MOULOS & MOULOS

[2011] FamCA 628

FAMILY COURT OF AUSTRALIA

MOULOS & MOULOS [2011] FamCA 628

FAMILY LAW – CONTRAVENTION – husband found to have contravened orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Moulos

RESPONDENT: Mr Moulos

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 254 of 2010

DATE DELIVERED: 9 August 2011

PLACE DELIVERED: Sydney

PLACE HEARD: H Town

JUDGMENT OF: Watts J

HEARING DATE: 3 August 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

FINDINGS

1. The husband is found to have contravened:

   1.1.Order 2.1.2 made on 6 April 2011;

   1.2.Order 2 made on 9 February 2011;

   1.3.Order 1.3 made on 28 October 2010; and

   1.4.Order 1 made on 3 June 2011.

2. Each party is to file any Affidavit they wish to rely upon in relation to the sentencing hearing on or before 25 August 2011. 

3. The matter is to be relisted before me at 2:15pm on 29 August 2011 for the purposes of a sentencing hearing.

NOTATION:

1. The sentencing will take place by video link with the parties to attend the H Town Registry for that purpose. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moulos & Moulos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 254 of 2010

Ms Moulos

Applicant

And

Mr Moulos

Respondent

REASONS FOR JUDGMENT

1. The husband was charged with five breaches of Orders.  They are outlined below.

Charge 1

1. The husband refused and/or failed to return the child, B, to the wife on Sunday 10 April 2011 at 4:00pm.  The husband was required to do this by Order 2.1.2 made on 6 April 2011. 

Charge 2

1. The husband refused and/or failed to disclose financial documentation to the wife in accordance with Order 2 made on 9 February 2011. 

Charge 3

1. The husband refused and/or failed to share equally the costs for nanny services required to facilitate changeovers in accordance with Order 8 made on 23 March 2011.

Charge 4 

1. The husband refused and/or failed to pay to the wife the sum of $20 per week as a contribution for petrol money.  This was required by Order 1.3 made on 28 October 2010. 

Charge 5

1. The husband refused and/or failed to deliver the motor vehicle to the office of O’Reilly Stevens Bovey Lawyers by 5:00pm on 10 June 2011 as required by Order 1 made on 3 June 2011. 

The husband’s response to the charges

1. The husband admitted contravention of the Order made 6 April 2011 (charge 1) but on the basis that he had a reasonable excuse.  The husband did not agree that he had contravened the Order of 9 February 2011 (charge 2), nor the Order of 23 March 2011 (charge 3).  The husband did not initially accept that he contravened the Order of 28 October 2010 (charge 4), but during the course of the hearing conceded that he had, but sought to offer a reasonable excuse.  The husband accepted that he had contravened the Order of 3 June 2011 (charge 5), but again, sought to offer a reasonable excuse. 

Was there a prima facie case for charge 2?

1. Order 2 made on 9 February 2011 required the husband to make disclosure of as much of the documentation as listed in Application 1 of the wife’s Application filed 18 January 2011 that was in his possession or control.  The Application filed on 18 January 2011 is annexed to the wife’s Application for Contravention filed on 16 June 2011.  It requests that the husband make disclosure in accordance with Rule 13.22 and contains an inclusive list of documents. Relevantly, that list contains a request for the following documents:-

   “(a)The last three years of income tax returns and assessments; …

   (c)Copies of bank and credit card statements for the last three years; …

   (e) Copies of all correspondence with respect to the sale of the C Street, D town property.”

2. The Affidavit of Ms E at paragraph 33 deposes to the fact that annexed to her Affidavit is a true and correct copy of the list of documents which has been received by her from the husband in relation to his financial circumstances as at 16 June 2011.  That annexure is BJR-16.  That list of documents contains 12 groups of documents.  None of the documents that were required to be produced under the Order as set out in paragraphs (a), (c) and (e) above are contained in that list.  Accordingly, the wife has made out, on a prima facie basis, that the husband has breached Order 2 of 9 February 2011.

Was there a prima facie breach for charge 3?

1. In relation to the alleged contravention of the Order of 23 March 2011, the wife sought to rely upon paragraph 67 of her Affidavit filed on 16 June 2011.  That evidence was not allowed because it consisted of hearsay information that the wife had obtained from the Nanny Service.  Consequently, Counsel for the wife conceded that there was no evidence to support a prima facie case that the husband had breached Order 8 of 23 March 2011 and that Application for Contravention was accordingly dismissed.

Was there a prima facie breach for charge 4?

1. The wife relied upon paragraph 69 of her Affidavit of 16 June 2011 to establish that the husband had failed to pay money for petrol. 

2. Order 1.3 of 28 October 2010 is in the following terms:-

   For the purposes of changeover, unless as agreed, changeovers will occur at the home of [Ms F], when not otherwise at the [G Day Care] and in the event that [Ms F] is unavailable, the parties are to use Executive Home Duty Services for changeovers at [H Town] Shopping Centre with the parties to equally share in the costs of such service and the husband will pay to the mother the sum of $20.00 per week as a contribution for petrol money.

3. There was an argument about whether or not there was an ambiguity about whether petrol money had to be paid for the whole of the relevant period, which was from the date the Order was made on 28 October 2010 until the date that it was varied on 23 March 2011 (a period of about five months), or only on the occasions when the parties used Executive Home Duty Services for changeovers at H Town Shopping Centre, which the parties agreed happened only three or four times in the relevant period.  It seems to me that considering the overall background of the matter, namely that the wife and the child live on the Tablelands and the child travels down to H Town to see his father, that a reasonable interpretation of the Order would be that there was a weekly liability over a five month period to make a $20 contribution for petrol.  Ultimately, the husband conceded that he had at least breached the Order on three or four occasions and a prima facie case was found on that basis.  The evidence is however sufficient for me to be reasonably satisfied that he had breached the Order over a five month period on a weekly basis. 

Reasonable excuse

1. As I have said, charge 3 is dismissed. On each of the four charges that remain, the husband sought to offer a reasonable excuse. 

Failure to deliver  the child on 10 April 2011

1. The wife has detailed with great particularity what happened surrounding the changeover on 10 April 2011 in paragraphs 13 to 38 of her Affidavit of 16 June 2011.  The husband in cross examination did not seek to challenge anything that she had said in those paragraphs of that Affidavit.  B was not returned at the scheduled time of 4:00pm, the husband retained the child overnight and he was not returned to the day care centre until 9:50am on the following day.

2. By way of reasonable excuse, the husband relies upon evidence set out in paragraphs 2 to 18 of his Affidavit filed 1 August 2011.  The essence of the husband’s reasonable excuse is that at approximately 3:00pm (that is one hour before the child was due to be delivered back to H Town) the husband and the child were at a birthday party at K Town, approximately 45 minutes away.  The husband says that his motor vehicle did not start and says that it appeared to him that there was an electrical problem, possibly the battery.  The husband’s de facto partner, Ms I, was inside at the party.  The husband said he considered what options were available to him “attempting to fix it was problematic, as I did not want to leave  the child in a hot car while I did that.”  The husband was unable to satisfactorily explain in cross examination why he did not simply take the child back into the party where his de facto partner was present, whilst he attempted to find a solution.

3. The husband somewhat glibly says “calling RACQ would have taken some time.” 

4. At 3:40pm the husband sent a text message to the nanny service advising that he was unable to deliver the child due to car trouble.  I accept that the wife saw that text message on the nanny service’s phone when she met the nanny at 3:54pm at the designated changeover place.  At 4:05pm the husband sent a message to the wife in the following terms “Hi [Ms Moulos].  Out of H Town with car trouble.  Waiting for assistance.  Will not be able to make [J Town].  Need to sort this out and will have to drop [the child] at [G Day Care] in the morning.”

5. It is the husband’s evidence that having used the phone inside the party with Ms I’s assistance to send this message, he returned to the disabled motor vehicle and left his mobile phone locked in it and set off to walk back to his partner Ms I’s house, a few kilometres from K Town, to retrieve her vehicle and that he returned to K Town approximately an hour or more later.  He says that it was only then when he re-opened his motor vehicle and retrieved his phone that he found a message sent by the wife at 4:05pm stating that she had received his message and that she wanted to come and get  the child.  The husband’s evidence is that having received that message he chose not to respond “given [Ms Moulos’] poor history of not being able to achieve an incident free changeover without abusing me” and “ the child was having fun playing with the children, none the wiser of the mayhem being caused by [Ms Moulos].”  The husband did eventually respond at 6:03pm by sending a text message to the wife saying “ the child is with me, of course.  I will drop him off in the morning at [G Day Care] as already stated.” 

6. By way of supplementary information not contained in his Affidavit filed on 1 August 2011, the husband on 2 August 2011 tendered an invoice dated 28 April 2011 (which became exhibit 1) from H Town Leading Automotive Services.  The invoice is for a general service on the husband’s motor vehicle and included “battery replacement.”  This general service was carried out approximately 2 ½ weeks after the day of the incident.  The husband did not give any explanation as to why, having received a written request from the wife’s solicitors dated 12 April 2011 to do so, he had not provided this document to them, before he sought to tender it from the bar table. 

7. Counsel for the wife points out that in the definition of reasonable excuse in Section 70NAE of the Family Law Act 1975 (Cth), a number of specific definitions of reasonable excuse, which relate to protection for health and safety reasons, have the rider that the period during which, because of the contravention, the child was not with the person in whose favour the Order was made, was to be no longer than was necessary.

8. It is clear from what is set out above that the husband took the unilateral decision at 4:05pm that he was going to retain the child overnight.  Even when on his version he realised that the wife was prepared to come and collect the child (which realisation he had not later than 6:00pm) he still maintained that position. 

9. I note that having become aware that the wife had observed him driving the motor vehicle at 6:30pm, in oral evidence, the husband adds the information that a person at the party indicated to him that if he topped the battery levels up with water then perhaps the battery would work.  He says he did that, and at 6:30pm the battery came back to life.  Although I have some difficulty on the balance of probabilities accepting that evidence, I proceed on the basis that it is truthful and I will proceed on the basis that the husband did have some problems with his battery on this day.

10. I find that the husband had not acted reasonably in considering alternate methods of him getting the child back to his mother.  The husband conceded that the location where he was at 3:00pm had a readily available taxi service and although the husband commented that it might have been “expensive”, it was clearly a method by which the child could have been returned at or close to the appointed time. 

11. There was no explanation as to why somebody at the party could not have driven the husband back to Ms I’s home for him to more quickly pick up Ms I’s motor vehicle.  I do not accept that there was nobody at the party who was sufficiently un-inebriated to drive a motor vehicle back to Ms I’s home to collect the other motor vehicle. 

12. In any event, by 6:00pm the husband had the use of Ms I’s motor vehicle and by 6:30pm he had the use of his own. 

13. I find as highly curious the fact that having sent the wife a message, the husband then left his mobile phone in his motor vehicle, rather than having it on him when he was returning to Ms I’s home by foot.  The husband would have reasonably expected the wife to have attempted to contact him on the mobile phone in response to the message he had sent her.

14. I find that the husband deliberately chose not to enter into any discussion with the wife about what could happen.

15. This incident caused the wife distress and I find the husband could have reasonably anticipated that she would have been distressed by his unilateral action.

16. I do not find that the husband has provided a reasonable excuse for contravening Order 2.1.2 made on 6 April 2011 on this occasion.  Accordingly, I find the husband guilty of that charge. 

Failure to disclose

1. By way of reasonable excuse for failing to disclose the documents that have previously been referred to, the husband says generally that a bulk of historical documents were removed from his residence (he says he suspects by the wife) and consequently he had lost control of a lot of his documents.  The wife denies that she was involved in any such removal of documents. 

2. In relation to the last three years’ tax returns and assessments, the husband conceded that they are held by his accountant.  He says he cannot get them from his accountant at the current time because he owes his accountant money.  The husband was not able to explain why, having borrowed $35,000 from his brother, he would not have sufficient funds to pay whatever he owes his accountant (an unspecified amount) to get copies of those documents for the purposes of providing them to the wife.  The husband has also at all relevant times been in employment as a lawyer. 

3. Similarly, the husband could not explain why he had not handed over bank statements and credit card statements from the period when he said the documents were removed up until the documents that were provided to the wife’s solicitors, a period of many months.  Further he did not explain why it was not possible to obtain records from his banking institutions and those that provide him credit facilities of a historical nature over the period of the last three years as was ordered. 

4. The husband gave oral evidence that he had provided an authority to the wife’s solicitors to obtain all documents in relation to the C Street, D Town property sale.  This was not challenged.  However, it does not excuse the husband from failing to comply with the specific terms of the Orders, namely providing copies of all documents that he had in relation to that sale to the wife’s lawyers. 

5. The husband has agreed that he has failed to comply with the Order for disclosure.  I find that he offers no reasonable excuse for having done so.

Failure to pay money for petrol

1. The husband’s excuse for failing to pay money for petrol was that he was of the view that in proceedings before me on 23 March 2011 he was exempted from doing so by a general discussion about how some adjustment would have to be made for his failing to comply with that Order in monetary terms when a final order for alteration of property was made.   The husband was provided a transcript of the proceedings before me on 23 March 2011 (this became exhibit 2).  The husband conceded that transcript did not contain the discussion that he asserted happened in Court on that day.  The husband suggested that it might have happened on some other occasion.

2. Whatever discussion may or may not have happened, there was a clear Order that the husband make weekly payments.  The husband has at all times been in full time employment.  The $20 per week was not a significant amount.  The Order should have been complied with by the husband.  The husband says that there is no time frame for payment within the Order.  I do not accept that as so.  The Order refers to “per week” and therefore clearly refers to a payment on a periodic basis, that period being weekly. The husband’s further excuse that handing money to the wife was problematic is lame, given that the husband knew the wife at all times was legally represented and money could be passed though the wife’s lawyers if the husband believed that making a direct payment in some manner to the wife was problematic.  I find that the husband does not have a reasonable excuse for failing to pay pursuant to Order 1.3 of the Orders made 28 October 2010. 

Failure to deliver the motor vehicle

1. Orders 1, 2 and 3 made on 3 June 2011 are attached to the Application for Contravention filed on 16 June 2011.  Order 1 specifically requires the husband to deliver the motor vehicle to the wife’s possession by 5pm on Friday 10 June 2011 and sets out a clear method by which that delivery was to take place.  The other Orders then go on to provide that the wife sell the motor vehicle and that the husband refinance the balance of monies owing (it being common ground that any reasonable sale price for the motor vehicle would fall short of the amount that was owed on the current lease on the motor vehicle).  The husband concedes that he did not comply with Order 1.  In his Affidavit of 1 August 2011 the husband offers as an excuse that when he entered into the Order, he says he thought and asserts the wife thought that the vehicle was registered in the name of Moulos Pty Ltd.  He says in fact the motor vehicle is registered in his name.  He said that because it required his signature for sale, he concluded that the Orders were in some way made nugatory.  He was unable to explain to me why that was so.  It may have meant that he had to sign a document so that the wife could affect a sale under Order 2, but it in no way affected his obligation to deliver the motor vehicle to the wife which was Order 1.  The fact that he then provided certain correspondence to the wife’s solicitors in relation to him attempting to sell the motor vehicle is not a reasonable excuse; it is just a further unilateral breach of an order by the husband.  The husband asserts in his Affidavit that “Once again, at all times I have acted reasonably and with proper purpose” but once again I conclude that the husband has unilaterally decided not to comply with what he has been ordered to do.  I do not find any reasonable excuse established.

CONCLUSION

1. Accordingly, I find that the husband is guilty of contravening Order 2.1.2 of the Orders made 6 April 2011, Order 2 of the Orders made 9 February 2011, Order 1.3 of the Orders made 28 October 2011 and Order 1 of the Orders made 3 June 2011. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 9 August 2011.

Associate:  .

Date:  9.8.2011