KING & KING

[2015] FamCA 569

FAMILY COURT OF AUSTRALIA

KING & KING [2015] FamCA 569

FAMILY LAW – Costs on finding — Contravention of orders

APPLICANT: Ms King

RESPONDENT: Mr King

SECOND NAMED RESPONDENT: Mr B King

THIRD NAMED RESPONDENT: Ms N King

FILE NUMBER: MLC 9554 of 2011

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Morgan

SOLICITOR FOR THE APPLICANT: Mark M Morgan

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE SECOND NAMED RESPONDENT: Ms Vogel

SOLICITOR FOR THE RESPONDENT: Peter Vlahos LLB

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

1.There be leave to the wife to withdraw her contravention application filed on 1 May 2015 against Mr B King.

2.In relation to the contravention application of the wife filed on 1 May 2015 in which the husband, Mr King, is named as respondent:-

a)      I grant leave to the wife to withdraw the first count referred to therein which relates to the delivery by the husband of his passport to the Court;

b)     I find the second count proved in that the husband without reasonable excuse failed to file and serve an affidavit in compliance with paragraph 7 of the Order made on 24 October 2014;

c)      I find the third count proved in that the respondent husband without reasonable excuse failed to file and serve an affidavit in compliance with paragraph 8 of the Order made on 24 February 2015 in that the husband failed to file and serve an affidavit to which he was to annex a market appraisal of his property at T Street, Suburb H in the State of Victoria and the last estimate of valuation issued by the council in relation to that property.

3.The penalty which I impose in relation to the alleged contravention is a total fine in the sum of $500 which I will apportion as equally between the contraventions at $250 each, such fine to be paid within 14 days.

4.The applicant wife and all respondents (including Ms N King) confer with Registrar Field at 11.00 am on Monday 13 July 2015 for the purpose of case management.

IT IS FURTHER ORDERED BY CONSENT THAT:

5.The wife do all acts and things necessary to obtain at her own expense valuations by appropriately qualified persons of the property at M Street, Suburb G in the State of Victoria.

6.For the purpose of facilitating the valuation referred to in paragraph 5 herein the second respondent, Mr B King, make the said properties available for valuation upon reasonable notice within the next 14 days.

IT IS FURTHER ORDERED BY THE COURT:

7.Within 7 days the husband comply with paragraphs 7 and 8 of the Order made on 24 February 2015 and specifically file and serve the affidavits referred to therein by not later than 4.00 pm on 13 July 2015.

8.The husband’s contravention application filed on 25 June 2015 in which the wife is named as the respondent be and is hereby dismissed NOTING THAT there has been no determination of that application on its merits.

9.The husband contribute to the wife’s costs of and incidental to the wife’s contravention application filed on 1 May 2015 against the husband, such contribution to be fixed in the sum of $1,250 payable within 14 days.

10.By not later than 4.00 pm on 13 July 2015 Ms N King file and serve any response upon which she relies in relation to the joinder application in the wife’s amended application filed on 1 May 2015.

11.This proceedings be otherwise adjourned to 9.00 am on 14 July 2015 for directions and a further consideration of the husband’s Application in a Case filed on 3 June 2015.

12.By not later than 4.00 pm on 13 July 2015 the husband file any response upon which he relies to the evidence of the wife contained in her affidavit sworn on 2 July 2015.

13.For the avoidance of doubt, there is no order or requirement compelling the second and third named respondents to attend Court on 14 July 2015. However, in the event that they are able to resolve matters of a procedural or other nature on 13 July 2015 they will have a right to appear if they so wish.

14.My reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS NOTED that the second and third named respondents propose to be absent from Australia from 25 July 2015 to 20 November 2015 during which time they will have limited access to telecommunications.

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & King 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 9554 of 2011

Ms King

Applicant

And

Mr King

Respondent

And

Mr B King
Second Named Respondent

And

Ms N King
Third Named Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In relation to costs, the wife makes an application for costs in the sum of $1250. 

2. I have heard from the husband in relation to his opposition for costs.

3. In accordance with the factors that I’m required to take into account pursuant to section 117(2) and 117(2A).

4. I am satisfied that an order for costs should flow, as a consequence of the husband’s failure to comply with orders of the Court that were clear.  The fact that on the last occasion on 3 June 2015 when he was before the Court, and there is evidence by a process server that the husband was served.  Whether or not he was served, he was at Court on 3 June to answer the application and could have then complied with the order but failed or neglected to do so.  He could after that date and before today have complied with the orders but failed or neglected to do so.  He could have come to Court today having complied with the orders and handing over the affidavits that are required of him, but he failed or neglected to do so. 

5. In fact, he says that he had some of the documents, being the bank statements and the council rate notice with him, but he left them in the car. 

6. I’m satisfied that the proceedings were necessitated by the husband’s failure to comply with orders of the Court.  

7. I’m otherwise satisfied that neither of the parties can afford legal proceedings of this nature, and the husband is self-represented, so today he bears no legal costs for his own part.  Neither party is in receipt of legal aid. 

8. There’s nothing in terms of inspection or directions to answer questions or admissions of facts that is said to be relevant.

9. I am not addressed in the terms of any offer in writing to the other party in the proceedings, and in fact, I think I can assume that there has been no such offer in writing.

10. The costs applied for by the wife are reasonable.  In fact, they appear to be more modest than the Family Law Scale.

11. It is proper that I accede to the wife’s application for costs and I do so.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 7 July 2015.

Legal Associate:

Date: 21 July 2015