Idanov & Dunstable (No. 2)

[2018] FamCA 1134

FAMILY COURT OF AUSTRALIA

IDANOV & DUNSTABLE (NO. 2) [2018] FamCA 1134

FAMILY LAW – CONTRAVENTION – where respondent wife does not attend – where no contact with a child is occurring and the reasons are unclear – application for a warrant for arrest sought and granted on the basis of the wife’s evasive material.

FAMILY LAW – COSTS – where the wife does not explain her absence – order for costs made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Idanov

RESPONDENT: Ms Dunstable

FILE NUMBER: MLC 7400 of 2014

DATE DELIVERED: 8 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tatarka

SOLICITOR FOR THE APPLICANT: Lander and Rogers

THE RESPONDENT: No appearance

Orders

1. That the contravention application is adjourned to 10.00 am on 5 June 2018 for hearing.
2. That a warrant issue for the arrest of MS DUNSTABLE, Q Street, Suburb R to be executed by all Officers of Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia and upon the execution of the said warrant MS DUNSTABLE be released upon an undertaking of bail (under the relevant Victorian legislation) to attend this Court at 10.00 am on 5 June 2018.
3. That the respondent pay the applicant’s costs fixed in the sum of $2677.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7400 of 2014

Mr Idanov

Applicant

And

Ms Dunstable

Respondent

REASONS FOR JUDGMENT

1. This is an application which has its genesis in a dispute between the husband and the wife that goes back to 2014.  There are many documents on this file, and it looks like the dispute between the parties has a long way to go.  It was recently transferred to this Court by the Federal Circuit Court presumably on the basis of some complexity.  The issue that comes before the Court today is the husband’s application that the wife be dealt with for contravention of a parenting order.  That parenting order is of some considerable duration.  The contravention application, however, was filed as long ago as early 2017 in the Federal Circuit Court and seems to have wandered along ultimately to be transferred here.

2. When the parties came before a registrar on 23 March, they reached agreement that the contravention application be adjourned to today’s list.  In addition, and obviously on the basis that there was a parenting dispute underpinning the allegation that gave rise to the contravention, the parties agreed, and the registrar made the order, that the wife could file an amending application to vary those parenting orders.  The time for that to occur has now expired.  In other words, she failed to do so.

3. What is disconcerting lies in an affidavit she filed only two weeks ago which – and I appreciate, as I have said, she is a litigant without legal representation.  She appears to have taken unilateral action.  For example, at paragraph 9 of that affidavit, the wife says that she was acting as a protective parent.  She has reduced and withdrawn the father’s “supervised access” due to “increasing concerns for the children’s mental and physical wellbeing”.  I am not sure what that means, but in any event, that was the reason why the Court made and, indeed, she agreed – an order that she file a proper application to reconsider whatever was the difficulty.

4. After the hearing before the registrar, the husband filed an amended contravention application.  It is somewhat alarming that he has now not seen these three children for the best part of a year.  The allegations before the Court today are voluminous, and they all relate to the wife failing to provide the children.  The law is clear that a party cannot take the law into their own hands and if acting circumstances that protect the child, if that is to be ongoing, the applicant has to make an application to the Court.  The wife has not done that.

5. To compound matters, it appears that the wife approached the Court in April indicating that she could not be here today because she had a job opportunity and she wanted to appear by telephone.  That application was refused.  I can well understand why that would be the case involving something as controversial as this.  There has been no subsequent indication as to why she is not here today.  She is not represented by a lawyer, and under those circumstances, the only course of action is for me to adjourn the application.  I have no confidence that she will attend on the next occasion.  The affidavit to which I have referred indicates that she does not want to disclose her address and all of that leaves me with a sinking feeling that this case is going to fester. 

6. The appropriate course of action is to have it made clear to the wife that she cannot take the law into her own hands, and on that basis, a warrant will issue for her arrest.  Upon arrest by the relevant police, she will be released on an undertaking of her own bail to appear on 5 June 2018 at 10 am.

7. There is then an application for costs.  The costs are effectively those thrown away today which includes counsel’s fees and three hours of the solicitor’s time.  The Act says that in proceedings under the Act, each party shall bear their own costs unless there are circumstances that justify a departure from that principle.  Having regard to what I have just described as to what has led up to today, I am satisfied that the circumstances do justify an order for costs primarily on the basis that the wife has done nothing to ameliorate the issue.

8. Before making an order, however, the Court has to take into account the circumstances of each of the parties and the matters set out in section 117(2A) of the Act.  Clearly, one of the problems relates to the question of the parties’ respective financial circumstances.  I note that on the file for a hearing in February this year were assertions that the mother has not disclosed her employment details other than the fact that she works for a technology consulting firm, and the husband understands that she earns about $100,000 per year.  There are numerous properties involved in this case.  The conclusion I have drawn at this stage is that neither party is impecunious.

9. The second significant factor in section 117(2A) relates to the question of compliance with Court orders and also the question of complying with the process as to enable the Court to resolve matters expeditiously.  The wife has not done that either.  Both of those circumstances justify an order for costs.  The costs sought here are on an indemnity basis.  In my view, as the authorities all say, the circumstances have to be exceptional.  I am not sure that I could make that finding here, and with that doubt, I propose only to make an order on the scale.  I propose therefore to order that the wife pay the sum of $2677 forthwith.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 May 2018.

Associate: 

Date:  11 May 2018