DEBONO & DEBONO

[2012] FamCA 512

FAMILY COURT OF AUSTRALIA

DEBONO & DEBONO [2012] FamCA 512

FAMILY LAW - ORDERS – non compliance -  interim order made restraining the non compliant party  from leaving the Commonwealth of Australia

Family Law Act 1975 (Cth)

APPLICANT: Mr Debono

RESPONDENT: Ms Debono

FILE NUMBER: MLC 7072 of 2011

DATE DELIVERED: 27 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 27 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mimmo

SOLICITOR FOR THE APPLICANT: Plaza Legal

COUNSEL FOR THE RESPONDENT: Ms Parker

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers Pty Ltd

IT IS ORDERED THAT

1. By close of business on Monday 30 April 2012 the husband:

   a.sign the Power of Attorney marked Exhibit W1 prepared by Mr E or such reproduction thereof as is required by the Portuguese Consulate for the purposes of verification by the Consulate;

   b.attend upon the Portuguese Consulate together with his Portuguese identity card and any other documents required by the Portuguese Consulate for the purposes of the Portuguese Consul sighting and verifying the said identity card so as to confirm that the husband is the person named on that card and that it is his signature and the Portuguese Consul witness the Power of Attorney verifying that he has sighted the identity card; and

   c.sign and date the authorities provided by the wife’s solicitors on 22 March 2012.

2. The husband, through his solicitor, provide the wife’s solicitors with the original signed and dated authorities referred to in paragraph 1 (c) hereof and the original signed, dated and certified Powers of Attorney referred to at paragraphs 1 (a) and (b) hereof no later than the close of business on 2 May 2012.

3. Until further order the respondent MR DEBONO born … July  1950 be and is hereby restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Marshall and all officers of the Australian Federal Police and the police forces of the States and Territories give effect to these orders by placing the respondent’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.

4. The Court forward a copy of this order to the Australian Federal Police.

5. The husband be at liberty to approach Justice Macmillan’s Associate, … to seek to have the matter listed for Mention to seek to discharge order 3 hereof upon his compliance with orders 1 and 2 hereof.

6. All questions of costs this day be reserved.

7. The practitioners be at liberty to approach Justice Macmillan’s Associate, …, for an urgent listing of the matter if required.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Debono & Debono has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7072 of 2011

Mr Debono

Applicant

And

Ms Debono

Respondent

REASONS FOR JUDGMENT

1. This matter has been listed for Mention before me at the request of the respondent wife.  On 22 March I made orders which, inter alia, required the applicant husband by 12 noon on Saturday 24 March to sign the power of attorney which was marked exhibit W1 prepared by Mr E, attend upon the Portuguese consulate together with his Portuguese identity card for the purposes of the Portuguese consul sighting and verifying the said identity card and witnessing the power of attorney and signing authorities, which were to be provided by the wife’s solicitor to the husband’s solicitor by 12 noon on 22 March 2012, and he was to deliver the signed power of attorney and the authorities to his solicitor. 

2. The orders also required the husband’s solicitor to notify the wife’s solicitor by SMS message to a mobile telephone number nominated by the wife’s solicitor no later than 1pm on Saturday 24 March 2012, confirming that she held the signed power of attorney as witnessed by the Portuguese consul and the authorities signed by the applicant husband or advising in the event that the husband had failed to provide the documents as ordered.

3. The husband did not comply with the orders made on 22 March, and in accordance with those orders, his solicitor sent a text message to the wife’s solicitor to the effect that he had not attended at her office and that she did not have the documents the husband was required to sign, pursuant to the order made 22 March 2012, in her possession.  The wife now seeks orders that I proceed with the hearing on 7 May 2012 as an undefended matter. 

4. It is clear that the husband did not comply with the order and has still not complied with the order.  I am advised by his solicitor that he did attend at her office later that day and he produced a medical certificate which is now, as I understand it, annexed to his affidavit.

5. The medical certificate, which is dated 24 March 2012, states that the husband had an episode of chest pains and was seen in C hospital and had 2 stents inserted on 29 February 2012.  It was reported that the husband had had a recurrence of chest pains and was seen for a further stress test and that he would be unable to go back to full duties from 26 March 2012 to 22 April 2012. 

6. I note, however, and I’m advised by his solicitor, he was able to attend at his solicitor’s office later that day, swore the affidavit to which that medical certificate is annexed and travelled overseas the following day.  I am further advised by the husband’s solicitor that the reason why the husband has still not complied with my order of 22 March is that the consulate would not sign the document in the form annexed to the orders of 22 March 2012 and will only sign their own reproduction of that document.  I cannot, in a Mention such as this one, make findings as to the husband’s failure to comply or, perhaps more particularly, his reasons for his failure to comply with my orders.  My concern, however, is to ensure that this matter is able to proceed on 15 May 2012 and to make orders to that effect. 

7. I do not, at this point, intend to make an order that the matter proceed on an undefended basis.  However, in an attempt to ensure compliance with the orders, I do propose to restrain the husband from leaving the Commonwealth of Australia, pending the hearing or pending his compliance with the orders and the final hearing.  I will, however, reserve liberty to apply with respect to that order, although I note that I have been advised by the husband’s solicitor that, to her knowledge, he has no plans to travel overseas prior to the final hearing.

8. In the event that the husband does not comply with the further orders I propose to make today, or in the event that, notwithstanding his compliance with the orders, the matter is not ready to proceed because there has been insufficient time to obtain the necessary documentation, I will then consider  at that time whether, and the husband is on notice to this effect, the matter should be adjourned and what, if any, costs should be paid in the event that the matter is adjourned or, in the event that the matter proceeds, what, if any, inferences should be made or drawn as a result of the husband’s failure to comply with the orders. 

9. I reiterate that I am not making findings as to the husband’s explanations for his non compliance at this stage as I am not able to do so, however, at the final hearing, the evidence will no doubt be tested in relation to these issues and I will be in a position to make those findings.  I also propose to reserve the costs of this Mention to be determined at the final hearing.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 27 April 2012.

Associate: 

Date:  9 July 2012