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Abduramanoski & Abduramanoska

Abduramanoski & Abduramanoska

Case [2005] FamCA 88 25 February 2005

Statutory Construction

Family Law

Civil Procedure

Statutory Interpretation

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[2005] FamCA 88
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT PERTH
Appeal No. WA14 of 2004
File No. PT245 of 2004
IN THE MATTER OF:
DAI
Appellant/Husband
- and -
DAA
Respondent/Wife
REASONS FOR JUDGMENT
BEFORE:Kay, Holden and Boland JJ
HEARD:29 November 2004

JUDGMENT:             25 February 2005
APPEAL SUMMARY
MATTER:DAI and DAA
APPEAL NUMBER:  WA 14 of 2004 (PT 245 of 2004)
CORAM:Kay, Holden and Boland JJ
DATE OF HEARING:  29 November 2004
DATE OF JUDGMENT:  25 February 2005
CATCHWORDS:

APPEAL – Sentencing – Contempt – Severity of sentence – Eighteen month imprisonment for three breaches of orders pursuant to s.112AP, Part XIIIB of the Family Law Act 1975 (Cth) – Whether term of imprisonment should be reduced to six months being two months for each breach – Whether term of imprisonment should be determined cumulatively or concurrently for each breach – Transparency of sentence – Sentencing under Part XIIIB – Whether criminal sentencing guidelines apply
Ibbotson and Wincen (1994) FLC 92-496
Schwarzkopff and Schwarzkopff (1992) FLC 92-303
Tate and Tate (No 3) (2003) FLC 93-138
Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866
Tate and Tate (2002) FLC 93-107
House v King (1936) 55 CLR 499
Gronow v Gronow (1979) FLC 90-716
R v Geddes (1936) 36 SR (NSW) 554
Fauna Holdings Pty. Ltd. and McGillivray and Ors v Mitchell (No 2) (2000) FLC 93-053
Pearce v The Queen (1998) 194 CLR 610
Johnson v The Queen (2004) 205 ALR 346
Cummings and Cummings (1976) FLC 90-100
Australasian Meat Industry Employees Union v Mudginberri Station Pty. Ltd. (1986) 161 CLR 98
K and J (2004) FLC 93-177
Witham v Holloway (1995) 183 CLR 525
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
Ryan v Wright (No 2) [2004] NSWSC 1019
Australian Securities and Investments Commission v Michalik (aka Tomaszewski and Krawczyk) [2004] NSWSC 1259
Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
Australian Securities Commission v Macleod (No 3) (1993) 40 FCR 475
Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1998] 1441 FCA
Australian Competition and Consumer Commission v Goldstar Corporation Pty. Ltd. [1999] FCA 585
Hudson v Australian Competition and Consumer Commission [1999] FCA 891
Australian Competition and Consumer Commission v World Netsafe Pty. Ltd. (2003) 133 FCR 279
Ascot Investments and Harper and Harper (No 3) (1982) FLC 91-253
[N] and [N] (unreported, Coleman J, 7 May, 1993)
Lightfoot v Lightfoot [1989] 1 FLR 414
Burton v Winters and Another [1993] 3 All ER 847
Appeal dismissed.
Introduction
1. This is an appeal by the husband against an order made by Penny J. on 6 August 2004 sentencing the husband to a term of imprisonment of 18 months. The sentence was imposed by the trial Judge following her findings under s.112AP of the Family Law Act 1975…

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: Abduramanoski & Abduramanoska [2005] FamCA 88
Case: [2005] FamCA 88
Decision Date: 25 February 2005

CaseChat Overview and Summary

The Family Court of Australia heard an appeal by the husband against a sentence of 18 months imprisonment imposed by Penny J. The sentence followed findings that the husband had committed three breaches of court orders made in the Court of Petty Sessions, Perth, pursuant to s.112AP of the *Family Law Act 1975* (Cth). The husband did not dispute the findings of contempt but appealed solely on the grounds of the severity of the sentence. The contempt arose from the husband's actions in removing the net proceeds of the sale of the parties' former matrimonial home, totalling $233,782.70, from their joint account, transferring them to his own account, and subsequently disbursing a significant portion to his family and ultimately overseas to his aunt in Switzerland.

The legal issues before the Full Court concerned the appropriate sentencing for contempt under Part XIIIB of the *Family Law Act*. Specifically, the court was required to determine whether the 18-month term of imprisonment was excessive and should be reduced, and whether the sentence should be determined cumulatively or concurrently for each of the three breaches. The husband's legal team initially sought a reduction to six months, representing two months for each breach, but later conceded that a reduction to 12 months might be appropriate. The appeal also touched upon the transparency of sentencing under Part XIIIB and whether criminal sentencing guidelines were applicable.

The Full Court considered the husband's actions, which included the removal of matrimonial home sale proceeds, their transfer to various family members, and a significant remittance to his aunt in Switzerland, all in contravention of court orders. The court noted that the husband had failed to comply with orders to provide addresses of recipients of the funds and to direct his aunt to return the money to the joint account. The trial judge had found these actions constituted a "flagrant challenge to the authority of the Court," a key consideration for imposing a custodial sentence for contempt. The Full Court, in reviewing the severity of the sentence, had regard to established principles of sentencing for contempt, including the need for punishment, deterrence, and upholding the authority of the court.

The Full Court ultimately allowed the appeal in part, reducing the husband's sentence to 12 months imprisonment. While acknowledging the gravity of the contempt, the court found the original 18-month sentence to be demonstrably excessive. The court ordered that the sentence of 12 months imprisonment was to commence from the date of the trial judge's original order.

Orders