Moulos and Moulos (No 2) - [2011] FamCA 707

FAMILY COURT OF AUSTRALIA

MOULOS & MOULOS (NO 2)

[2011] FamCA 707

FAMILY LAW – CONTRAVENTION –

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Anderson v Hassett (No. 2) [2007] NSWSC 1444
Elspeth and Peter (penalty and costs) [2007] FamCA 1072

APPLICANT:

Ms Moulos

RESPONDENT:

Mr Moulos

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

254

2010

DATE DELIVERED:

2 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

29August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fellows

SOLICITOR FOR THE APPLICANT:

O'Reilly Stevens Bovey Lawyers

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

ORDERS

(Orders made 29.8.2011)

The husband pay to the wife the sum of $1,200 by way of penalty for breach of Charge 1 within a period of two months.
The husband is to attend the Cairns Registrar of the Family Court of Australia on 12 September 2011 and enter a $5,000 bond for a period of one year without surety and without security upon the condition that he is of good behaviour and complies with court orders.
The husband pay the wife $400 within four weeks and in the event that sum was not paid within four weeks, then the wife, without further notice, is at liberty to serve a third party debt notice on the husband’s employer to recover the sum of $400 pursuant to Part 20.4 Family Law Rules.
The husband pay the wife’s costs of this application relating to contravention of orders by the husband on a party/party basis as agreed or assessed.

Notation

I have explained to the husband that the consequences that may follow if you fails to enter into the bond or having entered into the bond fails to act in accordance with the bond, namely that he may be the subject of a further application for contravention of an order under this Act where the available penalties include a fine; community service if the appropriate arrangements are available in Queensland or imprisonment.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 254 of 2010

Ms Moulos

Applicant

And

Mr Moulos

Respondent

REASONS FOR JUDGMENT

The matter comes before me for the husband to be sentenced as a result of findings that he contravened orders on four occasions in circumstances set out in Reasons for Judgment dated 9 August 2011. On that day an order was made that each party file any affidavit they wished to rely upon in relation to the sentencing hearing on or before 25 August 2011.
The wife has filed an affidavit sworn 23 August 2011. The husband chose not to file any evidence.

CHARGE 1

I have found the husband guilty of not returning B on one occasion. He was to be returned at 4pm on a Sunday and the husband…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Moulos and Moulos (No 2)

Details

AGLC: Moulos and Moulos (No 2) [2011] FamCA 707
Case: [2011] FamCA 707
Decision Date

CaseChat Overview and Summary

This case concerned a contravention application brought by Ms Moulos (the applicant wife) against Mr Moulos (the respondent husband) in the Family Court of Australia. The proceedings before Watts J were for the sentencing of the husband following earlier findings that he had contravened court orders on four occasions. The wife had filed an affidavit in relation to sentencing, while the husband chose not to file any evidence.

The court was required to determine the appropriate penalty and costs for the husband's contraventions. These contraventions included failing to return a child on one occasion, failing to disclose documents, failing to pay $20 per week for petrol costs, and failing to arrange finance to settle a car loan. The court also considered the husband's conduct as a qualified and practising solicitor, and the wife's distress and the husband's lack of apology or insight into the seriousness of breaching court orders.

Watts J applied provisions of the *Family Law Act 1975* (Cth), including sections relating to less serious contraventions (Division 13A of Part VII) and penalties for contraventions (s 112AD). The court noted the Full Court's observations in *Elspeth and Peter (penalty and costs)* regarding legislative inadequacies in enforcing bonds under s 70NEB(1)(d). However, the court found that under s 112AF, a bond and the order to enter into it are considered orders for the purposes of s 112AD, allowing for penalties upon breach. The court considered the wife's submissions and the husband's conduct, including his lack of compliance and insight, in determining the sanctions.

The court ordered the husband to pay a $1,200 penalty for the breach concerning the child's return, to enter into a $5,000 bond for one year conditioned on good behaviour and compliance with court orders, and to pay $400 for petrol arrears within four weeks, with liberty to the wife to serve a third party debt notice on his employer if not paid. The husband was also ordered to pay the wife's costs of the contravention application on a party/party basis. The court explained to the husband the consequences of failing to enter into or breaching the bond, which could include fines, community service, or imprisonment.

Orders