Cluny and Skinner (No 2) - [2019] FamCA 519

FAMILY COURT OF AUSTRALIA

CLUNY & SKINNER (NO. 2)

[2019] FamCA 519

FAMILY LAW – CONTEMPT – CONTRAVENTION – Where the husband was found guilty of contempt and found to have contravened orders – Where the husband owed spouse maintenance, lump sum arrears and costs totalling in excess of $250,000 – Where the sanction imposed for the contempt was a fine of $30,000 – Where the husband was permitted the opportunity to remedy this contravention of orders – Where, in default of the husband remedying his non-compliance, a term of imprisonment of three months was imposed – Where the husband was given until 31 July 2019 to remedy his non-compliance – Where the husband paid a total of $673.12 of the total owing as at 31 July 2019, being $521,151.90 – Where the husband has failed to show cause as to why the term of imprisonment determined ought not be brought into effect – Where the term of imprisonment is enlivened.

FAMILY LAW – STAY OF ORDERS – Where the husband made an oral application for a stay of the orders pending appeal – Where a temporary stay is granted to allow the husband 14 days in which to file a formal application for a stay of the orders – Where the matter is adjourned pending the filing of that application.

Family Law Act 1975 (Cth) pt XIIIA, s 112AC

Cluny & Skinner [2017] FamCA 255
Cluny & Skinner (No 2) [2017] FamCA 547

APPLICANT:

Ms Cluny

RESPONDENT:

Mr Skinner

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

1 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

1 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Feeney, Feeney Family Law

THE RESPONDENT:

In person

Orders

(Amended on 2 August 2019 pursuant to rule 17.02 of the Family Law Rules 2004 (Cth))

The Husband is given leave to file and rely upon his affidavit sworn on 31 July 2019.
The Wife is given leave to file and rely upon her affidavit sworn on 1 August 2019.

IT IS FURTHER ORDERED:

In default of MR SKINNER (“the Husband”) having paid to MS CLUNY (“the Wife”) the entirety of the payments identified in Orders (1) and (2) of the Orders made on 31 July 2017 and pursuant to ss 112AD and 112AE of the Family Law Act 1975 (Cth), the Husband, MR SKINNER born … 1967 is sentenced to serve a term of imprisonment for a period of three (3) months. ~~from and including 1~~ ~~August 2019 to 10:00 am on 31 October 2019.~~
To give effect to Order (3) of these Orders, a Warrant of Commitment forthwith issue in the usual form.
The operation of Orders (3) and (4) of these Orders be stayed pending the Husband filing and serving a formal application for a stay of Orders pending appeal within fourteen (14) days of today, and upon such filing the Orders will be stayed pending the hearing and determination of the formal application for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cluny and Skinner (No 2)

Details

AGLC: Cluny and Skinner (No 2) [2019] FamCA 519
Case: [2019] FamCA 519
Decision Date: 1 August 2019

CaseChat Overview and Summary

In *Cluny and Skinner (No 2)*, the parties were husband and wife, and the dispute concerned the husband's contravention of court orders relating to financial obligations, including spouse maintenance, lump sum arrears, and costs totalling over $250,000. The matter came before Kent J of the Family Court of Australia.

The court was required to determine whether the husband had shown cause why a previously imposed term of imprisonment for contempt should not be brought into effect, given his substantial failure to remedy his non-compliance with financial orders. Additionally, the court considered an oral application by the husband for a stay of the contempt orders pending appeal.

Kent J reasoned that the husband had failed to demonstrate any valid reason why the three-month imprisonment sentence, which was contingent on his default in payment, should not be enforced. The court noted that the husband had paid only a minimal amount of the significant debt owed by the deadline of 31 July 2019. Consequently, the term of imprisonment was enlivened. However, the court granted a temporary stay of the imprisonment and commitment warrant for fourteen days to allow the husband to file a formal application for a stay of the orders pending appeal. The husband was also ordered to surrender his passport and pay the wife's indemnity costs.

Orders

Orders of the court

(Amended on 2 August 2019 pursuant to rule 17.02 of the Family Law Rules 2004 (Cth))

The Husband is given leave to file and rely upon his affidavit sworn on 31 July 2019.

The Wife is given leave to file and rely upon her affidavit sworn on 1 August 2019.

IT IS FURTHER ORDERED:

In default of MR SKINNER (“the Husband”) having paid to MS CLUNY (“the Wife”) the entirety of the payments identified in Orders (1) and (2) of the Orders made on 31 July 2017 and pursuant to ss 112AD and 112AE of the Family Law Act 1975 (Cth), the Husband, MR SKINNER born … 1967 is sentenced to serve a term of imprisonment for a period of three (3) months. from and including 1 August 2019 to 10:00 am on 31 October 2019.

To give effect to Order (3) of these Orders, a Warrant of Commitment forthwith issue in the usual form.

The operation of Orders (3) and (4) of these Orders be stayed pending the Husband filing and serving a formal application for a stay of Orders pending appeal within fourteen (14) days of today, and upon such filing the Orders will be stayed pending the hearing and determination of the formal application for a stay of Orders pending appeal.

IT IS FURTHER ORDERED:

The Husband forthwith surrender any passport he holds to the solicitors for the Wife.

The Husband pay to the Wife her indemnity costs fixed in the amount of $3,500.

The proceedings be listed for further hearing before the Honourable Justice Kent at 10:00 am on 16 August 2019.

NOTATION:

This Order has been amended pursuant to rule 17.02 of the Family Law Rules 2004 (Cth) as noted in Order (3).

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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