Jacobova & Stein (No 2)

[2017] FamCA 643

FAMILY COURT OF AUSTRALIA

JACOBOVA & STEIN (NO 2) [2017] FamCA 643

FAMILY LAW – INJUNCTION – where the wife seeks the continuation of an order restraining the husband from causing a passport to issue in his name – where an order is made extending the restraint until further order.

FAMILY LAW – COSTS – order made for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) ss 117, 117(2A)
APPLICANT:	Ms Jacobova

RESPONDENT: Mr Stein

FILE NUMBER: MLC 13605 of 2007

DATE DELIVERED: 2 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 2 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Kovacs

SOLICITOR FOR THE APPLICANT: Lewenberg & Lewenberg

THE RESPONDENT: In Person

Orders

1. That paragraph 8 of the orders made on 21 June 2017 by the Honourable Justice Bennett be varied by substituting the words “until the adjourned date” with the words “until further order of the Court”.

2. That all extent applications be adjourned to a Directions Hearing List on a date to be fixed not before 27 February 2018.

3. That the husband pay the wife’s costs of this day fixed in the sum of $1800.

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 Jacobova & Stein (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 13605 of 2007

Ms Jacobova

Applicant

And

Mr Stein

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Jacobova & Stein comes before me today in a Judicial Duty List.  This matter has a long history before the Court, these current proceedings having commenced in or about 2015 upon the original application of the wife seeking enforcement of child support arrears payable pursuant to orders made by this Court in 2008. 

2. Counsel appearing for the applicant has provided a helpful chronology of events since that time: I will mark that chronology as an exhibit so that it may remain on Court file.  It will be marked as Exhibit A1.

3. That chronology sets out the history of the proceedings since 2008.  Pursuant to the 2008 orders, the husband was obliged to pay one half of the school fees and expenses in relation to the child of the marriage, X, who was born in 2003 and is aged 13 years.  I am told, and it appears to be common ground, that she is a student at L School. 

4. The wife’s enforcement application with respect to the 2008 orders was dealt with by Thornton J in a hearing of some three or four days in 2016.  Following that hearing, her Honour made orders on 23 September 2016 making a declaration as to the arrears then outstanding, that sum being in excess of $47,000.

5. Her Honour made self-executing orders if there was continuing default of those arrears.  Those orders included provision for the sale of the husband’s motorcycle and thereafter provision for weekly periodic payments.  In February 2017 the wife caused a further Application in a Case to be issued, to enable her to enforce the judgment debt.  Since that time, an application has been made by the husband assisted, seemingly by his former lawyers, whereby he has lodged a debtor’s petition in June 2017.  The wife field a further amended application in a case on 21 June 2017 seeking a stay of the husband’s bankruptcy. 

6. Further orders were made on 21 June 2017 upon the hearing of that application by Bennett J.  The orders made by her Honour that day included orders restraining the husband from leaving the Commonwealth of Australia, an order restraining him from causing a passport to issue in his name, as well as orders in relation to disclosure with respect to the motor vehicle driven by the husband.  The order that is sought before me today is a continuation of order 8 of the orders made by Bennett J on 21 June 2017.  That order is the order with respect to the injunction restraining the husband to cause a passport to issue on his behalf.

7. The order is expressed as continuing until the adjourned date,  that is today.  What the wife seeks is that that order continue until further order.  It is submitted on her behalf that the husband’s non-compliance with the enforcement order continues.  She relies upon the affidavit of her solicitor, Ms N, which is an affidavit filed 13 June 2017.  That affidavit, again, helpfully sets out much of the history in this matter, and particularly highlights and makes reference to the findings of Thornton J in her Honour’s judgment of 23 September 2016.

8. It notes the history in terms of the husband’s financial capacity to fund overseas travel.  It also notes that in the past, when the husband has been precluded from traveling overseas due to outstanding periodic child support arrears, there has been payment to enable him to resume overseas travel.  That history is relied upon by the wife in support of the order she now seeks for the continuation of the injunction with respect to the passport.  Those matters that I have referred to are set out at paragraphs 13 to 18 inclusive of Ms N’s affidavit.

9. The husband is self-represented.  He has informed the Court that he opposes the continuation of the injunction by the wife.  The primary basis upon which he opposes the continuation of that injunction is that he states that he has family in Israel, he has aging parents, and he seeks the opportunity to travel to Israel to visit them.  He informs the Court that he has no current plans to travel.  He further indicates that all issues would be easily resolved, that he is ready and willing to commence payments, and he nominated a periodic amount he was prepared to pay.

10. The reality is, however, that as matters currently stand there has been no payment by him, other than those I have already indicated, for an extended period of time.  That circumstance is most unsatisfactory.  In the circumstances, I am satisfied that it is appropriate that the orders made by Bennett J should continue until further order.  It could be said that, in circumstances where there are already injunctions in place that restrain the husband from travel and which continue, and where there is no challenge to those orders, there is no need for a continuation of the injunction regarding the husband’ passport.  However, in circumstances where there is some concern that the husband may seek to travel, in my view it is an appropriate order as it follows from orders already made and in place, with respect to the restraint on the husband’s travel.

11. The wife, in the submissions filed on her behalf, notes in those submissions that the bankruptcy of the husband does not stay the execution of the enforcement order already made, and I agree with the submissions insofar as the bankruptcy and the effect on the outstanding child support is concerned.  In those circumstances, I make orders as follows:

    1.That paragraph 8 of the orders made on 21 June 2017 by the Honourable Justice Bennett be varied by substituting the words “until the adjourned date” with the words “until further order of the Court”.

    2.That all extant applications be adjourned to a Directions Hearing List on a date to be fixed not before 27 February 2018.

12. The wife makes an application that the husband pay her costs fixed in the sum of $1800.  That sum incorporates preparation for today’s hearing, as well as counsel’s brief fee.  The wife, in support of that application, relies upon a letter forwarded by her lawyers to the husband on 27 July 2017.  That letter enclosed a minute of proposed consent order which would have avoided the necessity of a hearing today.  The wife, in essence, says that she has been wholly successful in her application today.  That is, that I have made orders in the terms as sought by her in that correspondence.

13. I accept that submission.  The wife has succeeded in her application before me. 

14. The general rule is that each party to proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”) should bear their own costs. Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the provisions of subsections (2A), (4), (4A) and (5) and the rules of Court make such order as to costs and security for costs as the Court considers just. Section 117(2A) of the Act sets out the matters that the Court should have regard to in considering whether to make an order for costs. I have regard to those circumstances as set out in 117(2A) of the Act. In particular, I have regard to the conduct of the parties to the proceedings.

15. As I have already noted, the husband has been non-compliant with orders of this Court, and that non-compliance is ongoing, both in terms of orders for disclosure but also in terms of payment of arrears of child support which are subject to Court order.  I also have regard to the conduct of the husband in not acceding to the request of the wife that he sign a consent order.  The wife has been wholly successful in the proceedings before me today.  Having regard to all of those matters, I am satisfied that it is appropriate that an order be made as to costs.  I therefore make a further order as follows:

    3.That the husband pay the wife’s costs of this day fixed in the sum of $1,800.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 August 2017.

Associate: 

Date:  2 August 2017