Cluny and Skinner (No 3) - [2019] FamCA 602

FAMILY COURT OF AUSTRALIA

CLUNY & SKINNER (NO. 3)

[2019] FamCA 602

FAMILY LAW – CONTEMPT – APPLICATION IN A CASE – STAY OF ORDERS – Where the husband was found guilty of contempt within the meaning of s 112AP of the Family Law Act 1975 (Cth) and was also found to have contravened orders without reasonable excuse within the meaning of s 112AD on 28 April 2017 – Where the husband was given two years to remedy his contraventions of orders or, in default, serve a three month term of imprisonment – Where in the two year period the husband paid less than $1,000 of a debt totalling approximately $521,000 with interest as of 30 July 2019 – Where the orders were stayed for a further two weeks pending the filing of a formal application for a stay pending appeal – Where the husband does not propose to appeal – Where the husband seeks a stay of the term of imprisonment conditional upon his paying $25,000 within seven days and $6,000 per month thereafter – Where even ignoring accruing interest and the husband’s ongoing child support obligations, it would take approximately seven years to remedy the contraventions on the husband’s proposal – Where the husband is attempting to impermissibly re-visit the determination of sanction – Where there is no legitimate basis to stay the orders for sanction already imposed.

FAMILY LAW – POWER TO VARY OR DISCHARGE S 112AD ORDER – S 112AK – Where the husband does not establish any basis for that power to be exercised in his favour – Application dismissed.

Family Law Act 1975 (Cth) ss 112AD, 112AK, 112AP

Cluny & Skinner [2017] FamCA 255
Cluny & Skinner (No 2) [2017] FamCA 547
Cluny & Skinner [2019] FamCA 519
Kendling & Kendling (Contempt) (2008) FLC 93-384; [2008] FamCAFC 154
Tate and Tate (No 4) (2003) FLC 93-139; [2003] FamCA 113
Witham vHolloway (1995) 183 CLR 525; [1995] HCA 3

APPLICANT:

Ms Cluny

RESPONDENT:

Mr Skinner

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

23 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

16 August 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Feeney, Feeney Family Law

COUNSEL FOR THE RESPONDENT:

Mr Alexander of Counsel

SOLICITOR FOR THE RESPONDENT:

McInnes Wilson Lawyers

Orders

The Husband’s Application in a Case filed by leave on 16 August 2019 be dismissed.
There be no further stay of Order (3) made on 1 August 2019 (amended 2 August 2019) and the Husband’s term of imprisonment for a period of three (3) months shall commence immediately and continue until 10:00 am on 23 November 2019.
To give effect to Order (2) of this Order, a Warrant of Commitment forthwith issue in the usual form.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cluny & Skinner (No 2) has been approved…

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.

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Details

Case: [2019] FamCA 602
Decision Date: 23 August 2019

CaseChat Overview and Summary

In *Cluny and Skinner (No 3)*, Kent J of the Family Court of Australia considered an application by the husband seeking a stay of a term of imprisonment imposed for contempt of court and contravention of orders. The husband had been found guilty of contempt under s 112AP and contravention under s 112AD of the *Family Law Act 1975* (Cth) on 28 April 2017. He was given two years to remedy his contraventions, which involved a debt of approximately $521,000 plus interest, or face a three-month term of imprisonment. By July 2019, he had paid less than $1,000 towards this debt.

The legal issues before the court were whether to grant a stay of the imprisonment order, conditional upon the husband paying $25,000 within seven days and $6,000 per month thereafter, and whether the court had the power under s 112AK of the *Family Law Act 1975* (Cth) to vary or discharge the s 112AD order. The husband did not propose to appeal the original decision.

Kent J reasoned that the husband's proposal to remedy his contraventions would take approximately seven years, even without considering accruing interest or his child support obligations. His Honour found that the husband was attempting to impermissibly revisit the determination of the sanction already imposed, and that there was no legitimate basis to stay the orders for sanction. Furthermore, the husband failed to establish any basis for the court to exercise its power under s 112AK to vary or discharge the s 112AD order.

Consequently, the husband's application in a case filed on 16 August 2019 was dismissed. The court ordered that there be no further stay of the imprisonment order made on 1 August 2019 (amended 2 August 2019), and the husband's three-month term of imprisonment was to commence immediately, continuing until 10:00 am on 23 November 2019. A Warrant of Commitment was ordered to issue forthwith.

Orders

Orders of the court

The Husband’s Application in a Case filed by leave on 16 August 2019 be dismissed.

There be no further stay of Order (3) made on 1 August 2019 (amended 2 August 2019) and the Husband’s term of imprisonment for a period of three (3) months shall commence immediately and continue until 10:00 am on 23 November 2019.

To give effect to Order (2) of this Order, a Warrant of Commitment forthwith issue in the usual form.

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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