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 | of | 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 retained him overnight.
The husband in mitigation submits that I should take into account that this is only one occasion where he has failed to comply with an order to return the child out of very many where the husband has complied with orders and I accept that is so.
The consequences of a failure to comply with a parenting order are dealt with in Division 13A Part VII and in particular subdivision E which deals with less serious contraventions. It is agreed that no court has previously made a order imposing a sanction or taking action in respect of a contravention by the husband of the parenting order (see s 70NEA(2) Family Law Act 1975 (Cth) (“FLA”)). The powers of the court in such matters are contained in s 70NEB FLA. That section provides that I may:
5.1.Require the husband to attend a post-separation parenting program;
5.2.Make an order for compensatory time;
5.3.Adjourn the proceedings so that either party might vary the order;
5.4.Require the husband to enter into a bond; and
5.5.Make an order that the person who committed the contravention pay some or all of the costs of the other party.
The wife did not seek that the child’s time with his father be restricted on any occasion by way of compensatory time to her nor did she seek that the husband attend a post separation parenting program or that the parenting order be varied in any other way.
The Full Court in Elspeth and Peter (penalty and costs) [2007] FamCA 1072 has pointed out that legislative amendment is required for a court in a less serious breach to effectively require the person to enter into a bond. This is because the Full Court has explained that there is currently no provision in the Act relating to s 70NEB(1)(d) FLA similar to the wording of s 70NFF and accordingly the requirements of s 70NEC cannot be complied with. The legislative amendment to correct this inadequacy has not yet been made.
Pursuant to s 70NEB(1)(f) FLA the wife gives evidence that she estimates that she incurred costs of $1,200 to her solicitor in making inquiries prior to deciding to proceed with the contravention application. The $1,200 relates only to her inquiries in relation to the incident itself. I take into account the finding I made that the wife was distressed by what the husband had done. I accept the wife’s evidence that the husband has never apologised for his conduct on 10 and 11 April 2011 nor acknowledged that he did anything wrong. The husband at the end of the proceedings before me, in a passionate speech, showed he had little insight about the seriousness of breaching court orders.
The husband is a lawyer (although he seeks to point out he has only been admitted for two years). As a qualified and practising solicitor, I can only take the view that the husband was well aware of the consequences of not complying with a court order.
It is appropriate that the husband pay to the wife the sum of $1,200 by way of penalty for the breach of charge 1.
CHARGE 2
The husband has been found to have contravened orders relating to the disclosure of documents. The wife gives evidence that since the finding of contravention, the husband has provided some but not all of the documents. A concession was made by counsel for the wife that the husband had, by way of electronic means, forwarded a significant quantity of documents on the morning of the sentencing hearing.
The wife in her affidavit alleges further non disclosure (which is not the subject of any current order) but rather the subject of the husband’s obligations under the rules. I do not take that matter into account.
The contravention is one that is dealt with under Part 13A FLA and specifically under s 112AD FLA. The sentences available are set out in s 112AD(2) and are:
13.1.A bond;
13.2.Community service;
13.3.A fine (up to 60 penalty units); or
13.4.Imprisonment.
These penalties are discretionary (see s 112AD(1) FLA). The sanction imposed needs to be that which is most appropriate in the circumstances.
If a person is placed under bond the provisions of s 112AF FLA apply. There is a duty to explain the consequences of breach of the bond.
At first sight the wording of s 112AF FLA appears to be identical to the wording of s 70NEC and neither section has attached to it a section similar to s 70NFF (procedure for enforcing bonds).
The main difference between s 70NEC and s 112AF FLA however is that an order under s 112AF requiring a person to enter into a bond and a bond entered into under s 112AF are both defined as orders for the purposes of s 112AD whereas an order made under s 70NEC to enter into a bond and the bond itself are not orders for the purposes of s 112AD (see s 112AA)[1]. The consequence of this is that failure to comply with a bond or failure to comply with the order to enter into a bond are both breaches which can be dealt with under s 112AD as a breach of an order. As the Full Court in Elspeth and Peter (penalty and costs) commented in paragraph:
Section 112AF first introduced the requirement that the Court explain the purpose and effect of the recognizance and the consequences of failure to enter into a recognizance or breach of a recognizance. However, the amendments did not introduce any provisions detailing the actual consequences of failure to enter into, or breach of a recognizance. The explanatory memorandum to the amending Bill stated:
The consequence of failure to comply with a recognizance is that the breach can be dealt with under new section 112AD as a breach of an order under the Act.
It did not provide any guidance as to the consequences for not entering into a recognizance. Presumably the Court could impose a more serious penalty if the contemnor refused to enter into the recognizance.
[1] In the definition section in s 112AA FLA “order under this act” means inter alia:
In relation to charge 2, the wife seeks an order that the husband enter into a bond and I consider that to be an appropriate penalty.
The husband is to enter into a bond for the sum of $5,000 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.
CHARGE 4
The fourth charge relates to the failure of the husband to pay $20 per week for petrol costs. The wife’s most recent affidavit sets out that this did not occur between 31 October 2010 and 20 March 2011. She has calculated the total arrears at $400. The husband has not done anything to make good that payment nor has he apologised to the wife for not making the payment.
The order is one made to facilitate the wife being able to make the child available to spend time with the husband. Section 70NAA(1) FLA establishes that Division 13A of Part VII “deals with the powers a court with jurisdiction under this act has to make orders to enforce compliance with orders under this act affecting children”.
Consequently the powers to sentence for breach based on a first application for contravention are limited by the principles in Elspeth and Peter (penalty and costs).
The order is still one that could be enforced as a money order (see rule 20.01(2)(a)(i) Family Law Rules 2004 (Cth) (“FLR”)).
The wife seeks an order that the husband comply with his obligations to pay the petrol money. That is an enforcement application. I have power to take that as an application under rule 20.05(b) FLR for an order for the attachment of earnings. I could make that order conditional upon the husband having an opportunity to pay the money to the wife before any attachment order is served on his employer. Under rule 20.07 FLR I can declare that $400 is owing and that the total amount should be paid within four weeks. If it is 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 FLR.
CHARGE 5
The order that was breached was a mandatory injunction made under s 114 FLA. Upon the evidence of the wife I conclude that given that the car has now been repossessed by a financial institution, the husband is no longer able to comply with the order. The wife seeks that the husband enter into a bond for this breach.
In paragraph 41(b) of her affidavit the wife seeks an order that the husband immediately make arrangements to obtain finance in his sole name in order to settle the Hilux loan. That is not an order that I can make in the context of this application. The power to make such an order would be found in either s 79 and s 80 FLA or s 114(3) FLA and I am not prepared to entertain that application.
In relation to charge 5, the husband is to enter a bond, being the same bond as referred to in relation to charge 2.
COSTS
The wife seeks an order for costs of the contravention application. The provisions of s 117 FLA apply. The starting point is that each party should bear his or her own costs but I can make an order for costs if I consider it is just, having regard to the matters contained in s 117(2A) FLA. I am generally aware of the financial circumstances of both the parties to the proceedings. There is an unresolved application for property settlement. The husband represents himself (he is legally qualified). The wife is not in receipt of legal aid. The most significant factor in this case is s 117(2A)(d) FLA. These are proceedings which were necessitated by the failure of the husband to comply with previous orders of the court. It is appropriate that the husband pay the wife’s costs on a party/party basis as agreed or assessed.
The wife originally asked me to consider referring the husband’s conduct to the Legal Services Commission. After discussion however, and my reference to the decision of Brereton J in Anderson v Hassett (No. 2) [2007] NSWSC 1444 (and particularly at paragraphs 15 to 18), that request was withdrawn.
I indicated to the husband in relation to the substantive hearing, that if he made an application that I disqualify myself, I would be of a mind to do so. The husband indicated that he did not wish to make such an application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 September 2011.
Associate:
Date: 2.9.2011
(a) an order (however described) made by the court under this Act (other than a parenting order)
(f) a bond:
i. enter into under an order of a court under this act other than an order under Division 13A of Part VII
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