Snipper & James - [2022] FedCFamC1F 266

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Snipper & James [2022] FedCFamC1F 266

File number(s): SYC 431 of 2022

Judgment of: HARPER J

Date of judgment: 26 April 2022

Catchwords: FAMILY LAW – PROPERTY – Interlocutory dispute over $720,000 held in the trust account of the wife’s solicitors – Where final property, periodic and non-periodic child support, spousal maintenance, and parenting orders had been made in 2018 – Where final orders concerned three children, one of whom has now reached the age of 18 and another will reach 18 in a few months – Where wife sought fresh financial orders due to husband receiving a termination payment from the Second Respondent in the amount of $1,302,713 – Where injunctive orders have been restraining distribution of $720,000 of the termination payment – Where jurisdictional basis for existing orders said to be s 114 of the Family Law Act 1975 (Cth) or the Court’s inherent jurisdiction – Statutory basis of such order found in s 141 of the Child Support (Assessment) Act 1989 (Cth) – Wife seeks lump sum child support order as final relief, to be paid from the $720,000, in substitution for 2018 child support orders – Wife also seeks retention of $720,000 as security for final relief – Husband seeks release of the $720,000 or regular payments to him in the alternative – Consent orders made for $7,150 to be paid towards cost of single expert report – Consideration of whether there is a serious question to be tried – Whether possible to make interim prima facie finding that a lump sum order for child support would be just and equitable – Allegations husband has a history of refusal to pay child support and guilty of non-disclosure – Court unable to make findings of fact on an interim basis – Wife failed to demonstrate prima facie entitlement to lump sum child support order for $653,237 on final basis – Court satisfied some interim security for child support orders at a lesser amount demonstrated on a prima facie basis - Order made for release of $35,000 to the husband for legal expenses and $8,805 for weekly living expenses – Money held in trust account to otherwise remain untouched.

Legislation:
Child Support (Assessment) Act 1989 (Cth) Div 5, Div 4, ss 114(1), 114(3), 117(4), 117(6), 117(7), 117(7A), 117(8), 118, 123(1), 123A, 124, 129

Family Law Act 1975 (Cth) s 79

Cases cited:
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58

Gilmour and Gilmour (1995) FLC 92-591

Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612; [1987] HCA 23

Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202

Sresbodan & Sresbodan [2016] FamCA 954

Division: Division 1 First Instance

Number of paragraphs: 48

Date of hearing: 11 April 2022

Place: Sydney

Counsel for the Applicant: Mr Watkins, mentioning by consent on behalf of the Second Respondent

Solicitor…

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: Snipper & James [2022] FedCFamC1F 266
Case: [2022] FedCFamC1F 266
Decision Date: 26 April 2022

CaseChat Overview and Summary

In the case of Snipper & James, Ms Snipper, the applicant, sought various financial orders from Mr James, the husband and first respondent, following a significant termination payment received by the husband from the second respondent, CPTY LTD. The court was tasked with resolving disputes over the distribution of $720,000 held in the trust account of the applicant's solicitors, and determining whether there was a serious question to be tried regarding the wife's requests for a lump sum child support order and retention of the $720,000 as security for final relief. The wife sought a lump sum child support order, to be paid from the $720,000, in substitution for 2018 child support orders, and also sought the retention of $720,000 as security for final relief. In contrast, the husband sought the release of the $720,000 or regular payments to him in the alternative.

The court was required to decide whether there was a prima facie entitlement to the wife's requests and if there was a serious question to be tried. The court found that the wife had not demonstrated a prima facie entitlement to a lump sum child support order for $653,237 on a final basis. However, the court was satisfied that some interim security for child support orders at a lesser amount was demonstrated on a prima facie basis. The court also noted that the jurisdictional basis for the existing orders could be either section 114 of the Family Law Act 1975 (Cth) or the court's inherent jurisdiction, with the statutory basis of such an order found in section 141 of the Child Support (Assessment) Act 1989 (Cth). The court made an order for the release of $35,000 to the husband for legal expenses and $8,805 for weekly living expenses, while the remaining $720,000 held in the trust account was to remain untouched pending further order.

The final orders made by the court were that, pending further order, an amount of $8,805 would be released each week to the husband for rent and living expenses, and within seven days, the sum of $35,000 would be paid to the husband to be applied exclusively towards the payment of legal fees. The money held in the trust account was to remain untouched, unless otherwise ordered by the court. The form of the order was subject to entry in the Court's records, and any minor typographical or grammatical errors may be subject to review or variation as per the relevant Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

SYC 431 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SNIPPER

Applicant

AND:

MR JAMES

First Respondent

C PTY LTD

Second Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS THAT:

1. Pending further order, there be released from the funds held in the Trust Account of Harris Freidman Lawyers, the Applicant's solicitors, pursuant to Court orders dated 9 February 2022, each week to the husband on Monday, commencing on 2 May 2022, an amount $8,805 for rent and living expenses.

2. Within seven days, the sum of $35,000 be paid to the husband, to be applied exclusively towards the payment of legal fees.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number(s):	SYC 431 of 2022
Judgment of:	HARPER J
Date of judgment:	26 April 2022
Catchwords:	FAMILY LAW – PROPERTY – Interlocutory dispute over $720,000 held in the trust account of the wife’s solicitors – Where final property, periodic and non-periodic child support, spousal maintenance, and parenting orders had been made in 2018 – Where final orders concerned three children, one of whom has now reached the age of 18 and another will reach 18 in a few months – Where wife sought fresh financial orders due to husband receiving a termination payment from the Second Respondent in the amount of $1,302,713 – Where injunctive orders have been restraining distribution of $720,000 of the termination payment – Where jurisdictional basis for existing orders said to be s 114 of the Family Law Act 1975 (Cth) or the Court’s inherent jurisdiction – Statutory basis of such order found in s 141 of the Child Support (Assessment) Act 1989 (Cth) – Wife seeks lump sum child support order as final relief, to be paid from the $720,000, in substitution for 2018 child support orders – Wife also seeks retention of $720,000 as security for final relief – Husband seeks release of the $720,000 or regular payments to him in the alternative – Consent orders made for $7,150 to be paid towards cost of single expert report – Consideration of whether there is a serious question to be tried – Whether possible to make interim prima facie finding that a lump sum order for child support would be just and equitable – Allegations husband has a history of refusal to pay child support and guilty of non-disclosure – Court unable to make findings of fact on an interim basis – Wife failed to demonstrate prima facie entitlement to lump sum child support order for $653,237 on final basis – Court satisfied some interim security for child support orders at a lesser amount demonstrated on a prima facie basis - Order made for release of $35,000 to the husband for legal expenses and $8,805 for weekly living expenses – Money held in trust account to otherwise remain untouched.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Div 5, Div 4, ss 114(1), 114(3), 117(4), 117(6), 117(7), 117(7A), 117(8), 118, 123(1), 123A, 124, 129 Family Law Act 1975 (Cth) s 79
Cases cited:	ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58 Gilmour and Gilmour (1995) FLC 92-591 Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612; [1987] HCA 23 Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202 Sresbodan & Sresbodan [2016] FamCA 954
Division:	Division 1 First Instance
Number of paragraphs:	48
Date of hearing:	11 April 2022
Place:	Sydney
Counsel for the Applicant:	Mr Watkins, mentioning by consent on behalf of the Second Respondent
Solicitor…