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 of 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

1. 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

1. These reasons were delivered orally.

2. 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.

3. 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.

4. 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.

5. It is therefore necessary to identify a charge of which the respondent is to be informed.  The applicant wife has produced a document headed “Summary of Contempt Charges as Alleged” but which is in fact a list of draft charges.  Relevantly, the charge in relation to the first allegation of contempt in the 2012 summons is as follows:  That on 4 April 2012 Mr Ganem presented cheque … for $9 400 against the Ganem Pty Ltd account without notice to the applicant or the applicant’s solicitor and without requisite invoice or cheque for counter signature in breach of Order 1(c) and Order 4.1(f) made by this Court on 26 March 2012.  It is necessary to turn to those orders.

6. Order 4.1(f) made 26 March 2012 provides:

   That until further order the respondent be restrained from withdrawing any capital from or charging or in any other way dealing with the capital in account No. …93 BSB … being the “[Ganem] Pty Ltd” bank account held with the National Australia Bank [Town L] without first giving to the applicant 21 days notice of his intention to do so, such notice to be given to the lawyer for the applicant.

7. Order 1(c)  made by consent provides:

   Order any agreed expenditure in excess of $5,000 on behalf of [Ganem] Pty Ltd or the partnership [Mr and Ms Ganem Partners] shall, unless otherwise agreed between the parties in writing, be facilitated by the parties sending a requisite invoice to the other party together with a cheque on either [Ganem] Pty Ltd account number …93 BSB … signed by the Respondent or a cheque drawn on the account [Mr and Ms Ganem Partners] in the NAB Classic Account number …79 signed by the Applicant for the other party to counter sign and then to send the cheque to the creditor before sending written confirmation of payment and a copy of the said invoice back to the respondent.

8. It seems to me there are a number of ambiguities with these orders of 26 March 2012.  The first is that Order 4.1(f) restrains the respondent from withdrawing any capital from the said bank account.  It is true, as Mr Siggins points out, that capital is capable of being read in terms of funds or money, but capital also can be used to distinguish between capital and interest or can refer to the capital of a company as in, for example, the shareholders capital of a company. 

9. It is not appropriate, in my opinion, in proceedings for contempt to assert that, on one interpretation out of a number of interpretations of an order, there has been a breach. It is essential that contempt charges be precise and unequivocal as I have said. This is because it is necessary to establish that the respondent to a contempt application under section 112AP of the Family Law Act acted intentionally.

10. That is to say not only must the activity complained of been a deliberate act as opposed to an inadvertent act, there must have been an intention to breach the order.  If there is a genuine and arguable dispute as to what the order in fact means it seems to me that it is, therefore, impossible to formulate a charge that unequivocally and properly makes reference to the order in such a way as to give rise to a clear allegation of breach.  Secondly, Order 4.1(f) made by Justice Watts is unlimited in amount.  That is to say on its face the restraint is from withdrawing any sum whatsoever without giving 21 days notice.  Order 1(c) made by consent which has an unfortunate use of the word “agreed” appearing twice in the first sentence refers to what is said to be “agreed expenditure in excess of $5 000”.  It does not in its terms impose any restraint at all.  It seems to me that it is a mechanism for obtaining consent for expenditure in excess of $5 000.

11. As I said, there is no monetary restraint in Order 4.1(f).  There is a monetary restraint in Order 4.1(b)(ii) where the respondent was restrained from causing any company or trust in which he or the applicant had an interest to incur any liability in excess of $5 000 without the prior written consent of the applicant.  It seems to me that Order 1(c) naturally relates to that order and does not relate to Order 4.1(f).  However, if I am wrong about that it seems to me that at best the position is arguable as to whether Order 1(c) relates to Order 4.1(f) or not.  They are relied upon with each other for the one breach.  Again, whilst one could construe the orders to find a preferable view that is not something, in my view, that is appropriate on a contempt proceeding.

12. It is necessary to establish and to be able to charge the respondent with an unequivocal breach so that he knows clearly and precisely the charge and the alleged contempt.  Thirdly, Order 4.1(f) refers to the respondent being restrained from withdrawing any capital or in any other way dealing with the capital in the Ganem Pty Ltd bank account held with the National Australia Bank Town L.  The allegation is that he presented a cheque.  The cheque is presented by a person holding the cheque to obtain payment for themselves.  That is to say it is the recipient in usual course, usually the payee of the cheque, who presents it.  It is not correct to say that presenting a cheque is similar to drawing a cheque.  They are quite different activities.  Mr Ganem is not to be charged with drawing a cheque.  He is not charged with dealing with the capital in a way contrary to Order 4.1(f) by either drawing the cheque or sending that cheque to someone who might present it with the bank.

13. Again, there is a possible argument that presenting a cheque is a dealing with the capital in the account (assuming that word “capital” is used as - in the broad sense as the applicant wife proposes).  But it does not seem to me to be the better view.  The order is directed towards the activity of causing the account to be diminished.  If a cheque was validly drawn I do not see why Mr Ganem would not be able to present it and be paid.  It is, to me, the anterior activity of drawing the cheque that might constitute dealing with the capital. 

14. Fourthly, there is, to me, a conflict between Orders 4.1(b)(ii) and 4.1(f) in that Order 4.1(b)(ii) restrains the incurring of a liability.  Drawing a cheque is not necessarily the incurring of a liability.  It may well be the payment of a liability.

Conclusion 

1. Taking all these matters into account I do not think that the charge as drafted is sufficiently clear and unequivocal so as to be properly the subject of a charge made to the respondent and I do not propose to do so. 

2. As I have said, it is essential that the charge be clear and unequivocal and reflects properly the orders that were made against him.  If there is an ambiguity in the order that gives rise to the ambiguity in the charge then the result is the same. 

3. In my opinion there is sufficient ambiguity about the orders to make it inappropriate for Mr Ganem to be charged as the applicant wife seeks to have him charged and, as I said, I decline to charge Mr Ganem with that complaint.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 March 2013.

Associate: 

Date:   15 April 2013