James & Snipper [2025] FedCFamC1A 161 (10 September 2025)

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

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).

1. This appeal (but in truth an application for leave to appeal) is brought from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 10 June 2025, dismissing a contravention application brought by the applicant against the respondent.
2. The relevant history may be succinctly stated. Property settlement orders were made between the parties in January 2018. The applicant's appeal from the orders was dismissed in December 2018 (James & Snipper [2018] FamCAFC 235). One of the orders (Order 28) required the respondent to pay the applicant $200,000, though the order did not specify when the payment had to be made. Shortly following the dismissal of the appeal, in early January 2019, the respondent paid the applicant $200,000 in satisfaction of the order.
3. More than six years later, in March 2025, the applicant brought a contravention application against the respondent for having failed to pay him the $200,000 in satisfaction of Order 28 promptly after the property settlement orders were first made in January 2018. He alleged the payment, delayed by 12 months, caused him to incur interest on an overdue account he owed to the Australian Taxation Office ("ATO"), which extra liability he calculates to be $28,006.
4. The primary judge summarily dismissed the contravention application, as was sought by the respondent, because her Honour found the applicant had "no prospect of successfully prosecuting" the application for the relief he sought (at [23]).
5. The applicant contends the primary judge erred by summarily dismissing his contravention application (Ground 1) for multiple misconceived reasons (Grounds 2-8). The proposed appeal from the summary dismissal order (which is interlocutory in nature and so requires leave to appeal) suffers from an abject lack of merit for the following reasons, which are given in short form because no question of general principle is raised (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
6. First, the applicant did nothing to try and enforce payment under Order 28 while his appeal was pending or even after it was dismissed by invoking standard methods of enforcement under Part 20 of the Family Court Rules 2004 (Cth) or, after repeal, Chapter 11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The applicant's "contravention" application was not an "enforcement" application.
7. The enforcement process is used to fulfil executory orders, whereas the contravention process is used to encourage the defaulting litigant's future compliance with orders. But neither process is properly used to satisfy one litigant's desire to avenge historical breaches of executed orders. The respondent paid the applicant in satisfaction of Order 28 once the applicant's appeal from the financial orders was dismissed (at [12], [16] and [22]). Even accepting the respondent should have satisfied Order 28 immediately, or even within a reasonable period of it being made, the breach for which the respondent was prosecuted was still purged more than six years before the applicant brought the contravention application in March 2025 (at [19]). Although the primary judge did not so find, it was an abuse of process to try and sanction the respondent many years after the subject breach was cured.
8. Secondly, if proven, the contravention of Order 28 without any reasonable excuse could only be redressed by one of the remedies prescribed by s 112AD(2) of the Family Law Act 1975 (Cth), as the primary judge recognised (at [10]), yet the applicant was not interested in any of those. He instead wanted a remedial order compelling the respondent to reimburse him for the interest of $28,006 he alleged having been charged by the ATO, which remedy the primary judge had no power to grant (at [20] and [23]). Again, the misconceived objective made the application an abuse of process.
9. Thirdly, the applicant is still indebted to the respondent under an unpaid costs order made against him in February 2019, after the dismissal of his former appeal (James & Snipper [2019] FamCAFC 28), the quantum of which order the respondent assessed at $22,822. The applicant contests the respondent's assessment of such costs, but does admit the costs order remains unsatisfied. The applicant seemed not to appreciate the irony of him prosecuting the respondent for avoiding paying money to him for one year, thereby costing him $28,006, when he has avoided paying her a similar amount for more than six years. It will be noticed that, when the respondent paid the $200,000 to the applicant in January 2019, she did not hold back $22,822 (or any other sum) to cover the costs awarded to her against him only a month later.
10. Subject to exceptions, the Court has discretionary power to refuse to entertain any fresh application brought by a litigant who is in contempt of other orders made in the same proceedings (Moorcroft & Moorcroft [2018] FamCAFC 253; (2018) FLC 93-881 at [15]-[22]). The husband has been in effective contempt of the costs order since it was made in February 2019, even allowing for the disagreement over its precise assessment. That too could have justified the dismissal of his contravention application.
11. The application for leave to appeal should be dismissed with costs, notwithstanding the applicant's submissions as to his inferior financial circumstances. The application for leave to appeal was wholly unsuccessful and should not have been brought. The applicant conceded the assessment of such party/party costs at $11,054 was reasonable.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann & Williams.