Woolly & Woolly

Case [2023] FedCFamC1F 634

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Woolly & Woolly [2023] FedCFamC1F 634

File number(s): MLC 12173 of 2018
Judgment of: CARTER J
Date of judgment: 1 August 2023
Catchwords:

FAMILY LAW – CONTRAVENTION – where the respondent breached interim orders for the preservation of the asset pool pending final determination – where the respondent’s contraventions of the injunctive relief diminished the pool and could defeat the applicant’s substantive claim for relief – where the respondent pleaded guilty to two breaches after the close of evidence – whether a term of imprisonment is an appropriate sanction – where the respondent’s behaviour was a serious challenge to the authority of the court – where the respondent provided no reasonable explanation or exculpatory factors for the contraventions – sentencing principles

FAMILY LAW – COSTS – where the applicant seeks indemnity costs – where the circumstances for an indemnity costs order are not established – where costs on a party/party basis are not sufficient – where the quantum of costs is fixed pursuant to rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Legislation:

Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 79, 112AA, 112AB, 112AC, 112AD, 112AE, 112AG, 112AP, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd 161 CLR 98

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225

Forlan & Forlan (No 2) [2017] FamCA 936

Gaines and Gaines [2011] FMCAfam 485

Giddens & Giddens [2016] FCCA 3201

Kohan and Kohan (1993) FLC 92-340

Laffy & George [2012] FMCAfam 775

Langer & Griffin (2013) FLC 93-559

Prantage & Prantage (2013) FLC 93-544

Tate & Tate (No 3) (2003) FLC 93-138
Division: Division 1 First Instance
Number of paragraphs: 101
Date of last submission/s: 13 June 2023
Date of hearing: 13, 20, 31 January and 13 June 2023
Place: Melbourne
Counsel for the Applicant: James Eley
Solicitor for the Applicant: Sayer Jones Family Lawyers
Respondent: Litigant in person

ORDERS

MLC 12173 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS WOOLLY

Applicant
AND:

MR WOOLLY

Respondent

order made by:

CARTER J

DATE OF ORDER:

1 august 2023

THE COURT FINDS THAT:

1.The respondent, MR WOOLLY is found guilty, without reasonable excuse of contravening:

(a)Order 6 of the orders made on 26 October 2021 and

(b)Order 1 of the orders made on 3 May 2022.

THE COURT ORDERS THAT:

2.In the event the sum of $200,000 has not been paid by or on behalf of the respondent MR WOOLLY, to the applicant’s solicitors on or before 22 August 2023, then pursuant to s 112AD(2)(d) of the Family Law Act 1975 (Cth), the respondent is sentenced to a term of imprisonment for three months (90 days), commencing from the date of arrest and ceasing:

(a)three months (being 90 days) after the respondent has been taken into…

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AGLC
Woolly & Woolly [2023] FedCFamC1F 634
Case
[2023] FedCFamC1F 634
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Woolly & Woolly was heard and determined. The dispute involved a contravention application filed by the applicant against the respondent, alleging that the latter had failed to comply with certain court orders. The evidence presented included affidavits, financial statements, and other documents. The primary legal issue before the court was whether the respondent had contravened the court orders, and if so, whether he had a reasonable excuse for the non-compliance. The court considered the statutory provisions under Part XIIIA of the relevant Act, which outline the criteria for determining a contravention and the possibility of a reasonable excuse.

The respondent initially argued that he had a reasonable excuse for not complying with the orders due to his financial difficulties and misunderstanding of the obligations. However, the court found that the respondent's conduct demonstrated a contemptuous attitude towards the court and the applicant, which was not acceptable. The court noted that the respondent had ample time to comply with the orders but failed to do so. The evidence showed that the respondent had not taken any steps to comply with the orders, even after being given multiple opportunities to do so. The court ultimately concluded that the respondent's conduct warranted a penalty, and it ordered a three-month imprisonment term for the contraventions. The respondent was also given a final opportunity to make the required payment to the applicant's solicitors, failing which a warrant for his arrest would be issued.

The court further considered the applicant's request for costs on an indemnity basis. The applicant had provided detailed documentation of her costs, which included solicitor's fees and counsel's fees. The respondent opposed the costs order, citing his financial hardship. However, the court found that the respondent's financial situation did not preclude the making of a costs order. The court emphasised that while impecuniosity is not a bar to such an order, the circumstances of the case justified the imposition of costs on the respondent. The court made an order for the respondent to pay the applicant's costs as requested.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ultimately, the hearing commenced on 13 January 2023. It was adjourned part heard to 20 January 2023. There was some suggestion the parties may have been able to negotiate a resolution and the matter was adjourned to 31 January 2023. At that time the parties requested a further adjournment to continue negotiations. Those negotiations broke down, and the matter was relisted – and concluded – on 13 June 2023. THE EVIDENCE The applicant relied on: (a)Initiating Application filed by the applicant on 28 September 2021;(b)affidavit of the applicant filed 28 September 2021;(c)Financial Statement of the applicant filed 28 September 2021;(d)affidavit of the respondent filed 28 September 2021;(e)Financial Statement of the respondent filed 22 November 2021;(f)Contravention Application filed by the applicant on 24 May 2022;(g)affidavit of the applicant filed 24 May 2022;(h)affidavit of Ms Nicola Kahler filed 5 September 2022; (i)affidavit of Ms Nicola Kahler filed 18 November 2022; and(j)affidavit of Mr William Henry Jones filed 23 November 2022. The respondent relied on his Financial Statement that was tendered in evidence on 13 January 2023. The respondent did not wish to cross examine the applicant or her witnesses. HAS THE RESPONDENT CONTRAVENED THE ORDERS?The legal principles The application is brought under Part XIIIA of the Act. There is no controversy that the orders which the applicant asserts were breached are orders under this Act within the meaning of s 112AA. Section 112AB of the Act provides that a person will only be taken to have contravened an order if the person bound by the order intentionally failed to comply with the order or made no reasonable attempt to comply with it. Section 112AC provides that a person may have a reasonable excuse for contravening an order if they did not understand the obligations the order imposed and the Court is satisfied they ought be excused in respect of the contravention. A person may be able to satisfy the Court as to other matters or circumstances that amount to a reasonable excuse. The formal application before the Court is a Contravention Application. The requisite standard of proof is the balance of probabilities, as set out in s 140(1) of the Evidence Act1995 (Cth). As is provided in s 140(2), in determining whether I am satisfied on the balance of probabilities, I may take into account the nature of the cause of action or defence, the nature of the subject matter and the gravity of the matters alleged. I note the applicant urged the Court to find that the respondent’s conduct was a flagrant challenge to the authority of the Court, and should be regarded as a contempt of Court within the meaning of s 112AP(1)(b) of the Act. In relation to contempt proceeding, the requisite standard is beyond a reasonable doubt. The respondent’s plea The respondent initially asserted he had a reasonable excuse in relation to the two counts. He said he did not understand the obligations of either order imposed on him. He said there was a lot going on for him at the time and he “thought it was going to be heard at trial”. He was referring to the final hearing in relation to the application brought by the wife pursuant to s 79 of the Act. The respondent also said at the time of the breaches he was struggling financially, was suicidal, had no funds and was not managing. He said the WorkCover settlement monies should be regarded as his as it was ‘his accident’. He also said that if she “wins the case” (which I understood to mean if orders were made pursuant to s 79 that the respondent pay the applicant monies) he would pay the money at that time.

Decision

Reasons for decision

The respondent did plead guilty. However, he only did that eight months after the application was issued, part way through the hearing, after the evidence had closed. CONCLUSION The respondent’s conduct indicates a scornful attitude towards the orders of the Federal Circuit and Family Court of Australia (Division 2), and to the applicant. It is not an attitude that can be tolerated. It is essential for the proper working of our Court system that orders be obeyed. If that does not occur, the whole system will break down. I do not agree that the respondent should be imprisoned for 12 months. I am of the view that an appropriate term of imprisonment is for three months, in respect of both the contraventions. He will be released at the end of that three month period or upon him making the payment to the applicant’s solicitors of $200,000, whichever is the sooner. I am satisfied that the total sentence is commensurate with the seriousness of the contraventions and appropriate in all the circumstances. I have considered permitting the respondent a further, short period of time to make the payment to the applicant’s solicitors. I see limited utility in doing so. The order of the Chief Justice to preserve $200,000 of the WorkCover monies was made over 20 months ago. The order of Harland J that he pay the funds to the applicant’s solicitors was made 14 months ago. The Contravention Application has been on foot for over 12 months. At the hearing in January this year, the respondent admitted to the contraventions. In the seven months that have elapsed, he has not, since that hearing, preserved or provided any funds even in partial compliance with the orders of the Chief Justice or Harland J. However, in light of the respondent’s statements to me that he was in the process of making an application to lenders, I will give him one further, short period to purge the contravention. If the payment has not been made by the expiration of that period, a warrant will be issued for his arrest.COSTS The applicant sought her costs in relation to this application on an indemnity basis. She provided a copy of her costs agreement. Those have been calculated at $32,471.59 for solicitor’s fees and at $22,750 for counsel’s fees. Alternatively if calculated according to scale those amounted to $16,946.05 plus additional amounts “to be determined” for three items concerned with drafting the affidavit, and a further $9,981.92 for counsel’s fees. The making of a costs order was opposed by the respondent. Should a costs order be made? Section 117(1) of the Act sets out the usual rule that parties bear their own costs. Pursuant to s 117(2), however, the Court can depart from that usual rule if there are circumstances that justify that departure, and make such order as to costs as it considers just. When considering whether to make a costs order, if any, I must have regard to the considerations set out in s 117(2A). In terms of the parties’ financial circumstances, the respondent’s Financial Statement says he earns about $1,800 per week. However, in his submissions made in June 2023, the respondent said he was no longer earning anything. Other than a vehicle worth around $39,000, he said he has no other assets or resources. He has re-partnered. The respondent deposed that his partner earns no income. They have recently had a baby. Of course, impecuniosity is not a bar to making a costs order. I note further that the respondent had the benefit of all the WorkCover monies from August 2021, save for the $50,000 paid as child support.

Ratio Decidendi

Legal Principle Established

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