Krinos and Krinos and Ors

[2013] FamCA 88

FAMILY COURT OF AUSTRALIA

KRINOS & KRINOS AND ORS [2013] FamCA 88

FAMILY LAW – ORDERS – Contravention – four breaches where wife made no reasonable attempt to comply

Family Law Act 1975 (Cth)

APPLICANT: Mr J Krinos

RESPONDENT: Ms A Krinos

2^ND RESPONDENTS Mr N Krinos and Ms O Krinos

3^RD RESPONDENT Ms Pasan

FILE NUMBER: MLC 29963 of 2011

DATE DELIVERED: 24 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Hogg and Reid

THE RESPONDENT: In person

Orders

1. That pursuant to s 70NEA of the Family Law Act 1975 (Cth), the Court declares that the respondent wife has been found to have contravened the orders of the Court and that these contraventions fall within sub-division E of that division.

2. That paragraph 3 of the orders made on 18 July 2011 is varied as follows:

   (a)    Order 3.4 is discharged and in substitution therefore, the following be inserted:

   “for half all school holidays by agreement and failing agreement the first half in even numbered years to commence for term holidays at school breakup and conclude at 6.00pm on the mid-Saturday and for half of the long summer vacation to commence at school breakup and conclude at 6.00pm on the midday of the holidays and the second half in odd numbered years commencing at 6.00pm on the mid-Saturday for term holidays and 6.00pm on the midday for the long summer vacation and concluding at the commencement of the school term or year”;

   (b)    Order 3.7 be discharged and in substitution therefore the following be inserted:

   “From after school until 5.30pm on each of the children’s birthdays if a school day and if not from 11.00am to 3.00pm”;

   (c)From 3.30pm to 7.30pm on the husband’s birthday.

3. That the time to be suspended in paragraph 5 of the orders made on 18 July 2011 for birthdays be identical to the times defined in orders 3.7 and 3.8 of those orders as amended.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the wife pay the husband’s costs fixed in the sum of $3800 and that the payment of those costs be paid out of the entitlement to the wife upon the settlement of the property proceedings between the parties.

3. That the husband and the wife attend a post-separation parenting program.

4. That the hearing listed for 28 February 2013 before the Honourable Justice Young is vacated and the matter be placed in the pool of cases awaiting a hearing to be given a listing before a judge upon the respective solicitors advising the Registrar in writing that all matters are ready to proceed and there are no further interlocutory steps to be otherwise taken.

5. That the contravention application be otherwise dismissed.

6. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krinos & Krinos and Ors 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 29936 of 2011

Mr J Krinos

Applicant

And

Ms A Krinos

Respondent

And

Mr N Krinos and Ms O Krinos

2^nd Respondents

And

Ms Pasan

3^rd Respondent

REASONS FOR JUDGMENT

1.This is an application filed on 16 August by the husband seeking that the Court deal with the wife for contravention of orders that were made on 18 July 2011.  I note those orders were made by consent.  The orders provide that the husband spend time with the children on their birthdays if it was a school day, for two hours and further, for half of all school holiday periods.  There was a default provision provided which made the date clear.  What does not appear clear from the order is the starting and concluding times of the contact.

2.The contravention application filed on 16 August made four allegations of breaches.  The first two breaches relate to 3 August and 10 August, both of which were school days.  The wife conceded she had not complied with the orders and she conceded that she removed the children on the second occasion and did not send them to school on the other.  As such, there is little excuse proffered.  I find those two allegations proved.

3.The third and the fourth allegations relate to [date omitted] and the following day.  [Date omitted] was a Thursday and indeed, the day before school broke up for the term holidays.  That was the child M’s birthday and under the orders, albeit vague, the husband was entitled to spend two hours with M.  The evidence is that the parties had some discussions early in the morning or at least the husband did, with M and just exactly what all this is about is unclear to me.  Upon any view, the wife did not make arrangements for M to spend time with his father on that day.  She concedes that much.

4.On the Friday, the start of the school holidays, the husband would have been entitled to have the children on the Friday night not the Saturday morning.  It seems that there was quite a debate between the parties as to what actually happened.  The wife says the husband did not contact her.  I am not at all clear on what happened in relation to that, but on any event it being a school holiday period, the husband should have had at least from the Friday night to the following Saturday week.  Nothing was arranged during that period of time by the wife.  The husband’s evidence is that the wife told him that the children were busy.

5.This is a case in which the standard of proof is the balance of probabilities and I find the husband’s version is what did happen.  Since that time, the orders seem to have been working relatively smoothly.  What is sometimes forgotten is that when parenting orders are made, whether they are by consent or not, a clause is added to the orders that reads:

Pursuant to section 65DA(2) and section 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the facts sheet annexed hereto and these particulars are included in these orders.

6.The original order signed by the Registrar is on the Court file.  Unsurprisingly enough, it has that very document attached to it.  The document reads as follows, under a bold heading, which says “Your Legal Obligations”, it reads:

You must do everything a parenting order says.  This includes taking all reasonable steps to follow the order.  There are agencies in the community that can help you and your family adjust to and comply with the order (see details above).  The order remains in force until a new parenting order or parenting plan changes it in some way.  Even if the needs or circumstances of you, your children, or the other party change the court order applies until it is formally changed by a Court or in some circumstances you enter into a parenting plan with the other party.

7.Unsurprisingly, it then reads:

Sometimes people talk to each other about changing arrangements set out in the parenting order.  These talks do not change the order.

8.Those obligations are part of the order. 

9.I am satisfied on the balance of probabilities that the wife did not comply with the order in respect of 28 and 29 June because she failed to comply with those obligations attached. 

10.Section 70NAC of the Act provides that a person is deemed to have contravened the order if, where they are bound by it, they intentionally fail to comply with the order, or make no reasonable attempt to comply with it.

11.I am satisfied that the orders in respect of all four allegations have been proved on the basis that the wife has made no reasonable attempt to comply with them. 

12.Section 70NAE provides that a person may be excused from compliance if they have a reasonable excuse for contravening.

13.Having regard to the evidence I have heard, and the obligations that I have just read, which are attached to the order, there is no basis for me to make a finding that there is a reasonable excuse in this case. 

14.As I have said, in respect of each of the four allegations, I find them proved. 

15.I now have an application for costs by the successful litigant.  Section 117 of the Act provides that each of the party shall bear their own costs unless there are circumstances that justify the Court departing from that principle and if the Court is intending to do so, it is to take into account the matters set out in s 117(2A).

16.This is clearly a case where the wife had the opportunity to avoid the problem by sorting it out.  She did not.  The Court has found that she has breached the orders on four occasions and that is a justifiable circumstance for departing from the principle.  The question that must then be considered is the financial circumstances of each of the party.  Whilst the wife is clearly a pension recipient, even on her view, she is hardly impecunious.  She is seeking over a million dollars in property.  I am obliged to take into account other considerations such as compliance with Court orders and I have made that finding.  There is also the question of whether or not someone is eligible for legal aid and clearly the wife is not.

17.This is a case in which I ought make an order for costs, notwithstanding the current financial problems of the wife being able to pay, but I can ameliorate that by making the order payable out of the property settlement.  This is not a case in which I would make an order for an indemnity costs.  It seems to me looking at the three figures that have been sought, whilst I appreciate that the husband will have to pay those looking at the scale, the solicitor’s fees are probably pretty close to two thirds of – the scale is about two thirds of those figures and counsel’s fees is pretty close to three quarters.  I shall make those orders.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 January 2013.

Associate: 

Date:  14 February 2013