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
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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.