Rong & Huan (No 3)
[2022] FedCFamC2F 1378
Federal Circuit and Family Court of Australia
(DIVISION 2)
Rong & Huan (No 3) [2022] FedCFamC2F 1378
File number(s): CAC 958 of 2021 Judgment of: JUDGE MANSFIELD Date of judgment: 13 October 2022 Catchwords: FAMILY LAW – Contravention application - Mixed findings on four allegations of contravention of interim property orders – Issues with form of allegations – Allegation of contravention of interim parenting order found proved and reasonable excuse not established – Subdivision F found to apply - Section 70NFB paragraphs (1)(a) and (2)(g) apply such that the respondent is to pay all of the costs of the applicant - Not appropriate to deal with the contravention other than to impose a sentence of imprisonment - Sentence of imprisonment imposed commencing immediately for a period of 3 months, or upon compliance with the primary order, or preparation of terms and conditions that satisfy the court that the respondent is willing to comply with the order if released. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss. 64B(1), 64B(2)(i), 70NAF, 70NFA(1), 70NFB, 70FNE, 70NFG, 112AB, 112AC
Federal Circuit and Family Court Act 2021 s 67
Federal Circuit And Family Court Of Australia (Family Law) Rules 2021 r. 6.02, 11.67, 11.69(e)
Federal Circuit Court Rules 2001 r 24.04
Cases cited: Cummings and Cummings (1976) FLC 90-100
Kardos & Harmon [2020] FamCA 328
McClintock & Levier (2009) FLC 93-401
Oswin & Oswin [2019] FamCAFC 164
Division: Division 2 Family Law Number of paragraphs: 91 Date of last submission/s: 10 October 2022 Date of hearing: 19 September & 10 October 2022 Place: Canberra Counsel for the Applicant: Dr Leslie Solicitor for the Applicant: Mark Hanna Lawyers Counsel for the Respondent: Ms Haughton Solicitor for the Respondent: Mazengarb Family Lawyers ORDERS
CAC 958 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUAN
Applicant
AND: MR RONG
Respondent
order made by:
JUDGE MANSFIELD
DATE OF ORDER:
13 OCTOBER 2022
THE COURT ORDERS THAT:
1.Having found that the respondent contravened an order to do all things necessary to provide full and frank disclosure as at 15 July 2021, the respondent is to file and serve a written notice pursuant to rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 24 October 2022.
2.Having found that the respondent contravened an order under the Family Law Act 1975 affecting a child and that Subdivision F of Division 13A applies, pursuant to section 70NFB paragraphs (1)(a) and (2)(g), the respondent is to pay all of the costs of the applicant to this application.
3.Having found that the respondent contravened an order under the Family Law Act 1975 affecting a child and that Subdivision F of Division 13A applies, pursuant to section 70NFB paragraphs (1)(b) and (2)(e), a sentence of imprisonment is imposed on the respondent for a period of 3 months commencing immediately and ending on the earlier of:
(a)13 January 2023; or
(b)The provision of the child Y, born in 2014, to the applicant mother; or
(c)The respondent satisfying the court that, if released, he will do all things necessary to arrange for the child Y, born in 2014, to be returned to Australia.
4.For the purposes of Order 3(b), if the child is provided to her, the applicant is to forthwith give notice to the respondent or his solicitor by email and the parties may apply to the court by email to [email protected] to relist the matter as soon as possible.
5.For the purposes of Order 3(c):
(a)The respondent may file and serve at any time:
(i)A minute of orders sought;
(ii)His affidavit in support;
(iii)Any affidavits of any other witnesses;
(iv)Any written submissions.
(b)Within 5 days of being served with the respondent’s material, the applicant may file and serve:
(i)Any competing minute of orders sought;
(ii)Any affidavits;
(iii)Any written submissions.
6.To give effect to Order 3, a warrant of commitment is to issue forthwith.
7.Pursuant to subsection 70NFG(3) the reasons why the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2) are to be entered in the records of the court.
8.The balance of the allegations in the Contravention Application dated 3 August 2022 are dismissed.
IT IS NOTED:
A.The proceedings remain listed for final hearing commencing on 21 November 2022.
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 a pseudonym Huan & Rong (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
Background
Ms Huan (the applicant) and Mr Rong (the respondent) are the parents of Y, born in 2014. The parties are also the parents of X, born in 2017, who lives with the applicant.
On 12 May 2021, the respondent commenced proceedings by way of Initiating Application seeking interim and final parenting and property orders.
On 17 June 2021 and 5 October 2021, the Court made interim orders of a procedural nature.
On 1 April 2022, the applicant filed an Enforcement Application which was heard on 13 April 2022. On 2 May 2022, the Court delivered judgment against the respondent and made Orders.
On 3 August 2022, the matter was listed for final hearing to commence on 21 November 2022 and trial directions were made.
By Application - Contravention filed on 3 August 2022, the applicant alleged the respondent had contravened the Orders of 17 June 2021 and 5 October 2021 on four occasions with respect to non-disclosure in the property matter. Further, the applicant alleged the respondent had contravened an Order of 2 May 2022 with respect to the parenting matter.
On 5 August 2022, the Court listed the contravention application for final hearing before a differently constituted Court on 19 September 2022 and for the parties to file and serve written submissions of no more than three pages in length.
The allegations
Count 1 – On 15 July 2021 at 6pm in Canberra, the father Mr Rong, without reasonable excuse, failed to do all things necessary to provide full and frank financial disclosure to the Mother in accordance with Rule 24.03 of the Federal Circuit Court Rules 2001 per Order 7 of Orders dated 17 June 2021.
Count 2 – On 19 August 2021 at 9am in Canberra, the father Mr Rong, without reasonable excuse, failed to “file an additional affidavit setting out setting out [sic] with greater precision the basis for the orders he seeks to file updating aff [sic] that sets out with greater precision than is currently before the court” in accordance with Order 1 of 17 June 2021.
Count 3 – On 2 December 2021 at 9am in Canberra, the father Mr Rong, without reasonable excuse, failed to do all things necessary to provide full and frank financial disclosure to the Mother in accordance with requirements of Order 2 of the Orders dated 5 October 2021.
Count 4 – On 2 December 2021 at 9am in Canberra, the father Mr Rong, without reasonable excuse, failed to do all things necessary to provide property valuations of the business and of real estate in which he has an interest in accordance with requirements of Orders 3 and 4 of the Orders dated 5 October 2021.
Count 5 – On 1 June 2022 at 5pm in Canberra, the father Mr Rong, without reasonable excuse, failed to do all things necessary to arrange Y to be returned to Australia within 30 days in accordance with Order 1 of 2 May 2022.
The hearing
On 19 September 2022, the contravention application came before the court for hearing. Both parties’ written submissions pursuant to the order made on 5 August 2022 were read and taken into account.
Despite a challenge to service foreshadowed in written submissions, no challenge was made as to whether or not the respondent had been served. I am satisfied the application and supporting affidavit were served.
The respondent challenged the form of the application submitting that under Part A the check box indicating that the application seeks that the respondent be dealt with under Part XIIIA of the Act (an order not affecting children) was not marked. As such, the respondent contended that counts 1 to 4 ought to be summarily dismissed. Being satisfied that the unmarked check box did not prejudice the respondent or his knowledge of the case he had to meet, an order was made pursuant to rule 2.50(1)(b)(ii) for the application to be amended to the effect of marking said check box.
I am satisfied that the respondent was informed of the allegations by the combined effect of being served, the respondent’s written submissions which referred to each of the counts, the respondent’s representation by counsel at the hearing and counsel’s representations from the bar table to the effect that he had been so informed.
The respondent applied for summary dismissal of all allegations on the ground that they were inadequately particularised. Submissions were made and heard from both parties. The applicant conceded the issue with respect to Count 2 which was then dismissed.
With respect to Count 3, the court determined that the allegation as particularised did not adequately reflect the order alleged to have been breached. The allegation was that the father failed to do all things necessary to provide full and frank disclosure to the mother in accordance with requirements of Order 2 of the orders dated 5 October 2021. Whereas Order 2 of the Orders dated 5 October 2021 did not actually require the father to do that. Order 2 required him to do all things necessary to have his accountant produce and prepare a lengthy list of documents. That is something significantly different to providing full and frank disclosure to the mother. Plainly, it would be possible to have complied with the order but not the allegation. The allegation does not accurately inform with reasonable particularity the respondent of the matters alleged against him. (See Kardos & Harmon [2020] FamCA 328 [at 46]). The internal inconsistency to the manner in which the applicant has chosen to make the allegation is such that it is not capable of being answered by the respondent and was dismissed.
Counts 1, 4 and 5 survived the objection as to form and the respondent denied each of them.
On the applicant’s case, the affidavit of Ms Huan deposed on 27 July 2022 was read without objection and became Exhibit A1. The evidence relevant to each count is as follows:
(a)Count 1 – paragraphs 7 to 11 (noting paragraphs 12 to 15 are relevant as to potential sanction);
(b)Count 4 – paragraphs 21 to 29;
(c)Count 5 – paragraphs 30 to 57.
The respondent applied for dismissal of the allegations on the ground that a prima facie case had not been made out. Submissions were made and heard from both parties. The Court determined that the evidence is capable of establishing the matters and a prima facie case had been found.
The proceedings then moved to the hearing of any evidence for the respondent. The respondent produced an unfiled and unserved affidavit deposed that day which he sought to tender. The affidavit was objected to by the applicant on the grounds that, notwithstanding rule 11.67,[1] the respondent’s decision not to serve the affidavit unfairly disadvantaged the wife, particularly when the respondent included in his written submissions that:
In respect of count 5, if this count has not otherwise been dismissed, the Respondent asserts that he has a reasonable excuse for non-compliance ….
[1] Federal Circuit and Family Court Of Australia (Family Law) Rules 2021 - Rule 11.67
The court determined that rule 11.67 did not preclude the respondent from filing an affidavit at the rule 11.69(e) stage of the hearing which is to hear any evidence for the respondent and the procedural unfairness could be cured by an adjournment for the applicant to consider the respondent’s evidence and to prepare for any cross examination.
The application was adjourned to 10 October 2022 for determination of the proceedings. The court advised both parties that also on 10 October 2022 submissions would be heard with respect to sanction or remedy for any allegations that are found to be proved and a reasonable excuse not established. With respect to the absence of any orders with respect to Part XIIIA (an order not affecting children) in the minute of orders sought by the applicant at Annexure A to her written submissions, counsel for the applicant submitted that only a declaration of contravention was sought.
On 10 October 2022, the respondent’s affidavit was exhibited into evidence and marked as Exhibit R1. Other material tendered in the respondent’s case was an ASIC company extract for Rong Pty Ltd (Exhibit R2) and correspondence between the respondent’s solicitor and the applicant’s solicitor of 21 December 2021 (Exhibit R3). The respondent was cross-examined and re-examined. Submissions were made and heard from both parties with respect to whether or not the allegations ought to be found proved and if so whether or not a reasonable excuse had been established.
On 10 October 2022, the court made findings and gave ex-tempore reasons with respect to whether or not Counts 1, 4 and 5 were found proved and whether or not a reasonable excuse had been established. The court also considered and gave ex-tempore reasons for the sanction to be imposed with respect to Count 1 and that the court was satisfied that Subdivison F applies with respect to Count 5. Those findings and reasons have since been settled and are set out below.
Thereafter on 10 October 2022, submissions were made and heard from both parties with respect to the consequences of failure to comply with the order under Count 5. The matter was adjourned to 13 October 2022 for the pronouncement of orders and reasons as to the consequences of failure to comply with the order under Count 5.
Count 1
Pleading: Denied.
Findings: Allegation proved. Reasonable excuse not established
.On 17 June 2021, the court made orders which included that:
7. Each party must within 28 days of the date of these Orders, being by close of business on 15 July 2021:
a. Do all things necessary to provide full and frank disclosure to the other party including but not limited to complying with Rule 24.03 of the Federal Circuit Court Rules 2001.
b. Serve on each other party copies of the relevant documents pursuant to Rule 24.04 of the Federal Circuit Court Rules 2001.
A copy of the orders made on 17 June 2021 where attached to the Application. I am satisfied as to what the terms of Order 7 were and that the order was in place on 15 July 2021 at 6pm in Canberra. I am also satisfied that despite the unnecessary inclusion of the words ‘the father’ in the allegation, that the respondent was the person to whom the order was directed.
The order directed the respondent to do all things necessary to provide full and frank disclosure. The order does not say that the respondent “… provide full and frank financial disclosure … in accordance with Rule 24.03 …” [emphasis added] as alleged. Despite the allegation not being elegantly stated, I am satisfied that it contains the allegation of contravention of what the essence of the order directed the respondent to do.
On the due date for compliance of 15 July 2021, the respondent’s solicitor wrote to the applicant’s solicitor enclosing “financial disclosure on behalf of our client.” After listing a series of items describing the enclosures, the letter concluded with “We are instructed further financial disclosure will be provided on or before 23 July 2021.” It is self-evident that the financial disclosure provided by the respondent on 15 July 2021 was not full.
To find that the respondent has contravened the order, section 112AB of the Act requires the court to be satisfied that the respondent’s failure to provide full and frank financial disclosure was intentional, or, that he made no reasonable attempt to comply with the order. I am satisfied that the respondent’s failure to comply was intentional on the following grounds:
(a)As to what was required by the respondent with respect to full and frank disclosure:
(i)The respondent affirmed in the financial statement filed on his behalf by his lawyer on 12 May 2021 that he was “… aware that by law I have an obligation to make a full and frank disclosure of my financial circumstances to the Court and each other party.”
(ii)The respondent was further assisted from within Order 7 of 17 June 2021 itself directing him to rules 24.03 and 24.04.
(b)The enclosures within the letter of 15 July 2021 and their description as “financial disclosure” is self-evident that the respondent understood what financial disclosure was.
(c)Only the respondent knew of the extent and what was required to fill the void between partial financial disclosure and full and frank financial disclosure. There is no information within the letter of 15 July 2021 as to why only partial disclosure was being provided, or what disclosure was missing as at 15 July 2021 such that it would otherwise be full and frank.
(d)There is no information within the letter of 15 July 2021 to the effect that the partial disclosure was the respondent’s reasonable attempt to comply with the Order or what the necessary things that he was unable to do were.
(e)The respondent took no steps to seek to prevent his non-compliance.
(f)I find that the respondent did not care to, or it was against the respondent’s interests, to do all things necessary to provide full and frank disclosure as at 15 July 2022. In these circumstances, the appropriate inference is that his failure to comply was intentional.
For the same grounds as set out above with respect to the respondent’s fault element of intention, I am satisfied that the respondent knew of and understood the Order.
Section 112AC of the Act requires the Court to determine if the respondent had a reasonable excuse for contravening an order. The circumstances in which a person may be taken to have had a reasonable excuse for contravening an order are not limited. The respondent gives evidence in his affidavit at paragraph 7 that documents listed within rule 24.04 did not exist “for the preceding 3 years.” He seems to indicate that they were anticipated to exist by 23 July 2021 but then goes on to describe the difficulties he had and the steps he took to eventually provide further financial disclosure not by 23 July 2021 but by 8 September 2022. There is no evidence of what things he did do between 17 June 2021 and 15 July 2021.
At paragraph 11 of his affidavit, the respondent describes a relevant deed of company arrangement that was entered into on 17 February 2020 and varied on 15 June 2021, which predates the due date for compliance with the order of 15 July 2021. This was not included or referred to in the financial disclosure of 15 July 2021.
I am not satisfied that the respondent, on the balance of probabilities, has proven that he had a reasonable excuse for contravening the order on 15 July 2021.
With respect to Count 1, all findings I have made are on the balance of probabilities. No issues arise warranting the application of a higher standard of proof. (Evidence Act 1995 (Cth) Section 140).
Count 1 - Sanction
By way of sanction, counsel for the applicant at hearing advised that the applicant seeks no more than a declaration that the respondent has not provided full and frank financial disclosure.
The Court’s findings can only accord with the declaration sought as at the contravention date of 15 July 2021. The question as to the adequacy of disclosure thereafter is a matter for final hearing.
In light of the existing trial directions directing both parties to file and serve their trial material by 31 October 2022, and having regard to the overarching purpose as provided by section 67 of the Federal Circuit and Family Court Act 2021 to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, an order is made for the respondent to file and serve a written notice pursuant to Rule 6.02 by 24 October 2022.
Count 4
Pleading: Denied.
Findings: Allegation not proved and dismissed.
On 5 October 2021, the court made orders which included that:
3. In the event that the value of any real property is not agreed the parties shall cause that item to be valued by a single Expert with the costs of such valuation to be shared equally between the parties.
4. Within 14 days the parties shall exchange a list of 3 experts to provide a valuation of the business and the Wife shall select one to provide a valuation and for this purpose:
a. A joint letter of instructions to be sent to the valuer;
b. the parties shall provide the valuer selected with all documents and authorisations necessary to obtain documents to complete a valuation; and
c. Each of the parties will meet half the costs of the valuation obtained.
A copy of the orders made on 5 October 2021 where attached to the Application. I am satisfied as to what the terms of Orders 3 and 4 were and that the orders were in place on 2 December 2021 at 9am in Canberra. I am also satisfied that the applicant and the respondent are the persons referred to as “the parties” to whom the orders were directed.
The Orders directed the parties to cause any real property and the business to be valued by a single expert and a mechanism for this to occur. The orders do not say that the respondent “… do all things necessary to provide property valuations of the business and of real estate …” as alleged. Despite the allegation not being elegantly stated, I am satisfied that it contains the allegation of contravention of what the essence of the Orders directed the respondent, as one of the parties, to do.
Order 3
The applicant deposes in her affidavit at paragraph 25:
On 29 September 2021, my solicitor wrote to them proposing values for [Mr Rong’s] various properties based on appraisals I had obtained from [Company L] and nominating, in the absence of agreement, three valuers for property valuations for the properties.
I note that this predates Order 3 made on 5 October 2021. I also note that nothing has been brought to my attention as being special or significant about the date of 2 December 2021 as the alleged contravention date. I am satisfied that by her letter of 29 September 2021, the applicant had taken the steps that she could in order for the parties to comply with Order 3. There is no evidence that the respondent had taken any steps towards compliance with Order 3, by 2 December 2021 or at any later time. I am satisfied that 2 December 2021 was a reasonable period of time by which the respondent ought to have complied with Order 3.
Order 4
Annexure K to the applicant’s affidavit contains correspondence on 1 October 2021 where the respondent’s solicitor proposes “Company M” as the single expert to value the respondent’s interests in “Rong Pty Limited.” I am satisfied that this is the “business” referred to in Order 4. On the same day, the applicant by her solicitor, agrees in principle to Company M providing the valuation subject to the provision of costs, brief and time frame.
The next step Order 4 required the parties to take was for a joint letter of instruction to be sent to the valuer. It is open to interpretation as to whether or not this was to occur within 14 days but for the purposes of this application it is not necessary for that to be decided.
The applicant deposes in her affidavit at paragraph 29 that there was no further correspondence between the parties until 4 February 2022 when the respondent’s solicitor sent to the applicant’s solicitor a proposed letter of instruction. This was proven in the Respondent’s case not to be true where on 21 December 2021, there was correspondence from the respondent’s solicitor to the applicant’s solicitor (at Exhibit R3) of a draft letter of instruction.
In any event, as at the date of the alleged contravention of 2 December 2021, neither party had taken any steps since 1 October 2021 for a joint letter of instruction to be sent to the valuer. Technically it can be said that the applicant was in breach, but so too was the respondent. Being conscious of having already taken a purposive approach to Count 4 so far, in the circumstances of a mutual breach of an order directed to “the parties” I am not satisfied that it is appropriate to find the allegation proved as against just the respondent.
Despite being satisfied that the respondent had contravened Order 3, and being in no doubt that the purpose of Orders 3 and 4 and the obtaining of valuations has not been achieved, the manner in which the applicant has particularised the allegations in the single allegation at Count 4 means the allegation must fail and it is dismissed.
Count 5
Pleading: Denied.
Findings: Allegation proved. Reasonable excuse not established.
On 2 May 2022, the court made orders which included that:
1. The Father forthwith do all things necessary to arrange [Y] born [in] 2014 ('Y') to be returned to Australia, within 30 days of the date of these Orders.
A copy of the orders made on 2 May 2022 were attached to the Application. I am satisfied as to what the terms of Order 1 were and that the order was in place on 1 June 2022 at 5pm in Canberra. I am also satisfied that the respondent was the person to whom the order was directed.
I am satisfied the order is a parenting order pursuant to subsection 64B(1) and subsection 64B(2)(i) and is an order under the Act affecting children pursuant to Subdivision A of Division 13A.
The terms of the order were expressed in plain and clear terms. I am satisfied beyond reasonable doubt that the respondent understood precisely what was required of him pursuant to the order as he says in his email sent to his mother on 26 May 2022:
Can you and my dad help me take [Y] back to Australia before 02/06/2022.
Otherwise I could go to jail, and the consequences are severe.The order directed the respondent to forthwith do all things necessary to arrange for the child of the parties, who was 6 years old at the time of the order, to be returned to Australia by 1 June 2022. Y was not returned to Australia by 1 June 2022.
On 2 June 2022, the day after the due date for compliance, the respondent’s solicitor wrote to the applicant’s solicitor advising of the steps taken by the respondent which were:
(a)On 20 May 2022, he made a booking (but did not pay) for one-way travel for Y from China to Australia.
(b)On 26 May 2022, he sent an email to his mother in China (with whom the child was living with) requesting that either his mother or his father bring Y back to Australia before 2 June 2022.
Firstly, doing nothing between 2 May 2022 and 20 May 2022 ignores the first directive of the order which was to act forthwith. With respect to the booking, I am satisfied beyond reasonable doubt that the booked travel was never going to eventuate in circumstance where, on the evidence, the airline did not provide any unaccompanied minor travel service at all relevant times. The only step taken by the respondent that had any prospects of having Y returned to Australia was his email to his parents on 26 May 2022 asking them to do it. I am satisfied beyond reasonable doubt that these steps do not amount to “all things necessary” as directed by the order. I am satisfied beyond reasonable doubt that these steps do not amount to reasonable attempts to comply with the order.
The respondent submitted that the actions and steps as described in his affidavit amount to a reasonable excuse for contravening the order. I do not accept that submission on the following grounds.
The respondent does not describe any steps taken between 2 May 2022 and 20 May 2022.
The respondent describes his gaining of the knowledge between 23 and 26 May 2022 that the airline he had booked with and the only other two airlines he says flew direct from China to Australia did not provide an unaccompanied travel service. He goes on to say at [28]:
I did not want [Y] to travel to Australia with another airline where he would be required to transit through another country. I considered [Y], at 7 years of age, too young to cope with indirect travel and it is unsafe for him.
I do not consider the airlines’ policies with respect to unaccompanied travel is a reasonable ground for the respondent’s belief that the action constituting the contravention was necessary to protect the health or safety of himself or the child. The difficulty for the respondent on this ground of possible ‘reasonable excuse’ is that it is his inaction, rather than his action, that is the conduct causing the contravention.
The respondent deposes how his mother, in whose care the child was and he says still is, told him by email on 31 May 2022 that despite the court order, she had formed her own view that it is in the child’s best interests to stay with her in China for as long as the child wants. The respondent also deposes that he relied on his mother to fund Y’s airfare.
I do not consider that this amounts to the respondent’s mother hindering or preventing him from discharging his responsibilities under the order. Again, the difficulty for the respondent on this ground of possible ‘reasonable excuse’ is that it is his inaction, rather than his action, that is the conduct causing the contravention.
The respondent deposes that he earns $50,000 per annum and has $432 in savings. He deposes that he works fulltime in a restaurant business and his absence will see it ceasing trade and folding. I do not consider that these circumstances amount to hindering or prevention of him from discharging his responsibilities under the order where:
(a)The respondent also deposes to owning unencumbered the residential property in which he lives and a second unencumbered residential property in which his brother lives rent free. Under cross-examination, he conceded each of these properties would be worth at least $600,000. In re-examination he said his mother had lodged a caveat against each of the properties which was news to the applicant.
(b)That the temporary closure of the business would cause it to fold, and even if that were to be the case, how that could possibly compare to the seriousness of preferring to leave his child languishing in China indefinitely and contrary to this Court’s order.
Beyond the representations of his mother (as translated presumably by himself) the respondent presents no evidence as to the care, welfare or circumstances of the child in China. He makes no substantive or meaningful case as to what is in the best interests of the child. I find that to be extraordinary. He conceded in cross-examination that he had taken no steps in Australia or China to compel his mother to present the child to him. Under cross-examination, the respondent did not agree that the paternal grandmother was holding the child against the will of the respondent and that the respondent was in fact happy for the child to remain in China with the paternal grandmother in contravention of the order of this court. I find that to be contumacious.
I am not satisfied on the balance of probabilities that the respondent has demonstrated any reasonable excuse for the contravention, or that he ought to be excused in respect of the contravention.
Count 5 – Consequence of failure to comply with order
Having found the order contravened and having not found a reasonable excuse for contravening the order, it falls to the court to determine which Subdivision of Division 13A to apply as a consequence of the respondent’s failure to comply with the order.
The notations to the orders made on 2 May 2022 include:
B. The Father and his lawyers have consistently failed to comply with both Court orders/directions and the Court Rules throughout these proceedings.
F. Should there be any further failure by the Father to comply with the Court’s Orders, the consequences for him could be severe.I am satisfied that the requirements to the application of Subdivision F at subsection 70NFA(1) are met being:
(a)A primary order has been made; and
(b)The court has jurisdiction under the Act and is satisfied that the respondent committed a contravention of the primary order; and
(c)The respondent has not proven that he had a reasonable excuse for the contravention; and
(d)If the making of Notation F to the orders of 2 May 2022 is not considered to be the taking of an action in respect of a previous contravention, then I am satisfied that the person has behaved in a way that showed a serious disregard of his obligations under the primary order; or
(e)The making of Notation F to the orders of 2 May 2022 is considered to be the taking of an action in respect of a previous contravention.
The court is satisfied beyond reasonable doubt that the grounds for making an order under Subdivision F exist. (Section 70NAF; Oswin & Oswin [2019] FamCAFC 164).
The powers of the Court are set out in section 70NFB which relevantly provide that the Court must, in relation to the respondent:
(a)Pursuant to section 70NFB paragraphs (1)(a) and (2)(g), make an order that the respondent pay all of the costs of the applicant to the proceedings under this Division unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and/or
(b)Consider making at least one (or other orders) under subsection 70NFB(2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
In the circumstances of this case, the orders that are available to be made by the court under subsection (2) are:
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
Under subsection (6), an order under section 70NFB may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
Under subsection (7), when a Court makes an order under section 70NFB, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
Under section 70NBA of Subdivision B, the court may make an order varying the primary order.
The applicant’s position
The orders sought by the applicant are at Annexure A to her written submissions. Essentially, they sought that:
(a)Pursuant to Subdivison B (and not subsection 70NFB(2)(b) and section 70NFE of Subdivision F), the primary order be varied such that all within 30 days:
(i)The respondent pay into court a bond of $50,000. (The applicant deposed her estimate of costs to go to China to attempt to recover Y herself was $75,000 including travel, legal fees in Australia and China, accommodation and living expenses in China. Counsel for the applicant submitted that only $50,000 was sought by way of a bond as it was hoped a discounted amount might make it more affordable or manageable for the respondent such that it actually happens in circumstances where the respondent had not complied with financial disclosure obligations and his financial circumstances were not known);
(ii)The respondent’s passport be returned to him;
(iii)He comply with the primary order to do all things necessary to arrange for Y to be returned to Australia; and
(iv)For Y to be provided to the mother and thereafter live with the mother and spend time with the father in accordance with Order 9 of the orders of 10 February 2022.
(b)The bond be forfeited to the applicant upon non-compliance. (Counsel for the applicant identified and conceded that such a self executing order ought not be made in these proceedings and that the applicant would need to bring an application in the event of non-compliance with the varied order).
(c)In the alternative, the respondent be imprisoned for 12 months or until such time as he complies with the primary order to do all things necessary to arrange for Y to be returned to Australia and for Y to be provided to the mother. (In submissions, counsel for the applicant added to the proposed order that his payment of the bond also be a condition of release).
(d)The respondent pay the applicant’s costs on an indemnity basis. (The applicant submitted this was consistent with the language of section 70NFB paragraphs (1)(a) and (2)(g) that the court must make an order that the respondent pay all of the costs of the applicant to the proceedings under this Division, and, the court would not be satisfied that it would not be in the best interests of the child concerned to make the order).
The respondent’s position
In relation to costs, the respondent submitted that section 70NFB paragraphs (1)(a) and (2)(g) ought not apply because only one of the five allegations was under Division 13A.
As to the applicant’s proposal to vary the primary order, counsel for the respondent submitted that the respondent has no capacity to fund a bond and no capacity to pay to collect the child from China and the court should not make an order the respondent is incapable of complying with.
The respondent submitted that the court should make no order as a consequence to the respondent’s failure to comply with the primary order. This included no order to the effect of discharging the primary order such that the respondent would still be required to comply with it on an ongoing basis up until at least the final hearing looming on 7 November 2022.
The reasons submitted by the respondent as to why an order imposing imprisonment should not be made include:
(a)He would not be able to attempt to arrange a bond whilst imprisoned.
(b)He spends a few hours a week with the younger child.
(c)He would lose his job.
(d)He would not be able to prepare for final hearing whilst imprisoned.
During closing submissions, counsel for the respondent received instructions that instead of a cash bond, the respondent would consent to an order that $50,000 be secured against one or both of his properties. He would however require more than 30 days to do all that is necessary to arrange the security, somehow fund the travel cost, obtain a visa to enter China, attempt to collect the child from his mother and return to Australia. All whilst in the process of preparing for a final hearing.
The Orders
Order 1
An order is made for the respondent to file and serve a written notice pursuant to rule 6.02 by 24 October 2022 for the reasons given above under the heading Count 1 – Sanction.
Order 2
“Proceedings” has the meaning given by subsection 4(1) which provides that “proceedings” means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding. Whilst only Count 5 was brought under Division 13A and Counts 1 - 4 were brought under Part XIIIA, they were an incidental proceeding in the course of or in connection with the Division 13A proceeding.
I find that section 70NFB paragraphs (1)(a) and (2)(g) apply. I find that there is no evidence that the order will have any effect on the child concerned and therefore I am not satisfied that it would not be in the best interests of the child concerned to make the order. Accordingly, indeed I must, make an order that the respondent pay all of the costs of the applicant to this application.
Orders 3-7
Neither party submitted that it was appropriate for orders to be made under paragraph (b) of subsection 70NFB(2) for an order requiring the person to enter into a bond in accordance with section 70NFE, or under paragraph (d) for a fine. The only appropriate orders for consideration are therefore:
(a)Making no order and effectively leaving the respondent to continue in his efforts to have Y returned unless or until the order requiring him to do so is varied or discharged after final hearing;
(b)An order varying the primary order pursuant to Subdivision B (to incentivise the respondent’s compliance by setting up a mechanism for payment and forfeiture of a bond to the mother in order to fund her attempt to recover the child from China herself);
(c)To impose a sentence of imprisonment on the person in accordance with section 70NFG.
Section 70NFG relevantly provides that:
(1) A sentence of imprisonment imposed on a person under paragraph 70NFB(2)(e) is to be expressed to be:
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person:
(i) complies with the order concerned; or
(ii) has been imprisoned under the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2) A court must not sentence a person to imprisonment under paragraph 70NFB(2)(e) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention under any of the other paragraphs of subsection 70NFB(2).
(3) If a court sentences a person to imprisonment under paragraph 70NFB(2)(e), the court must:
(a) state the reasons why it is satisfied as mentioned in subsection (2); and
(b) cause those reasons to be entered in the records of the court.
(5) A court that sentences a person to imprisonment under paragraph 70NFB(2)(e) may:
(a) suspend the sentence upon the terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
(8) A court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
In all the circumstances of the case, I am satisfied that it would not be appropriate for the court to deal with the contravention under any of the paragraphs of subsection 70NFB(2) other than paragraph 70NFB(2)(e) to impose a sentence of imprisonment for the following reasons.
(a)I am satisfied that it is not appropriate to make no further order beyond the costs order pursuant to paragraph 70NFB(2)(b) and effectively allow the matter to drift to final hearing where it is likely the child will still be in China.
(b)I am satisfied that it is not appropriate to make an order for the respondent to pay a bond of $50,000 or for any other meaningful amount. Firstly, I agree with the submission made by counsel on his behalf that he does not have the capacity to pay it and that the court should not make an order he is incapable of complying with. Secondly, I appreciate that the orders proposed by the applicant are aimed at incentivising the respondent into action but I am not satisfied that they will have that effect. Instead, I find it more likely that the respondent would again do nothing, leaving Y in China and the applicant in the unfair and plainly unjust position of having to take more steps and spend more time energy and money with further enforcement proceedings. Thirdly, I am not satisfied that the court has the power to make such an order in the context of proceedings under Division 13A.
(c)Since 10 February 2022, the respondent has been directed by the court to have Y returned to Australia from China in order to live with the applicant. He has not done that. He has brought no case to discharge the order or as to why it might be in the best interests of the child not to return. He has brought no case setting out proposed orders or a regime to bring about the return of Y from China.
(d)Other than the offer made at closing submissions of $50,000 being secured against one or both of the properties, there is no evidence that the respondent is willing to comply with the primary order or is willing to do anything else to deliver Y to the applicant.
(e)The best interests of Y remain the paramount consideration of the court, which for the purposes of this application is his return to Australia from China in order to live with the applicant. The respondent is uniquely placed to arrange for that to happen yet he remains contumaciously unmotivated to do so.
I am satisfied that there is no utility in suspending the term of imprisonment pursuant to subsection 70NFG(5) to provide an opportunity for the respondent to comply with the primary order, or to satisfy the court that he is willing to comply with it. He has had ample opportunity to do that to date and he has declined to do so.
Pursuant to subsection 70NFB(7) and subsection 70NFG(8) the respondent will instead be afforded the opportunity to obtain his own immediate release by:
(a)Arranging for the provision of Y to the applicant mother by the paternal grandmother, the paternal grandfather, the respondent’s brother or anyone else; or
(b)The preparation of terms and conditions that satisfy the court that he is willing to comply with the order concerned. Pursuant to subsection 70NFG(8), the test for whether or not, if released, he will comply with the order is to the satisfaction of the court. Such terms and conditions are to be set out by way of a proposed minute of orders sought, supported by affidavit of himself and any other relevant witnesses.
There is no evidence as to why either of these cannot be done whilst imprisoned where he is most likely to be incentivised to do so. The period of 3 months is deemed to be the period necessary to incentivise the respondent to comply with the order or to prepare terms and conditions that satisfy the court that he is willing to comply with it. It is also deemed to reflect the gravity of the breach and the absence of any remorse of the respondent. It is also imposed to uphold the authority of the court to make effective orders. (See Cummings and Cummings (1976) FLC 90-100 at 75,461–75,462). The order is not made to make an example of the respondent, to adequately punish him, to prevent other people from committing the same or similar breaches, or, other than for the purposes of procuring compliance of the court’s orders, to denounce the conduct of the respondent. (See McClintock & Levier (2009) FLC 93-401 at 83,385 and 83,395).
As to the need to ensure compliance in the future, the respondent should be under no misapprehension that, subject to an order of the court otherwise, the primary order will still be in effect upon his release in 3 months and further non-compliance with it may bring about further contravention proceedings against him or a charge of being in contempt of court.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansfield. Associate:
Dated: 13 October 2022
A respondent to an application referred to in item 2, 3, 4 or 5 of Table 11.1 may file an affidavit but is not required to do so.
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