Stradford and Stradford
[2018] FCCA 3890
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STRADFORD & STRADFORD | [2018] FCCA 3890 |
| Catchwords: FAMILY LAW – Contempt –non-compliance with orders – imprisonment sentence imposed. |
| Legislation: Family Law Act 1975 (Cth) |
| Applicant: | MR STRADFORD |
| Respondent: | MS STRADFORD |
| File Number: | BRC 3444 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 6 December 2018 |
REPRESENTATION
The Applicant in person
The Respondent in Person
ORDERS
THE COURT DECLARES:
A. That MR STRADFORD is in contempt of Order 3(a), (h), (j), (m), (n) and (o) of Orders made by Judge Vasta on 10 August 2018 in that MR STRADFORD has failed to make full and frank financial disclosure.
THE COURT ORDERS:
That the Applicant MR STRADFORD be sentenced to a period of imprisonment in the X Correctional Centre for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on … 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.
That the E Bank account “Company D” account number … be frozen until further Order.
That this matter otherwise be adjourned to a date to be advised for a final hearing of not more than one (1) day in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED:
A. That the final hearing of this matter is not to occur until after … 2019.
IT IS NOTED that publication of this judgment under the pseudonym Stradford & Stradford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 344 of 2017
| MR STRADFORD |
Applicant
And
| MS STRADFORD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
On 7 April 2017, the Applicant, MR STRADFORD, applied to this Court for financial adjustment of property. The wife filed her response on 6 June 2017.
The matter went before Her Honour Judge Spelleken on a first Court date. What occurred there was that Her Honour made certain orders with relation to the property that would see certain properties sold and the value of the pool would become readily recognisable.
Her Honour ordered, in her orders, that there be disclosure by both parties as to the matters that are usually disclosed and attached to the usual annexure A. The matter was adjourned for a conciliation conference to occur at a time to be provided. That conciliation conference was then set to be held on 28 July 2017, before Registrar Clarke.
The matter did not end up being able to be resolved and Registrar Clarke told Her Honour that. The matter then was adjourned to September 2017, where Her Honour made some trial directions.
Because of the way in which the Brisbane pilot project occurred, Her Honour mentioned the matter on 12 February 2018 and on 20 April 2018. The matter was finally mentioned by Her Honour on 19 June 2018. On that day, Her Honour had adjourned the matter to 10 August at 9.45 am for final hearing for one day. Her Honour made orders that each party file the relevant affidavits and give a minute of orders sought and so on.
The matter was assigned to me on 10 August 2018. By then, both the husband and wife had dispensed with their legal representatives and were representing themselves. The pool could simply not be properly ascertained.
The information given to me showed very much a negative pool. The wife had requested that the husband give – and this had happened in the time that it was still in Judge Spelleken’s docket – details of his gambling accounts and other accounts because she could not, in any meaningful way, understand what money was brought into the husband’s possession, either personally or through companies and so on and where that money had dissipated.
It was clear to me that the husband had not made proper disclosure and that, in not making proper disclosure, had really ensured that the wife could not have a just and equitable property adjustment.
I then made orders that day to do with the trial – or the further hearing of the trial, but I ordered that the Applicant make full and frank disclosure, including but not limited to 15 aspects of disclosure that I listed that needed to be made.
I ordered that the Applicant file and serve an affidavit setting out what disclosure has been provided to the Respondent and that the Respondent address that and account for distribution of some proceeds that have been given to her. I ordered that the matter be mentioned on 26 November 2018. I noted that if, on that adjourned date, the Court was of the opinion that the Applicant had not made full and frank disclosure in accordance with the orders that I had made, that the Applicant husband was to be dealt with for contempt of those orders. And I noted that if a contempt hearing has to take place before me, it would be heard at 10 am on 5 December 2018. But if the Court was satisfied that there had been full and frank disclosure, then the matter would be set down for a final hearing of one day.
I made it very clear when I made those orders that I expected those orders to be complied with to the letter. The whole purpose of making those orders was so that the wife would know exactly what it was that she was dealing with in regards to the husband. I wanted bank account statements, I wanted statements from the gambling accounts of the husband and I wanted his tax returns as well as company tax returns.
This would be the sort of matter that, once disclosed to the wife, she would be able to understand exactly what the financial position was, where money has gone and what has happened, so that she could make some sensible submissions to this Court. And I warned the Applicant of what the consequences would be if it were that the Court found that he had not done so.
The matter went before Her Honour Judge Turner on 26 November 2018. Her Honour ordered that the matter be adjourned for hearing of a contempt application. What Her Honour found was that there had been compliance with order 3(b), (c), (d), (e), (f), (g) and (i) of my order, but there had not been compliance with orders (a), (h), (j), (k), (l), (m), (n) and (o) of my orders.
For that reason, Her Honour found that the Applicant husband was in contempt of my orders and sent it to me to deal with as I had foreshadowed in my orders.
Before me today, the Applicant husband has given or attempted to give some excuses for his failure. With regard to the gambling accounts, he has produced an email with regard to his H Group account since opening the account on 21 November 2016. It simply reads:
Hi Mr Stradford, please find attached your account history since opening your H Group account on 21 November 2016. Total deposits less withdrawals to this account since opening totals $234,124.12.
What is then given attached to this – or what is presented does not give anything like an account history.
The next one is from G Group, which simply says:
Hi Mr Stradford, please find attached the G Group summary dated 1.12.2014 to 15.10.2018.
And there is nothing other than a table which has a summary “Opening balance” and “Current balance”, which shows a total invoice of $740,271.40 and withdrawals of $21,225 and a deposit of $145,275.41.
It is cut off. I cannot even see what the total dividends are or the total CAS is. That does not tell me much at all. It is not truly indicative of when money went into the account, what money went out of the account and how it was done. What it does show, though, that there are significant sums of money.
If one simply added what is said to be total IMV of $740,271 to what’s in the H Group of $234,124.12, one is approaching the $1 million mark just in those two gambling accounts. It does not assist the wife significantly, other than to tell her that there has been at least close to $1 million that has been expended by the Applicant husband that she did not know about.
With regard to a number of the bank accounts, the Applicant husband says that he cannot get those statements because he is no longer a director. However, he has not disclosed to the mother that he is no longer a director. There is no ASIC or other such information provided as to when that directorship ceased and in what circumstances the directorship ceased. And in any event, the Applicant has not shown what it is that he has done to attempt to get those documents. They are simply bald assertions.
The other aspect which was for the tax returns, the Applicant said that he has given the tax returns to the wife. The wife has said that the tax returns are not tax returns; they are simply tax assessments. Tax assessments are documents from the Tax Office. What was needed, quite obviously, was the tax returns, because it would disclose what money the Applicant was getting, both himself and through the companies that he had. This would enable the wife to understand his financial position. Again, that excuse does not seem to hold much water.
The only matter for which there does seem to have been some form of excuse are items (k) and (l), which relate to the person Ms M, and so therefore I am not looking at those matters.
However, it seems to me that given everything that has been said, and especially the fact that Judge Turner has already found that there is a contempt, that the Applicant is in contempt for the non-compliance with orders of mine, specifically:
a)order 3(a) for not disclosing E Bank account …41 for the period 22 December 2014 to present;
b)order 3(h) for not disclosing bank statements for Company A from 12 April 2016 to present;
c)order 3(j) for not disclosing bank statements for Company C from 12 April 2016 to present;
d)order 3(m) for not disclosing statements for the Applicant’s G Group account ending .., H Group account and any other gambling account, online or otherwise, for the period 2014 to present;
e)order 3(n) for not disclosing tax returns for the applicant from 2014 to present; and
f)order 3(o) for not disclosing company tax returns, financial statements and BAS statements for the financial years 2014, 2015, 2016 for companies operated by the applicant, including but not limited to Company A, Company D, Company C and Company B.
Having come to that conclusion with regard to what Her Honour Judge Turner has said, I must assess what is the criminality of that contempt.
As I have stated both in the preamble to these remarks and in the course of the submissions that have been made in this Court, the gravamen of this contempt is that this matter that was supposed to be ready to proceed cannot proceed. The gravamen is that the wife is not cognisant of the true financial position of the Applicant, so that she can mount a meaningful case before this Court for a just and equitable property adjustment.
I am of the view that these matters were matters where the Applicant, if he truly wanted, could have made proper disclosure. I am of the view that the Applicant was able to get those items and the Applicant was able to simply tell the wife exactly what sort of amount of money he was getting, how he was getting it, how it was being used or funnelled through different companies, what that meant for him “in the hand” and where that money has been dissipated.
He has chosen not to. There can be no other inference available other than this is deliberate conduct so that the wife is kept in the dark and cannot make a proper, just and equitable submission to this Court as to what the property adjustment should be. It would leave the Court, as it was at 10 August 2018, looking at a negative property pool so that the Applicant husband did not have to in any way account for what it is that he has been doing with money that he has come into possession of, especially from the years 2014 to the present.
The mere fact that it seems that at least a million or something close to a million dollars has gone through gambling accounts shows that this is a proper inference to draw. That makes this contempt an extremely serious one.
The Court has very few weapons at its disposal to ensure that its orders are complied with. The Court must show to all litigants and to the whole of the community that when it makes orders, those orders must be complied with or there will be serious consequences and condign punishment to those who flout the orders of the Court.
In what I consider to be a very merciful submission, the wife has asked, even though she is not really a party to this part of the contempt proceeding, to say that she did not want the husband to be jailed because they have children together. It was obvious to me that she felt that she would be somehow responsible for this. Nothing could be further from the truth.
This is a matter where the responsibility lies wholly and solely with the husband. If it was that he had complied with these orders or shown to this Court that he had genuinely attempted to comply, then there would be no contempt. But there has been a contempt and notwithstanding how it is that the wife feels, it leads the Court only to one conclusion; that there must be an appropriate punishment for this contempt.
I therefore sentence the Applicant husband, Mr Stradford, to 12 months’ imprisonment. I order that that imprisonment be served at the X Correctional Centre.
I order that the father be released on 6 May 2019 with the balance of the sentence to be suspended for a period of two years.
I order that the matter go back to be assigned a trial date of one day, but that that trial date will have to occur after … 2019. I will sign the warrant that will commit Mr Stradford to prison and the QPS officers will arrive soon to take him in. In the meantime, security will have to escort Mr Stradford to the cells downstairs to await the officers to come and take him to prison.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta.
Date: 10 January 2019
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