THE COMMONWEALTH OF AUSTRALIA and [G]
[2005] FCWA 96
•9 SEPTEMBER 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY LAW ACT 1975 |
| LOCATION: | PERTH |
| CITATION: | THE COMMONWEALTH OF AUSTRALIA and |
[G] [2005] FCWA 96
| CORAM: | PENNY J |
| HEARD: | 2 SEPTEMBER 2005 |
| DELIVERED: | 9 SEPTEMBER 2005 |
| FILE NO/S: | PT 63 of 2004 |
| BETWEEN: | DEPUTY COMMISSIONER OF TAXATION |
FOR THE COMMONWEALTH OF
AUSTRALIAApplicant
AND
[G]
Respondent
Catchwords:
Contravention - no reasonable excuse - no lack of certainty of the orders
Legislation:
Family Law Act 1975 - s 112AB, s 112AD, s 112 AC
Evidence Act 1995 - s 140
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Ms G Archer |
| Respondent: | Mr F Castiglione QC |
Solicitors:
| Applicant: | Australian Government Solicitor |
| Respondent: | A R Clarke & Assoc |
Case(s) referred to in judgment(s):
Fauna Holdings Pty Ltd v Mitchell (2000) FLC 93-503
Lindsay and Lindsay (1995) FLC 92-638
Reilly and Reilly (1995) FLC 92-616
1 In this matter the applicant Deputy Commission of Taxation alleges the respondent husband has contravened an order of this Court made on 17 June 2005 and amended on 30 June 2005, by transferring $95,980 on 30 June 2005 from an account secured over the property [in the northern suburbs], to his superannuation fund. The husband has pleaded not guilty to this allegation.
2 Part XIIIA of the Family Law Act 1975 deals with sanction for failure to comply with orders. The term "contravene an order" is defined by s 112AB(1) of the Act.
"112AB Meaning of contravene an order
(1) A person shall be taken for the purposes of this Part to
have contravened an order under this Act if, and only if:
(a) where the person is bound by the order - he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the
order; or
(b) in any other case - he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it."
3 S 112 AD of the Act provides for sanctions to be imposed if an order is contravened.
"112AD Sanctions for failure to comply with orders
(1) If a court having jurisdiction under this Act is satisfied thata person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances."
4 The applicant submitted that the standard of proof to be applied in these proceedings is that applying to civil proceedings as set out in s 140 of the Commonwealth Evidence Act 1995. S 140 states as follows:
"140 Civil proceedings: standard of proof
(1)
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged."
5 The Family Court of Western Australia is a State Court and the Commonwealth Evidence Act has little application in this jurisdiction (see s 5).
6 The standard of proof to be applied in relation to s 112AD proceedings was discussed in Reilly and Reilly (1995) FLC 92-616. In that matter Halligan JR decided that the Commonwealth Evidence Act 1995 did not apply to proceedings heard in a court of summary jurisdiction and the criminal standard of proof, that is proof beyond a reasonable doubt, applied to s 112AD proceedings.
7 In Lindsay and Lindsay (1995) FLC 92-638 the Full Court was asked to consider the standard or proof applying to proceedings brought pursuant to Part XIIIA of the Family Law Act 1975. They determined that s 140 of the Evidence Act applied to contravention proceedings and the standard was the civil standard, the degree of satisfaction which the civil standard required varied according to the gravity of the facts to be proved. The Full Court stated, however, that find a finding relating to the civil standard applying to s 112AD may not apply to proceedings heard in a court which is not a Federal court. There is no equivalent in the Western Australian Evidence Act to s 140 of the Commonwealth Evidence Act, therefore the applicant must prove his case beyond a reasonable doubt.
The facts
8 Proceedings in this Court commenced between the wife and the respondent husband in January 2004. The husband, through various entities controlled by him, owed the ATO more than $1m. The Deputy Commissioner became a party to the proceedings in order to ensure that there would be sufficient funds available to the husband and his entities to meet the debt owing.
9 On 17 June 2005 I handed down a judgment in relation to the issue of spousal maintenance and adult child maintenance. I was then asked, on behalf of the husband, to make an order, which had previously been sought by him, restraining the wife from selling chattels and art work in her possession. After some encouragement from the counsel for the Deputy Commissioner, I made the following order:
"4
Until further order of the Court, both parties be restrained and an injunction is hereby granted restraining each of them from selling, encumbering or in any way dealing with any property or assets in their possession or control."
10 At the hearing on 30 June 2005 I was asked by counsel for the wife to vary the injunction so that it only covered art work or home contents. Counsel for the applicant objected, stating that the Deputy Commissioner wanted to know what assets were being disposed of so that they could ensure their debt was paid. After hearing from counsel for the wife and for the Deputy Commissioner I varied the order made on 17 June 2005 as follows:
"1 Paragraph 4 of the orders made 17 June 2005 be amended to read:
"Until further order of the Court, both parties be restrained and an injunction is hereby granted restraining each of them from selling, encumbering or in any way dealing with any art work, chattels or real estate in their control."
11 The hearing on 30 June 2005 commenced at 9.13 am and the variation to order 4 appears to have been made no longer than 10 minutes after the commencement of the proceedings.
12 At 11.46 am on 30 June 2005 the husband drew down from a mortgage account secured over his property [in the northern suburbs], the sum of $95,980 and made a contribution to his superannuation fund in that sum. By doing so the respondent husband increased the encumbrance against the [northern suburbs] property. The applicant says he breached the order of 17 June 2005 as amended on 30 June 2005 by encumbering or dealing with the property.
13 The respondent denies that he has contravened the order but says if he has, he has a reasonable excuse.
Has the husband contravened the order?
14 The husband's position at trial was that he could not contravene the order because the terms of it were, as far as he was concerned, uncertain.
15 The husband gave evidence that at the time of the court hearing on 17 June 2005 he was out of Perth hiking [in the northwest]. He was out of telephone contact and did not know the outcome of the court proceedings when he returned on 20 June 2005. On 24 June 2005 he had a meeting with his solicitor, Mr Thomas Kuurstra. He initially stated in his evidence that he had no recollection of being told at the meeting that an injunction had been made while he was away. He said that at that meeting he had mentioned to Mr Kuurstra, his lawyer, that his accountant had recommended he pay superannuation before 30 June 2005, and if he did he would save approximately $45,000 in tax. The husband said Mr Kuurstra told him not to do anything in relation to the payment of superannuation without consulting him.
16 He then stated Mr Kuurstra told him at the meeting on 24 June 2005 that the injunction made on 17 June 2005, was so wide that it would stop him even buying a sandwich.
17 The husband's previous evidence had been that he had not known an injunction had been made when he met with Mr Kuurstra on 24 June 2005. The husband's evidence was contradictory.
18 On 30 June 2005, the husband got a phone call from his accountant, [Mr C] telling him that he needed to pay the superannuation on that day to be able to obtain the tax advantage. The husband knew Mr Kuurstra was going to court on his behalf that morning, and that he was attempting to narrow the terms of the injunction. He stated he thought the terms of the injunction after 30 June 2005 would be "far less invasive", although he had no idea what the terms would be.
19 The husband gave evidence that on the morning of 30 June 2005 he attempted to contact Mr Kuurstra about mid-morning, but was not able to speak to him. He made a decision at 11.46 am on that day to transfer from the mortgage account at the National Australia Bank to his superannuation account, the exact amount as recommended by his accountant, which was $95,980. This transfer was effected over the internet. He stated at the time he effected the transfer he had no knowledge of the terms of the injunction made that morning. He spoke to his lawyer later in the afternoon and was told the terms of the injunction had not been narrowed as much as Mr Kuurstra thought they would be. He then told Mr Kuurstra he had transferred the funds.
20 When cross-examined by Ms Archer, counsel for the Deputy Commissioner, the husband stated that at the meeting on 24 June 2005 Mr Kuurstra had told him when he asked about making the superannuation payment, not to do anything as the orders made on 17 June 2005 were very restrictive. The husband confirmed that he thought the injunction made on 17 June 2005 was so broad that he could not buy a sandwich without breaching it. He was aware that the transaction transferring the funds from the mortgage account to the superannuation account would be a breach of the order made on 17 June, but he thought that the order would be varied on the morning of 30 June 2005.
21 The husband conceded in cross-examination there was no guarantee that the order made on 17 June would be set aside. He acknowledged there was a possibility that the order would not be varied.
22 The husband also conceded he knew the order as it existed on 17 June 2005 restricted his access to his property and that he could not use the former matrimonial home [in the northern suburbs] to borrow more money.
23 The husband's legal adviser, Mr Thomas Kuurstra, gave evidence. He stated that when the injunction was made on 17 June 2005 he had been unaware, although he was in court, of the breadth of that injunction. He confirmed that after the husband returned from Kununurra he had an appointment with him on Friday 24 June 2005. At that meeting the husband stated that he wanted to make a superannuation payment that year. Mr Kuurstra told him that he should talk to him before he did it. He said he did not advise him about the injunction or the breadth of it at that time because he thought the injunction only restricted the husband dealing with chattels and art work. He said there was definitely no mention of the injunction at that meeting as he had not obtained the orders from the court by that time.
24 Around 28 or 29 June 2005, Mr Kuurstra received a copy of the orders made on 17 June and realised that the injunction was in very different terms to that which he had assumed had been made. He spoke to the husband on the telephone and advised him of the terms of the injunction. He told him he intended to go back to court on 30 June and attempt to narrow the scope of it.
25 On 29 June 2005 Mr Kuurstra wrote to Mr Carr, the wife's solicitor, advising him of the restrictive nature of the injunction. Mr Carr agreed the orders needed to be changed and when they attended court on 30 June 2005 he would consent to an amendment of the orders to cover only art work and chattels. Mr Kuurstra stated that he did not tell the husband Mr Carr had agreed to a change in the terms of the injunction.
26 Mr Kuurstra appeared in court on 30 June on behalf of the husband. After returning from court he dictated a letter to the husband telling him what had happened on that day. He spoke to the husband about 3.00 pm. At that time the husband stated that he had decided he wanted a September trial. He also told him that he had increased the mortgage to make a superannuation payment. Mr Kuurstra told him of the order which had been made on 30 June, and told him he was not sure whether he had breached it or not.
27 On 18 July 2005 Mr Kuurstra sent Mr Carr a letter advising of the transfer of the funds from the mortgage account to the superannuation account. That letter had been given to the husband, in draft, to approve its contents before it was sent.
| 28 | The final paragraph of that letter states as follows: "For that reason it was [Mr G’s] view that accessing those funds was in the nature of accessing savings, and did not contravene the injunction granted by Justice Penny on 30 June 2005." |
29 Mr Kuurstra gave evidence that while this paragraph indicated that the husband knew the terms of the injunction when he transferred the funds, that was not the case. Mr Kuurstra did not inform him of the terms of the injunction until later in the afternoon of 30 June. Mr Kuurstra's evidence was that the only telephone message he received from the husband on 30 June 2005 was a message left with his receptionist at 12.52 pm on 30 June 2005, asking Mr Kuurstra to ring him. The transfer had been effected prior to this telephone call.
30 In my opinion, the husband did not want to know the outcome of the court proceedings before he made the transfer because the terms of the injunction, varied or not, may still have restricted his ability to transfer the funds from the mortgage account.
31 I am satisfied that the husband contravened the order. The transfer from the mortgage account to the superannuation fund had the effect of breaching the order made on 17 June, as varied on 30 June in that it increased the encumbrance on the real estate in the possession of the husband. I am satisfied beyond a reasonable doubt he intentionally failed to comply with the order. He knew on the 28 or 29 June there was an injunction in place restraining him from dealing with any of his property. He knew that his solicitor, on the morning of 30 June, was going to make application to restrict the breadth of that injunction. He did not know what the result would be. He did not know whether the application would be successful at all. According to his solicitor, he did not even know that the wife's solicitors would consent to the application to vary the injunction. Neither the husband nor the wife's solicitors knew what the attitude of the Deputy Commissioner would be. The husband did not attempt to find out what, if any, variation had been made to the injunction before he transferred the funds to the superannuation fund.
32 The transfer of funds was not casual, accidental or unintentional. As to what "intentional" means in this context the Full Court state in Fauna Holdings Pty Ltd v Mitchell (2000) FLC 93-503 at p 87,851, stated as follows:
"In our view, s 112AB(1)(a)(i) says no more than a contravention of an order shall have occurred if a person intentionally does an act which amounts to a contravention of the order. It is necessary to show that the act was intentional rather than casual, accidental or unintentional."
Reasonable excuse
33 It is not sufficient for the husband only to have contravened an order before he can be sanctioned for a failure to comply with it; I have to be satisfied that he contravened the order without reasonable excuse.
| 34 | S 112AC sets out the meaning of "reasonable excuse": "112AC Meaning of reasonable excuse for contravening an |
order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a)
the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)
the court is satisfied that the respondent ought to be excused in respect of the contravention."
35 The respondent raises a number of matters which he says amount to a reasonable excuse for his contravention of the order. Firstly, he says in his opinion the transfer of the money from the mortgage account to the superannuation fund did not amount to a breach as the money was going to an entity, the superannuation fund, which was ultimately for his benefit. I do not accept that this was a reasonable excuse. The husband was told by Mr Kuurstra he should not transfer money to the superannuation fund without getting approval from him as it may breach the injunction. The husband never attempted to get a definite opinion from Mr Kuurstra as to whether the injunction would be breached. He knew Mr Kuurstra was going back to court on 30 June 2005 to vary the injunction. He did not ask him to seek a variation to enable the superannuation payment to be made.
36 Second, the husband says he has a reasonable excuse for making the transaction as the parties' assets have increased by the amount transferred to the superannuation fund and he has avoided the payment of $45,000 worth of tax. This ignores the rights of the Deputy Commissioner who, unless the transaction made by the husband is reversed, faces a reduced asset pool from which their debt can be paid.
37 The husband says he had a reasonable excuse because his accountant put pressure on him on 30 June to make the payment by the end of that day and as he thought the injunction would be varied, he did not think there would be a problem making the transfer. I do not accept the husband's explanation in relation to this. He did not attempt to find out what, if anything, happened to the injunction before he transferred the money.
38 The husband says because he had been making accelerated payments on the mortgage, the amount owing to the bank was significantly lower than it would be if he only made the minimum payment. Because of this, he thought he could draw down that facility without breaching the order. This is not a reasonable excuse. The effect of the husband's actions was to increase the liabilities of the parties. He knew that the injunction of 17 June prevented this. He chose not to find out the terms of the injunction on 30 June.
39 In my opinion, the husband did not have a reasonable excuse for failing to comply with the order and is guilty of the contravention.
I certify that the preceding [39] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
1 o
ORDERS\Contravention
| JURISDICTION | : |
FAMILY COURT OF WESTERN AUSTRALIA
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : PENNY J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
HARRIS CHARLES GREENBERG
Respondent
Catchwords:
Contravention - no reasonable excuse - no lack of certainty of the orders
Legislation:
Family Law Act 1975 - s 112AB, s 112AD, s 112 AC
Evidence Act 1995 - s 140
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms G Archer |
| Respondent | : | Mr F Castiglione QC |
Solicitors:
| Applicant | : | Australian Government Solicitor |
| Respondent | : | A R Clarke & Assoc |
Case(s) referred to in judgment(s):
Fauna Holdings Pty Ltd v Mitchell (2000) FLC 93-503
Lindsay and Lindsay (1995) FLC 92-638
Reilly and Reilly (1995) FLC 92-616
1 In this matter the applicant Deputy Commission of Taxation alleges the respondent husband has contravened an order of this Court made on 17 June 2005 and amended on 30 June 2005, by transferring $95,980 on 30 June 2005 from an account secured over the property at Sycamore Rise, Dianella, to his superannuation fund. The husband has pleaded not guilty to this allegation.
2 Part XIIIA of the Family Law Act 1975 deals with sanction for failure to comply with orders. The term "contravene an order" is defined by s 112AB(1) of the Act.
"112AB Meaning of contravene an order
(1) A person shall be taken for the purposes of this Part to
have contravened an order under this Act if, and only if:
(a) where the person is bound by the order - he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the
order; or
(b) in any other case - he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it."
3 S 112 AD of the Act provides for sanctions to be imposed if an order is contravened.
"112AD Sanctions for failure to comply with orders
(1) If a court having jurisdiction under this Act is satisfied thata person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances."
4 The applicant submitted that the standard of proof to be applied in these proceedings is that applying to civil proceedings as set out in s 140 of the Commonwealth Evidence Act 1995. S 140 states as follows:
"140 Civil proceedings: standard of proof
(1)
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the
proceeding; and
(c) the gravity of the matters alleged."
5 The Family Court of Western Australia is a State Court and the Commonwealth Evidence Act has little application in this jurisdiction (see s 5).
6 The standard of proof to be applied in relation to s 112AD proceedings was discussed in Reilly and Reilly (1995) FLC 92-616. In that matter Halligan JR decided that the Commonwealth Evidence Act 1995 did not apply to proceedings heard in a court of summary jurisdiction and the criminal standard of proof, that is proof beyond a reasonable doubt, applied to s 112AD proceedings.
7 In Lindsay and Lindsay (1995) FLC 92-638 the Full Court was asked to consider the standard or proof applying to proceedings brought pursuant to Part XIIIA of the Family Law Act 1975. They determined that s 140 of the Evidence Act applied to contravention proceedings and the standard was the civil standard, the degree of satisfaction which the civil standard required varied according to the gravity of the facts to be proved. The Full Court stated, however, that find a finding relating to the civil standard applying to s 112AD may not apply to proceedings heard in a court which is not a Federal court. There is no equivalent in the Western Australian Evidence Act to s 140 of the Commonwealth Evidence Act, therefore the applicant must prove his case beyond a reasonable doubt.
The facts
8 Proceedings in this Court commenced between the wife and the respondent husband in January 2004. The husband, through various entities controlled by him, owed the ATO more than $1m. The Deputy Commissioner became a party to the proceedings in order to ensure that there would be sufficient funds available to the husband and his entities to meet the debt owing.
9 On 17 June 2005 I handed down a judgment in relation to the issue of spousal maintenance and adult child maintenance. I was then asked, on behalf of the husband, to make an order, which had previously been sought by him, restraining the wife from selling chattels and art work in her possession. After some encouragement from the counsel for the Deputy Commissioner, I made the following order:
"4 Until further order of the Court, both parties be restrained and an injunction is hereby granted restraining each of them from selling, encumbering or in any way dealing with any property or assets in their possession or control."
10 At the hearing on 30 June 2005 I was asked by counsel for the wife to vary the injunction so that it only covered art work or home contents. Counsel for the applicant
objected, stating that the Deputy Commissioner wanted to know what assets were being disposed of so that they could ensure their debt was paid. After hearing from counsel for the wife and for the Deputy Commissioner I varied the order made on 17 June 2005 as follows:
"1 Paragraph 4 of the orders made 17 June 2005 be amended to read:
"Until further order of the Court, both parties be restrained and an injunction is hereby granted restraining each of them from selling, encumbering or in any way dealing with any art work, chattels or real estate in their control."
11 The hearing on 30 June 2005 commenced at 9.13 am and the variation to order 4 appears to have been made no longer than 10 minutes after the commencement of the proceedings.
12 At 11.46 am on 30 June 2005 the husband drew down from a mortgage account secured over his property at Sycamore Rise, Dianella, the sum of $95,980 and made a contribution to his superannuation fund in that sum. By doing so the respondent husband increased the encumbrance against the Sycamore Rise property. The applicant says he breached the order of 17 June 2005 as amended on 30 June 2005 by encumbering or dealing with the property.
13 The respondent denies that he has contravened the order but says if he has, he has a reasonable excuse.
Has the husband contravened the order?
14 The husband's position at trial was that he could not contravene the order because the terms of it were, as far as he was concerned, uncertain.
15 The husband gave evidence that at the time of the court hearing on 17 June 2005 he was out of Perth hiking near Kununurra. He was out of telephone contact and did not know the outcome of the court proceedings when he returned on 20 June 2005. On 24 June 2005 he had a meeting with his solicitor, Mr Thomas Kuurstra. He initially stated in his evidence that he had no recollection of being told at the meeting that an injunction had been made while he was away. He said that at that meeting he had mentioned to Mr Kuurstra, his lawyer, that his accountant had recommended he pay superannuation before 30 June 2005, and if he did he would save approximately $45,000 in tax. The husband said Mr Kuurstra told him not to do anything in relation to the payment of superannuation without consulting him.
16 He then stated Mr Kuurstra told him at the meeting on 24 June 2005 that the injunction made on 17 June 2005, was so wide that it would stop him even buying a sandwich.
17 The husband's previous evidence had been that he had not known an injunction had been made when he met with Mr Kuurstra on 24 June 2005. The husband's evidence was contradictory.
18 On 30 June 2005, the husband got a phone call from his accountant, Valerio Conetta, telling him that he needed to pay the superannuation on that day to be able to obtain the tax advantage. The husband knew Mr Kuurstra was going to court on his behalf that morning, and that he was attempting to narrow the terms of the injunction. He stated he thought the terms of the injunction after 30 June 2005 would be "far less invasive", although he had no idea what the terms would be.
19 The husband gave evidence that on the morning of 30 June 2005 he attempted to contact Mr Kuurstra about mid-morning, but was not able to speak to him. He made a decision at 11.46 am on that day to transfer from the mortgage account at the National Australia Bank to his superannuation account, the exact amount as recommended by his accountant, which was $95,980. This transfer was effected over the internet. He stated at the time he effected the transfer he had no knowledge of the terms of the injunction made that morning. He spoke to his lawyer later in the afternoon and was told the terms of the injunction had not been narrowed as much as Mr Kuurstra thought they would be. He then told Mr Kuurstra he had transferred the funds.
20 When cross-examined by Ms Archer, counsel for the Deputy Commissioner, the husband stated that at the meeting on 24 June 2005 Mr Kuurstra had told him when he asked about making the superannuation payment, not to do anything as the orders made on 17 June 2005 were very restrictive. The husband confirmed that he thought the injunction made on 17 June 2005 was so broad that he could not buy a sandwich without breaching it. He was aware that the transaction transferring the funds from the mortgage account to the superannuation account would be a breach of the order made on 17 June, but he thought that the order would be varied on the morning of 30 June 2005.
21 The husband conceded in cross-examination there was no guarantee that the order made on 17 June would be set aside. He acknowledged there was a possibility that the order would not be varied.
22 The husband also conceded he knew the order as it existed on 17 June 2005 restricted his access to his property and that he could not use the former matrimonial home at Sycamore Rise, Dianella to borrow more money.
23 The husband's legal adviser, Mr Thomas Kuurstra, gave evidence. He stated that when the injunction was made on 17 June 2005 he had been unaware, although he was in court, of the breadth of that injunction. He confirmed that after the husband returned from Kununurra he had an appointment with him on Friday 24 June 2005. At that meeting the husband stated that he wanted to make a superannuation payment that year. Mr Kuurstra told him that he should talk to him before he did it. He said he did not advise him about the injunction or the breadth of it at that time because he thought the injunction only restricted the husband dealing with chattels and art work. He said there was definitely no mention of the injunction at that meeting as he had not obtained the orders from the court by that time.
24 Around 28 or 29 June 2005, Mr Kuurstra received a copy of the orders made on 17 June and realised that the injunction was in very different terms to that which he had assumed had been made. He spoke to the husband on the telephone and advised
him of the terms of the injunction. He told him he intended to go
back to court on 30 June and attempt to narrow the scope of it.25 On 29 June 2005 Mr Kuurstra wrote to Mr Carr, the wife's solicitor, advising him of the restrictive nature of the injunction. Mr Carr agreed the orders needed to be changed and when they attended court on 30 June 2005 he would consent to an amendment of the orders to cover only art work and chattels. Mr Kuurstra stated that he did not tell the husband Mr Carr had agreed to a change in the terms of the injunction.
26 Mr Kuurstra appeared in court on 30 June on behalf of the husband. After returning from court he dictated a letter to the husband telling him what had happened on that day. He spoke to the husband about 3.00 pm. At that time the husband stated that he had decided he wanted a September trial. He also told him that he had increased the mortgage to make a superannuation payment. Mr Kuurstra told him of the order which had been made on 30 June, and told him he was not sure whether he had breached it or not.
27 On 18 July 2005 Mr Kuurstra sent Mr Carr a letter advising of the transfer of the funds from the mortgage account to the superannuation account. That letter had been given to the husband, in draft, to approve its contents before it was sent.
| 28 | The final paragraph of that letter states as follows: "For that reason it was Dr Greenberg's view that accessing those funds was in the nature of accessing savings, and did not contravene the injunction granted by Justice Penny on 30 June 2005." |
29 Mr Kuurstra gave evidence that while this paragraph indicated that the husband knew the terms of the injunction when he transferred the funds, that was not the case. Mr Kuurstra did not inform him of the terms of the injunction until later in the afternoon of 30 June. Mr Kuurstra's evidence was that the only telephone message he received from the husband on 30 June 2005 was a message left with his receptionist at 12.52 pm on 30 June 2005, asking Mr Kuurstra to ring him. The transfer had been effected prior to this telephone call.
30 In my opinion, the husband did not want to know the outcome of the court proceedings before he made the transfer because the terms of the injunction, varied or not, may still have restricted his ability to transfer the funds from the mortgage account.
31 I am satisfied that the husband contravened the order. The transfer from the mortgage account to the superannuation fund had the effect of breaching the order made on 17 June, as varied on 30 June in that it increased the encumbrance on the real estate in the possession of the husband. I am satisfied beyond a reasonable doubt he intentionally failed to comply with the order. He knew on the 28 or 29 June there was an injunction in place restraining him from dealing with any of his property. He knew that his solicitor, on the morning of 30 June, was going to make application to restrict the breadth of that injunction. He did not know what the result would be. He did not know whether the application would be successful at all. According to his solicitor, he
did not even know that the wife's solicitors would consent to the application to vary the injunction. Neither the husband nor the wife's solicitors knew what the attitude of the Deputy Commissioner would be. The husband did not attempt to find out what, if any, variation had been made to the injunction before he transferred the funds to the superannuation fund.
32 The transfer of funds was not casual, accidental or unintentional. As to what "intentional" means in this context the Full Court state in Fauna Holdings Pty Ltd v Mitchell (2000) FLC 93-503 at p 87,851, stated as follows:
"In our view, s 112AB(1)(a)(i) says no more than a contravention of an order shall have occurred if a person intentionally does an act which amounts to a contravention of the order. It is necessary to show that the act was intentional rather than casual, accidental or unintentional."
Reasonable excuse
33 It is not sufficient for the husband only to have contravened an order before he can be sanctioned for a failure to comply with it; I have to be satisfied that he contravened the order without reasonable excuse.
| 34 | S 112AC sets out the meaning of "reasonable excuse": "112AC Meaning of reasonable excuse for contravening an |
order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and (b) the court is satisfied that the respondent ought to be excused in respect of the contravention."
35 The respondent raises a number of matters which he says amount to a reasonable excuse for his contravention of the order. Firstly, he says in his opinion the transfer of the money from the mortgage account to the superannuation fund did not amount to a breach as the money was going to an entity, the superannuation fund, which was ultimately for his benefit. I do not accept that this was a reasonable excuse. The husband was told by Mr Kuurstra he should not transfer money to the superannuation fund without getting approval from him as it may breach the injunction. The husband never attempted to get a definite opinion from Mr Kuurstra as to whether the
injunction would be breached. He knew Mr Kuurstra was going back to court on 30 June 2005 to vary the injunction. He did not ask him to seek a variation to enable the superannuation payment to be made.
36 Second, the husband says he has a reasonable excuse for making the transaction as the parties' assets have increased by the amount transferred to the superannuation fund and he has avoided the payment of $45,000 worth of tax. This ignores the rights of the Deputy Commissioner who, unless the transaction made by the husband is reversed, faces a reduced asset pool from which their debt can be paid.
37 The husband says he had a reasonable excuse because his accountant put pressure on him on 30 June to make the payment by the end of that day and as he thought the injunction would be varied, he did not think there would be a problem making the transfer. I do not accept the husband's explanation in relation to this. He did not attempt to find out what, if anything, happened to the injunction before he transferred the money.
38 The husband says because he had been making accelerated payments on the mortgage, the amount owing to the bank was significantly lower than it would be if he only made the minimum payment. Because of this, he thought he could draw down that facility without breaching the order. This is not a reasonable excuse. The effect of the husband's actions was to increase the liabilities of the parties. He knew that the injunction of 17 June prevented this. He chose not to find out the terms of the injunction on 30 June.
39 In my opinion, the husband did not have a reasonable excuse for failing to comply with the order and is guilty of the contravention.
I certify that the preceding [39] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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