 2021 was made by consent. On 21 July 2021, orders were made that included a notation as referred to earlier in these reasons. At that time, the husband was represented by counsel. The clear inference arising from the language used in the notation is inconsistent with what is subsequently said in his solicitor’s letter of 13 January 2022. The notation makes plain what the husband needed to do to “make good his default”. It does not suggest that at that time there was a lack of understanding on his part or a difficulty with comprehension of the word “reinstate”. An order of this type carries with it an obligation that the party to whom the order is directed is required to take reasonable steps to do what they can to comply with the order. As much is made plain by the language contained in s 112AB(1)(a)(ii). There is not a scintilla of evidence of the husband making any attempt to comply with the order. I view the correspondence from the husband’s solicitor of 13 January 2022, as nothing other than a distraction and obfuscation. The letter might have a different interpretation if there were evidence of unsuccessful attempts to reinstate the policies. There is not. This conclusion of distraction and obfuscation is reinforced by the inclusion of the words “[w]e appreciate these are standing Orders and our client will do what he can to try to comply with them”, when seen against the backdrop of the complete absence of any evidence of subsequent attempts to comply.
I am satisfied that the wife has established within the meaning of s 112AB(1)(a)(ii) that the husband made no reasonable attempt to comply with the order. The issue becomes whether the husband has a reasonable excuse. The husband’s evidence in relation to this is set out at paragraphs 38, 39, 40 and 41. These paragraphs were not the subject of any challenge by the wife. These paragraphs demonstrate that the husband believed that it was not necessary for him to comply with the order until his application to vary the order filed on 24 January 2022 had been determined by the Court and also because of the advice from his solicitor who had explained that there was “not much that needs to be done for this Order” (at paragraph 40). He says that he does not recall receiving any advice or even understanding that he was obliged to comply with the order. This proposition stands somewhat inconsistent with the solicitor’s letter that said he would try to comply. This, however, was not explored in cross-examination. The natural inference arising from the husband’s affidavit is that the husband was acting upon the advice of his solicitor in not complying with the orders. This is reinforced by his counsel’s submission that states:
24. …
(b) …
(i)the understanding was based on legal advice: [Mr Munir] had been told by his solicitor that “the way it is made no sense and that until my former wife’s solicitor explain things more, there is not much that needs to be done for this Order”: [Mr Munir], [39]
A solicitor should never advise a client not to comply with an order. Notwithstanding that the advice is erroneous and should not have been given, I am satisfied that the husband’s reliance upon it is sufficient to establish a reasonable excuse.
Charges 3 and 4
These charges relate to the provision of documents to the single expert. It is not in issue that the husband did not comply with the obligations imposed by those orders. The husband gives detailed evidence as to the difficulties he had complying with the orders. It includes evidence as to health issues, which is to the following effect:
5 The symptoms I experience include recurring nightmares, I can hardly sleep, I have difficulties concentrating, I have real issue with my memory, I have no confidence and I have serious anxiety which causes me to panic over things that are not really significant at time.
6 I have a mental health management plan prepared by the various doctors and specialist doctors and mental health professionals.
7 I have seen a psychologist named [Ms R] since [2021]. I was referred to [Ms R] when I was released from the [Suburb S Hospital] after a short admission and I continued to see her for a while but have not seen her for a few months now.
8 I was released by agreement on a mental health plan in the care of our family doctor […]. The Healthcare plan was put on hold when I suffered an injury as a result of a work accident [in mid-2021]. I was suffering from mental health as a result of my broken marriage and the nature and these proceedings. I found myself alone without anybody in my home for the first time in 20 years and without my 3 children. I was overwhelmed and had to learn how to do use the Internet and do banking and learn about banking apps and online uses. I did not have to operate bank accounts or computers before my relationship with [Ms Munir] fell apart. I was not coping with the information overloads, and I blamed my circumstances for my accident in [mid-2021].
9 I take an antidepressant […] and a medication for anxiety at times before and after my surgeries. The nerve pain […] is hard to manage, it is shocking at times. After the accident in [mid-2021], I was prescribed pain management medication […], Antibiotics to alternate and I was not doing well with pain management and the mental health plan as I was no coping with these proceedings. I have had [surgeries] since [mid-2021] and more almost every 3 months after that.
10 I struggle with my mental health every day. I am so depressed about my situation with my hand and my family.
This evidence was not the subject of challenge. He also says:
27I am having a massive difficulty keeping up with what I need to do in these proceedings because of my injuries, the shock of how this has all unfolded and my mental health. I cannot take the pressure of these proceedings. I struggle reading documents. I struggle being able to focus. I struggle to understand what has to be done.
28 I remember in [early to mid] 2021 I was served documents on [multiple] different occasions since Mills and Oakley); have acted for my ex-wife. Most of the documents were served just before a hearing with various amendments. I believe there were [multiple] contravention orders overlapping and I simply did not know what was going on.
29 My solicitors send me things, explain things to me, and ask me things. However, I find that I really do not know what to do with that information they provide me, and often feel I fail to fully understand what they want from me or expect from me. My usual response to them is “ask [Ms P] or [Ms Q]” (whoever was the person assisting me at the time).
This evidence was not the subject of any challenge. The husband also gives evidence as follows:
43.I was aware, shortly after the engagement of my current solicitors, that there were was information and documents that were not provided to experts. 1 had believed that between [Ms P] and my old solicitors, whatever was required by the experts was given to them. When my new solicitors told me about the issue with the documents and information not being given over, I discussed it with [Ms P]. She would say to me things like “I am working on it” and “its not easy because your ex took all the information with her as well as the passwords and computer, I am doing the best I can”. I remember for a period of over 2 month I would ask [Ms P] several times a week if there was any progress or if there was anything that was needed to get things moving and she would constantly tell me "things are under control" and for me not to "worry about it, its being taken care of'. Because I spoke to [Ms P] so often, I began to notice that she was not acting the same. She told me that she was dealing with her own personal issues including health concerns and that I needed to find someone else to assist me. This is when I located [Ms Q].
44 In relation to the Contravention application, prior Orders made by the Court and steps taking by me to comply with the Orders I say:
(a) With the help of [Ms P], I chased the company accountant, spoke to family members to try and get information I needed to provide to any expert and the others side. However, I was substantially reliant on the support of [Ms P], and I was told by [Ms P], more times than I can remember, that things were being worked on and she was getting the information required. I trusted her and had no reason to doubt her. I am not trying to say that I am completely without fault and I am not trying to say that I should not have done more. I am saying that with my limited understanding and ability to do things like this, I would call and push and ask that things be done and when I was told it was under control, I believed that and maybe I should not have but really I did not know what else to do at the time.
(b) When [Ms Q] came on board, I gave her complete authority to deal with accountants and discuss the issue with my solicitors about what was needed. There are many times I have spoken to her and I was told things like “we are getting it all together" and "it will be provided”.
(c) I would occasionally follow up to see if things were being provided but I just do not know much about financials and things of that kind. It is something that I just would not know where to start to get other than directing people to the accountant. This is what I did and accepted when I was told things were being done.
(d) I did not assist in personally looking for documents or information because I would not know where to start or what the documents actually looked like or represented. I made introductions with the accountant and [Ms P] or [Ms Q] and gave them authority where required. I did not know how else I could assist.
(e) I would answer each and every call and query (from lawyers, [Ms P], [Ms Q] and others) and tried the best I could to answer questions about the information required or documents.
(f) I recall telling [Ms Q] that "you have complete access and authority to everything you need to get things done, please I need your help, I don't know what I am doing, I just want to get whatever it is the Court wants me to get and just to help finish this thing, I am not coping and cannot deal with this". I would use different variations of these words regularly when I speak to [Ms Q].
(g) I was not aware specifically of what was required to be provided to the experts, only that they needed to be provided with information and documents. Even if I was told what all the items were, I would not know where to start looking for them if I did not have the assistance of either [Ms P] or [Ms Q].
(h)I have, at various times, had different solicitors and barristers appearing for me at Court appearance where Orders were made about me needing to provide things to the experts. I would be aware of these Orders.
(i) “From time to time, my lawyers would ask me questions about documents and information required for the experts. I never felt I could really help them. I used to say things like: "Just talk to [Ms Q] about that”
Again, none of this was the subject of any challenge. I am satisfied, within the context of the unique facts of this case and the limitations of his health, that the husband made reasonable attempts to comply with the order. The fact of non-compliance until the morning of the hearing does not detract from my finding that he made a reasonable attempt. The timing of his compliance may go to the question of costs incurred by the wife.
Charge 5
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.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 4 November 2022
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