Yang and Gian

[2013] FamCA 250

FAMILY COURT OF AUSTRALIA

YANG & GIAN [2013] FamCA 250

FAMILY LAW – CONTEMPT – Contravention of Court order – Where there was some evidence to comply with the order – Where wife’s application for contempt not established – Where application for contempt is dismissed.

Family Law Act 1975 (Cth) ss: 112AP; 112A(d)

Bande & Cade 45 Fam LR 376

APPLICANT: Ms Yang

RESPONDENT: Mr Gian

FILE NUMBER: SYC 4390 of 2012

DATE DELIVERED: 4 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 4 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Yau & Wang lawyers

THE RESPONDENT IN PERSON: Mr Gian

Orders

1. That the Application to set aside the consent orders made on 30 January 2013 filed by the husband on 27 February 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yang & Gian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4390 of 2012

Ms Yang

Applicant

And

Mr Gian

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

The wife’s Application for contempt

1. This is an application for contempt brought under section 112AP of the Family Law Act. Pursuant to section 112AP(1)(b) this section applies to a contempt of court that constitutes the contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

2. For the contempt under the section to be established I must therefore find that there is both a contravention of an order and a flagrant challenge to the authority of the court in relation to that contravention.  These proceedings are therefore quite markedly different from seeking an enforcement warrant for the possession of real property pursuant to Rule 20.45(4) of the Family Court Rules.  I must be persuaded of the necessary elements of the contempt to the criminal standard.

3. In Bande & Cade 45 Fam LR 376 at 394 the Full Court of this court said at paragraphs 119 and 120:

   The concept of a flagrant challenge involves conduct of an exceptional, striking or repeated nature.  In the marriage of Ibbotson and Wincen, (omitting the reference to be references therein), the Full Court held:

   “The use of the term ‘flagrant challenge’… is intended to underline the exceptional or striking nature of the contravention in question, and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under s 112AD… it is a question of fact and degree whether the stringent terms of the section are satisfied.”

   The breach in question must be wilful (that is deliberate as distinct from inadvertent) but not necessarily contumacious.

4. The contempt alleged is that after 4.00 pm on 20 February 2013 the husband failed to comply with the orders made by consent by Registrar Campbell on 30 January 2013 in that the husband did not, in accordance with Order 1, made that day, on or before 4.00 pm on Wednesday 20 February vacate the matrimonial home, being a property situated at and known as B Street, Suburb C, New South Wales. 

5. On 30 January 2013 Registrar Campbell made a number of orders by consent.  Both parties at that time were represented by solicitors.  Orders 1 and 2 of those short minutes of order provided:

   On or before 4.00 pm on Wednesday 20 February 2013 the husband vacate the matrimonial home, being the property situated at and known as [B Street, Suburb C], New South Wales (“the property”).

   Pending the determination of the proceedings, the wife to have the sole use and occupation of the property.

6. Mr Gian has sworn an affidavit in these proceedings.  In that affidavit he says that he entered into consent orders to move out of the former matrimonial home.  In cross-examination he said that he understood that he had entered into consent orders to move out of the matrimonial home.  It is also apparent from conversations that are set out in the affidavits with both his wife and the wife’s solicitor that he was aware of his obligation to move out of the matrimonial home on or by 20 February 2013, and I am satisfied beyond a reasonable doubt that he knew and understood the order and its obligation.  It is also clear and I am satisfied beyond a reasonable doubt that he has failed to do so. 

7. On 18 February 2013 the respondent had a conversation with his wife as deposed to in her affidavit of 17 February.  He said:

   I am unable to vacate the property because I am unable to find accommodation.  All my applications for tenancy have been rejected because my income is contract based.  Also I am unable to find accommodation which allows two children to stay with me.

8. On 18 February the wife’s solicitors wrote to the husband’s solicitors seeking confirmation that the husband would vacate the property in accordance with the Court’s orders and threatening a contempt application if he did not do so.  On 20 February 2013 Austin Haworth & Lexon Legal who were then acting for the husband and had been solicitors acting for him at the time when the consent orders were entered into replied.  Paragraph 2 of that letter indicated that Mr Gian had been unsuccessful in obtaining alternative accommodation as he could provide neither evidence of a stable income nor a letter of employment as he was self-employed and worked on contractual jobs. 

9. The letter continued to say that as a consequence without satisfying these criteria agents were unwilling to rent any property to him.  Enclosed with that letter was a letter from D Investment signed by Ms E, dated 18 February 2013 which said:

   To whom it may concern,

   We are here to confirm that [Mr Gian] has attended our office to look for a rental property.  Due to the nature of his job, which is on a contractual basis, he could not provide documents to prove that he has a stable stream of income.  Unfortunately, he did not meet the requirement to rent a property through our office by proving that he is able to afford rent on a weekly basis.

10. That document was also attached to Mr Gian’s affidavit in these proceedings.  A reply was sent objecting to the proposals made in the letter to which I have just referred and, again, threatening urgent contempt proceedings.  That was not replied to by the solicitors and still has not been.  However, on 19 February 2013 Ms Zhang, who was then the solicitor for the husband, spoke to the solicitor for the wife saying:

    My client has been unable to find accommodation.  All of his applications for tenancy have been rejected by real estate agents because his income is contract based.  He is also unable to find accommodation which allows the two children to stay with him.

11. On 21 February Mr Anson Pang, solicitor for the wife, had a conversation with the husband.  Mr Pang asked the husband if he had moved out yet and the husband said:

    Well, you see, I can’t find any property to move into.  All the real estate agents have rejected my applications to rent.

12. Mr Gian in his affidavit said that he is unable to move out of the home because “I cannot afford to do so,” that he works on a part-time basis and does not have enough money left over to afford to pay for private rentals.  The husband annexed a number of bank statements which he said supported that.  The husband said also that he was unable to live with family because his brother lives in a four bedroom home with his wife and five children and his two nieces also live there.  He also said that he has made enquiries with his friends without success as they all have their family commitments.  The husband was cross-examined about annexure “A” to his affidavit which is a Westpac One statement with the account name Mr Gian and the address for that account being Mr Gian, PO Box 123, Suburb C, New South Wales.

13. Mr Gian was cross examined about a bank statement in the name of Mr F.  When initially asked about Mr F, the husband did not recognise that name.  It appears from page 22 of the bundle that on 27 July 2012 Austin Haworth & Lexon lawyers were paid $1 000 from that account.  It was put to the husband that he paid the lawyers from this account and that it was in fact his account.  He denied that.  He said, “I did not have the money and my friend helped me out.”  When asked, “That you earlier said you did not know [Mr F],” the husband’s answer was, “Because in China we don’t call each other by the full name and I didn’t recognise it.”  The husband again denied controlling the account and he denied controlling post office box 123, Suburb C.

14. The address of Mr F on the streamline account, of which page 22 forms a part, is at PO Box 123, Suburb C.  This is, of course, rather suspicious.  The suggestion is that Mr F and the husband are the same person.  The suggestion, at least by inference, is that he had therefore the means to look for alternative accommodation and simply chose not to look for it.

15. I have said it is suspicious.  However, the denials of the husband need to be taken into account.  Even if I were not to accept them, I would be left with the position that there are two bank accounts in different names at the same post office box address.  There could be a number of explanations for that, some innocent, some not innocent.  I am not prepared to find, beyond reasonable doubt, that it was the husband’s bank account.

16. In any event, there is a more fundamental difficulty.  The last entry on the account in the name of Mr F is 31 July 2012.  There is no evidence before me to show what the state of that account was in February 2013 and I could not find, on the basis of that material, even if I were satisfied that Mr F and the husband were the one and the same person, that there was any money in the account in February of this year.

17. Mr Gian tendered a psychological report from Mr G, who describes himself as a clinical psychologist.  In essentially a one page report, he diagnosed the husband as having adjustment disorder with severe depression.  Without any material linking this to the orders, I am not prepared to find that Mr Gian had a psychological state that prevented him complying with the orders.

18. The position then seems to be that on the evidence before me of the husband prior to 20 February 2013, took some steps to find accommodation.  Prior to that, he communicated his difficulties to the wife.  There is some evidence, though I do not place a great deal of weight on it, that the husband is in a difficult financial position.  

19. It is true that the material he put before the Court to show the type of houses he was looking to rent could be described as, in the circumstances of the parties, expensive, being things such as four-bedroom, tri-level townhouses.  But they also included one-bedroom granny flats and small homes for rent as little as $300.00 or $385.00 per week.

Conclusion

1. I find that the husband has not complied with the order and has contravened the Order 1 made by Registrar Campbell on 30 January 2013 but I am not satisfied beyond a reasonable doubt that there was a flagrant contravention to the authority of the court involved.  The evidence does not persuade me that there was conduct of an exceptional, striking or repeated nature. 

2. It seems to me that this case is what might be described as the general run of breaches which are intended to be dealt with under section 112A(d) of the Family Law Act, or even perhaps more appropriately, as I have already said, Rule 20.54. The evidence of some attempts to comply with the order and prior communication of those attempts indicates to me that it was not a flagrant challenge to the authority of the court and I am not satisfied beyond a reasonable doubt of the matters of which I need to be satisfied.

3. The application for a contempt is not established and the application filed on 22 February 2013 is dismissed.

The husband’s application for discharge of orders

1. This is an application by the husband for the discharge of orders, other than for Order 6, made by Registrar Campbell on 30 January 2013.  I have just dealt with an application for contempt for failure to comply with those orders, and this judgment is to be read in conjunction with that.   I will not repeat the facts and circumstances.  Suffice it to say that the orders of Registrar Campbell, in large part, provide that the husband was to vacate the matrimonial home by 20 February 2013 and that the wife was to have sole occupancy of it. 

2. In his affidavit, as I have already said, the husband has had difficulty moving out because he cannot afford to do so.  He works on a part-time basis.  He doesn’t have enough money for a private rental.  He has not been able to persuade anybody to rent him property.  The properties he was looking at are too expensive.  He has been unable to move in with friends or relatives.  There is no evidence before me that anything of significance has changed since he entered into the orders.  The husband entered into those orders with the assistance of, and presumably the advice of, lawyers then acting for him. 

3. Discharge applications are not contempt applications.  I find his evidence of his attempts to look for accommodation to be rather meagre.  I do not know who D Investments are.  And whilst I had accepted for the purposes of the contempt applications that he has made some attempts to seek accommodation, I am not satisfied for the purposes of this application that those attempts have been such that there can have been said to have been a material alteration in the circumstances since the time the consent orders were entered into. 

4. The husband has also tendered, as I have said, a report from Mr G, a clinical psychologist.  There is once again no evidence that this psychological state arose since the orders were entered into.

Conclusion

1. I am not satisfied there has been a material change in the circumstances of this case that would entitle me to discharge the orders.  Indeed, as Mr Alexander has pointed out, the only relevant material change is that the mother now has to vacate the premises that she is renting with the children by 6 March 2013.  Accordingly the application to discharge the orders is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 March 2013.

Associate:

Date:  17 April 2013