Spouses Behaving Badly – Don’t underestimate the penalties of breaching Family Court Orders!12-October-2020 Family Law By Simone Green
The case of Lescosky & Durante  FamCAFC 179; (28 July 2020) highlights the serious range of penalties the Family Courts can apply to people who choose to breach (also known as ‘contravene’) Court Orders without reasonable excuse. Mr Lescosky learned the hard way, not to mess with the Family Court.
Given the severity of fines imposed upon Mr Lescosky for his admitted contravention of Court Orders restraining him from selling, transferring, encumbering or otherwise disposing of any asset in which he has an interest of whatsoever nature exceeding $1000.00 in value, save in the ordinary course of business, the case was heard by the Appellate division of the Family Court in Perth
Astonishingly, Mr Lescosky, fully aware of the restraining order above, transferred from his various accounts in 18 separate transactions a total of $180,000 over 11 days to purchase cryptocurrency. He also failed to pay monies as ordered into the wife’s solicitors’ trust account.
The judge fined Mr Lescosky a total of $59,250 in respect to all the contraventions of orders, to be paid from his share of the property he would receive by way of adjustment of property at final trial.
The Family Law Act 1975 has an exclusive code (Part XIIIA) for sanctions for failure to comply with its orders and judges have wide discretion as to the penalty to be applied on their assessment of the relevant facts. Such penalties include at the most severe end, sentences of imprisonment of up to 12 months, payment of a bond or a maximum of 60 penalty units per contravention of orders.
If a Family Court judge sentences a person to imprisonment for breach of orders, the judge must be satisfied that it would be inappropriate to deal with the contravention in any other way. As such, imprisonment is a last resort and a relatively rare, but not impossible, option available to judges, for the most serious contraventions of orders.
The Appeal Court dismissed Mr Lescosky’s appeal and determined the trial judge acted within the power afforded to her by the Family Law Act and noted that the judge considered the maximum penalty for each individual offence was inappropriate as the aggregate sum was significant and as such the $59,250 was proportionate to the overall conduct of Mr Lescosky.
Orders in the Family Courts jurisdiction should be taken seriously. The Family Courts are a super jurisdiction with respect to the range of powers available to them to deal with the property of a relationship.
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