Kruger and Zaio (No 2)

[2010] FamCA 209

FAMILY COURT OF AUSTRALIA

KRUGER & ZAIO (NO. 2) [2010] FamCA 209

FAMILY LAW – CONTRAVENTION – Bond

Family Law Act 1975 (Cth)

APPLICANT: Ms Kruger

RESPONDENT: Mr Zaio

FILE NUMBER: MLC 6106 of 2008

DATE DELIVERED: 5 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2010

REPRESENTATION

THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Richard Calley

THE RESPONDENT: In person

Orders

1. The husband having acknowledged and executed the bond this day, the application for contravention filed 1 February 2010 is dismissed.

2. That my reasons be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Kruger & Zaio is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6106 of 2008

MS KRUGER

Applicant

And

MR ZAIO

Respondent

REASONS FOR JUDGMENT

1. On 23 February 2010, I found Mr Zaio had contravened an order of this court.  The contravention arose out of the fact that he had failed to comply with orders that he pay periodic maintenance to his wife, as well as make payments in respect of a mortgage concerning a house in which he was living. 

2. I also made orders on that day for him to vacate the house involved, and for it to be sold.  Out of the proceeds of the sale various sums of money are to be paid, including any arrears that are due to the wife.  I also ordered that after the settlement of the sale, the payment of $400 per week could be taken out of the proceeds of the sale on the basis that I have little confidence that the husband is going to continue to comply with his obligations.

3. I indicated to the husband on 23 February that what I was contemplating releasing him on a bond for two years, but I was not prepared to do that at the time, because he has no English language skills and he required an interpreter.  He had an interpreter that day.  I explained to him on the conclusion of the proceedings that I was adjourning the case to enable him to get legal advice.  Through the assistance of his interpreter, he has explained to me that he has had the legal advice, albeit it sounds a little vague, but he certainly has had explained to him by me that, if he enters into the bond, it is a condition that he obeys all orders of this court, and any subsequent order of any court exercising jurisdiction under the Family Law Act 1975 (Cth) (“the Act”), and attend at any court if called upon to do so for having breached a condition of the bond.

4. He has indicated to me, through his interpreter, that he understands that. I have explained to him the various options under s 112AD of the Act. The two options, other than a bond, are that the person can be fined or imprisoned. The husband thought that, because I had ordered the sale of the property, the money due to his wife could be paid out of that. That is not what I ordered, and his obligation under the previous order still stands. I did not discharge his obligations under the previous orders. As such, by signing the bond, he would be obliged to continue to make the payments until such time as those orders were discharged.

5. The fact that I have made an order in relation to the payment, after the sale of the house, coming out of the capital sum was ordered because I had no confidence that the husband would make the payments regularly to his wife.  However, he is now entering into a bond indicating his willingness to comply with orders of the court. 

6. Paragraph 7 of the orders that I made in February were simply in relation to security for the payment of that sum.  I have explained to the husband just what he is signing, and he has voluntarily entered into the bond as such.  I formally release him under the bond, and I now formally dismiss the application that was filed on 1 February 2010.  I direct the reasons be transcribed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2010