Benenetto and Benenetto

[2010] FamCA 32

FAMILY COURT OF AUSTRALIA

BENENETTO & BENENETTO [2010] FamCA 32

FAMILY LAW – STAY of proceedings – pending review application in relation to Registrar’s orders

APPLICANT: Mr Benenetto

RESPONDENT: Ms Benenetto

FILE NUMBER: MLC 2495 of 2009

DATE DELIVERED: 19 January 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 19 January 2010

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

Orders

1. That the husband’s oral application for a stay of proceedings in relation to Order 2 made 18 December 2009 is dismissed.

2. That until further order there be a stay of proceedings in respect of Orders made on 14 January 2010.

3. That each party file and serve his or her updated statement of financial circumstances on or before 4.00pm, 29 January 2010.

4. Liberty to apply is granted to seek an urgent hearing of the pending review application of the husband in relation to Orders made on 18 December 2009 and 14 January 2010.

IT IS NOTED that publication of this judgment under the pseudonym Benenetto & Benenetto is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC2495 of 2009

MR BENENETTO

Applicant

And

MS BENENETTO

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings there is a pending application by the husband seeking a review of Order 2 made on 18 December 2009 by Senior Registrar FitzGibbon.

2. In addition, on 14 January 2010 an order was made by Senior Registrar FitzGibbon requiring the husband to the pay the wife’s costs of and incidental to the application for interim spousal maintenance previously determined by him as reflected in the Orders of 18 December 2009.  The costs so ordered to be paid was by agreement or failing agreement, as assessed by a registrar.  There was a notation as to the Court being satisfied that counsel’s fees of $6,000.00 were properly incurred and should be included as part of any assessment.

3. The husband, who is unrepresented, informed me and I accept, that he was unaware of the latter order.  That could well be as a consequence of a copy of the Orders made on 18 December 2009 having been sent to his former solicitors.  In any event, I will make arrangements for a copy of those Orders to be furnished to the husband direct.

4. The wife who is unrepresented, as a consequence of her lawyers no longer acting for her as of only yesterday, opposes the stay of proceedings that was sought.

5. Each party informed me that they were not ready to proceed in relation to the pending review application filed by the husband, as updating material was required to be prepared, filed and served.

6. So far as the wife was concerned, she was obtaining legal advice from new solicitors and understood that further subpoenas to produce documents were due to be issued and served.

7. In relation to the pending application for review, as a result of inquiries made of the Case Management Judge for this Registry, I was informed that the matter could be listed for hearing next Monday, namely 25 January 2010 at 10.00am.

8. I was informed by the wife that she would not be in a position to proceed on the basis of inadequate preparation in that short period of time.  I informed the wife that she should consider instructing her new solicitors to ensure that not only was preparation carried out as soon as possible, but that an application should be made on her behalf as a matter of urgency for a date for hearing to be fixed in relation to the pending review application.

9. Consequently, the only issue for me to determine today was whether or not there should be a stay of proceedings in relation to the two orders referred to earlier in this judgment.

Issues

1. The husband sought to rely upon the evidence set out in the documents identified in paragraph 6 of the Reasons for Judgment delivered by the Senior Registrar FitzGibbon on 18 December 2009.  In addition, the husband sought to rely upon that judgment.

2. The wife only sought to rely upon the judgment.

3. I adjourned briefly for the purpose of reading all of that material.

4. The transcript of the hearing before Senior Registrar FitzGibbon was not available.  That was pointed out to the husband in particular.  Nonetheless, the husband sought to proceed and was permitted to do so on the documents to which I have previously referred.

5. I emphasised to the husband that as with any other court in Australia, I could only make decisions based on evidence and not statements from the Bar Table, unless they were agreed upon.

6. There are a number of matters to which the husband referred in terms of his current position which he acknowledged were not the subject of evidence.  Consequently, I have not taken those matters into account.

7. The crux of the case submitted by the husband is that he was financially unable to afford to comply with both or either of the orders the subject of the oral application for a stay of proceedings.  So far as the Order 2 made on 18 December 2009 was concerned, the husband stated that there was no capacity to comply with that order as a deduction of his expenses from his income did not leave any discretionary basis of funding available for the purpose of being applied to meet that order.

8. The husband addressed me at some length on those matters.  He had quite clearly carried out proper preparation in that he articulated his case well and referred to relevant parts of the judgment in particular to illustrate his case, as well as pointing out what he considered to be anomalies in part of the judgment.  I referred the husband to the fact that it was not simply a matter of looking at his income and deducting expenses from it, but the legislation also required me to have regard to, amongst other things, his capacity to earn income.  In that regard the husband’s case was that his working hours were reduced by him due to the strain that he has suffered as a result of these proceedings, and also implicitly following the breakdown of the marriage.

9. The husband also referred to that part of the Reasons for Judgment of Senior Registrar FitzGibbon whereby the Senior Registrar had accepted that the husband’s employer had employed another person to assume responsibilities that the husband had previously carried out.  The husband’s case is simply limited to the findings of the gross income of the husband being $39,000.00 per annum with an implicit reduction of available funds due to tax, which was referred to in the judgment as “nil”.  I accept almost certainly there was a tax deduction from the gross income, albeit for a figure that was unknown, and if one then proceeded to consider the findings in relation to expenses, the husband’s case had much merit to it.

10. However, as I have already emphasised, the issue of capacity to earn income had also arisen.

11. It is clear from the Reasons for Judgment that the husband had previously worked long hours and had earned considerably greater income than he currently earned.  Indeed, the Senior Registrar refers to a full-time employee in a similar position within the same organisation earning $60,000.00 to $70,000.00 per annum implicitly on a gross basis.

12. So far as the husband’s inability to exercise his previous proven capacity to earn greater income, the Senior Registrar referred to the absence of medical evidence of persuasive substance which would have corroborated the husband’s case.

13. The husband had apparently been consulting a counsellor or psychologist due to his emotional health and yet, such an expert witness was not called.  The Reasons for Judgment of Senior Registrar FitzGibbon does not refer to any evidence having been given which explained the absence of such a witness, who one would reasonably have expected would have been called to give evidence in support of the husband’s case.  Indeed, the only medical evidence was that of a Dr L, a general practitioner, who provided a very brief affidavit, which did not provide any professional, detailed or analytical assessment of health issues, diagnosis, treatment given and a prognosis to support the husband’s contention that his health was such that there is a necessity of working reduced hours.

Conclusion

1. Accordingly, I am not persuaded that the husband lacks the capacity to earn income at a greater level than he is currently earning.  Indeed, when I raised with the husband this morning as to the desirability of him working greater hours to generate further income to meet expenses and obligations, he informed me that he would do so once these proceedings were completed.

2. Consequently, if it is only the proceedings which, in his view, remain an impediment to his exercising his undoubted capacity to earn income, rather than health considerations, then it is surely within the husband’s ability to commence exercising that capacity as soon as possible.

3. I am mindful of the fact that proceedings have apparently been commenced in the Supreme Court of Victoria by the mortgagee of the subject property for the purpose of it exercising its power of sale.  The husband is the sole registered proprietor of that property and whilst the wife had notice of such proceedings, the husband informed me that he had merely referred the initiating document to his lawyers and was not cognisant of the implications of it, let alone whether or not he would file any defence.  Considering that the subject property is one in which not only the wife lives, but the parties’ three small children, I found that reaction rather remarkable.

4. One might have expected that a parent seriously concerned with the welfare of his children, and bearing in mind proceedings which would cause the subject property to be sold and, therefore, children’s stability disrupted, would have shown more of an interest in the implications of such proceedings.

5. However, it became abundantly clear that the husband’s object of the sale of the property marched in tandem with the possible result of such proceedings being instituted by the mortgagee.  If that was the case, then it represented an explanation for the husband’s casual approach to the implications of such proceedings.

6. In any event, as I emphasised to the husband, the only issue for me to determine was whether or not there should be a stay of proceedings granted, against a background of pending proceedings for review of the subject orders.  That issue did not require me to determine the merits of the review application.  I accept, as a matter of legal principle, that a stay of proceedings in these circumstances, as opposed to a stay pending an appeal from the orders made by a Judge at first instance, would be focused upon the findings and such further evidence that may be available which would demonstrate prejudice to the husband, in this case, of being left with the obligation to comply with a court order, when financially he was unable to do so.

7. Due to the findings made about capacity to earn income to which I have referred, and the lack of any updating evidence from the husband to support the stay application, I have concluded that the application for a stay will be refused.

8. The husband’s submissions to me did not refer to any change in the financial position of the wife, which may have been a relevant consideration, including her capacity to earn income.

9. Consequently, in relation to Order 2 made on 18 December 2009 the application for a stay will be dismissed.

10. So far as the order made on 14 January 2010 is concerned, it is clear to me, on the evidence currently before me, including the findings made by the senior registrar, that there is a doubtful capacity of the husband to comply with the order for costs made on that day.  As a result, I will grant a stay of proceedings in relation to that order, pending further order.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  22 January 2010