[2005]fcwa 96 jurisdiction - Family Court of Western Australia

[2005]FCWA 96
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
AUSTRALIA
Applicant
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:
Respondent:
Ms G Archer
Mr F Castiglione QC
Solicitors:
Applicant:
Respondent:
Australian Government Solicitor
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 that
a 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
: THE COMMONWEALTH OF AUSTRALIA
and GREENBERG [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
AUSTRALIA
Applicant
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 that
a 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