FAMILY COURT OF AUSTRALIA
| CLUNY & SKINNER (NO 2) | [2017] FamCA 547 |
| FAMILY LAW – CONTEMPT – SENTENCE – where the husband was found guilty of contempt for breaching an order in a manner which involved a flagrant challenge to the authority of the Court – where the order required the husband to hand his passport to the wife’s solicitors only to be released with the consent of both parties or Court order – where the husband deposited his passport with the wife’s solicitors – where the husband subsequently applied for and obtained a new passport by making a false declaration to the relevant department – where the husband subsequently received and retained in his possession the replacement passport – where that conduct amounted to contempt – where the wife sought an order that the husband be imprisoned for a period of two years – where the husband was fined $30,000. FAMILY LAW – CONTRAVENTION – SANCTION – breach of financial orders – where the subject orders were made in 2013 – where the husband failed to meet various cash payments to the wife including by way of maintenance, child support, lump sum arrears and costs – where those liabilities now exceed $280,000 in total – where the husband sought a period of 24 months to enable him to meet those payments – where the husband made an open offer for the wife to receive the whole of the husband’s lifetime accumulated superannuation in satisfaction of this liability – where the wife refused that offer – where the husband was afforded a further 24 months to meet these obligations – where in default of the husband meeting the outstanding liability, he will be required to show cause as to why he should not be sentenced to a term of imprisonment of three (3) months. FAMILY LAW – COSTS – INDEMNITY BASIS – where husband willing to consent to an order that he pay the wife’s costs on an indemnity basis in a fixed sum as claimed by the wife – time to pay – interest imposed and payment of costs a condition to be fulfilled by husband to avoid sentence of imprisonment taking effect. | |
| Australian Passports Act 2005 (Cth) Family Law Rules 2004 (Cth) | |
| Abduramanoski and Abduramanoska (2005) FLC 93-215 |
Ascot Investments Pty. Ltd. and Harper and Harper (No. 3) (1982) FLC 91-253
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Securities & Investments Commission v Michalik [2004] NSWSC 1259 Gaunt and Gaunt (1978) FLC 90-468
Hay v Hay (1998) FLC 92-819
Ibbotson v Wincen (1994) FLC 92-496
In the marriage of “M” (1978) FLC 90-495
Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384
LGM & CAM (Contempt) (No 2) (2008) FLC 93-355
Myers and Myers (2006) FLC 93-291
Russell and Russell (1983) FLC 91-356
Sahari and Sahari (1976) FLC 90-086
U and U (1979) FLC 90-648
| APPLICANT: | Ms Cluny |
| RESPONDENT: | Mr Skinner | |||
Continue reading Cluny & Skinner (No 2)
Sign in free to access the full text
- AGLC
- Cluny & Skinner (No 2) [2017] FamCA 547
- Case
- [2017] FamCA 547
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate sanctions for both the contempt and the contravention of financial orders. Specifically, it needed to assess the severity of the husband's conduct in obtaining a new passport and the consequences of his ongoing failure to satisfy substantial cash payments, including maintenance, child support, arrears, and costs. The court also had to consider the husband's offer to satisfy the financial liabilities by transferring his superannuation and the wife's refusal of this offer.
Kent J reasoned that the husband's conduct in obtaining a replacement passport constituted a flagrant challenge to the authority of the Court, warranting a significant penalty. However, in light of the husband's offer to pay the wife's costs on an indemnity basis and his proposal to satisfy the financial orders through his superannuation, the court imposed a fine of $30,000 for the contempt. For the contravention of financial orders, the husband was afforded a further 24 months to pay the outstanding sum of $288,562.13, plus any further amounts due and interest, and costs of $91,664.00, with payment due by 31 July 2019. In default of these payments, the husband was ordered to attend court on 1 August 2019 to show cause why he should not be imprisoned for three months, with a warrant of arrest to issue in the event of his non-appearance.
Orders
Orders of the court
1.
MR SKINNER (“the husband”) shall remedy his
non-compliance with the Orders made on 16 April 2013 by paying to MS CLUNY (“the wife”) on or before 4:00 pm on 31 July 2019 the entirety of the following amounts:
(a) the amount of $288,562.13 due and payable as at 10 July 2017, pursuant to the declaration made by this Honourable Court on 28 April 2017;
(b) any and all sums otherwise due and payable by the husband to the wife pursuant to the Orders of 16 April 2013 from the date of those Orders to 31 July 2019;
(c) interest on the said amounts or any of them that remain unpaid after 10 July 2017, such interest to be calculated in accordance with s 117B of the Family Law Act 1975 (Cth) (“the Act”) and r 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) from 10 July 2017 to the date of payment.
2.
The husband shall, on or before 4:00 pm on 31 July 2019, pay to the wife the amount of $91,664.00, being her costs of the proceedings, together with interest on that sum from the date of this Order to the date of payment, calculated in accordance with s 117B of the Act and r 17.03 of the Rules.
3.
In default of the husband paying to the wife the entirety of the payments identified in Orders (1) and (2) of these Orders on or before 31 July 2019, the husband shall attend at the Family Court of Australia at Brisbane at 10:00 am on 1 August 2019 before Kent J or such other Judge as his Honour nominates so as to:
(a) show cause why, despite his default he should not be imprisoned for a period of three (3) months from that date; and
(b)
in default of showing cause in accordance with the preceding
sub-paragraph of these Orders, the husband shall be taken into custody that day so as to commence the said period of three (3) months imprisonment.
4.
In default of the husband’s appearance in accordance with Order (3) of these Orders, pursuant to r 21.16 of the Rules a warrant of arrest shall issue to the Marshal and to all members of the Australian Federal Police and of all State and Territory police forces to arrest MR SKINNER born on … 1967 and to bring him before this Court.
5.
In the event that the amounts specified in Orders (1) and (2) of these Orders are paid in their entirety on or before 4:00 pm on 31 July 2019, Orders (3) and (4) shall be forthwith discharged.
6.
That all outstanding applications, aside from any applications for parenting orders, be removed from the pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.