Ganem and Ganem - [2013] FamCA 256

FAMILY COURT OF AUSTRALIA

GANEM & GANEM

[2013] FamCA 256

FAMILY LAW – CONTEMPT – Contravention of Court order – section 112AP – where there was sufficient ambiguity about the orders the subject of the contravention application to make it inappropriate for the husband to be charged with contempt – where matter was part-heard and remaining matters adjourned.

Family Law Act 1975 (Cth) ss: 112AP
Family Law Rules 2004

APPLICANT:

Ms Ganem

RESPONDENT:

Mr Ganem

FILE NUMBER:

SYC

931

2012

DATE DELIVERED:

12 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

12 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Siggins

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT IN PERSON:

Mr Ganem

Orders

That the part-heard proceedings are adjourned before Justice Aldridge on 21 March 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 931 of 2012

Ms Ganem

Applicant

And

Mr Ganem

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
These are proceedings for contempt pursuant to section 112AP of the Family Law Act. There are two applications before me and I am presently dealing with the application for contempt filed by the applicant wife on 3 September 2012. It contains in Annexure “A” some 27 separate allegations of contempt. I am presently dealing with the first of those where the contempt is pursuant to that application said to be on 4 April 2012 at a place unknown the respondent, in deliberate breach of the injunction and without reasonable excuse, has presented cheque number … against the Ganem Pty Ltd account (account number …93) in the amount of $9 400 without notice to the applicant or the applicant’s solicitor and without a requisite invoice or cheque for counter signature by the applicant.
Rule 21.08 of the Family Law Rules prescribes the procedure to be followed at a contempt hearing. The first of the steps that the court must undertake pursuant to that Rule is to inform the respondent of the allegation. The second step is for the respondent to admit or to deny the allegation.
These proceedings are criminal in nature. It is essential that the nature of the allegation be clear and unequivocal so there can be no doubt as to the charge that is made against the respondent so that he can clearly understand what it is he is alleged to have done by way of criminal conduct so that he can admit or deny the claim. Also that the elements of the offence need clearly be identified to facilitate, so as to be able to clearly identify the evidence required to prove each of the matters subject of the charge.
It is therefore necessary to identify a charge of which the respondent is to be informed. The applicant wife has produced a…

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.

Continue reading Ganem and Ganem

Details

AGLC: Ganem and Ganem [2013] FamCA 256
Case: [2013] FamCA 256
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Ganem & Ganem*, considered an application for contempt brought by Ms Ganem (the applicant wife) against Mr Ganem (the respondent husband). The contempt application alleged that Mr Ganem had contravened court orders made on 26 March 2012, specifically by presenting a cheque for $9,400 against a company account without notice to the applicant or her solicitor, and without a requisite invoice or counter-signature.

The primary legal issue before the court was whether the allegations of contempt were sufficiently clear and unequivocal to proceed, given the nature of contempt proceedings which are criminal in character. This required the court to examine the specific orders relied upon by the applicant and determine if the respondent's alleged conduct constituted a deliberate breach with the necessary intent. The court also had to consider the proper interpretation of the terms "capital" and "dealing with" within the context of the relevant orders, and whether the act of presenting a cheque amounted to a contravention.

Justice Aldridge found that there were significant ambiguities in the court orders of 26 March 2012, which rendered the contempt charge against Mr Ganem inappropriate. The court noted that Order 4.1(f) restrained the withdrawal of "capital" from a bank account, but the term "capital" itself was open to multiple interpretations. Furthermore, the court considered that presenting a cheque was distinct from drawing a cheque and might not constitute "dealing with the capital" in the manner intended by the order, which appeared directed at diminishing the account. The court also identified potential conflicts between different orders and the imprecise wording of Order 1(c), which did not impose a direct restraint.

Consequently, the court determined that the charge as drafted was not sufficiently clear and unequivocal to form the basis of a contempt proceeding. Due to the ambiguity in the orders, it was deemed inappropriate to charge Mr Ganem with contempt as sought by the applicant. The part-heard proceedings were adjourned for further consideration.

Orders