POURDIS & POURDIS
[2015] FamCA 607
•29 July 2015
FAMILY COURT OF AUSTRALIA
| POURDIS & POURDIS | [2015] FamCA 607 |
| FAMILY LAW – CONTEMPT – whether contravention of orders constitutes a flagrant disregard for the Court - where husband repeatedly failed to comply with orders – husband gave evidence that he sought to prolong proceedings – Court finds husband guilty of contempt. |
FAMILY LAW – CONTRAVENTION OF ORDERS – where wife alleges husband failed to comply with orders which provided for interim property distribution and costs – where husband admits contraventions - husband relies on earlier payments and attributes behaviour to drug use – no reasonable excuse established.
FAMILY LAW – PROPERTY – Final Orders – financial contribution by husband during marriage - where significant change in assets following appointment of receivers and husband’s conviction for drug related offences – where wife has primary care of the children of the marriage – just and equitable that wife receive significant adjustment in her favour.
| Family Law Act 1975 (Cth) s 4, 75, 79, 80, 112AB, 112AD, 112AP |
| Bevan & Bevan (2014) Fam LR 387 Fauna Holdings Pty Ltd & Mitchell (2000) 27 Fam LR 81 Hickey & Hickey (2003) FLC 93-143 Kowaliw & Kowaliw (1981) FLC 91-082 Norman & Norman [2010] FamCAFC 66 Omacini & Omacini (2005) FLC 93-218 In the Marriage of Reilly (1995) 19 Fam LR 213 Stanford v Stanford (2012) 247 CLR 108 Sutcliffe & Sutcliffe (1989) FLC 92-004 Tate & Tate (2002) FLC 93-107 |
| APPLICANT: | Ms Pourdis | ||||
| RESPONDENT: | Mr Pourdis | ||||
| FILE NUMBER: | DNC | 552 | of | 2010 | |
| DATE DELIVERED: | 29 July 2015 | ||||
| PLACE DELIVERED: | Darwin | ||||
| PLACE HEARD: | Darwin | ||||
| JUDGMENT OF: | Dawe J | ||||
| HEARING DATE: | 22-23 March 2012; 26-28 March 2012; 3-6 July 2012; 12 July 2012; 25-26 September 2012; 22 January 2013; 16-17 September 2013; 13-14 Oct 2014 | ||||
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Truman (22/23 March 2012) Ms Farmer (from 26 March 2012) |
| SOLICITOR FOR THE APPLICANT: | Withnalls Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke, QC (22/23 March 2012) Ms Bowen (from 26 March 2012) |
| SOLICITOR FOR THE RESPONDENT: | Bowen Lawyers |
Orders
UPON THE COURT FINDING THAT MR POURDIS WAS IN CONTEMPT OF THE FOLLOWING ORDERS
(a)paragraph 5 of the Order dated 18 May 2011 (read in conjunction with paragraph 4 of the Order dated 8 July 2011);
(b) paragraph 3 of the Order dated 28 March 2012;
MR POURDIS is sentenced to imprisonment for a period of six [6] months such imprisonment being suspended upon condition that for a period of ONE [1] YEAR MR POURDIS
(i) is of good behaviour; and
(ii) complies with all orders of this Court;
The wife’s Applications for contempt and contravention orders both filed on 27 April 2012 are dismissed.
The wife’s costs of and incidental to the contempt and contravention applications are reserved.
The costs of the Independent Children’s Lawyer (being the sum of THIRTEEN THOUSAND SEVEN HUNDRED AND TWENTY SIX DOLLARS [$13,726.00] be paid from the funds held in the joint names of the solicitors for the parties.
The husband be entitled to FORTY ONE THOUSAND FIVE HUNDRED AND THIRTY SEVEN DOLLARS [$41,537.00] from the sum held by the solicitors for the parties such sum to be retained in an interest bearing trust account until further order and be subject to any further order in relation to costs.
Save and except as herein provided the husband shall be solely liable and responsible for all and any taxation liabilities howsoever arising to the Deputy Commissioner of Taxation for the following individuals or entities:
(a)Mr Pourdis;
(b)P Pty Ltd (ACN …) in liquidation;
(c)AA Holdings Pty Ltd (ACN …) in liquidation;
(d)BB Pty Ltd in its own capacity and as capacity as trustee for the Family Trust 2.
The husband indemnify the wife in relation to any loans owing to any members of the husband’s family.
The wife indemnify the husband in relation to any loans owing to any members of the wife’s family.
Each party retain their respective superannuation entitlements.
Unless otherwise specified in this order and except for the purpose of enforcing the payment of money due under this order or any subsequent order:
(a)each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
The balance of the invested trust account funds and accrued interest be paid to the wife.
AND THE COURT NOTES that the parties intend that these Orders shall as far as practical finally determine the financial relationship between them and avoid further proceedings between them.
The outstanding final and interim applications are dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pourdis & Pourdis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT DARWIN |
FILE NUMBER: DNC 552 of 2010
| Ms Pourdis |
Applicant
And
| Mr Pourdis |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns an application for Contravention of Orders and an amended Application for Contempt filed by Ms Pourdis (“the wife”) alleging repeated contraventions of court orders by Mr Pourdis (“the husband”).
This judgment is also in relation to property settlement proceedings filed by the wife in her Initiating Application in November 2010 and later in her amended Initiating Application filed in May 2011.
I deal first with the contravention application filed by the wife.
By application filed 27 April 2012 the wife alleged the husband had contravened the orders of the Family Court and Federal Magistrates Court (as it then was) in the following manner:
a) At all times the husband contravened the orders of Federal Magistrate Turner (as her Honour then was) made on 19 January 2011 by failing to make payment pursuant to order 3 for weekly spousal maintenance ($250 per week) and order 4 for motor vehicle expenses, repair and maintenance.
b) At all times the husband contravened order 1 of the orders of 24 February 2012 by failing to make payment to the wife of a partial property settlement in the sum of $100,000.
c) At all times the husband contravened orders 1, 3 and 5 of the orders made 23 April 2012 by failing to make payment to the wife for costs in the sum of $9,169.38.
By an Amended Application for Contempt filed on 9 July 2012 the wife sought the husband be punished for contempt of Court and alleged the husband contravened orders, in addition to those listed above.
Specifically, the wife alleged the husband contravened the orders of the Family Court in the following manner:
a) That contrary to order 3 of the orders made on 28 March 2012, the husband on 29 March 2012:
(i) Caused to be paid electronically the sum of $35,000 from [P Pty Ltd] Bank of Queensland account to the [P Pty Ltd] ANZ Bank account; and
(ii) Caused to be paid electronically to [Mr CC] the sum of $3,970.
b) That contrary to order 3 of the orders made 28 March 2012 the husband on 30 March 2012 caused to be paid electronically the sum of $119,334.57.
c) That contrary to order 5 of the orders made in the Federal Magistrates Court on 18 May 2011 (read in conjunction with the orders made in the Family Court on 8 July 2011) the husband on 12 April 2012 directed all future payments from the City of EE were to be paid into the [P] ANZ Bank account and not the Bank of Queensland account, with such re-direction resulting in the following payments:
(i) $287,399.20;
(ii) $4,421.60; and
(iii) $5,487.41.”
Background
The proceedings for children’s orders and property settlement have a complicated history; the final hearing extended over two years with judgment reserved in October 2014. The complications and delay are in part due to the husband’s criminal proceedings but also due to the involvement of receivers and liquidators.
The husband was born in 1979 and is now aged 36. The wife was born in 1982 and is now aged 33. The husband and wife met in November 2002 and married in 2005.
There are two children of the marriage S born in 2007, now aged 8, and T born in 2010 now aged 5.
The parties first separated briefly in late August 2009 when the wife was pregnant and expecting the second child. The parties then reconciled and separated for the last occasion on 19 August 2010. The wife alleges that the separation involved significant issues about drug abuse and the husband’s mental health.
The wife also raised issues of domestic violence and as a result the police obtained on her behalf a Domestic Violence Order in August 2010 which was confirmed for six months from 17 September 2010.
The proceedings commenced in the Federal Magistrates Court (as it then was) in November 2010 by the wife filing the application seeking spouse maintenance and property settlement orders.
The children have remained primarily in the care of the wife since the separation with various orders being made on conditions permitting the husband to spend time with the children.
In June 2011 the criminal charges then outstanding against the husband in relation to amphetamine possession were withdrawn. Thereafter in 2011 there were again ongoing difficulties in relation to the husband’s response to requests made by the Independent Children’s Lawyer for drug testing.
Orders were made in relation to spouse maintenance but the husband did not comply with these. Nor did he comply with orders for the payment of interim property settlement monies.
When the husband had been facing the 2011 drug charges the police had seized $30,000 cash claiming it was the proceeds of drug dealings.
Subsequently, orders were made for those monies to be released to the wife.
In June 2011, Federal Magistrate Turner (as she then was), transferred the proceedings to the Family Court of Australia. Injunctive orders were made by his Honour Justice Burr (as he then was) in July 2011 and subsequently consent orders made in relation to the Bank of Queensland.
In February 2012 the husband was ordered to pay the sum of $100,000 within 21 days by way of interim property settlement. (This was later the subject of contempt and contravention proceedings).
The husband was initially employed in his father’s business, DD Pty Ltd, before commencing his own business venture, P Pty Ltd, in June 2005. The husband is the sole director of P Pty Ltd.
Numerous procedural orders and interim orders were made. Only those which relate to these specific contravention applications and amended contempt applications are set out in this judgment.
In January 2011 Federal Magistrate Turner (as she then was) delivered her reasons in respect of the wife’s application for spouse maintenance and ordered the husband to pay to the wife the sum of $250 each week and motor vehicle expenses.
The specific orders were as follows:
3. That the husband as from Friday 21 January 2011 and every week thereafter will directly deposit into the wife’s
ANX*ANZ Bank Account , Branch No. …, Account No. … the sum of $250.00 per week by way of spousal maintenance.4. That the husband will arrange forthwith for the payment of all items and any costs, maintenance, registration, insurance, repairs and fuel costs associated with the [Japaneses motor vehicle] registration … registered in the name of [P Pty Ltd] further such car to be used exclusively by the wife.
On 24 February 2012, when the matter had been transferred to the Family Court of Australia I made orders which included an order:
1. Within twenty-one [21] days from today the father pay to the mother the sum of ONE HUNDRED THOUSAND DOLLARS [$100,000.00] by way of interim property settlement.
On 23 April 2012 I made further orders in relation to costs and the release of funds, specifically the orders in relation to the contravention application was as follows:
1. Pursuant to Order 7 of the Orders made on 12 March 2012 the husband pay the wife’s costs in the sum of THREE THOUSAND ONE HUNDRED AND THIRTY TWO DOLLARS AND FIFTY SIX CENTS [$3,132.56].
…
3. Pursuant to Order 4 of the Orders made on 20 March 2012 the husband pay the wife’s costs in the sum of FOUR THOUSAND FOUR HUNDRED AND FIFTY EIGHT DOLLARS AND NINETEEN CENTS [$4,458.19].
…
5. The husband pay the wife’s costs of and incidental to this Application in a Case in the sum of ONE THOUSAND FIVE HUNDRED AND SEVENTY EIGHT DOLLARS AND SIXTY THREE CENTS [$1,578.63].”
On 10 May 2012 the husband was arrested in relation to the most recent drug charges. The particulars suggested that the 101 grams of methamphetamine had a street value in excess of $151,500 (Exhibit 53).
Following the husband’s arrest in May 2012 in relation to drug related matters there were orders made for the husband to undertake random drug test but the husband did not submit to these.
In January 2013 orders were made permitting the Bank of Queensland and the Receivers and Managers to intervene.
On 17 July 2013 the Federal Court of Australia made the orders that AA Holdings Pty Ltd (one of the companies involved in the business run by the parties prior to separation) be wound up for insolvency.
In September 2013 the Third, Fourth and Fifth Interveners were joined (the companies P Pty Ltd, AA Holdings Pty Ltd and BB Pty Ltd).
On 14 October 2014, at the conclusion of the hearing I made orders which provided that $117,250.00 be paid to the wife, from the surplus sum, in compliance with orders made 24 February 2012.
The orders which relate to the amended contempt application are the orders made in the Federal Magistrates Court (as it then was) of 18 May 2011, the Family Court of Australia on 8 July 2011 and 28 March 2012.
Paragraph 5 of the order of 18 May 2011 provided:
5. That the husband be hereby restrained by injunction from in any way directing or altering payments owed to the company, the business or the trust otherwise than to the [P Pty Ltd] as trustee for the [Family Trust 1], ANZ Bank Business Classic account No …
Paragraph 4 of the orders made on 8 July 2011 provided:
4. Paragraphs 2, 5, 7, 8, 11 and 12 of the Orders made by Federal Magistrate Turner on 18 May 2011 be amended to also include the Bank of Queensland.
The contempt proceedings also relate to alleged contempt in relation to paragraph 3 of the orders made on 28 March 2012 which provided:
3. All payments SAVE AND EXCEPT electronic debits to BOQ Account No … referred to at Order 4 herein, be paid by cheque withdrawals, such withdrawals requiring the signature of both the husband and the wife.
Paragraph 4 (which sets out the exceptions) provided:
4. The BOQ Account No … continue to be debited without requirement for the signature of the husband and the wife for the following:
(i)All and any BOQ charges including BOQ Equipment Finance repayments;
(ii)Monthly payments for the mortgage at [O Street, Suburb B], Darwin;
(iii)Monthly payments for the mortgage at [F Street, Suburb B], Darwin;
(iv)Monthly payments for the mortgage at [K Street], Darwin;
(v)Monthly payments for the mortgage at [S Street, Suburb W], Darwin; and
(vi)ONE THOUSAND DOLLARS [$1,000.00] per calendar week payable to the husband’s nominated account.
The Court received the affidavit of the wife filed on 27 April 2012 which specifically related to the contravention and contempt matters.
Hearing
Both the Contempt application and the Contravention application were listed for hearing and heard on 25 and 26 September 2012. The husband was represented by Ms Bowen and the wife was represented by Ms Farmer. At the hearing before me both the husband and the wife gave evidence and were cross examined by counsel.
At the commencement of the hearing in relation to the contempt and contravention matters there was no issue that the husband was aware of the orders and understood the orders and had been given appropriate notice in relation to the contempt and contravention proceedings.
The Law on contravention
Division 1 of Part XIIIA of the Family Law Act 1975 (Cth) (“the Act”) contains provisions concerning applications for contravention orders which do not concern orders relating to children. The following are the most relevant to these proceedings:
SECTION 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
(b)in any other case--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The contravention must be intentional rather than casual, accidental or unintentional (Fauna Holdings Pty Ltd & Mitchell (2000) 27 Fam LR 81).
The wife must establish on the balance of probabilities that the husband has contravened the order (In the Marriage of Reilly (1995) 19 Fam LR 213). That standard is also found in s 140(1) of the Evidence Act 1995 (Cth) and is in effect the legislative equivalent of the rule laid down by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.
SECTION 112AC
Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(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.
It is not for the wife to prove on the balance of probabilities that the order was breached without reasonable excuse. The “tactical burden of adducing evidence of the existence of such exculpatory circumstances” rests upon the husband (Sutcliffe & Sutcliffe (1989) FLC 92-004 at [18]).
The sanctions which may be imposed upon the husband are set out in s 112AD and include a bond, imprisonment or fine.
Law on Contempt
SECTION 112AP
Contempt
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6)The court may make an order for:
(a)punishment on terms;
(b)suspension of punishment; or
(c)the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9)In this section "order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Section 112AA which is in Part XIIA defines “order under this Act” as follows:
An “order under this Act”, in relation to a court, means:
(a)an order (however described) made by the court under this Act (other than a parenting order); or
(b)an injunction granted by the court under section 90SS or 114 except in so far as the injunction is for the protection of a child; or
(c)an undertaking given to, and accepted by, the court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order; or
(d)a subpoena issued under the applicable Rules of Court in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order; or
(e)a court enforceable agreement; or
(f)a bond:
(i)entered into under an order of a court under this Act other than an order under Division 13A of Part VII; or
(ii)entered into for the purposes of subsection 112AE(5);
and includes an order, injunction, agreement or bond that:
(g)is an order under this Act made by another court because of paragraph (a), (b), (e) or (f); and
(h)has been registered in the first-mentioned court.
It is clear from the legislation and the specific section of the Act that the conduct in failing to comply with the orders must constitute a flagrant challenge to the authority of the Court.
The authorities indicate that the elements of each charge of contempt must be proven beyond reasonable doubt. (Tate & Tate (2002) FLC 93-107).
Section 35 of the Act provides:
Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Consideration of Contravention Application
The husband admitted the contraventions but claims a reasonable excuse in relation to all contraventions.
It was conceded that the husband was aware of the orders and understood the orders. At all times the husband was legally represented.
In relation to the order made 24 February 2012 for the husband to pay to the wife a partial property settlement in the sum of $100,000 the husband submits that he simply could not meet his obligation. The husband gave evidence that although he endeavoured to secure finance from the Bank of Queensland they were unwilling to loan the husband further funds.
However, during cross examination by the wife’s counsel it was conceded by the husband that he had in fact some $140,000 available in the overdraft at the relevant period namely, 24 February 2012 to 16 March 2012. The husband had used the funds in the overdraft facility to meet his legal fees, his credit card liability and other debts.
It was the wife’s submission that although the husband had the funds available to meet his obligations pursuant to the order of February 2012 he chose to apply the funds in an alternative manner.
The husband alleged that the overdraft funds were used to pay the debts of the business to ensure that the company remained solvent.
The husband also relies on three earlier payments in support of his reasonable excuse. The husband asserts the wife received the following sums:
a)A payment of $13,000 in December 2010
b)$50,000 cash payment from her father at some unknown time; and
c)$33,000 in cash previously seized by the police during a raid on the former matrimonial home
It was the husband’s evidence that he did not comply with the orders as the wife had already received the above sums, totalling almost $100,000.
The wife received $13,000 in December 2010 via a cheque made out to her name. The husband submits that this should be applied towards his spouse maintenance liability as the funds were intended for P, as part of a tax refund, not the wife. The receipt of the $13,000 was the subject of consideration by Federal Magistrate Turner (as she then was).
It is apparent from the reasons, the Federal Magistrate took into consideration the $13,000 and how the wife applied the funds.
The receipt by the wife of the $13,000 in December 2010 can in no way establish a reasonable excuse for the husband failing to comply with the order of 24 February 2012 requiring him to make a partial property settlement of $100,000.
Paragraph 4 of the orders made 23 April 2012 provided that the Northern Territory Police release the sum of $33,000 to the wife’s solicitors. Paragraphs 1, 3 and 5 were separate orders for costs made on the same occasion. Counsel for the wife submitted that it is nonsense to suggest that the $33,000 could in any way be considered payment of the other sums payable by the husband to the wife pursuant to other separate and distinct orders.
An order made in April 2012 cannot obviate the husband’s obligations under the February and January 2012 orders.
The husband has failed to establish that his alleged beliefs or any other matters alleged by him provide him with any reasonable excuse.
During cross examination by the wife’s counsel the husband gave evidence that from January 2011 he decided he was “not going to pay the wife” and that he would seek to prolong the proceedings. The wife submits this demonstrates a flagrant disregard for the authority of the Court and that the husband’s behaviour was a “continuing contumelious course of conduct” which ought to place it in the “medium range”.
Consideration of Contempt Application
When the husband was asked on oath whether he admitted contravening the orders of the Court, he admitted the contraventions and the factors in relation to the breach of orders which constituted the contempt.
The wife alleges that the husband committed the contempts on the 28, 29 and 30 March 2012, and 12 April 2012. The allegations relate to the husband breaching orders by directing the payments of sums out of the accounts namely, payments to P Pty Ltd, ANZ Bank Account the sum of $35,000, the payment electronically to Mr CC of $3,970, the electronic payment of the total sum of $119,334.57 and a redirection from P Pty Ltd account to City of EE to be paid into P Pty Ltd ANZ Bank Account and not the Bank of Queensland Everyday Business Account which secured three receipts, namely
(a)$287,399.20;
(b)$4,421.60;
(c)$5,487.41.
The orders of 28 March 2012 included paragraph 3 which provided:
3. All payments SAVE AND EXCEPT electronic debits to BOQ Account No … referred to at Order 4 herein, be paid by cheque withdrawals, such withdrawals requiring the signature of both the husband and the wife.
It is the wife’s case that on 29 March 2012 the husband presented a cheque for $10,000 which she had not signed and was not requested to sign. There is also evidence annexed to the wife’s affidavit not contested by the husband which indicate that two electronic payments were made on 29 March 2012 and one on 30 March 2012. In particular there is an entry for 29 March 2012 indicating a transfer to P Pty Ltd account ending ... There is also an electronic transfer to Mr CC of $3,970. These are not electronic transfers permitted by the provisions of paragraph 4 of the order of 28 March 2012. The wife has therefore established that those monies ($35,000 and $3,970) were payments made at the direction of the husband which were in contravention of the orders made on 28 March 2012.
The husband was present in Court and was represented in Court on that occasion. He was present when the orders were made and there is no evidence to indicate that he was not aware of the meaning of the orders.
Annexure “C” to the wife’s affidavit shows that on 30 March 2012 there was a direct debit of $119,334.57 to “[Pourdis] Construct” (sic). I accept the evidence which indicates that there was no cheque drawn for this transfer of funds and definitely not any cheque which the wife had signed. Nor is this a debit to the account one which falls within the exceptions set out in paragraph 4.
When asked in relation to the electronic transfer of $35,000 from the Bank of Queensland account to the ANZ account, the husband said words to the effect that it was “so that he could do wages for the boys that day”. He then maintained that the wife “…was difficulty getting her to sign cheques”. (Page 39, transcript 25 September 2012).
When asked whether he had communicated with the wife in order to request her to sign cheques for wages, he said “Yes on previous occasions yes”. He maintained that if he had not paid the wages the “boys” would not come back to work.
In evidence in chief the following question and answer occurred:
And how much time have you given the wife in order to come forth to sign the cheques before you have acted against the court’s orders and took it upon yourself to obtain the $35,000? How much time have you give the wife before you have taken this step to obtain the $35,000?‑‑‑I tried five or six times before the day of wages to contact her to get her to sign cheques, even on the day of the order ..... a call out at [EE Town] and got no response from her to come and sign the cheques so we can get some materials from the shop for after-hours job. So I just took it upon myself that I was wasting my time trying to get her to sign for any cheques and just took it upon myself to just keep the business and everyone – getting people paid. That’s it. So – and the same thing.” (Page 40, transcript 25 September 2012)
In cross-examination the husband was asked in detail about his alleged attempts to communicate with the wife to make arrangements for her to sign the cheques. Considering his evidence in cross-examination, and in particular the text messages which were read out and accepted by the husband, the evidence does not establish any appropriate attempt to ask the wife to sign a cheque for the wages. The transfer of the $35,000 was an electronic transfer contrary to the orders.
His evidence concerning where the $35,000 went was also unacceptable and confusing. At one stage of his evidence he said that the $35,000 was paid to his ANZ credit card and that there were subsequently a withdrawal on the credit card as well. I understood this to mean that he was saying that he withdrew from his credit card to pay the staff’s wages.
The husband’s evidence in relation to the payment of $3,970 electronically to Mr CC confirmed that he had directed the electronic transfer without consulting the wife and that he acted against the Court orders. He said it was for the foreman’s wages.
When asked what the payment of $119,334.55 was used for his reply was “that was for creditors”. When asked what attempts he had made to have the wife sign cheques for the payment of this sum, he initially replied:
once again, she was just being difficult, and I took it upon myself to make sure that creditors got paid for that month and did what I had to do to just keep the business going until it was shut down. (Page 41, transcript 25 September 2012).
He was then asked specifically what steps he had taken to have cheques available for her signature and what process he had put in place to deliver the cheques to the wife for her signature. He then gave rambling answers alleging that the wife had been difficult and concluded:
So I took it upon myself to make sure that people got paid ...
(Page 41, transcript 25 September 2012).
In response to a question from his own counsel he was asked “did you make the wife aware that the sum of money was required to be paid?. His answer was “No, I was wasting my time with her anyway, so I didn’t bother”.
The evidence continued:
When you said that the cheques were delivered to the Bank of Queensland, was that – for what purpose were they delivered to the Bank of Queensland?‑‑‑That was for creditors, and also for wages, whichever was – and then if we needed to buy some products at the time, we would have to wait for her all day to come and sign the cheques, and then some occasions chasing her around Darwin to get her to sign.
That amount of $119,000 – the cheques were – who had written the cheques out?‑‑‑Well, that was probably paid from the ANZ account electronically through the bookkeeper, so probably cheques weren’t made back then, before an injunction was done on ANZ. So ‑ ‑ ‑
And what would be the consequences of that amount not being paid?‑‑‑The same consequences that the May and June accounts didn’t get paid and become insolvent.
That amount of $119,000 – what did it pay, exactly?‑‑‑It paid for materials that we used for the following month on our job sites.
Do you recall which months of the operation of the business that amount paid?‑‑‑No, I don’t. I can’t specify them. No, I can’t.”
(Page 41, transcript 25 September 2012).
The orders of the Court did not prevent him from paying wages or continuing operation of the business as long as he obtained the wife’s consent to the payments and signature on the cheques.
The husband did not deny that he sent the wife a text message saying “you ain’t getting shit so don’t smile!”.
When the husband gave evidence about his contravention of the orders of the Court which related to his redirecting of funds from the City of EE to another bank account his reason was “to keep the business running”. When asked what the money was used for he said, “For, once again, creditors and then for wages, and then we had to – then we transferred $150,000 back into the Bank of Queensland account and that was used again for bills and creditors as well”.
In cross-examination by counsel for the wife the following took place:
[Mr Pourdis], in relation to the payment of the – redirection of funds from the [EE City Council] to the ANZ bank account, you agree you did that to avoid the wife having to sign cheques and you be accountable to the wife for the payments out, don’t you?‑‑‑Yes.” (Page 58, transcript 25 September 2012).
In re-examination the following evidence was given:
MS BOWEN: Just in relation to the question that your Honour has posed to [Mr Pourdis]. [Mr Pourdis], you have admitted that you have acted in contempt of court orders. What was your attitude towards you not complying with the court orders?‑‑‑Well, I was using drugs at that time. I was heavily under the influence which made me – really didn’t care too much about the court orders and in denial of the court orders and just proceeded with what I thought was right in doing what I needed to do, even though, in the back of my head, I knew that I was breaking the law. But I just proceeded with it because I just had no emotions on – you know, with the emotional effect that I was having with not seeing my kids and everything else, I just proceeded on doing and just hoped for the best.
And what was your attitude towards the court? Had you thought about the courts when you were doing things that were in contempt of court orders?‑‑‑No. Had no emotions on what the court was going to do to me or not. That’s what the drug does.” (Page 60, transcript 25 September 2012).
For the reasons set out above I am also satisfied that the husband is the only person who could have authorised such a transfer and did so in contravention of the orders of 28 March 2012.
The number of contradictions and the failure to provide any supportive material clearly confirms the finding that the husband has failed to establish any reasonable excuse and does not assist the husband in reducing any penalty to be imposed.
I am therefore satisfied beyond reasonable doubt that the husband contravened the orders of the Court which relate to the amended Contempt Application.
The evidence also establishes beyond reasonable doubt that his behaviour in failing to comply with the orders was a flagrant challenge to the authority of the Court.
The husband relied generally on his illicit drug use as an explanation for his non-compliance and “irrational thinking”. The husband through his counsel expressed regret for his actions.
Penalties
(a)Contraventions (not Contempts)
The Court has found that the husband has contravened the orders of the Federal Magistrates Court (as it then was) and did so without reasonable excuse. These were orders which provided for him to pay weekly spousal maintenance and for motor vehicle expenses repair and maintenance. It has also found him guilty of contravening the orders requiring him to make partial property settlement of $100,000 and payment of costs orders without reasonable excuse.
The orders which could be made in relation to contravention range from payment of fine, community service or imprisonment.
Taking into account the serious nature and the large amount of money involved in these contraventions a fine is not an appropriate penalty. These contraventions will be considered when the penalty for the contempts are imposed.
(b) Contempt
Having found the husband guilty of contravening Court orders in a flagrant challenge to the authority of this Court, the penalty options for such contempt are a fine, imprisonment or both. In this matter, as previously indicated, a fine is not an appropriate penalty.
Although the husband has indicated, through his counsel, regret for his actions, his evidence indicates that his attitude towards the Court at the time of the contempts was serious disregard.
The Court takes into account his past drug abuse but this does not provide him with a satisfactory excuse for his behaviour nor does it prompt any reduced penalty.
The penalty imposed takes into account the findings related to the contraventions.
Taking all of the factors into consideration the appropriate sentence in relation to the contempts is a sentence of six months imprisonment provided that the term of imprisonment is suspended on condition that the husband be of good behaviour and hereafter complies with orders of this Court.
Property settlement and other financial matters
Introduction
Proceedings in relation to financial matters commenced with the Initiating Application filed by the wife in November 2010, which has since been amended in May 2011. She seeks final orders by way of property settlement.
The husband filed a response in January 2011 and an amended response in May 2011 in which he sought interim property orders.
There were previously proceedings in relation to the children of the parties, but these were resolved by final consent minutes of order made on 23 March 2012.
The final orders which both parties sought at the conclusion of the trial differed significantly from the orders sought initially. This was primarily due to the significant change in available assets following upon the husband’s arrest and conviction in relation to drug related matters, his contravention and contempt of Court orders and the action taken by the Bank of Queensland which placed various entities and certain assets of the husband under the management and receivership of Receivers.
Hearings
The application for final orders was filed in the Federal Magistrates Court (as it then was) in Darwin in December 2010. In June 2011 the matter was transferred to the Family Court of Australia. There were numerous applications in a case in relation to both children and financial matters and interim orders made. The matter was the subject of detailed directions to prepare it for trial which was listed for trial in Darwin for five days commencing on Thursday 22 March 2012.
At the commencement of the trial the applicant wife was represented by Ms Truman, being assisted by Ms Farmer and the husband represented by Ms Pyke, QC assisted by Ms Bowen.
On the first day of trial at the request of the parties and their counsel, the matter was stood down to allow negotiations to take place in relation to children’s matters and financial issues.
On the morning of Friday 23 March 2012, consent orders were made finalising the children’s matters. The Independent Children’s Lawyer was discharged. The consent order included an order that the costs of the Independent Children’s Lawyer fixed in the sum of $13,726 be paid by the parties in such proportions allocated between the parties as ordered by the Court or as agreed between the parties.
Final consent orders for the children made on 23 March 2012 provide the following:
BY CONSENT IT IS ORDERED
Ms Truman of Counsel appearing on behalf of the Applicant Wife,
Ms Pyke, Senior Counsel appearing on behalf of the Respondent Husband
and
Ms Palavra appearing as the Independent Children's Lawyer
Parental Responsibility
1. The parties have equal shared parental responsibility for their children, [S] born … 2007 and [T] born … 2010 (“the children”) subject to the exception set forth in Order 3.
2. The parties jointly make all relevant major decisions regarding the long-term care, welfare and development of the children, except in the case of emergency.
3. The procedure for making all relevant major decisions regarding the long-term welfare of the children is as follows:
3.1. the party wishing to procure the consent of the other party shall provide in writing to the other party the proposal and the reasons therefore
3.2. the other party, within seven (7) days of its receipt, shall notify in writing the proposing party as to whether he or she agrees with the proposal referred to in Order 3.1.
3.3. in the event of disagreement, the other party, within seven (7) days of receipt of the notification referred to in Order 3.2 shall provide in writing to the proposing party notification of such disagreement and the reasons therefore; and the parties shall submit the disagreement to mediation by a mediator chosen by the proposing party from three recognised family law dispute mediators nominated by the other party;
3.4. in the event that mediation does not achieve agreement, the wife shall have sole parental responsibility for the making of the decision if it concerns the medical treatment of or the education of the children.
3.5. The parties shall each have responsibility for the day-to-day care, welfare and development of the children while the children are living with or spending time with himself or herself.
Arrangements for the children
4. That the children live with the wife
5. That the children spend time with the husband as agreed between the parties but failing agreement:
5.1. Immediately and until such time as the husband agrees in writing to comply with Orders 6 and 7 in relation to undertaking drug urinalysis and hair follicle testing, the husband shall spend time with the children supervised by the paternal family as follows:
a. From 4:00 pm to 7:00 pm each Wednesday and Friday and from 12 noon to 7.00 pm Sunday in week one;
b. From 4:00 pm to 7:00 pm each Monday, Wednesday and Friday in week two;
c. As from 2 June 20112 from 3 pm Saturday to 12 noon Sunday once per month to coincide with the time in week one and subject to the children sleeping in the paternal grandparents or paternal uncle’s home.
Special occasion Days
e. From 3:30 pm to 7:00 pm on each of the children’s and husband’s birthdays and children’s name days;
f. From 12 noon to 7:00 pm on Father’s Day
g. From 3:00 pm to 7:00 pm on Christmas Day
h. From 3:00 pm to 7:00 pm as it is also the husband’s name day.
5.2. That should the husband agree in writing to comply with orders 6, 7 and 8 in relation to undertaking drug urinalysis , hair follicle testing and counselling and upon the husband successfully completing Orders 6(a) and 7(a)
5.2.1 successfully completing Orders 6 (a) and 7 (a) means all such drug testing results being negative for illicit drugs
The husband shall spend time with the children as follows:-
5.2.2 School Term
For the first 3 months:
a. From 4:00 pm to 7:00 pm Wednesday and Friday in week one;
b. From 4:00 pm to 7:00 pm Wednesday and from 3 pm Saturday to 12 noon Sunday in week two.
For the next 3 months:
c. From 4.00 pm to 7.00 pm Wednesday and Friday in week one;
d. From 4.00 pm to 7.00 pm Wednesday and from 12 noon Saturday to 6.00 pm Sunday in week two.
For the next 6 months:
e. From 4:00 pm to 7:00 pm Wednesday and Friday in week one;
f. From 4:00 pm to 7:00 pm Wednesday and from 12 noon Saturday to 8:00 am Monday in week two.
Thereafter:
g. From 4:00 pm to 7:00 pm Wednesday and Friday in week one;
h. From 4: 00 pm to 7:00 pm Wednesday and after school Friday until before school Monday or Tuesday if Monday is a public holiday or pupil free day in week two.
5.2.3 School holidays
5.2.3.1 Until the youngest reaches the age of 4, the children are to spend no more than 5 (consecutive nights) of time with the husband during the mid-year and Christmas school holiday periods;
5.2.3.2 Upon the youngest child reaching the age of 4, for one-half of the mid-year and Christmas School holidays in one week alternating blocks commencing with the first half in each even year and alternating to the 2nd half in each odd year after that. The parent’s shall alternate between the end of Term 1 and end of Term 3 school holiday periods with the husband to have the end of Term 1 holidays in each even year and the end of Term 3 holidays in each odd year.
5.2.3.3 Upon the youngest child starting primary (Grade 1) school:
a. For a period of three (3) weeks during the Christmas School Holidays, with the children to spend time with the husband in the first half of the Christmas School holidays in 2016 and each odd year after that and the second half in 2017 and each even year after that.
b. For half of the end of Term 1, mid-term and end of Term 3 Northern Territory School holidays, at times as agreed between the parties or in default of agreement, the first half of each school holiday period in each even year and the second half in each odd year.
c. At any other times as agreed between the parties.
5.2.4 Special Occasion Days
a. From 3:30 pm to 7:00 pm on each of the children’s and husband’s birthdays and children’s name days;
b. From 12 noon to 7:00 pm on Father’s Day save for the Mother’s Day weekend where the children will be returned to the wife from 12 noon to 7.00 pm.
c. From 2:00 pm to 7:00 pm on Christmas Day in even numbered years and from 2:00 pm Christmas Day to 9:00 am Boxing Day in odd numbered years if the parents are in the same locality.
d. From 3:00 pm 7:00 pm Greek Orthodox Easter Sunday and coinciding with the Father’s name day in each year
.5.2.5 Provided that if the husband does not comply with Orders 6 – 8 (without reasonable excuse) or should the husband:
i. fail to provide drug urinalysis and hair follicle test results as provided in Orders 6 and 7 or
ii. any such test result be positive for illicit drugs
Then time with the children shall revert to those set out in Order 5.1.
5.3 Communication
Following compliance by the husband with Orders 6 -10, the children shall communicate with the parent they are not in the care of as agreed but failing agreement twice per week on Saturday and Wednesday between 6:00 pm to 7:00 pm with the parent caring for the children to initiate the call to the other parent. Otherwise the husband shall communicate with the children each Sunday between 6:00 pm to 7:00 pm with the wife initiating the call to the husband.
Other matters
Drug testing
6A Upon the Husband providing the wife with written notice that he wishes to commence the drug testing and counselling as set out in Orders 6, 7 and 8, then:
Urine
6. The husband undertake and pay for supervised drug urinalysis testing pursuant to the chain of custody protocol at an accredited laboratory as follows:
a. For a period of 3 months from the date of the written notice, random urinalysis within 24 hours of receiving the request via text message from the wife, with such requests to be made no more frequently than on one [1]occasion every two [2] weeks;
b. for a period of 9 months from the last test provided in 6(a) above random urinalysis within 48 hours of receiving a request via text message from the Wife, with such requests to be made no more than once a month; and
c. following the expiration of the periods in 6 (a) and (b) above, for a period of 2 years, random urinalysis within 48 hours of receiving a request via text message from the wife, with such requests to be made no more than once every three months.
d. Provision of the results of testing in (a) or (b) above are to be suspended while the husband is attending a residential drug rehabilitation programme pursuant to Order 8.
Hair follicle
7. The husband undertake and pay for hair follicle testing with the husband to provide a 6 cm segment of hair to be tested and such sample being taken from the husband’s scalp only ,to be done by an accredited NATA Australian Laboratory to test for illicit drugs as follows:
a. Within 7 days from the date of providing the last test results, at the conclusion of the period in 6 (a) above;
b. For a further 3 occasions at 6 monthly intervals thereafter and the husband to:
(i) give the necessary authority to the laboratory to provide the wife a copy of the results directly.
(ii) in the event that the Laboratory is unable or declines to provide the results to the wife, the husband shall provide it to her within 48 hours of receiving it.
7.1. During the period of time in 5.2 and after completion of the urine and hair follicle testing as set out in Orders 6-7, for a period of 24 months the wife shall on not more than 2 occasions per year, request the husband to undergo hair follicle testing within 48 hours of receipt by him of the request in writing where the wife has a bona fide concern the husband may be using illicit substances. The husband shall direct the relevant pathology to provide the wife with the results directly or in the event that the laboratory is unable or declines to provide the results to the wife, the husband shall provide it to her within 48 hours of receiving same. Time spent during the period of request, testing and expectant results will be supervised by the paternal family until such testing is negative for illicit drugs.
7.2. That in the event the tests referred to in 7.1 are positive for illicit drugs the Husband’s time in accordance with Order 5.2.2 and 5.2.4 be supervised by the paternal grandparents or brother of the Husband thereafter and Order 5.2.3 shall not apply.
Drug rehabilitation/counselling
8. Prior to progression to unsupervised time set out in Order 5.2, the husband attend upon and engage in counselling with an accredited drug and alcohol counsellor at a frequency recommended by the counsellor until such time as the counsellor recommends in writing that the counselling cease and with the husband to provide the counsellor a copy of these orders and authority to confirm with the wife that counselling is continuing at a frequency recommended by the counsellor and to advise the wife immediately should the husband cease counselling not in accordance with the counsellors recommendations.
9. The husband undertakes that he will be bound by the recommendations and directions of the counsellor including attending detox and / or accredited residential drug rehabilitation programmes such as Renew Private Residential Rehabilitation in Melbourne or similar accredited drug residential rehabilitation programme.
10. The husband provide his drug and alcohol counsellor with:
(a) a copy of these orders
(b) authority to confirm with the wife that counselling has begun and is continuing at the frequency recommended by the counsellor.
11. The husband provide any service that he engages for the purpose of urinalysis and hair follicle testing with authority to disclose to the wife the dates on which he has undertaken testing and the results of any tests she has undertaken, and that the wife be at liberty to contact the service directly for this purpose.
Injunctions
12. During the period of the hair follicle testing referred to in Order 7, the husband is restrained from and an injunction issue restraining the husband from cutting his hair to less than 8 cm during the said period.
13. 3 days prior to and during time spent with the children, the parents are hereby restrained from consuming illicit substances at all times.
14. That each parent is restrained and an injunction is granted restraining them from discussing the court proceedings within the presence of or hearing of the children or allowing the children to read or view any court documents.
15. That each parent is restrained and an injunction is granted restraining them from denigrating and/or verbally abusing one another or members of their respective families when communicating with one another or their respective family members orally or in writing, or from using disparaging language when communicating with one another or with the respective family members, or in the presence of, or within the hearing of the children.
Changeovers
16. For the purpose of the time the husband spends with the children pursuant to these Orders and upon compliance with orders 6, 7 and 8, the husband collect the children at the start of his time and the wife to collect the children at the end of time, otherwise the wife will be responsible for all changeovers of the children.
Holiday travel & Passports
17. The wife is permitted to suspend the time the husband spends with the children pursuant to any of the above orders save and except for 5.2.3.3 as follows:
(a) until the child [T] turns 4 years of age, for a period of two weeks, twice a year, for the purpose of taking the children on a holiday outside of the Darwin
(b) following the child [T] turning 4 years of age, for a period of 4 weeks in one block or for a period of 2 weeks twice a year for the purpose of taking the children on a holiday outside of Darwin
Provided that if the husband misses out on weekend time set out in 5.1 and 5.2.2 above, the wife will provide make-up time.
18. That in the event that the wife or the husband, subject to his compliance with Orders 6-10, are to travel with the children interstate or overseas during the time the children are spending time with the respective parent, the parent with whom the children are to travel shall inform the other of that intention no less than 4 weeks prior to the intended interstate and 6 weeks prior to the intended overseas departure, and provide to the other no less than 2 weeks prior to the departure date the children’s general itinerary and telephone numbers and address where the children can be contacted at such time.
19. That the husband shall sign the children’s application to issue the children’s passport within 7 days from the wife providing to the husband the said application.
20. In the event that the husband does not sign the relevant passport application forms within 7 days of the wife providing him with a written request to do so, pursuant to section 106A of the Family Law 1975, the Registrar of the Court is to execute an application in relation to the children [S] born … 2007 and [T] born … 2010.
21. That the passports are to be held at the Registry of the Family Court in Darwin, and released to either parent only upon both parties’ written agreement or as ordered by the court. If it is necessary for either party to make an application to the Court for the release of the children’s passports and is successful in that application, the other party shall pay their costs on an indemnity basis.
Orders acting as authority
22. Within 14 days of these Orders and within 14 days of the children’s subsequent enrolment at any school, each party shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to each party copies of all of each child’s school reports and any written material pertaining to each child’s academic and extracurricular activities.
Extra-curricular and school events
23. The parties are each entitled to attend all school events or extracurricular activities involving the children
Notification of change of details, emergency and illness
24. The parties shall notify each other of any change to:
a. their mobile telephone number or landline telephone number within 48 hours of such change occurring
b. their residential address, seven days prior to their change of address.
25. The wife and husband are to notify the other immediately of any serious illness, injury or medical emergency in respect of the children.
Parental Education
26. Within 2 months of the date of these Orders the husband complete the “In pursuit of respectful relationships course” at Anglicare /Relationships Australia or some such similar course that may be offered.
27. That within 28 days from the date of the orders each parent enrol in and undertake the Mum’s Place/Dad’s Place Parenting Orders Program course.
Parental Communication
28. The parents shall communicate by text or verbally.
General
29. That the Independent Children’s Lawyer be discharged.”
On Friday 23 March 2012 the matter was again stood down at the request of the parties for further negotiations.
Notwithstanding, the oral application on behalf of the husband for an adjournment of the trial, the trial commenced.
Late that afternoon it was indicated that at least one further witness would be required to be called for cross-examination even though on a previous occasion it had been indicated that the expert’s report could be received without the necessity for the expert to give oral evidence.
On that day it was also indicated that Ms Truman and Ms Pyke, QC would not thereafter be appearing and the matter would proceed with the solicitors/junior counsel representing the parties.
The trial proceeded on Monday 26, Tuesday 27 and Wednesday 28 March 2012. It was then adjourned for further listing to recommence and be completed on 3 and 4 July 2012.
When the trial recommenced on 3 July 2012 the Court sat in the Supreme Court of the Northern Territory building, prior arrangements having been made due to information that the husband had been incarcerated and the Family Court premises (as they then were) did not provide adequate security.
The Court was informed that the husband had been arrested on 15 May 2012 and subsequently charged with possessing and supplying dangerous drug of commercial quantity. The husband had been stopped by police after returning on a flight from Melbourne to Darwin. After he was stopped the husband produced two packages from the front of his underpants and showed them to police. The two packages held a combined weight of 101 grams of methamphetamine. The husband was arrested.
After the morning adjournment on 3 July 2012 counsel for the husband requested an adjournment to allow the husband to be medically assessed as to whether he was fit to continue to give evidence.
As a result the Court made an order which permitted a suitable qualified medical practitioner to attend upon the husband to assess his health and to report back to the Court at 2.00 pm that day as to his capacity to continue his evidence and what, if any, treatment he required.
When the matter resumed after 2.00 pm that day the Court was informed that the husband had been unable to be assessed and had been returned to prison to be assessed by the resident doctor. When the matter was resumed at 4.50 pm that day the Court was informed that the husband had been assessed by the prison doctor and had been given clearance to continue with his evidence in the trial. The trial continued on Wednesday 4 July 2012, when, after interim matters were also dealt with, the evidence in the trial resumed.
In making the overall adjustments the Court has taken into account the amount the husband claimed to have advanced to Mr GG ($150,000 at the commencement of the first part of the trial).
The value of trucks, vehicles and equipment in the husband’s possession was not proven to the necessary standard but these assets are considered as items retained by the husband.
The value of various assets and the possibility of recovering amounts alleged by the wife to be assets of the husband remain uncertain.
Taking into account the relevant factors in s 79 and s 75(2) I am satisfied that the overall adjustment of the remaining identifiable assets of the parties (inclusive of their superannuation) should be that the wife receive 85 per cent of the known net assets and superannuation of the parties.
The net assets and liabilities hereafter described do not include the amounts due by the husband to the wife for spouse maintenance and child support.
The current assets and liabilities of the parties which the Court brings into account for the adjustment are:
Assets
(1)The initial amount paid into the
Family Court of Australia Account $832,093.77
(2)The admitted contents of the sea container
in the husband’s possession $5,000.00
(3)Japanese motor vehicle in the wife’s possession $5,000.00
(4)Household contents in the wife’s possession $10,000.00
(5)Household contents in the husband’s possession $5,000.00
(6)Husband’s superannuation $64,450.00
(7)Wife’s superannuation $12,458.00
Total (rounded up): $934,000.00
Less legal fees for the Independent Children’s Lawyer
Be shared equally by the parties: -$13,726.00
Both parties claim to have substantial legal fees due. The wife’s financial statement indicated that in excess of $300,000 was due to her lawyers in September 2014, together with a debt due to her parents for legal fees paid of $4,564.
The Court does not take into account, for the purposes of adjusting the net assets of the parties, the legal fees or borrowings taken out for the payment of legal fees in these proceedings.
A 15 per cent adjustment of the total net assets and superannuation figures would see the husband being entitled to $140,100. From this should be deducted the items he retains, namely:
(1)The admitted contents of the sea container
in the husband’s possession $5,000.00
(2)Household contents in the husband’s possession $5,000.00
(3)Husband’s superannuation $64,450.00
(4)Half of Independent Children’s Lawyer legal fees $6,863.00
Total: $81,313.00
The amount notionally due to husband is therefore $140,100 less $81,313 equals $58,787.
However the initial amount of $832,093.77 was reduced by $17,250 to pay for the spouse maintenance due by the husband to the wife.
The sum due to the husband is therefore $58,787 less $17,250 equals $41,537. This sum should be retained in trust pending any costs applications and orders.
The orders sought by the wife included orders that the husband remain solely liable for any taxation liabilities arising from the individuals or entities in which the husband has had control namely, his own taxation accounts, P Pty Ltd, AA Holdings Pty Ltd and BB Pty Ltd in its own capacity and as trustee for the Family Trust 2. Such an order is appropriate, just and equitable because of the control the husband had over the entities.
There was also a possibility that Family Trust 2 might receive a taxation refund of $164,202.
It is also appropriate for there to be indemnity to be given to each of the parties for any borrowings that have been made from members of their respective families.
The orders which are just and equitable are therefore set out at the commencement of this judgment.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 29 July 2015.
Associate:
Date: 29 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Sentencing
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Costs
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Injunction
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Remedies
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Constructive Trust
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Res Judicata
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