Petrovic and Petrovic

[2016] FamCA 200

FAMILY COURT OF AUSTRALIA

PETROVIC & PETROVIC [2016] FamCA 200

FAMILY LAW – ORDERS – CONTRAVENTION – where no prima facie case – application dismissed.

FAMILY LAW – COSTS – where contravention application dismissed – discussion of general principles – order for costs made.

Family Law Act 1975 (Cth) Pt XIIIA, s 117

Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor (2005) 33 Fam LR 123
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Petrovic

RESPONDENT: Ms Petrovic

FILE NUMBER: PAC 1008 of 2010

DATE DELIVERED: 26 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 26 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Browns The Family Lawyers

Orders

1. The Application for Contravention filed on 10 June 2015 is dismissed.

2. The Applicant pay the Respondent’s costs assessed in the sum of $1,100 inclusive of GST and a period of three months is allowed for those costs to be paid.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Petrovic & Petrovic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1008 of 2010

Mr Petrovic

Applicant

And

Ms Petrovic

Respondent

REASONS FOR JUDGMENT

Contravention

1. On 10 June 2015 the applicant husband filed an Application – Contravention alleging various breaches of orders made on 4 August 2014 by the respondent wife.

2. The application was adjourned on a number of occasions during which final orders were made as to property. The parties’ respective parenting applications remain outstanding.

3. Notwithstanding the making of final orders the applicant husband persisted with his Application – Contravention and the application was listed for hearing on 26 February 2016.

4. It is to be noted that whilst the application remained pending the husband was forewarned by the Court that there were fundamental difficulties with his application and if he was unsuccessful in proving his allegations there was a risk that he would be met with an order for costs.

The subject orders

1. On 4 August 2014 various orders were made by the Court by consent and pending further order. Relevantly to the present application those orders provided in summary:

   a)That within 14 days the husband remove from the property at Suburb B all items of personalty belonging to him and his mother;

   b)That within a further 14 days the wife remove from the said property all items of personalty belonging to her and the three children of the marriage;

   c)That for the purposes of the preceding orders the respondent husband and the applicant wife shall have exclusive occupation of the Suburb B property respectively; and

   d)That following compliance with the previous orders the husband and wife shall jointly appoint a valuer for the purposes of undertaking a valuation of the Suburb B property and the parties pay equally the valuer’s fees.

2. Thereafter on 5 September 2014 further orders were made by the Court in summary as follows:

   a)That the wife shall have sole use and occupation of the home at Suburb B; and

   b)The husband not enter upon or approach the said property without the written consent of the mother’s solicitors and in any event only for the purpose of removing his clothing and personal effects as otherwise provided for in orders on 4 August 2014.

The husband’s alleged contraventions

1. The husband’s application asserts breaches by the wife of the orders made on 5 September 2014 in the following terms:

   a)That about 2.00 pm on 12 November 2014 at C Street Suburb B:

   All personal belongings of mine,my mothers and late fathers removed out of [C Street, Suburb B] house,while a motion of stay was lodged on the23/oct/2014 for court date on the 1711/2014 as refusal to comply with orders made by the Honrable Judege Foster  on the 5 of september 2014,order no #9 being;

   The Respondent father not enter upon or approach the said property without the written consent of the Moter s solicitors and in any event only for the purpose of removing his clothing and personal effects as otherwise provided for in orders on 4 August 2014.

   After numerous phone calls and emial no written consent was granted and all my and parents personal property removed before  the motion of stay was heard in court.

   I did not appear as my mother was traumatised and caused much greif and made me physically sick  and i missed the date  to appear on the 17 of septemner a due to this and as the court could not grant a stay for me to remove my property all of it as thrown away

   b)That at 5:10 am on 9 September 2014:

   removed all my and my parents property,refused to give written consent as per orders made.

   email sent to [Mr D] requesting written consent on 9/9.2014

The husband’s evidence

1. The husband in support of his contravention application relied upon his affidavit filed on 10 June 2015. In summary the affidavit repeats the assertions as to contravention set out above.

2. Otherwise the affidavit provides an asserted list of personal property of the husband and his parents.

3. Otherwise no evidence is adduced by the husband in support of the alleged contraventions.

The wife’s response to the alleged contraventions

1. Each of the alleged contraventions were put to the wife and in response each of the contraventions were denied by the wife.

No prima facie case

1. It was submitted on behalf of the respondent wife that there was no evidence in support of the contraventions alleged by the husband sufficient to raise even a prima facie case of contravention.

2. It was properly submitted that the order alleged to be contravened required no positive act of compliance on behalf of the wife or any obligation on her but required the husband to obtain consent that would have facilitated his attendance at the Suburb B property to remove items of clothing and personal effects that he had been previously ordered to remove and in respect to which he had not complied.

3. In the absence of any evidence suggesting that consent had been procured the wife was under no obligation to do anything.

4. Thus no contravention has been established on the evidence of the husband and the application for contravention will be dismissed.

Costs

1. Consequent upon the dismissal of the Application - Contravention filed on 10 June 2015, the respondent, through her solicitor, makes an application for costs under s 117 of the Act. 

2. The Family Law Act 1975 (Cth) pursuant to s 117 of the Act, provides that each party to the proceedings shall bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2) which provides as follows:

   If the court is of the opinion that there are circumstances that justify it in so doing, that it may, subject to the further subsections thereof and the applicable rules of court, make such order as to costs as the court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subparagraph (2A) of section 117.  They relevantly, in these proceedings, relate to the following:

   (a)       The financial circumstances of each of the parties to the proceedings.

   (b) …

   (c) …

   (d)  Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

   (e)  Whether any party to the proceedings has been wholly unsuccessful in the proceedings.

   (f) …

   (g) …

5. There is nothing to prevent any one factor being the sole determinant for an order for costs: see Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish and Anor (2005) 33 Fam LR 123.

6. Relevantly these are proceedings for contravention under Part XIIIA of the Act that have been completely unsuccessful and dismissed on the basis of there being no prima facie case. 

7. The respondent to the application for costs is in receipt of Centrelink benefits by way of a carer’s benefit of some $800 to $900 per fortnight; otherwise he has no significant assets. 

8. The history of the matter is that the former matrimonial home has now been sold and the net proceeds of sale were divided. The modest proceeds of sale were paid to the wife. 

9. Neither party is in receipt of a grant of Legal Aid. 

10. The applicant husband has been wholly unsuccessful in his application for contravention that he has chosen to pursue in the face of a number of warnings from the Court as to the strength of his evidence and consequences in relation to costs. 

11. The wife has come to Court represented by a solicitor in relation to an application where it is eminently reasonable for her to be represented.

12. In all of the circumstances the Court is satisfied that there should be an order for costs. The respondent seeks her costs of the day assessed at $1100 including GST. There will be an order in that sum.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 February 2016.

Associate:

Date:  26 February 2016