James & Snipper - [2024] FedCFamC1A 140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
James & Snipper [2024] FedCFamC1A 140

Appeal from: Snipper & James (No 2) [2023] FedCFamC1F 1043

Appeal number: NAA 5 of 2024

File number: SYC 431 of 2022

Judgment of: TREE, HOGAN & SMITH JJ

Date of judgment: 21 August 2024

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Appellant alleges that primary judge erred in finding that there had not been a significant change of circumstances to warrant re-litigation of prior final orders – Appellant further alleges that primary judge erred in awarding costs to the respondent against the backdrop of the appellant’s financial hardship – Primary judge’s decision involved the exercise of discretion – Where it was open to the primary judge to conclude that there had not been a significant change of circumstances – Where it was open to the primary judge to order costs – No error identified – Appeal dismissed – Costs ordered in a fixed sum

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12, r 12.17

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

House v The King (1936) 55 CLR 499; [1936] HCA 40

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 79

Date of hearing: 2 May 2024

Place: Heard in Sydney, delivered in Cairns

The Appellant: Litigant in Person

Counsel for the Respondent: Mr Dura SC

Solicitor for the Respondent: Harris Friedman Lawyers

ORDERS

NAA 5 of 2024
SYC 431 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR JAMES

Appellant

AND:
MS SNIPPER

Respondent

ORDER MADE BY:

TREE, HOGAN & SMITH JJ

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Appellant is to pay the Respondent’s costs of and incidental to the Appeal in the fixed sum of $15,000 within 60 days of these Orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym James & Snipper has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HOGAN & SMITH JJ:

By Notice of Appeal filed 3 January 2024 Mr James (“the father”) appeals from two orders made in parenting proceedings by a judge of the Federal Circuit and Family Court of…

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 James & Snipper

Details

AGLC: James & Snipper [2024] FedCFamC1A 140
Case: [2024] FedCFamC1A 140
Decision Date: 21 August 2024

CaseChat Overview and Summary

In the case of James & Snipper, the appellant father sought to appeal final parenting orders made by Watts J on 12 January 2018. These orders were made after a five-day hearing in July 2017 and concerned the youngest child of the parties, R, who is now 14 years old. The primary issues in the appeal were whether the primary judge had erred in finding that there had not been a significant change of circumstances warranting a re-litigation of the prior final orders, and whether the primary judge had erred in awarding costs to the respondent given the appellant’s financial hardship. The father also argued that the mother’s non-compliance with an order to ensure the child attends a counsellor rendered the final orders ineffective.

The court considered the exercise of discretion by the primary judge in determining whether there had been a significant change of circumstances and whether to award costs. It was open to the primary judge to conclude that there had not been a significant change of circumstances. Additionally, it was within the primary judge’s discretion to order costs, and no error was identified in this regard. The court found that the primary judge had exercised his discretion appropriately, and therefore the appeal was dismissed. The court also ordered that the appellant was to pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,000 within 60 days of the orders.

Orders

Orders of the court

NAA 5 of 2024

SYC 431 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR JAMES

Appellant

AND:

MS SNIPPER

Respondent

ORDER MADE BY:

TREE, HOGAN & SMITH JJ

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The Appellant is to pay the Respondent’s costs of and incidental to the Appeal in the fixed sum of $15,000 within 60 days of these Orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

For the reasons which follow, the appeal is dismissed with costs.BACKGROUND The father is presently 52 years of age, and the mother is 54. They commenced cohabitation in 1990 and married in 1994. They separated on a final basis in late November 2011 and divorced in 2013. They had three children; the two older children are over 18. This appeal only concerns the youngest child, R (“the child”) who is now 14 years old. Proceedings first commenced in April 2012. On 3 April 2013 final parenting orders were entered, primarily by consent. Litigation re-commenced in 2015, and there was a 5-day final hearing in July 2017. On 12 January 2018 Watts J of the then Family Court of Australia, delivered written reasons for judgment and entered final parenting orders (“the 2018 orders”). The father’s appeal against the 2018 orders was dismissed. The 2018 orders require the child to live with the mother, who was granted sole parental responsibility subject to an obligation to inform and consult. The orders relevantly state:6. The children shall spend time with the husband and communicate with him asfollows:6.1.Each alternate Sunday from 9am to Monday morning before school or 9am…6.7.In the event that the children are not available to spend time with the husband in accordance with Order 6.1, due to a prior engagement, then the wife shall notify the husband as soon as is practicable but not less than 14 days prior to the date and provide to the husband three dates when make-up time can occur and the husband shall thereafter notify the wife within seven (7) days of having received such notice which of the nominated alternative dates he accepts.6.8.Upon each of the children attaining the age of fourteen (14) years that child may with the assistance of their counsellor, and thereafter in consultation with the therapist, inform the husband, should the child so wish, of what additional time they may wish to spend with the husband up to the following:6.8.1.from completion of school Friday to 9am Monday morning in each alternate weekend.6.8.2.for one afternoon/evening per week.…9.The wife shall ensure that the children attend upon a counsellor in accordance with the recommendations of that counsellor but not less that once in each six (6) month period. In summary, the 2018 orders set out the time the child is to spend with the father (Order 6.1) and provide a mechanism to review that arrangement and increase time, up to a set limit, upon the child turning 14, namely for the child, “with the assistance of” and “in consultation with”, his counsellor to inform the father of his wishes (Order 6.8). There is a mechanism to ensure the child has a counsellor (Order 9). There was also provision, at orders 6.9–6.17, for time on special occasions including Father’s Day and religious holidays. As the child recently turned 14, Orders 6.6 and 6.8 now apply to him. Taking the father’s evidence at its highest, the mother has not complied with Order 9, so the child does not have a counsellor. A major aspect of the father’s case is that the mother’s non-compliance with Order 9 renders the 2018 orders ineffective, requiring a further hearing.

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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NAA 5 of 2024 SYC 431 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR JAMES Appellant
AND:	MS SNIPPER Respondent

Appeal from:		Snipper & James (No 2) [2023] FedCFamC1F 1043
Appeal number:		NAA 5 of 2024
File number:	SYC 431 of 2022
Judgment of:	TREE, HOGAN & SMITH JJ
Date of judgment:	21 August 2024
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Appellant alleges that primary judge erred in finding that there had not been a significant change of circumstances to warrant re-litigation of prior final orders – Appellant further alleges that primary judge erred in awarding costs to the respondent against the backdrop of the appellant’s financial hardship – Primary judge’s decision involved the exercise of discretion – Where it was open to the primary judge to conclude that there had not been a significant change of circumstances – Where it was open to the primary judge to order costs – No error identified – Appeal dismissed – Costs ordered in a fixed sum
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 12, r 12.17
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs:	79
Date of hearing:	2 May 2024
Place:	Heard in Sydney, delivered in Cairns
The Appellant:	Litigant in Person
Counsel for the Respondent:	Mr Dura SC
Solicitor for the Respondent:	Harris Friedman Lawyers

ORDER MADE BY:	TREE, HOGAN & SMITH JJ
DATE OF ORDER:	21 AUGUST 2024