SAIT & AUTON (No.2)
[2018] FCCA 3111
•1 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAIT & AUTON (No.2) | [2018] FCCA 3111 |
| Catchwords: FAMILY LAW – Enforcement of property orders – order for payment of money – order not complied with – application for enforcement – non-payment admitted – available relief – whether open to treat enforcement application as contravention application – scope of available relief – orders for enforcement made. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.25C Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.79, 112AA, 112AD, 112AE, Federal Circuit Court Rules 2001 (Cth), rr.1.06, 25B.02, 25B.04, 25B.07, 25B.10, 25B.11, 25B.12, 25B.13, 25B.14, 25B.65 |
| Cases cited: Blair v Curran (1939) 62 CLR 464 |
| Other texts cited: Bargaric, Edney & Alexander Sentencing in Australia 5th Ed (2017) |
| Applicant: | MS SAIT |
| Respondent: | MR AUTON |
| File Number: | MLC 6106 of 2007 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 18 & 25 October 2018 |
| Date of Last Submission: | 25 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kiernan |
| Solicitors for the Applicant: | Berry Family Law |
| Respondent: | In person |
ORDERS
Declare that the sum of $230,000 is payable by the respondent to the applicant.
By 4.00pm on 30 November 2018, the respondent pay the sum of $230,000 to the applicant.
The respondent pay the applicant’s costs of this application fixed at:
(a)Solicitor’s fees: $2,500.
(b)Counsels fees (3 days): $7,500.
Pursuant to r 25B.14 of the Federal Circuit Court Rules 2001 (Cth):
(a)this Order is an order of the kind provided for by r 25B.13(a)-(b);
(b)the applicant’s full name and address is:
MS SAIT
(c)the respondent’s full name and address is:
MR AUTON
(d)the total amount payable under this order is $240,000 being:
(i)the sum of the judgment debt: $230,000.
(ii)the sum of the costs fixed by this Order: $ 10,000.
$240,000
Direct that a copy of these reasons for judgment, once anonymised, be transmitted by the Registrar to the Victorian Legal Services Board.
IT IS NOTED that publication of this judgment under the pseudonym Sait & Auton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6106 of 2007
| MS SAIT |
Applicant
And
| MR AUTON |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2 February 2018, reasons for judgment (first reasons) were delivered in relation to an application for an adjustment of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (Act)[1]. These reasons should be read in conjunction with the first reasons.
[1] Sait & Auton [2018] FCCA 146
The orders made on 2 February 2018 provided that the respondent pay the applicant the sum of $230,000. This sum has not been paid. Indeed, by the respondent’s admission, no sum has been paid at all.
By application filed on 10 July 2018, the applicant seeks orders by way of enforcement of the Order that within seven days the respondent pay the applicant the said sum of $230,000. A further order is sought that the respondent pay the applicant’s costs of and incidental to the enforcement application. For the reasons that follow, I grant that relief.
The application is supported by an affidavit sworn by the applicant on 9 July 2018. The applicant deposed that the respondent has not paid her that sum of $230,000 or any other sum in reduction of that amount. The applicant exhibited a letter dated 21 June 2018 addressed by her lawyers to the respondent making demand for payment of the judgment sum. The letter gave notice that unless payment was made by 6 July 2018, the applicant would file an enforcement application. The letter of demand was addressed to the respondent at (Suburb A).[2]
[2]The respondent has filed a notice of address for service confirming that this is his address.
The applicant relied upon an affidavit of personal service which deposed to service of the enforcement application and supporting affidavit on 17 July 2018 and exhibited an acknowledgement of service which, as the deponent swore, was signed by the respondent in his presence. Despite that affidavit, the respondent asserted in closing submission for the first time that he had not had adequate time to prepare for the application. I reject that assertion. The respondent’s conduct in the course of the application was emblematic of a person who would do or say anything that occurred to him to be of immediate benefit to his current situation.
The enforcement application was made returnable on 11 September 2018.
When the enforcement application was called on for hearing, the respondent appeared. The respondent was afforded an opportunity to consider the application including that he might file and serve any affidavit in response to the enforcement application by 1 October 2018. The enforcement application was adjourned to 18 October 2018.
Upon the hearing of the application, the court informed the respondent[3] of the nature of the allegations set out in the enforcement application; namely, that the applicant sought by way of enforcement of the Order that the respondent should pay the applicant the sum of $230,000 within seven days. The respondent was asked whether he wished to admit or deny that allegation. Given the opportunity, the respondent said he accepted the sum of $230,000 had not been paid pursuant to the Order.
[3] See r 25B.04, Federal Circuit Court Rules 2001.
The court further informed the respondent that it would hear the evidence relied upon in support of the allegation and that he would be given the opportunity to cross-examine the applicant in relation to her evidence. The respondent was also informed that he would be given the opportunity to adduce evidence and that, if he chose to do so, he may be cross-examined by counsel for the applicant.
The court thereupon proceeded to hear the evidence relied upon by the applicant and the evidence of the respondent.
Evidence
As stated above, the applicant swore an affidavit in support of her enforcement application by which she proved the non-payment of the judgment debt and the making of a demand which had not been answered.
On 4 October 2018, the respondent made an affidavit.[4] The respondent’s affidavit raised a number of issues which it is necessary to address. By way of overview, I reject the respondent’s evidence except where it is corroborated by independent contemporaneous documentary evidence. The respondent was a most unimpressive witness.
[4]It is not clear whether it was sworn or affirmed. At the hearing, the respondent made much of his wish to make an oath on the (religion omitted).
In many respects, the respondent’s evidence was non-responsive and argumentative. He preferred, on many occasions, to employ the witness box as a platform from which to make speeches. On occasion, the respondent’s evidence in cross-examination was inherently implausible. In other respects, the respondent qualified evidence given in his recent affidavit. For example, while he deposed that he had purchased motorcycles for the applicant wife and children, in the course of cross-examination he recanted, stating that it was “not for the wife.”
The applicant gave evidence which responded to the matters in the respondent’s affidavit. The manner in which the applicant gave her evidence, including when answering such questions as were put to her in cross-examination, confirmed my view of her as an honest, impressive witness who gave her evidence in a candid and forthright manner.[5]
[5] cf first reasons, [18].
The applicant confirmed that she continues to work as a (occupation omitted). She continues to maintain the care of the parties’ two younger children, being their teenage daughters. She lives in housing commission accommodation and maintains a modest lifestyle.
In order that the issues raised by respondent’s affidavit might be addressed, the present application needs to be seen in its proper context.
The first reasons set out the procedural history of the matter including the respondent’s persistent failure to engage with the process of the court until a judge of this court made an order that a warrant be issued for his arrest. When the matter was listed for trial, the respondent appeared, submitting that the applicant was entitled to nothing.[6] At the hearing of the enforcement application, the respondent denied that he had said that applicant was entitled to nothing. At the same time, he advanced the case that it was he who was now living in a housing commission and that “now, I’ve got nothing”, apparently blaming the applicant for his state.
[6] First reasons, [3],
At the trial, the respondent had produced[7] a Crown Casino membership card as if to indicate what he had already done with the parties’ monies and the apparent difficulties which might be encountered in tracing it. Although it had not been addressed in his affidavit, the respondent deposed that the applicant had accompanied him to the casino and that they had spent many times there together enjoying a lavish lifestyle. The applicant denied that she had ever been to the casino, explaining that it was against her culture. I accept her evidence.
[7] First reasons, [12].
By way of further context, it should be recognised that in supposed support of his stance that the applicant was entitled to nothing, the respondent had produced[8] a transfer of land which transferred the matrimonial home to him. As the first reasons demonstrate,[9] I rejected the respondent’s assertions as to the transfer of the property. I found that the transfer had never been registered and that, when the property had been sold, the applicant and respondent had been registered as proprietors of, and were the vendors who sold, the property.
[8] First reasons at [46].
[9] First reasons at [43]-[69].
I further found that the respondent had appropriated the whole of the net proceeds of the sale of that property and that he had been deliberate in his constant refusal to make financial disclosure in the proceeding. The finding that the respondent had appropriated the whole of the net proceeds of the sale was a finding which I made in the context that the applicant had sworn an affidavit on 8 July 2016 in which she deposed at [15] that, contrary to her knowledge, the net proceeds of sale had been transferred from the trust account of the parties’ lawyers and deposited to the respondent’s bank account with Bank 1.
The issue whether the sale proceeds had been paid to the respondent without the applicant’s knowledge or consent was an issue squarely raised well before the trial of the proceeding. At the trial, I found[10] that the applicant’s evidence on this issue was uncontradicted and that those sale proceeds had been transferred to the respondent without her knowledge or consent. I found[11] that the whole of the net proceeds of sale, being a sum of $378,540.94 had been paid to the respondent by the solicitors who had acted for them as vendors in the sale of the property (Solicitors). Concerning disposition of the proceeds of sale, the respondent’s recent affidavit deposed that the applicant had been personally present at the offices of the firm of Solicitors at the time that the proceeds of sale were dispersed by those Solicitors. I reject that evidence as recent invention. The applicant’s affidavit sworn 8 July 2016 deposed in clear terms that the monies had been disbursed without her knowledge and consent. This had been the applicant’s case from that time until trial. It was never challenged. It was never contradicted.[12]
[10] First reasons at [67].
[11] First reasons at [69].
[12] First reasons [67].
By contrast, the respondent’s affidavit filed in answer to the enforcement application suggested that the net proceeds of sale had been paid to him alone in order to protect the applicant’s Centrelink payments. This case had never been put to the applicant in the course of the first hearing.
The matters addressed in [21] above were troubling for other reasons.
The circumstance that the respondent sought to raise the suggestion of consent to the disbursement indicated that the respondent well recognised the threshold importance of seeking to distance himself from the appropriation of the entire net proceeds of sale.
Contextually, there are other reasons for rejecting the respondent’s claim that the applicant had consented to the disbursement of the net proceeds of sale as recent invention. First, the applicant’s uncontradicted evidence at trial was that the respondent was extremely secretive respecting his financial position and would not reveal it to the applicant. Secondly, the respondent’s evidence at the hearing was that: “[s]he get her own money. I get my own money. She work and I work.” This evidence was consistent with the respondent’s secretive financial habits. Thirdly, I accept the applicant’s evidence that she was taken by the respondent to the Solicitors’ offices on only one occasion; namely, for the purposes of execution of the contract of sale and other documents. The applicant maintained that she had not been to the offices of those Solicitors at any other time. I accept that evidence. The only time she had been to those offices was for the purposes of signing the contract of sale. Fourthly, in the course of the hearing the respondent began to advance a claim that he had also taken the applicant to each of his various banks for the purpose of depositing and/or withdrawing monies from accounts. I reject that suggestion as recent invention. Relatedly, I accept the applicant’s evidence that she did not and never had held an account with Bank 2. Fifthly, the respondent’s persistent failure to make financial disclosure in the course of this proceeding and his non-engagement in the proceeding more generally has been addressed in the first reasons. The respondent’s persistent non-disclosure entitled the court to be more robust in the findings that were made respecting the respondent’s appropriation of the net proceeds of sale and other financial resources (in particular, his superannuation).
The respondent stated that his affidavit had been prepared by the solicitors who had acted both as solicitors for the vendors in relation to the sale of the former matrimonial home and as solicitors for the respondent in connection with various criminal matters. The respondent also suggested that, by coincidence, he had seen his Solicitor at court and that, when asked, he had refused to act for him on the basis of a stated conflict of interest. One foundation for the asserted conflict of interest was that the Solicitor had told the respondent that the applicant had brought proceedings against his firm for the loss of the monies arising from the transfer of the net proceeds of the sale of the property.
In my opinion, it is not mere speculation that in all of those circumstances the Solicitors might very well have been asked to furnish evidence in the present application to corroborate the respondent’s recent contention that, as was alleged by the respondent, the applicant had given her consent to the disbursement of, and had been present when, the net proceeds of sale had been so disbursed by the parties’ Solicitor. Instead, no affidavit was filed by the Solicitor who had acted in the conveyance of the property and disbursed the net proceeds of sale to the respondent. As a result, no file notes corroborating the applicant’s alleged attendance at their offices was sought to be put in evidence.
At no stage before 4 October 2018 had the respondent suggested that the applicant had been present at the offices of those Solicitors or consented to the disbursement of the sale proceeds in the manner now alleged.
Another issue raised by the respondent was, as his affidavit maintained, that during the period from at least 2008 – 2011, he had lived with the applicant at her housing commission accommodation in Suburb A. In the course of the hearing before me, the respondent suggested that this period of cohabitation was 2008 – 2013, and on another occasion, 2008 – 2015. His evidence as to this was inherently implausible. As was pointed out in cross-examination, in the subject period, the applicant had obtained a series of intervention orders against him during the relevant period. Indeed, as the first reasons record at [33]-[42], the respondent accepted that the applicant had been subjected to domestic violence at his hands to such a degree that on one occasion, when police were called to intervene, they had arrested the respondent. I accept the applicant’s evidence that the scale of the respondent’s violence was that the applicant and children had left the former matrimonial home and secured safe haven at a women’s refuge. I accept the applicant’s evidence that the respondent had not lived with her at her housing commission home in the period suggested or at any stage. I also accept her evidence that the respondent had lived at the property during that period. On each issue, I reject the respondent’s evidence to the contrary.
I likewise reject the respondent’s evidence that the applicant accompanied him to the bank to make deposits or withdrawals from his various bank accounts or made deposits to her accounts. The related evidence of a series of specific withdrawals for purposes such as the purchase of jewellery was addressed in the first reasons at [70]-[75]. I accept the applicant’s denials of the suggestions made by the respondent in his affidavit and in cross-examination that the applicant had an account with Bank 2. This suggestion had never been made before.
In other respects, the respondent’s evidence as to the alleged contributions made by him to the applicant following separation was simply unbelievable. Whilst the respondent’s affidavit suggested that he had expended a sum of $40,000 on such improvements, in the course of his cross-examination he volunteered that it was “maybe $100,000”.
At one point the respondent suggested that he had purchased “the most expensive curtains in Melbourne” for the applicant’s housing commission home. He asserted that the neighbours were jealous of those curtains. He deposed that he had only left the applicant’s housing commission accommodation when he had run out of money.
The suggestion that it was he, and not the housing commission, who had installed air-conditioning at the housing commission accommodation provided to the applicant became progressively more florid.
At some points the respondent suggested that one of the daughters had been thrown out of the applicant’s house and was now living with the respondent. The applicant was clear, and I accept, that the daughters have always lived with their mother and that they are altogether estranged from their father.
Insofar as the respondent again sought to raise the quantum of the monies spent by the parties while they had taken a holiday to (country omitted), I have addressed my findings on those matters in the first reasons at [70]–[73(a)], [145]–[149].
The respondent was taken to the applicant’s affidavit sworn 8 July 2016 at [15] – [16] in which the applicant had maintained that the respondent had disposed of the net proceeds of the sale of the property without her knowledge or consent. During his cross-examination, the respondent volunteered that although he was not proud of it, he had spent vast sums of money on alcohol and drugs. From this platform, the respondent then sought to enfold the applicant in that lifestyle and suggested that together they had pursued a lifestyle of drug and alcohol abuse. Apart from the fact that this had never been suggested beforehand, it was wholly contrary to the applicant’s denials and her demeanour.
In the same vein, the respondent suggested that he, together with the applicant, had attended Crown Casino on at least 20 occasions spending sums of up to $4,000 on each occasion. His affidavit went so far as to depose that in the 12 months from August 2011 to August 2012, the applicant had accompanied the respondent to the Crown Casino where, together, they had regularly spent in the order of $4,000 each day. I reject this evidence. I accept the applicant’s evidence that she would never have engaged in such conduct and that it was culturally repugnant for her to have done so. By contrast, the respondent’s production of his Crown Casino membership card would indicate that he had done so.
To the extent that the respondent suggested that he, together with the applicant, had been “going wild”, nothing could stand in greater contrast to the stance taken by the respondent in the course of the first hearing. There had been no suggestion that the applicant had been involved in a lifestyle of drug and alcohol abuse with the respondent at any stage.
At one point, I considered whether the respondent would say anything which he considered to be to his advantage as and when it occurred to him. In the event, I concluded that he was a wholly unreliable witness and that I would not accept his evidence unless it was corroborated by independent contemporaneous documentary evidence.
Perhaps the low point in the respondent’s cross examination was a series of late denials including that: (a) he could not recall participating in the first trial at all; (b) he had never asserted that the applicant was entitled to nothing; or (c) that he had relied upon a transfer as evidence that the applicant had transferred the property to him.
I reject the evidence relied upon by the respondent as supporting a conclusion that he had a reasonable excuse for not complying with the order for payment to the applicant of $230,000.
The respondent deposed also that he was now unemployed and in receipt of a NewStart allowance. He deposed that apart from savings of $1,000 in a bank account with Bank 1, he had no other monies or assets. He deposed that he has drawn down on his superannuation and has no capacity to repay the applicant the judgment debt of $230,000.
The respondent seemed to rely upon the applicant’s alleged delay in the institution of proceedings as a reason why he now had no money. I have reflected upon whether that may be so. The applicant’s case is that the respondent continues to conceal the whereabouts of the money. Although the applicant had issued a subpoena to Austrac, the evidence produced by that Authority at the trial contra-indicated that the respondent had transferred large sums of money out of Australia.
The respondent’s affidavit was also notable for what it did not attempt to say or prove. In particular, the respondent deposed in the most general terms that he had progressively expended the monies from his Bank 1 account. Yet he made no disclosure of the bank statements relating to that account. Having regard to the entrenched difficulty which the applicant encountered in seeking to obtain evidence of the respondent’s financial position for the purpose of advancing her claim for an adjustment of property interests, I am fortified in the view that the respondent remains unwilling to make full and frank disclosure of his true financial position.
The difficulty in ascertaining the respondent’s true financial position including his current financial position, is compounded by the absence of adequate disclosure: First Reasons at e.g. [8]-[9], [15], [73], [77], [164]-[165], [167]-[169]. Counsel for the applicant submitted persuasively, the respondent’s affidavit was conspicuous for its lack of corroboration.
Consideration
The court is conferred with distinct powers to address non-compliance with Orders by way of enforcement, contravention and contempt.
Chapter 2 of the Federal Circuit Court Rules 2001 (Cth) concerns the subject Family law and child support proceedings, is arranged in seven Parts and is comprised of Parts 22-25B. Part 25B concerns the subject, Enforcement. Within Pt 25B, Div 25B.1 governs the determination of applications for contravention of orders. Division 25B.2 governs the determination of applications for enforcement of orders.
The applicant had made clear throughout the conduct of this application that an order was sought for the imposition of a term of imprisonment. It may be questioned whether the applicant had any relevant role in advancing that submission.
In closing submission, the applicant sought that the application be dealt with as a contravention application. Counsel for the applicant frankly accepted that the application in a case was not in the prescribed Form upon which to seek the determination of an application for contravention and further, that the affidavit did not attach a copy of the Order in respect of which contravention was sought: see rr 25B.02(1), (2)(b). Nonetheless, from an abundance of caution, I had observed the procedure prescribed by r 25B.04 at the hearing and afforded the respondent an opportunity to consider whether he wished to file and serve an affidavit in answer to the application: see at [8] above.
The applicant submitted that, as the object of the rules of court was to preserve that the respondent to an application was afforded natural justice, it was clear that this had been afforded to the respondent such that the court should proceed to deal with the matter as if a contravention application had been filed and was being heard. It may be accepted that the rules of procedural fairness do not have an immutably fixed content. In Snedden v Minister for Justice for the Commonwealth of Australia,[13] Middleton and Wigney JJ held observed that “[w]hat will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts.”
[13] (2014) 230 FCR 82, [177].
In the present context, the court is concerned with the exercise of coercive powers, the object and purpose of which is to secure obedience to orders. To that end, the court is conferred power to make orders which will operate by way of both personal and general deterrence to conduct in disobedience of court orders. On one view, it would seem to defeat the purpose and object of Part 25B to construe its provisions as meaning that the court cannot impose a sentence of imprisonment unless and until it has made a series of enforcement orders, all of which have been breached, and the point has been reached where all other options have been exhausted. It would also seem inimical to the objects of the enforcement provisions in Part 25B to compel a person having the benefit of a final judgment to make a seemingly endless series of enforcement applications before the question of imprisonment was available for consideration. Such a construction could seriously undermine the enforcement provisions in Part 25B. However, I need not explore that issue further.
The court may dispense with compliance with the requirements of the Rules of Court: r 1.06. While the conferral of power to do so is cast in discretionary terms, it may only do so in the interests of justice. This constraint on the exercise of power assumes some significance in the present case. The cascading series of powers that are conferred on the court to address non-compliance with orders moves from enforcement to contravention and then to contempt. The nature of the coercive powers that are conferred on the court are different in each case. In particular, the power to impose a term of imprisonment is available in cases where a most serious contravention is established or a significant contempt is made out. The power to impose a term of imprisonment is not available where orders are sought be way of enforcement.
It is well settled that imprisonment is seen as a last resort and that the power to impose such a sentence should not be exercised unless the court is first satisfied that it would not be appropriate to deal with the contravention under any other available form of order: s 112AE(2).
The availability of the power to impose a sentence of imprisonment arises in the context of enforcement of orders for an adjustment of property interests under s 79 as distinct from a conviction for the commission of a criminal offence. It would not be correct to approach the question of appropriate order by reference to sentencing principles that are applied in the criminal law: Schwarzkopff & Schwarzkopff.[14] While the power to impose a term of imprisonment is now almost wholly statutory,[15] the exercise of that power has long been seen in the sphere of criminal law as appropriate for exercise only as a last resort.[16]
[14] (1992) FLC 92-303, 79,290 (Barblett DJC, Fogarty and Moore JJ).
[15] Fox & Freiberg’s Principles of Sentencing 3rd Ed (2014) at [12.10].
[16] Bargaric, Edney & Alexander Sentencing in Australia 5th Ed (2017), at [650.300].
Even in the sphere of personal insolvency, it can be seen that the imprisonment for debt was abolished in the nineteenth century: Moss v Eaglestone.[17] By extension, it is presently not open to the court to speculate as to the respondent’s financial resources: Rozenblit v Vainer.[18]
[17] (2011) 83 NSWLR 476, [34]-[36], (Allsop JA).
[18] [2018] HCA 23, [33] (Kiefel CJ and Bell J); [46] (Keane J); [106] (Gordon and Edelman JJ).
It is not insignificant that the Rules of Court require, in imperative terms, that a party wishing to proceed by way of contravention must make their application in accordance with an approved Form and must attach to their affidavit a copy of any relevant order. The question is whether the court should exercise the discretion to dispense with compliance of the requirement to use the Form required for a contravention application and the separate requirement to file an appropriate affidavit. The answer to that question requires consideration whether the Rules of Court disclose an intention to permit an applicant to proceed by way of contravention and to seek a term of imprisonment, despite non-compliance with procedural rules which are cast in imperative terms.[19]
[19] Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, [32].
The critical inquiry in cases involving a want of procedural compliance involves the consideration of the consequences of the relevant departure.
In this context, where an Act prescribes the use of a form, strict compliance is not required, unless a contrary intention appears: s 25C, Acts Interpretation Act 1901 (Cth). I consider that Part 25B of the rules read with ss 112AD and 112AE of the Act disclose a contrary intention. I do so because the rules do not merely require that the prescribed form must be used. They also prescribe the manner and form of the affidavit. Further, the power of enforcement may only be exercised where the court is satisfied that the respondent has been served with a sealed copy of the order or is otherwise satisfied that the respondent has received notice of its terms: r 25B.65.
Even where strict compliance might otherwise be dispensed with, there must be substantial compliance.[20] It is not possible in the present case to conclude that the supposed compliance has been substantial.
[20]Pearce & Geddes, Statutory Interpretation in Australia 8th Ed (2014), [11.30] and cases cited.
I consider that the discretionary power to waive compliance with mandatory requirements as to the form of contravention application and associated affidavit (particularly where the imposition of a term of imprisonment is sought) is informed by the principles in [52]-[59].
Collectively, the foregoing matters support a conclusion that strict compliance is required in the use of the designated form before the court may exercise the power available on a contravention application. In those circumstances, I am not persuaded that the power to dispense with those requirements is available for exercise.
As I raised in the course of the proceeding, the application seeks orders that the respondent pay the sum which is the subject of the judgment debt created by paragraph 3 of the Order made on 18 February 2018. The present application is an application for enforcement. The obligation created by the order to pay the applicant $230,000 was an enforceable obligation for the purposes of Div 25B: r 25B.07(1)(a). It was an obligation that could be enforced by the applicant: r 25B.10(a). Had the matter proceeded by way of contravention application, the Order made on 18 February 2018 would constitute an order made under the Act for the purposes of Part XIIIA: s 112AA.
I agree in the applicant’s submission that applications of the present kind, including a contravention application, are not criminal in nature. As a result, the civil rather than the criminal standard of proof is applied.[21] Moreover, had the application proceeded by way of contravention under s 112AD, the civil standard of proof would also have applied.[22]
[21] Lindsey & Lindsey [1995] FamCA 117, [25]-[29] (Barblett DJC, Ellis and Baker JJ).
[22] Ibid [41]-[42].
I also agree that in the consideration of the parties’ evidence, regard must be had to the gravity of the matters being alleged. [23] I further agree that the applicant bears the onus of proof on all issues, save where the respondent may assume a tactical burden of adducing evidence of the existence of facts which may be exculpatory of the breach or contravention alleged.[24] Finally, I also accept that an issue estoppel was raised against the respondent respecting the contention that the applicant had known of and consented to the payment to him of the net proceeds of sale. That issue was squarely raised by the applicant’s earlier affidavit and was an issue which was legally indispensable to the issue in the trial as to the receipt and disposition of those sale proceeds. Upon the findings that were made in the first reasons, it is not now open to the respondent to contest the finding that those sale proceeds had been paid to the respondent without her knowledge or consent.[25] Nor was it open to the respondent to raise the issues addressed at [29]-[38] above.
[23] Evidence Act 1995 (Cth), s 140.
[24] Sutcliffe & Sutcliffe (1988) 12 Fam LR 794, 796-7 (Nicholson CJ, Strauss and Nygh JJ).
[25] Blair v Curran (1939) 62 CLR 464, 531 (Dixon J); Cross on Evidence, 10th Ed, [5075].
I am satisfied that the respondent has not paid the judgment debt and in the circumstances, the applicant is entitled to the relief which she claimed. Had it been necessary to do so, the evidence adduced on this application would not have satisfied me that the respondent had a reasonable excuse for his failure to pay that judgment debt.[26]
[26] Family Law Act, s 112AC(2).
I have no doubt that the respondent knew the contents of the Order for payment of the judgment debt and of its meaning.[27] The respondent continues to maintain that he no longer has the money and by reason of the effluxion of time appears to ascribe responsibility to the applicant for his present inability to make the payment. It is not at this stage, necessary to determine[28] whether the respondent has intentionally or fraudulently failed to comply with the order for payment of the judgment debt or whether he has made no reasonable attempt to do so.[29]
[27]Cf Mohamad & Omer (No 2); [2018] FamCA 46, [40] (Cronin J); Batt & Batt (Deceased) [2017] FamCAFC 80, [159] (Bryant CJ, Ainslie-Wallace and Rees JJ).
[28] Family Law Act, s 112AD(2A).
[29] Family Law Act, s 112AB(1).
The obligation for payment of the judgment debt cannot, in the circumstances, presently be enforced by way of an order for seizure and sale, attachment of earnings or debts, sequestration of property or by way of the appointment of a receiver: r 25B.11(a)-(d).
The application stated that the relief sought was for an order for the payment of money. The affidavit did not do so but to that extent, I will dispense with the requirements of r 25B.12. The court is conferred with general powers of enforcement by r 25B.13 including for the making of a declaration as to the total amount that it owing under the obligation created by the Order made on 2 February 2018 together with an order for the payment of that sum. While the utility of making a declaration may be questioned in the circumstances, I am prepared to do so in order that this judgment will serve as the repository of my conclusions to this point. I will make an order pursuant to r 25B.13(b) for the payment of the judgment debt in full by 30 November 2018. While submissions were not made on the issue, I have moulded the Order in terms which address the requirements of r 25B.14. I further note that r 25B.65 addresses the requirements for service of the order made this day.
Conclusion
For the reasons above, I have concluded that, at this stage, I may only exercise the power to deal with the application by way of enforcement. Although I have no little regret in reaching that conclusion, it may also be questioned whether there is utility in further proceedings. Whether that is so is a matter for the applicant to consider.
However, there is a further issue that I need to address.
The respondent’s affidavit did not record that it had been prepared by the firm of Solicitors who had previously acted for both parties in relation to the sale of the property. However, the combined effect of the respondent’s statement that his affidavit had been prepared by those Solicitors in circumstances where there are proceedings on foot between the applicant and those Solicitors, give rise to the inference that those Solicitors are aware of the subject matter of the present enforcement application, including the judgment given on 2 February 2018. It is of real concern that a solicitor had prepared an affidavit for the respondent in such circumstances. In short, Solicitors who had once acted for both parties have now prepared an affidavit on behalf of one of them in relation to a dispute between both of them where a central issue in dispute is the disbursement of the net proceeds of sale by those Solicitors and where there are proceedings on foot by the applicant against that Solicitor for recovery of compensation. In all of those circumstances, the preparation of the affidavit might be seen as an attempt by the Solicitors to exonerate themselves from liability. I must accept that those Solicitors gave no evidence and may well have a different view of the matters addressed by this judgment in relation to their involvement.
As I do not know how those Solicitors might wish to respond to the matters in [71], I conclude that it is a matter which the relevant Authority may wish to consider. I will direct that a copy of these reasons for judgment, once anonymised, be transmitted to the Victorian Legal Services Board.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 1 November 2018
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