Lindon v Commonwealth

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter was listed for hearing on four different applications of the husband: two Contravention Applications filed 18 March 2025 and 31 March 2025, a Costs Application filed 14 March 2024 and Amended Initiating Application filed 26 September 2024.
2. The Contravention Application of 31 March 2025 alleging two breaches of Order 6.5 of parenting orders of 12 January 2018 was dealt with by consent orders.
3. The Contravention Application filed 18 March 2025 and the Costs Application filed 14 March were summarily dismissed. These reasons are in support of those orders. I had indicated I would provide these reasons at the same time as the determination of the Amended Initiating Application. The filing of an appeal with respect to the order dismissing the Contravention Application has required a more expeditious approach.

1. The parties were married in 1994 and separated in 2011. There are three children of the relationship, two of whom are now over 18 years.
2. The parties have engaged in protracted litigation over many years. On 12 January 2018, final orders were made by Watts J for property division, periodic child support departure orders and non-periodic child support departure orders, spousal maintenance, and parenting orders. That decision was unsuccessfully appealed by the husband.
3. Since that time both parties have filed applications, including the four before me today.

1. The Contravention Application filed 18 March 2025 relates to an alleged breach of Order 28 of the orders of 12 January 2018 of Watts J on 4 January 2019. The Case Outline document refers to the affidavits in support filed 6 March 2025 and 27 May 2025. An affidavit was sworn on 6 March 2025 and filed on 18 March 2025 by the husband, which provides evidence in support of the alleged Contravention of Order 28 of the orders of 12 January 2018. I have had regard to these affidavits, with annexures, filed by the husband in support of the Application. Additionally, I have had regard to the arguments contained in the Case Outline document, and oral submissions.
2. Section 112AB of the Family Law Act 1975 (Cth) deals with contravention of financial orders:

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;

1. Section 112AC of the Act states:

Meaning of reasonable excuse for contravening an order

(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.

1. If a person is found to have contravened an order without reasonable excuse the following sanctions may apply, as set out in s 112AD(2) of the Act:

(a) to require the person to enter into a bond in accordance with section 112AF; or

(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or

(c) to fine the person not more than 60 penalty units; or

(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.

1. Order 28 of the orders of 12 January 2018 required "the wife pay to the 2nd respondent an amount of $200,000, which sum will be credited by the 2nd respondent against the current outstanding tax owing by the husband."
2. There is no issue that the wife made payment in two tranches: $100,000 on either 3 or 4 January 2019, and $100,000 on 7 January 2019. Documents filed refer to both 3 and 4 January 2019, the Contravention Application refers to 3 January 2019. The husband argues that delays in payment to the Australian Taxation Office ("ATO") caused interest to accrue, and that compound interest has continued to accrue. He seeks the wife pay interest levied on such amounts by the ATO up to the hearing date at specified ATO rates. The affidavit of 27 May 2025 provides documents from the ATO with respect to general interest charges on the husband's account, and a calculation by the husband of interest at the relevant ATO rates for particular periods from 9 February 2018 to 10 June 2025.
3. The wife seeks the application be summarily dismissed.
4. Counsel for the wife argues there is no issue the sum required has been paid. There was no date for payment specified in the order. Further the husband's evidence does not demonstrate that the general interest charges on his ATO debt were ever being charged on the $200,000 deficit over the period that amount was unpaid by the wife.
5. There is no evidence of any application made to the trial Judge seeking that time be specified in the order. As counsel for the husband observed, other orders within the orders of 12 January 2018 had reference to dates for payment. The husband unsuccessfully appealed the orders. The evidence does not demonstrate that any particular issue was raised with the manner in which Order 28 was formulated.
6. The husband filed an appeal, which was dismissed on 3 December 2018, with costs against the husband on 22 February 2019. I note that the wife paid the moneys owed within a month of the appeal decision.

1. Section 102QAB of the Act provides that:

No reasonable prospect of successfully prosecuting proceedings

(2) The court may make a decree for one party (the first party) against another in relation to the whole or any part of the proceedings if:

(a) the first party is defending the proceedings or that part of the proceedings; and

(b) the court is satisfied the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

When there is no reasonable prospect of success

(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:

(a) hopeless; or

(b) bound to fail;

to have no reasonable prospect of success.

Proceedings that are frivolous, vexatious or an abuse of process

(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.

(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.

1. Summary relief is "rare and sparingly provided" (Lindon v Commonwealth (No 2) [1996] HCA 14 per Kirby J at [14]). His Honour continued:

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.

...

6. The guiding principle is ... doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

1. The purpose of contravention applications generally is to ensure compliance with orders, and impose sanctions if a contravention is proved. The husband took no steps to prosecute until more than six years after the alleged breach was cured. At annexure MJ2 of the husband's affidavit of 27 May 2025 he calculates compound interest accruing from 9 February 2018 to 10 June 2025. On his calculation more than half the amount sought has accrued after payment of the ordered amount, during a period he took no steps to pursue the matter.
2. Were the wife found to have contravened the order without reasonable excuse the remedy sought by the husband of compound interest accrued at varying rates of interest prescribed by the ATO is not a sanction available to the Court pursuant to s 112AD(2) of the Act. He is effectively seeking an order for compensation.
3. Even were there to be another form of sanction available by way of some form of compensation, interest rates under the Act are specified in Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The husband has made no reference to why there would be a departure from the rate specified in the Rules, to the rates imposed by the ATO, including compound interest calculated daily.
4. The appeal decision was handed down on 3 December 2018, and orders for costs on the appeal were made 22 February 2019 in favour of the wife. That order has not been paid by the husband. The wife paid the money required by the orders of Watts J to the ATO within around a month of the decision on the appeal.
5. The husband has sought through a contravention application orders which are not available as an outcome. He makes clear in affidavits filed in support that compensation is the purpose of the application. I accept the husband has no prospect of successfully prosecuting his application. I accept that it is serious to dismiss an application without the merits being determined. I do so mindful of the costs involved for both parties in permitting the husband to prosecute his claim in those circumstances.

1. The husband has applied for costs on interim orders made by Harper J on 26 April 2022. The application for costs was filed more than two years after the order was made. The wife seeks the application be summarily dismissed.
2. On 28 January 2022, the wife filed an Initiating Application seeking fresh final and interim financial relief against the husband. The husband had negotiated a termination payment with Company C in the amount of $1,302,713, which was imminently to be paid.
3. The wife sought to join Company C and on an interim basis restrain payment by Company C of the termination payment to the husband, or payment into the wife's solicitor's trust account. Further orders were sought for disclosure and payment to the wife of payment to discharge the husband's payment of child support pursuant to the orders of Watts J.
4. On 9 February 2022, Judge Smith, as he then was, made orders joining Company C, and requiring Company C to pay into the wife's solicitors trust account the sum of $720,000. The husband's ongoing child support liability was to be paid from the funds held in trust. The matter was transferred to Division 1.
5. The husband retained the balance of funds of $231,000 from the termination payment.
6. On 3 March 2022, the wife filed an Amended Initiating Application seeking a child support departure order of a lump sum of $653,237 pursuant to s 123A of the Child Support (Assessment) Act 1989 (Cth). This amount was to be credited against the husband's child support liability, or in the alternative to be invested and $108,581.04 paid to her per annum, and the 2018 orders for periodic child support be discharged.
7. The wife also sought payment of arrears in child support of $76,565, half of the costs for a Single Expert, and $36,726.06 being 80 per cent of the wife's costs payable from orders of the Full Court 22 February 2019.
8. The husband filed an Amended Response on 24 March 2022 and sought to discharge several of the orders made by Judge Smith, payment to him of $720,000 and variation of the child support order of 2018.
9. At the interim hearing it was agreed the issue to be determined was whether the amount of $720,000 held by the wife's solicitors pursuant to orders of Judge Smith should be partially or totally released to the husband. The wife sought the orders continue.
10. Consent orders were made dealing with payment of $7,150 to a Single Expert from the proceedings before Watts J from the retained $720,000, dealing with part of the wife's application.
11. The husband asserted weekly expenditure of $13,898, superannuation of $69,064, liabilities of $3,466,000 and assets and resources of $835,510. His Honour noted the husband's apparent insolvency, and that funds released would be consumed in payment of creditors.
12. With respect to the husband's weekly expenditure of $13,898 His Honour said in the reported decision of Snipper & James [2022] FedCFamC1F 266 at [32]:

Even taking a broad-brush approach, this figure is not persuasive. For example, the husband contends that he spends $1019 each week on entertainment and hobbies, and $1273 each week on holidays. Taken together, roughly, these two figures suggest he spends some $110,000 a year on holidays, entertainment and hobbies. It is difficult, certainly on the basis of the evidence that he puts forward, to conclude that these are reasonable amounts.

1. Justice Harper found at [38]: "there must be real doubt, on the present evidence, as to whether she [the wife] would be entitled to a lump sum figure of $653,237 on a final basis". His Honour went on at [42]: "I am satisfied that the wife has made out a serious question to be tried that a lump sum child support order may be made on a final basis, but at a level significantly lower than her present claim".
2. On 26 April 2022, Harper J made orders permitting the husband to draw $8,805 per week for rent and living expenses, and a lump sum payment of $35,000 to be applied exclusively to legal costs from the preserved amount. At the conclusion of his reasons Harper J noted with respect to costs, "since neither party has been wholly unsuccessful, my inclination is to make no order as to costs. If any party wishes to seek a costs order, he or she should make an application in the proper form" (Snipper & James [2022] FedCFamC1F 266 at [48]).
3. On 14 March 2025, the husband filed an application for costs of $27,015 with respect to that hearing, supported by an affidavit filed 5 March 2025. The Case Outline document refers to an affidavit of the husband filed 3 March 2025, however there is no affidavit filed that date on the court file. The affidavit of 5 March 2025 identifies itself as being in support of the Application for costs. He does not provide any evidence of how that amount is calculated. He refers to the order sought as being his "full costs ... associated with the unsuccessful application by the Applicant dated 25 January 2022" in his affidavit.
4. The husband asserts the wife's financial statement omitted financial data, including asserted financial support the wife receives from her mother.

1. Section 114UB(1) of the Act provides the general rule that each party to proceedings shall bear their own costs. This is subject to s 114UB(2) that costs may be ordered in a particular case where there are circumstances that justify doing so, and s 102QAB(4) if the court is satisfied the proceedings are frivolous or vexatious.
2. Rule 12.13 of the Rules specifies an application for costs may be made at any stage during proceedings or by filing an application within 28 days after the final order is made. Rule 15.06 provides that the court may at any time shorten or extend a time that is fixed under these Rules.
3. The overarching purpose of the Rules, as set out at rule 1.04, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
4. The husband's counsel seeks in submissions leave to extend the time to make the application for costs. The husband provides no reason for the Application being filed out of time. I note that the Judge who heard the Application, and was in the best position to consider the issue was not inclined to make an order for costs as neither party was wholly successful or unsuccessful.
5. The husband is more than two years out of time. It is conceded by counsel for the husband that no party was wholly successful in the application. Given the reasons of Harper J referred to above it would be difficult to argue otherwise. He submits the husband had a greater degree of success than the wife and should therefore have his costs.
6. The orders are interim orders, which means evidence could not be properly tested. The final application was ultimately not determined because the funds preserved by Harper J's orders were exhausted prior to any final hearing.
7. It is not quick, efficient nor timely to deal with a costs application more than two years after the interim determination. There may be circumstances where a real injustice would be imposed on a litigant if leave were not granted to extend the time for making the order: circumstances of ill health, or other indisposition which impeded filing an application within the requisite timeframe. No evidence was provided in support of such a finding by the husband.
8. The husband's application for costs is dismissed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle.