Snipper & James (No 2)

Case [2023] FedCFamC1F 1043

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

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

File number: SYC 431 of 2022
Judgment of: BRASCH J
Date of judgment: 6 December 2023
Catchwords:

FAMILY LAW – CHILD SUPPORT – Where no evidence Child Support Registrar served.

FAMILY LAW – PARENTING – Where father sought parenting orders – Where mother relies on Rice & Asplund (1979) FLC 90-725 – Where parties litigating for 10 years – Where no material change in circumstances – Where child’s best interests better served by therapeutic process already in place than further litigation – Application dismissed.

FAMILY LAW – COSTS – Where mother sought costs thrown away from earlier hearing – Where father’s orders struck out as incompetent – Costs made in a fixed sum.   
Legislation:

Child Support (Assessment)Act1989 s 145

Family Law Act 1975 (Cth) Pt VII ss 45A, 60B, 60CA, 60CC, 64B, 65AA, 65D, 69ZN, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited:

Child Support Registrar & Nixon (2007) 36 Fam LR 571; [2007] FamCA 32

D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64

Glenville v Glenville (No 2) [2008] FamCA 755

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386

Kohan & Kohan (1993) FLC 92-340

Langmeil & Grange [2013] FamCAFC 31

Lesley & Lesley [2015] FamCA 894

Limousin & Limousin(Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

McEnerney & McEnerney (1980) FLC 90-866

Rice & Asplund (1979) FLC 90-725

Snipper & James& Anor [2018] FamCA 7

Snipper & James [2022] FedCFamC1F 266

SPS and PLS (2008) FLC 93–363; [2008] FamCAFC 16

Trewitt & Brock [2021] FedCFamC1A 9

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Yunghanns & Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Zawadzki v Zawadzki (No.2) (2020) FamCAFC 131
Division: Division 1 First Instance
Number of paragraphs: 133
Date of hearing: 4 December 2023
Place: Sydney
Counsel for the Applicant: Mr Eardley (direct brief)
Counsel for the Respondent: Mr Lethbridge SC with Ms Bromberger
Solicitor for the Respondent: Harris Freidman Lawyers

ORDERS

SYC 431 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR JAMES

Applicant
AND:

MS SNIPPER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:

1.The father’s application for parenting orders set out in the Minute of Order filed 24 November 2023 is dismissed.

2.Any consideration of the parties’ competing child support applications will not occur until and unless the father files and serves evidence that he has complied with r 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with respect to his Minute of Order filed 24 November 2023.

3.When the father receives notification from the Registrar as to…

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AGLC
Snipper & James (No 2) [2023] FedCFamC1F 1043
Case
[2023] FedCFamC1F 1043
Decision Date

CaseChat Overview and Summary

In the case of Snipper & James (No 2), the parties, Mr James and Ms Snipper, were before the court to address ongoing issues related to parenting and child support. The court was tasked with determining whether to grant Mr James' application for further parenting orders and if Ms Snipper's application for a summary dismissal of Mr James' orders should be upheld. Additionally, the court needed to consider Ms Snipper's request for costs associated with the proceedings and Mr James' application to discharge a child support order.

The court considered several legal issues, including whether there had been a material change in circumstances warranting a revision of the existing parenting orders, whether the best interests of the child, R, would be served by further litigation or by the ongoing therapeutic process, and whether Mr James had complied with the requirements to serve the Child Support Registrar. The court also evaluated the appropriateness of awarding costs to Ms Snipper and whether Mr James' application to discharge the child support order should be granted.

In its reasoning, the court found that there had been no significant change in circumstances that would justify altering the existing parenting orders. It was determined that the child's best interests were best served by continuing the therapeutic process already in place, rather than engaging in further litigation. The court also found that Mr James had not yet served the Child Support Registrar and that any consideration of the child support applications would be deferred until this was rectified. Furthermore, the court dismissed Mr James' application to discharge the child support order and ordered him to pay Ms Snipper's costs in a fixed sum of $7,822.53 for costs thrown away from an earlier hearing.

The court ultimately dismissed Mr James' application for further parenting orders and requested that the Child Support Registrar be notified of the proceedings. Mr James was ordered to pay Ms Snipper's costs within 60 days of the date of the orders.

Orders

Orders of the court

SYC 431 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR JAMES

Applicant

AND:

MS SNIPPER

Respondent

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:

1. The father’s application for parenting orders set out in the Minute of Order filed 24 November 2023 is dismissed.

2. Any consideration of the parties’ competing child support applications will not occur until and unless the father files and serves evidence that he has complied with r 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) with respect to his Minute of Order filed 24 November 2023.

3. When the father receives notification from the Registrar as to whether they will intervene or not, he is to immediately file and serve same with this Court.

4. A Registrar of this Court is requested to provide a copy of these orders and the first three pages of my Reasons to the Child Support Registrar or their delegate.

5. The Child Support Registrar is requested to provide a copy of the notification referred to in Order 3 to the Court via (…@...).

6. Within 60 days of the date of these orders the father is to pay the mother’s costs fixed in the sum of $7,822.53 for her costs thrown away arising out the 9 November 2023 hearing.

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

However, I will not advance consideration of the matter, specifically the mother’s s 45A summary dismissal application, until I am satisfied the father has served the Child Support Registrar and I am advised whether the Registrar wishes to intervene, or not. I will make orders to provide for this. Background The mother was born in 1969 and the father was born in 1971. The parties commenced cohabitation in 1990 and were married in1994. The parties have three children:(a)G born 2002; (b)B born 2004; and (c)R born 2010. I have no jurisdiction over G and B given their ages. The parties separated in late November 2011 and were divorced in 2013. The mother filed an Initiating Application on 3 April 2012 seeking property orders. The father filed a Response on 4 June 2012. On 15 January 2013 the father filed an Amended Response seeking parenting orders. Final parenting orders were made largely by consent on 3 April 2013. In summary, those orders provided that the children spend time with the father each alternate Thursday after school to Monday morning, for half school holidays, and, for the parents to equally share parental responsibilities. An additional order was made not by consent for time each alternate Wednesday from after school until 7.00 pm. Doing the best I can on the limited material before me, and drawing on the Reasons of Justice Watts from 12 January 2018, the parties found themselves back in court. In November 2015 Orders were made for Dr Y to produce a Family Report. In late July 2016 Dr Y interviewed the children and parents. In early December 2016, Dr Y’s report was only released to the ICL. In early February 2017 the report was released to the parties and the children’s time with the father was suspended. It seems the matter came on again on 17 February 2017. Orders were made for the children to spend time with the father on alternate Sunday mornings to Monday mornings, in the presence of the father’s partner, Ms T. Some communication orders were also made. The matter came before Justice Watts for final hearing. On 12 January 2018, his Honour delivered reasons and orders. Those reasons reveal that the father conceded sole parental responsibility to the mother and that the children live with her. Orders were made for the children to spend time with the father on alternate Sunday mornings to Monday mornings during term and holiday time. Other orders were made including communication orders, time on special occasions and specific issues orders. His Honour also made property orders and a child support departure order. The father seeks a discharge of that order and the mother a s 45A summary dismissal of the father’s orders. I have made proof of service orders about that. The father appealed the 2018 orders. He abandoned his appeal against the child support orders and the appeal was otherwise dismissed. Some of Justice Watts’ 2018 findings include:THE PARENTS’ INABILITY TO ACT COLLABORATIVELY TOGETHER ...151.I am unable to conclude that the wife has deliberately amplified parental conflict or has contributed in any significant way to the negative attitudes that the children hold towards their father. The single expert and the children’s therapists all reject the notion that there has been parental alienation by the wife and all are of the view that what the children are reporting is part of the children’s lived experience.152.The parents currently lack the capacity to work collaboratively and cooperatively together. The evidence is replete with examples, including the torturous history of organising [G’s] Bar Mitzvah; the demands upon the wife to give up time she would have ordinarily spent with [G] if the husband was to agree for [G] to go to [extracurricular] camp; discussions about [B’s] Bat Mitzvah; and attempts to have the children sit entrance exams for high school. 153.The sorry history of conflict in relation to major decision making was finally acknowledged at the end of the evidence and at the start of the husband’s submissions when he conceded sole parental responsibility to the wife.

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

Similarly, the nett effect of the mother’s position is to hold the 2018 orders. That provides for time with the father and the possibility of an increase pending R’s views. That too means the mother cannot be saying R is at risk of harm or unacceptable risk of harm in the father’s care. Section 60CC(2A) balancing the primary considerations On the father’s case, R has a meaningful relationship with him. No one proposes curtailing the other’s time due to harm factors. The balance favours s 60CC(2)(a).Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; The father deposes that the child tells him (the father) that he (the child) wants to spend more time with him (the father). That may be so. The 2018 orders have a mechanism in place for R to express his views within the security of a therapeutic environment. Conversely, the father asks for a Family Report, which means R can express his views but within a litigious environment.Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child); For present purposes, I accept the father’s evidence that he and R have developed a positive, meaningful relationship. That has developed under the stewardship of the 2018 orders.Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; In 2018, the father conceded the mother have sole parental responsibility for the child. He does not seek orders to subvert that. Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; The father is not currently paying child support and seeks a discharge of the child support departure order made by Justice Watts in 2018. I have made orders to progress the child support dispute. Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; and Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; The 2018 orders provide for a therapeutic, non-litigious way to ascertain R’s views and dependent on those views, increase his time with the father.