Platt and Murphy
[2011] FMCAfam 637
•1 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PLATT & MURPHY | [2011] FMCAfam 637 |
| FAMILY LAW – Contravention – property order – where order provided for payment by instalments – whether payments should have commenced in November or December 2010 – whether proof of contravention – where applicant was required to provide information to respondent before respondent could comply with order – evidence insufficient to establish contraventions. |
| Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.112AB, 112AC, 112AD |
| In the Marriage of Reilly (1995) 19 Fam LR 213; FLC 92-616 In the Marriage of Lindsey (1995) 19 Fam LR 649; FLC 92-638 |
| Applicant: | MR PLATT |
| Respondent: | MR MURPHY |
| File Number: | SYC 2611 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 June 2011 |
| Date of Last Submission: | 20 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondent: | Ms Swifte |
| Solicitors for the Respondent: | Swifte Law |
ORDERS
The Application filed on 9 February 2011 alleging that the Respondent on unspecified dates contravened Orders 8 and 12 made by consent in the Family Court of Australia at Sydney on 10 November 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Platt & Murphy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2611 of 2010
| MR PLATT |
Applicant
And
| MR MURPHY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to deal with the Respondent for contravention of Orders for settlement of property made by consent on 10th November 2010.
There are two Orders said to have been contravened, Orders 8 and 12.
Order 8 provides:
That the Respondent pay to the Applicant the sum of
$2,000.00 per month for a period of 13 months by way of property settlement paid in instalments on the 12th day of each month into a bank account nominated in writing by the Applicant.
Order 12 provides:
That within 28 days the Applicant via his lawyer notify the Respondent via his lawyer of the precise location of the Applicant’s books and within 7 days after that time the Respondent shall cause the books to be delivered to the Applicant’s address as notified by his lawyer.
The Alleged Contraventions
By his application filed on 9th February 2011 the Applicant claims that the Respondent contravened Order 12 on an unspecified date. The claim is expressed as:
Property Recovery Failure
The Applicant also claims that the Respondent contravened Order 8 on an unspecified date. The claim is expressed as:
Failure to pay.
History
The application came before the Court for the first time on 4th April 2011. On that date an Order was made that:
2. The Respondent is to deliver the books referred to in Order 12 made by consent on 10 November 2010 to Property S, NSW on Monday 11 April 2011 at 2:00 pm.
The Respondent, through his solicitor, advised the Court that he denied contravening the orders and the application was listed for hearing on 20th June 2011.
The Applicant filed a further application on 15th April 2011, claiming a contravention of the order of this Court made on 4th April 2011 relating to the books. That application is returnable on 1st August 2011.
When the matter was before the Court on 20th June 2011 the Applicant was offered the opportunity to bring forward the application but did not wish to do so.
Evidence
The Applicant relies on his affidavit sworn or affirmed on 3rd February 2011 in which he states:
1. Property Recovery Failure.
2. Failure to Pay $2000.
The Applicant was cross-examined on his affidavit. He confirmed that he was alleging a failure to pay the sum of $2,000.00. It was put to him that he had not alleged on what date the failure to pay had occurred.
The Respondent’s solicitor, Ms Swifte, put to the Applicant that she had written to him on 16th February 2011 but he did not reply. The Applicant said that he had telephoned the solicitor’s office and left a message but did not receive a reply. He confirmed that he had not replied in writing. The letter from Swifte Law to the Applicant dated 16th February 2011 was tendered and admitted into evidence without objection.
The Applicant confirmed that his former solicitor, Mr Boers, had provided the details of a bank account to the Respondent’s solicitor. The Respondent made a payment in December 2010 and a further payment on 12th January 2011.
It was put to the Applicant that the Order did not provide a commencement date for the payments of $2,000.00. He said that Order 8 was specifically drafted so that it would provide a period of 48 hours from the date the document was signed for the payments to commence, being the 12th day of the month.
There was no further evidence.
Submissions
The Respondent submitted that the application must be dismissed as the allegations have not been properly particularised.
The Applicant submitted that the order specifically stated that the payments should have been made on the 12th day of each month. He sought interest on the unpaid amount.
The Relevant Law
Contravention of an order in this context is defined by s.112AB of the Family Law Act 1975. A person who is bound by a court order is taken to have contravened the order if, and only if, he or she has:
i)intentionally failed to comply with the order; or
ii)made no reasonable attempt to comply with the order.
Section 112AC of the Act refers to the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. Subsection 112AC(2) gives the example of a person contravening an order because he or she did not, at the time of the contravention, understand the obligations imposed by the order. However, the Court must be satisfied that, in those circumstances, the respondent ought to be excused in respect of the contravention (s.112AC(2)(b)).
Subsection 112AC(1) makes it clear that the example given in subsection 112AC(2) is not an exclusive definition of “reasonable excuse”.
The Court has power to impose an appropriate sanction upon a person found to have contravened an order without reasonable excuse (see section 112AD).
The standard of proof is the civil standard, on the balance of probabilities (see Evidence Act 1995 (Cth) s.140) (see also In the Marriage of Reilly[1]; In the Marriage of Lindsey[2]).
[1] (1995) 19 Fam LR 213; FLC 92-616
[2] (1995) 19 Fam LR 649; FLC 92-638
Conclusions
Order 8 imposes an obligation on the Respondent to make thirteen payments, each of $2,000.00, to the Applicant by way of payments into a nominated bank account on the 12th day of each month. The Applicant claims that one payment of $2,000.00 has not been made when it fell due.
The parties are at odds as to when the Respondent’s obligation to make the payments of $2,000.00 per month commenced.
The Applicant’s contention is that the first payment should have been made on 12th November 2010, two days after the Orders were made. The Respondent’s contention is that the Order is silent as to a commencement date and so it can be inferred that the first payment was not to be made until 12th December 2010.
The order imposes an obligation to make thirteen monthly payments of $2,000.00 on the 12th day of each month. It is imprecisely drafted. It would have been preferable for the Order to have stated words to the effect of “by monthly instalments of $2,000.00…the first of such payments to be made on (date) and on the 12th day of each month thereafter”.
In order to ascertain a date for the commencement of the payment of instalments, the Court must consider the ordinary English meaning of the words used. As the Applicant submits, the date of the Orders is a relevant guide.
The Orders were made on 10th November and became operative immediately. They impose an obligation to pay the sum of $2,000.00 on the 12th day of each month until thirteen payments have been made. If the Respondent’s contention is correct, he would have had a period of grace of one month and two days before he was obliged to make the first payment. If the orders had been made on 12th November or on a later day in that month, it is clear that the obligation to commence payments would become operative on the 12th of the following month, namely 12th December.
However, the orders became operative on a date prior to the 12th day of November. Thus, it appears to me that the Applicant is right when he submits that the obligation to make a payment of $2,000.00 arises on the next occasion when the twelfth day of the month falls, in this case, the 12th November. If that were not the case, what then would have been the point in specifying that the instalments were to be paid on the twelfth day of each month? If it were the intention of the parties that the Respondent was to have a month’s grace before he made the first payment, it would seem logical that the Orders would have provided that the payments were to be made on the tenth day of the month, as the Orders became operative on 10th November.
I am satisfied that the meaning of the Consent Orders entered into by the parties on 10th November 2010 is that the first payment of $2,000.00 was to be made on 12th November 2010 and subsequent payments were to be made on the 12th day of each following month.
The Respondent is on firmer ground in submitting that the Applicant has not properly particularised the claim of contravention. The application requires an applicant to “state precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable”. The Applicant has not provided any of this detail in his application, merely stating:
Failure to Pay
The affidavit in support is only slightly more informative, as it states:
Failure to Pay $2,000.00[3]
[3] Affidavit of Mr Platt 3.2.2011 paragraph 2
Nowhere does the Applicant provide any evidence or make any claim as to the date when the Respondent is said to have contravened the order by failing to pay the sum of $2,000.00. The element of time is critical in this matter, because the Order imposes an obligation to make a payment on the 12th day of each month.
Again, attempting to interpret the document, the allegation appears to be that, on the Applicant’s contention, on a date after 12th November 2010, when the obligation first arose, and the date of the application, which was filed on 9th February 2011, the Respondent failed to pay an instalment of $2,000.00.
The Order provides that the instalments of $2,000.00 be paid “on the 12th day of each month into a bank account nominated in writing by the Applicant”. It should, therefore, be relatively easy to prove the number of payments made into the account by the Respondent by production of the relevant bank statements. On the Applicant’s contention, between 12th November 2010 and 9th February 2011 there should be three payments of $2,000.00, made on 12th November, 12th December and 12th January. Obviously, if the bank records show that only two payments were made, then there is at least prima facie evidence of a contravention of the order.
The Applicant has provided no such evidence. Apart from the bald assertion in his affidavit “Failure to pay $2,000.00” he has provided no evidence at all.
The onus of proof of a contravention of an order is on the Applicant, on the civil standard, being the balance of probabilities.
The evidence is insufficient to establish that the Respondent has contravened Order 8 made on 10th November 2010. That part of the application will be dismissed.
The Applicant claims that the Respondent contravened Order 12 made on 10th November 2010. That Order required the Applicant and the Respondent to do certain things within specified times:
a)Within 28 days of the date of the order the Applicant, through his lawyer, was to notify the Respondent, through the Respondent’s lawyer, of the precise location of books owned and claimed by the Applicant;
b)Within that same period of 28 days the Applicant, through his lawyer, was to notify the Respondent, through his lawyer, of the address to which the books were to be delivered; and
c)Within a further period of 7 days the Respondent was to ensure that the books were to be delivered to the address nominated by the Applicant.
It is clear that the Applicant was obliged by the order to provide the information in both (a) and (b) to the Respondent within the initial period of 28 days, otherwise the time of 7 days imposed by the order would not start to run. Without the information described in (a) and (b) the Respondent would not be able to comply with the order.
The Applicant was required by the application to “state precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place”. The application does not state the date when the Respondent failed to deliver the books, nor does it state the place to which the books were to be delivered. The application merely states:
Property Recovery Failure
As the terms of Order 12 are quite specific about time and place, this failure to particularise the alleged contravention would of itself be fatal to the application.
The Applicant’s affidavit in support of the contravention application provides no assistance, as it also merely states:
Property Recovery Failure[4]
[4] Affidavit of Mr Platt 3.2.2011 paragraph 1
The Applicant has provided no evidence that he complied with his obligations under the Order by providing to the Respondent’s lawyer within 28 days of the date of the order either:
a)The precise location of the books; or
b)The address to which the books were to be delivered.
Without that evidence, the Applicant has not shown that the Respondent was capable of complying with his obligations under the order.
The Respondent’s solicitor’s letter of 16th February 2011 goes further, and claims that the Applicant has not complied with his obligations under the order:
Our client has not breached this order as you have failed to provide any address at all, through your lawyer, within 28 days of the date of the order. This time period expired on 8 December 2011.[5]
We confirm that a telephone call in which you refused to identify yourself was left on our voicemail on 21 January 2011 in relation to the matter.
We note that we then immediately made enquiries with Mr Boers, your previous solicitor, In January 2011 as to whether he was still acting for you. He confirmed on 23 January 2011 that he no longer acts for you. He did not provide any address for delivery of your books.
[5] This appears to be a typographical error. The relevant date is 8th December 2010
On 27 January 2011 we spoke to you and you again refused to provide an address.
The Applicant has not led any evidence to show that the Respondent contravened Order 12 made on 10th November 2010. The onus of proof is on the Applicant.
The evidence is insufficient to prove that the Respondent contravened the order. It follows that the application must be dismissed.
The Applicant has not proved that the Respondent contravened either Order 8 or Order 12 made on 10th November 2010. The application will be dismissed in its entirety.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 24 June 2011
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