Charonne and Charonne (No. 3)

[2009] FamCA 562

FAMILY COURT OF AUSTRALIA

CHARONNE & CHARONNE (NO. 3) [2009] FamCA 562

FAMILY LAW – ORDERS – Contravention – Penalty

APPLICANT: Ms Charonne

RESPONDENT: Mr Charonne

FILE NUMBER: MLC 4853 of 2007

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr A.F. Skerlj

SOLICITOR FOR THE RESPONDENT: Aitken Partners Pty Ltd

Orders

1. That pursuant to s 112AF(1) of the Family Law Act (1975) the husband shall enter into a bond for a period of 12 months to comply with any order made by the Court in relation to financial and parenting orders.

2. That the husband shall pay the wife’s costs of the contravention proceedings, fixed at $7,000, and to be paid from the monies held on trust for the parties by Marshalls & Dent, Solicitors, such sum to be deducted from the husband’s share of the property settlement.

3. That the sum of $28,000 paid by the husband to Middletons Solicitors shall be deemed as a partial property settlement in the husband’s favour.

4. That the exhibits tendered shall be returned to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 4853 of 2007

MS CHARONNE

Applicant

And

MR CHARONNE

Respondent

REASONS FOR JUDGMENT

1. Last Friday I made a finding of contravention against the husband in relation to one particular charge.  The case was adjourned until today so that I could read several decisions by Senior Registrar FitzGibbon, and to determine penalty and costs. 

2. So far as penalty is concerned, Mr Skerlj for the husband had argued that there should be no penalty imposed.  Mr Strum sought a bond.  After discussion today, and my strong indication that I thought that a bond pursuant to section 112AF was appropriate, Mr Skerlj sought instructions and his client has consented to enter a bond. 

3. I propose ordering that the bond be for a period of 12 months.  That should safely cover the period in which it is envisaged the matter will be listed for trial.  I propose making the condition of the bond that the husband comply with any order made by the court in relation to financial and parenting orders.  The purpose of this bond is to ensure that he does comply.  The purpose too is to ensure that there is no need to return to court with any sort of enforcement or contravention application. 

4. When I read the Senior Registrar's judgments I was particularly concerned by the one of 30 September 2008.  It was clear that the husband had previously failed to comply with an order for spousal maintenance.  Although he complied very, very shortly before the actual hearing, he certainly had not complied when he should have, and there was a rather bizarre set of circumstances whereby he finally complied but, it appears, had not conveyed it to anyone until partway through the hearing.  Mr Skerlj today says that he had told the wife.  All I have is the Senior Registrar's findings, from which it was obvious the case was part‑heard before it became apparent that there were no longer arrears outstanding. 

5. The other judgment of the Senior Registrar did relate to a further non‑compliance, but it was dealt with on 19 May this year, and it related to a period subsequent to the breach with which I am dealing, which was in November 2008. 

6. It is largely because of the previous breach found by the Senior Registrar,  although remedied late in the piece, but just shortly prior to this breach, that I am satisfied that a bond is appropriate. 

7. Mr Strum for the wife has then sought that the sum of $28,000, wrongly removed by the husband, should be repaid by him.  Mr Skerlj for the husband has urged that, instead, it should be noted that that sum is to be deducted from his share of the property at trial.  I propose adopting Mr Skerlj's course.  I am simply not sufficiently across the full financial circumstances, in terms of the potential property settlement, to order otherwise. I cannot see any disadvantage to the wife in Mr Skerlj's approach and I can see every possibility of setting up a further breach if I were to approach it as Mr Strum has sought.

8. That leaves then the question of costs.  Mr Strum for the wife seeks a sum of $7,966.69.  There is no argument against paying costs by the husband.  That is a realistic approach.  A costs order is inevitable, given my findings. 

9. It is argued on the husband's behalf that the sum should be $5000.  It is not absolutely clear or scientific as to how that amount is arrived at.  Mr Skerlj referred to the fact that the instructing solicitor for the wife has been present throughout the proceedings, but, in any event, I am satisfied in the circumstances it was quite appropriate for the solicitor to be at court.

10. There is an issue about whether today's appearance was necessitated by the fact that Mr Strum could not sit beyond 4.15pm last week.  He is absolutely right, that he was able to sit for the full court day.  Although, strictly speaking, I try not to sit beyond the usual court hours, I was painfully aware last Friday that this case had already come back to court on two days.  But for Mr Strum’s unavailability, I would have been sorely tempted to ensure it did not come back on a third day. 

11. I propose deducting about half of counsel's fees for today, that is $975, or in round figures, I will order $7,000 be paid. 

12. I am satisfied the $7,000 should come from the monies in trust.  I am concerned that I am setting up a further breach if I say it is to come from the husband’s salary.  If, as Mr Strum suggested, I ordered costs to be paid from his salary with a stay of a month, on the figures it does not look feasible, and the husband must keep complying with spousal maintenance and other commitments. So they are the orders I propose. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau 

Associate: 

Date:  26 June 2009