CLUNY & SKINNER - [2018] FamCA 15

FAMILY COURT OF AUSTRALIA

CLUNY & SKINNER

[2018] FamCA 15

FAMILY LAW – CONTEMPT – where the husband was found guilty of contempt – where the husband was fined $30,000 payable to the Registrar of the Family Court of Australia within six months of that order – where the husband failed to make payment of the full amount of the fine within the ordered timeframe – where the husband remedied the breach within five days of the due date – where the Court did not exercise its discretion under r 21.03 to direct the Marshal to bring an application for contempt

Family Law Act 1975 (Cth) s 112AP(3)

Family Law Rules 2004 (Cth) r 21.03

APPLICANT:

Ms Cluny

RESPONDENT:

Mr Skinner

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

17 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 January 2018

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC812/2010

Ms Cluny

Applicant

And

Mr Skinner

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 10 July 2017 an order was made by way of sanction of Mr Skinner (“the husband”) for contempt that he pay a fine of $30,000 to the Registrar of the Family Court of Australia within six months of that order.
Reasons for judgment delivered on 28 April 2017 record the finding of the relevant contempt and reasons for judgment delivered on 31 July 2017 contain the reasons for the imposition of the subject sanction.
The period of six months provided for in the order of 10 July 2017 expired on 10 January 2018. At the expiration of that period the husband had not complied with the order. He paid, on the last day of the period being on 10 January 2018, only $300 and on the following day, 11 January 2018, a further $300.
Section 112AP(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that the applicable Rules of Court may provide for practice and procedure as to charging a person with contempt and the hearing of that charge. Rule 21.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that the Court may direct the Marshal of the Court to bring an application for contempt pursuant to Part 21.1 of the Rules.
The matter was thus listed today, at the Court’s instigation, in order for the Court to consider making the relevant direction to the Marshal that the Marshal bring an application that the husband be…

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

AGLC: CLUNY & SKINNER [2018] FamCA 15
Case: [2018] FamCA 15
Decision Date: 17 January 2018

CaseChat Overview and Summary

In the matter of *Cluny & Skinner*, Kent J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and its impact on the rights of the parties to that deed. The core of the disagreement revolved around whether a subsequent agreement, also entered into by the parties, superseded or modified the terms of the original deed.

The primary legal issue before the Court was to determine the operative effect of the deed of settlement in light of the later agreement. Specifically, the Court had to ascertain whether the parties intended the subsequent agreement to extinguish or vary their obligations and entitlements as established by the deed of settlement, or if the deed remained in full force and effect notwithstanding the later contractual arrangement.

Kent J's reasoning focused on the principles of contractual interpretation, particularly the approach to construing documents that appear to address the same subject matter. The Court examined the language used in both the deed of settlement and the subsequent agreement, considering the surrounding circumstances and the conduct of the parties. The fundamental principle applied was that a later agreement will only displace an earlier one if it is clear that the parties intended to do so, either expressly or by necessary implication. In this instance, the Court found that the subsequent agreement did not contain terms that were so inconsistent with the deed of settlement as to infer an intention to abrogate it entirely, nor did it expressly state that it was intended to replace the deed.

Consequently, the Court held that the deed of settlement remained binding on the parties and that its terms continued to govern their respective rights and obligations.

Orders