Cluny and Skinner

[2015] FamCA 829

FAMILY COURT OF AUSTRALIA

CLUNY & SKINNER [2015] FamCA 829

FAMILY LAW – PROPERTY – CONTRAVENTION – Oral application by the husband that there is no prima facie case – Where the husband submits that the relevant orders alleged to have been contravened required nomination by the wife of a bank account in writing to the husband as a condition precedent – Where the husband submits that there was no evidence of this having occurred and as such no obligation arose under the orders for the husband to pay – Where the wife had made a nomination of bank account in writing to the husband prior to the final orders – Where the husband has made payments to that account prior and subsequent to the final orders – Requirement of nomination in writing no more than a machinery provision – Found that there is nothing in the express or specific terms of the order to support the conclusion that an already existing nomination of a bank account when the order was made did not meet the requirements of the order – Husband’s oral application dismissed.

APPLICANT: Ms Cluny

RESPONDENT: Mr Skinner

FILE NUMBER: BRC 812 of 2010

DATE DELIVERED: 16 September 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Minnery

SOLICITOR FOR THE APPLICANT: Anthony Black Family Law Services

COUNSEL FOR THE RESPONDENT: Mr SJ Williams

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson. Lawyers

Orders

1. The Husband’s oral application for dismissal of the Wife’s Application – Contravention filed on 25 August 2015 on the basis of there being no prima facie case is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cluny & Skinner 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 BRISBANE

FILE NUMBER: BRC 812 of 2010

Ms Cluny

Applicant

And

Mr Skinner

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Orders made on 16 April 2013 provided as follows:

   IT IS ORDERED THAT:

   (1)         There be a departure from the administrative assessment of child support payable by the Husband to the Wife in respect of the child, [B] born on … August 2009.

   (2) Pursuant to sections 117 and 118 of the Child Support (Assessment) Act (Cth), the weekly rate of child support payable by the Husband in respect of the child be fixed at $665, commencing 22 April 2013.

   (3) Pursuant to section 114(h) of the Child Support (Assessment) Act (Cth), by way of retrospective child support, for the period 1 February 2011 to 13 June 2011, the Husband shall pay to the Wife, in respect of the child, the sum of $11,970 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.

   (4)         The Husband and Wife shall share equally in the costs of the child’s educational expenses, including but not limited to, school fees, compulsory uniforms, books and materials, excursions and extra-curricular activities up until the child reaches the age of 18 years of age. 

   (5)         By way of spousal maintenance, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $350 each week commencing 22 April 2013, until either the child commences school in 2015 or the Wife commences full-time employment, whichever is the earlier date.  

   (6)         By way of retrospective spousal maintenance, being for the period

   20 September 2009 to 13 June 2011, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $31,500 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.

   (7) Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Orders (2), (4) and (6) of the Order of Justice Murphy made 14 June 2011, being the amount of $76,321.08 plus interest, pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004, to a bank account nominated in writing by the Wife.

   (8) Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Order (3) of the Order of Justice Young made 3 June 2011, plus interest payable in the amount prescribed in Order (4) of the Order of Justice Young made 3 June 2011.

   (9)         The payment of Orders (3), (6), (7) and (8) hereof are to be paid by the Husband to the Wife by close of business on 31 December 2013, into a bank account nominated by the Wife in writing.

2. On the wife’s application for contravention of those orders by the husband, counsel for the husband raises a preliminary point, focusing upon in particular the closing words of paragraph (9), “into a bank account nominated by the wife in writing”.  It is contended that the wife did not provide that nomination, and on that contention it is said to follow that the husband could not be in breach of those orders, the nomination being a condition precedent to their operation. 

3. In my judgment, when the orders are viewed as a whole, it is patently clear that the closing words of paragraph (9) are no more than a machinery provision.  That is, in my judgment, the orders viewed as a whole cast an obligation upon the husband in two parts.  The first and primary part was to pay the sums of money identified by each of the relevant subparagraphs of the order by 31 December 2013.

4. The second part of the obligation, or the machinery part of it, was to pay in the manner prescribed by the closing words of paragraph (9) and in other cases in the paragraphs referring to a nominated bank account (paragraphs (5) and (6)) likewise.  That is, the first and primary part of the obligation to pay the sums by the date referred to was not conditional upon or dependent upon the nomination being referred to as a condition precedent to the obligation.

5. Exhibit 4, in any event, satisfies me that the husband was aware of a nominated bank account.  There is nothing to suggest that the orders must be read in prescribing that a fresh nomination or a different nomination had to be provided by the wife.  In my judgment, it is clear from each of paragraphs (3), (6), (7) and (8), being those referred to in paragraph (9) of the orders, that those paragraphs in and of themselves created an obligation upon the husband to pay the sums referred to.  In my judgment, no sensible interpretation of these orders would result in the conclusion that the closing words of paragraph (9) were a condition precedent to the obligations cast by the other paragraphs of the orders. 

6. There is no evidence or suggestion that the husband was ready, willing and able to make the required payments, or sought to tender them, by close of business on 31 December 2013 and that such payment failed to occur only for want of nomination of a bank account by the wife.

7. To the contrary, such (modest) payments as the husband did make following the order, and pursuant to it, were made to the wife’s already existing nominated (in writing) bank account as at the time of the order as per Exhibit 4.  There is nothing in the express or specific terms of the order to support the conclusion that an already existing nomination of a bank account when the order was made did not meet the descriptions “bank account nominated in writing by her” or “bank account nominated by the wife in writing” absent any reference such as “to be” nominated.

8. For these reasons I reject the contention of the respondent husband that a prima facie case is not established.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 September 2015.

Associate:

Date:  21 September 2015