Benenetto and Benenetto

[2009] FamCA 367

FAMILY COURT OF AUSTRALIA

BENENETTO & BENENETTO [2009] FamCA 367

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Non-disclosure – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Benenetto

RESPONDENT: Ms Benenetto

FILE NUMBER: MLC 2495 of 2009

DATE DELIVERED: 4 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 May 2009

REPRESENTATION

THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Mr M.L. Pavone

SOLICITOR FOR THE RESPONDENT: Cahill & Rowe Family Law

Orders

1. That all outstanding applications be adjourned to 9.00am on Wednesday 20 May 2009.

2. That until further order, the husband be restrained from further withdrawing any funds from C Mortgage Loan Account.

3. That by 4.00pm on Friday 15 May 2009, the husband file and serve:

   (a)   the documents referred to in the orders made on 6 April 2009;

   (b)   an affidavit as to what happened to the funds withdrawn from the C Mortgage Loan Account on 15 January 2009 and 8 April 2009; and

   (c)   an affidavit (if practicable from Mr S as to the loan asserted this day by the husband to have been owed and now repaid.

4. That the husband pay the wife’s costs of $1500 thrown away this day and the issue of when that sum is to be paid shall be determined on 20 May 2009.

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: MLC 2495 of 2009

MR BENENETTO

Applicant

And

MS BENENETTO

Respondent

REASONS FOR JUDGMENT  

1. This is an application in the Judicial Duty List which I am about to adjourn until Wednesday 20 May at 9 am to determine a discrete issue in relation to the question of whether or not the husband ought to be ordered to refund some money that he drew down from a mortgage account.  There seems to be no dispute that he in fact drew down two payments totalling just over $90,000, and his explanation to me today in court, which is not on oath, was that he repaid a loan.  I propose to make some orders in relation to the question of how that issue is clarified. 

2. The application by the wife is that her costs of counsel's fees fixed in the sum of $1500 thrown away today, be ordered to be paid by the husband.  Mr Pavone says that if I look back at the order made on 6 April 2009, the registrar, with both parties represented by counsel ordered that the husband provide all of his material of a financial nature on or before 22 April.  The order showed the matter was being listed in the duty list today, and says that the purpose of that exercise was for "partial property settlement."  The husband was on notice that that was what the application was about today. 

3. It is a fundamental principle of this Court and the Family Law Act 1975 (Cth) (“the Act”) that parties have an obligation, which is of a positive nature, to provide information to each other, so that the Court and the parties can determine financial issues that are outstanding between them. Section 117 of the Act sets out the principle that each party bears their own costs. The only time the Court can depart from that rule is where there are circumstances that justify doing so. In determining that there are circumstances that justify a court departing from the rule, a court must take into account the matters set out in subsection (2A).

4. In this particular case, there are circumstances justifying a departure from the rule on the basis that I have to adjourn the proceedings because the matter cannot proceed, having regard to the fact that the husband has not filed his material. Section 117(2A) requires me to take into account the financial circumstances of each of the parties to the proceedings.

5. I know little about the husband’s financial circumstances, other than the fact that he has told me that he is employed, and I understand from counsel for the wife that she is in receipt of Centrelink benefits.  I am not told of any legal assistance provided to either party from Victoria Legal Aid, so I shall ignore that.

6. The significant provision in subsection (2A) requires a court to consider:

   Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with the previous orders of the court.

7. That is in fact exactly what has happened here, and in my view, the reason why the matter cannot proceed today.  In those circumstances, it is appropriate that the wife have the costs thrown away for the day. 

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 May 2009