Thestor and Bugno

[2013] FamCA 707

FAMILY COURT OF AUSTRALIA

THESTOR & BUGNO [2013] FamCA 707

FAMILY LAW – ORDERS – Contravention – undefended – application adjourned for determination

Family Law Act 1975 (Cth)

Prantage and Prantage [2013] FamCAFC 105

APPLICANT WIFE: Ms Thestor

RESPONDENT HUSBAND: Mr Bugno

FILE NUMBER: MLC 1127 of 2012

DATE DELIVERED: 9 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT WIFE: Mr Fronistas

SOLICITOR FOR THE APPLICANT 

WIFE:

Henty Stamfords

COUNSEL FOR THE RESPONDENT 

HUSBAND:

Mr Brown (excused)

Orders

1. That the contravention application of the wife is adjourned to 10.00am on 30 August 2013 for determination of orders in accordance with s 70NEB of the Family Law Act 1975 (Cth).

2. If the husband does not attend on that return date, the wife has liberty to apply for a warrant for his arrest.

3. To the extent that it is necessary to say so, the husband’s informal and indirect application for an adjournment is refused.

4. That the husband’s application for contravention orders is struck out.

5. That the husband pay the wife’s costs fixed in the sum of $8600.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thestor & Bugno 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 MELBOURNE

FILE NUMBER: MLC 1127 of 2012

Ms Thestor

Applicant Wife

And

Mr Bugno

Respondent Husband

REASONS FOR JUDGMENT

1. This application is a contravention application originally filed in the Federal Circuit Court in May 2013 and subsequently amended on 27 June 2013.  It covers a plethora of alleged breaches. 

2. This case was originally in the Federal Circuit Court on 3 July and then adjourned at a time when the respondent was represented by counsel.

3. An order was made on that occasion that the respondent file material by 9 July.  The matter came back before the same Federal Circuit Court judge on 17 July and for reasons that are not entirely clear, it was transferred to this Court. 

4. The Court order notes that the matter will require a four to five day final hearing.  This morning, the solicitor on the record for the respondent asked to be permitted to withdraw on the basis of some information that she then gave me.  I have subsequently been advised from the body of the Court by a friend of the respondent that indeed he is at work today.  He is not here.  He knows the case is on.  His application is struck out for want of prosecution. 

5. The application therefore that I am dealing with is the application of the wife in these proceedings.  This is a very sad case in some ways because final orders were made by consent of the parties only five months ago.  They are the most detailed of orders in relation to what is to happen as between the parties and their children.  The irony of all of that of course is that the very first order gives each of the parties equal shared parental responsibility. 

6. It is abundantly clear, from reading the affidavit material that gave rise to the breaches, these parties should not have equal shared parental responsibility;  they cannot tell each other the time of day. 

7. On the basis that the evidence set out in the affidavit is unchallenged evidence, I accept that each of those breaches is proved, and I am not able to find on any evidence presented to me of any reasonable excuse presented by the respondent. The difficult question is that if I simply made orders using the powers in s 70NEB, it would seem to me unlikely to resolve the dilemma. I do not know what the respondent’s attitude is, nor what he would say about the nature of the orders.

ORDERS DELIVERED 

1. On the basis that I find each of the allegations proved, the applicant then seeks costs.  It goes without saying that this has had a torturous history getting here.  This is the third hearing in relation to the contraventions.  The first of the contraventions has been proved;  it having occurred one month after a consent order in which the parties have equal shared parental responsibility of their children.  The three hearings include two before Judge Curtain in the Federal Circuit Court.  Whilst there is a claim for costs, which seems to me to be reasonable in the circumstances, my view is that the appropriate order is the scale.

2. The Full Court in Prantage and Prantage [2013] FamCAFC 105 said that it is extremely unusual for the Court to make an order for indemnity costs. It is not appropriate to find this case unusual.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 August 2013.

Associate: 

Date:  29 August 2013