Moers and Sands

[2014] FCCA 185

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOERS & SANDS [2014] FCCA 185

Catchwords:
FAMILY LAW – Enforcement proceedings following costs order – enforcement hearing – remedies available – implications of bankruptcy – matters to be considered.

Legislation:

Federal Circuit Court Rules, r.25B

Bankruptcy Act 1966 (Cth), s.58(3)

Moers & Sands [2011] FMCAfam 47
Sands & Moers [2013] FMCAfam 28
Langer & Griffin [2013] FamCAFC 170
Melnik v Melnik (2005) 144 FCR 141

Applicant: MR MOERS

Respondent: MS SANDS

File Number: ADC 2864 of 2007

Judgment of: Judge Brown

Hearing date: 23 August 2013

Date of Last Submission: 23 August 2013

Delivered at: Adelaide

Delivered on: 12 February 2014

REPRESENTATION

Counsel for the Applicant: Ms Basheer

Solicitors for the Applicant: Clelands

Counsel for the Respondent: In person

ORDERS

1. The enforcement summons be dismissed with no other order being made.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2864 of 2007

MR MOERS

Applicant

And

MS SANDS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment are concerned with enforcement proceedings brought by Mr Moers, against Ms Sands, following an order of the court made on the 29^th June 2011 and a costs order being made in Mr Moers’ favour on 23 January 2013.  The quantum of the costs award was $8,082.50. 

2. In order to understand the award of costs, it is helpful to consider earlier published reasons for judgment concerning the parties.[1]  These delineate the troubled parenting relationship between the parties in respect of their child X, born (omitted) 2002 and the vitriolic and protracted history of litigation between them. 

   [1]  See Moers & Sands [2011] FMCAfam 47 and Sands & Moers [2013] FMCAfam 28

3. At this stage, it is sufficient to say that it has been determined that X should live with his father and spend no time whatsoever with his mother pending further investigation of allegations of serious emotional abuse of X by his mother.

4. It has previously been the finding of the court that X is a psychologically compromised child in large part due to the difficult relationship between his parents which had resulted in X experiencing problems at his school. 

5. On 29 June 2011, orders were made by the court ostensibly with Ms Sands’ consent, that X should live predominantly with his father.  In light of the child’s psychological difficulties which had manifested in his behaviour at school, it was also ordered as follows:

   “The father take all necessary steps to obtain a mental health plan referral for the child so that he can continue counselling with such appropriately qualified expert as identified to the father by a medical practitioner, the cost of such health plan to be shared equally between the parties.”[2]

   [2]  See order 6 of the orders of 29 June 2011

6. The mother commenced contravention proceedings alleging that Mr Moers had breached the orders of 29…