Mouzakis and Mouzakis

[2007] FamCA 796

FAMILY COURT OF AUSTRALIA

MOUZAKIS & MOUZAKIS [2007] FamCA 796

FAMILY LAW - ORDERS - Contravention - Wife unable to attend court - Adjournment

Family Law Act 1975 (Cth)

APPLICANT: MR MOUZAKIS

RESPONDENT: MRS MOUZAKIS

FILE NUMBER: MLC 6681 of 2007

DATE DELIVERED: 1 AUGUST 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 1 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PAVONE

SOLICITOR FOR THE APPLICANT: MARIA BARBAYANNIS & CO

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

ORDERS

1. THAT the Form 18 contravention application filed 13 July 2007 be fixed for hearing at 10.00 a.m. on Friday 24 August 2007.

2. THAT each of the Form 1 and Form 2 applications of the husband filed 13 July 2007 be adjourned for hearing in the Registrar’s Duty List on 31 August 2007 at 9.45 a.m.

3. THAT the hearing date for each of the Form 1 and Form 2 applications that originally was to be set for 13 August 2007 be vacated.

4. THAT the husband’s solicitors, as soon as practicable, serve a sealed copy of this Order upon the wife, personally, together with a letter advising the wife in clear and precise terms of the adjournment dates of all applications.

5. THAT the wife personally attend at Court on 24 August 2007 at (and no later than) 10.00 a.m. or otherwise and subject to the discretion of the hearing Judge the contravention application can proceed on an undefended basis, but subject to proof of service.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

7. THAT the solicitors for the husband make, file and serve an updated affidavit of service as to both adjournment dates.

8. THAT the wife pay within 28 days the costs of and incidental to the appearance by counsel on behalf of the husband this day such costs fixed in the sum of $1,000.

   IT IS NOTED:

A.THAT the Court has had marked as an exhibit the wife’s handwritten letter to the Court and also marked as a further exhibit the Court notes as to conversations with the wife requesting an adjournment of this day.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6681 of 2007

MR MOUZAKIS

Applicant

And

MRS MOUZAKIS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Mouzakis, file MLC 6681 of 2007, the application listed before the court this day is the Form 18 contravention application filed by the applicant husband.  Mr Pavone of counsel appears on behalf of the husband.  There is no appearance by or on behalf of the wife.

2. I am satisfied pursuant to the affidavit of service filed 26 July 2007 that the wife was properly served in accordance with the Family Law Rules.  I accept the evidence of Ms G, and that document is number 8 in the court index.  As to the contravention application there are 10 counts that have been presented to the court.  I observe the background to this case is that on 22 May 2006 before Dessau J, four counts of contravention were proven as against the wife, and the parenting and children's orders were varied and costs were fixed in favour of the husband in the sum of $1,500 and to be paid by the wife.

3. The wife has not appeared at court today.  There are, however, three typed notes on the file provided by court staff; the first being that yesterday at 10.26 a.m. the wife contacted the court and said she was unable to take leave from her work.  She was advised of the necessity to attend court and the possible consequences of not attending.  Subsequently at 10.54 a.m. the wife was contacted by the court on the mobile phone number she had provided.  She was advised that the date - that is, this day - would not be cancelled or adjourned without consent from all parties and the matter would remain listed for hearing this day.  Evidently the wife confirmed that she could not or would not attend because of work commitments.

4. Subsequently, I have sighted - though it may be the wife had earlier written and posted to the court - a letter stating that due to work commitments she is unable to attend Court on either 1 August or 13 August, and requests an adjournment to a Friday so that she can attend.  In any event she indicates her commitments to the children prevent her from attending at court.  I will have the wife's undated letter marked as exhibit “W1” and retained on the court file.  I will have separately marked as an exhibit of the court the notes of the report prepared by the court as to the wife's discussions with the court yesterday.  It may be that each of those documents or the advice to the court will be of some relevance hereafter.

5. As to the contravention application I make no finding.  I have heard no evidence.  The matter is before me in a judicial duty list and with 10 allegations it will likely take some time to present the case, particularly in the context of earlier orders.  What I propose to do is to adjourn that contravention application on the basis that it does need a number of hours, perhaps up to two hours, to hear and determine those allegations with the wife at court.  I do not know how the wife will plead and that is a matter for her and legal advisers if she engages same.

6. I therefore will adjourn to the first available Friday which is 24 August at 10 a.m. the hearing of the contravention application only.  Otherwise, the husband has also listed a Form 1 and Form 2 application.  They have a return date of 13 August 2007 in the Registrar's Duty List at 9.45 a.m.  Mr Pavone requests an adjournment of each of those applications until after the conclusion of the contravention hearing.  In any event, the husband, for his personal reasons, is unavailable in the week including 13 August 2007.  I propose therefore to adjourn to the Registrar's Duty List on 31 August at 9.45 a.m. each of the Form 1 and Form 2 applications.  I will require a sealed copy of this order to be served personally upon the wife and there will have to be an affidavit of service filed with the court to establish to the complete satisfaction of the court the fact that the wife knows of the adjourned hearing date.

7. I am finally asked to consider the question of costs.  Mr Pavone has submitted that it would be just that the costs order be made as the wife had knowledge of the hearing date and has elected simply not to attend or to be represented. 

8. I will make a costs order which I regard as just and proper.  I have had regard to s.117(2A).  I have applied all of the s.117 principles.  Having regard to the Family Law Rules, and in particular the itemised scale of costs in Schedule 3, there is a specific provision for short attendances in item 203 or for a hearing or trial between three hours and one day in item 204.  I will fix a sum rather than refer the matter for assessment.  It is proper that the wife pay that sum which I will fix at $1,000.  I understand that the request for costs as per the fee marked on brief was $1,600 but that is well outside of scale.  I will require that those costs be paid within 28 days by the wife to the solicitors for the husband.  Again it is incumbent upon the husband's solicitors to specifically notify the wife of that requirement for payment.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:
Date:  8 August 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MOUZAKIS & MOUZAKIS