Ganem and Ganem (No 5)

[2013] FamCA 769

FAMILY COURT OF AUSTRALIA

GANEM & GANEM (NO 5) [2013] FamCA 769

FAMILY LAW – APPLICATION FOR CONTEMPT – Where the husband alleged that the wife failed to deliver the child to the contact centre for a supervised visit –Where the Court found that the wife’s conduct did not involve a flagrant challenge to the authority of the Court – Where the Court accepted the submission that the wife was at all times willing to bring the child to the contact centre but that the husband did not put her in funds in sufficient time for the contact visit to be arranged by the centre – Application for contempt dismissed – Circumstances justified the making of a costs order against the husband

Family Law Act 1975 (Cth) s 112AP

Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Mr Ganem

RESPONDENT: Ms Ganem

FILE NUMBER: SYC 931 of 2012

DATE DELIVERED: 4 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Siggins

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the application pursuant to section 112AP of the Family Law Act 1975 (Cth) filed 19 July 2013 is dismissed.

2. That the applicant pay the respondent’s costs of the application as assessed or agreed on a party and party basis. 

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

Mr Ganem

Applicant

And

Ms Ganem

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed 19 July 2013 by Mr Ganem (“the husband”) arising out of his marriage to Ms Ganem (“the wife”). The husband asks the Court to deal with the wife for contempt pursuant to s 112AP of the Family Law Act 1975 (Cth).

2. Section 112AP provides:

   112AP Contempt

   (1)Subject to subsection (1A), this section applies to a contempt of a court that:

   (a) does not constitute a contravention of an order under this Act; or

   (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

   (1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

   (2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

   (3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

   (4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

   (5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

   (6)The court may make an order for:

   (a) punishment on terms;

   (b) suspension of punishment; or

   (c) the giving of security for good behaviour.

   (7)Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.

   (8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.

   (9)In this section:

   order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.

3. The orders which give rise to the charge of contempt were made on 17 May 2013, specifically orders 2 and 3 thereof which are set out in full below:

   (2)That Order 7 made on 24 April 2013 is hereby discharged and, in lieu thereof, I order that the father have supervised time with the child fortnightly, at such times and such places as the S Contact Centre, [Town T], New South Wales may determine, provided that at all times the time the child spends with the father is supervised and subject to the father paying for and arranging the costs thereof.

   (3)That the mother be responsible for the child to travel to and from such visits, provided that the reasonable costs thereof are paid for by the father.

4. The husband alleges, and the wife does not dispute, that on 6 July 2013 the wife failed to deliver the child to S Contact Centre at Town T for a supervised visit.

5. There have been two previous applications between these parties pursuant to s 112AP. On 12 March 2013 Aldridge J found that the charges, as drafted by the applicant wife, were insufficiently clear and declined to charge the respondent husband.

6. On 19 April 2013 his Honour dismissed two applications for contempt filed by the wife on 3 September 2012 and 24 January 2013. The parties have both had the benefit, on two occasions, of his Honour’s reasons and explanation of the law in relation to s 112AP.

7. The application now before the Court is an application filed by the husband for the wife to be dealt with for contempt.

8. In the decision handed down on 19 April 2013 Aldridge J set out the principles and procedure to be applied.

9. I respectively adopt his Honour’s formulation, set out in Ganem & Ganem (No. 2) [2013] FamCA 257 which is incorporated below:

Principles and procedure to be applied

9.I take the principles and procedure to be applied to derive from the sections set out above, the general law and Rule 21.08 of the Family Law Rules.

10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)

11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:

·The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)

·The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)

·The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.

·The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:

The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.

12.Rule 21.08 provides that on the hearing of a contempt application the court must:

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegations;

(c)hearing evidence supporting the allegation;

(d)ask the respondent to state the response to the allegation;

(e)hearing the evidence from the respondent; and

(f)determine the case.

1. The husband relied upon an affidavit sworn by him on 17 July 2013. No material was filed by the wife.

2. The wife was charged and denied the contempt.

3. There is no dispute that the wife knew the terms of the orders which had been made. Although it was asserted by Counsel for the wife that there had not been proper service, in accordance with the rules, the fact that the wife appeared, with Counsel, indicated to my satisfaction that she was aware of the application.

4. In relation to the second and third elements, there is no dispute that the wife deliberately and intentionally behaved as she did. However, the circumstances in which the wife did not deliver the child to S Contact Centre at Town T on 6 July 2103, need to be more closely examined.

5. The husband in his affidavit deposes to having arranged with Ms CC from S Contact Centre to have supervised access to the child on Saturday 6 July 2013 at 2 pm at the S Centre offices at Town T. The wife was told of that arrangement on Monday 1 July 2013. The wife sent an email to the husband in the following terms:

   Dear [Mr Ganem],

   I was contacted by [Ms CC] at [S Contact Centre Town T] today she wants to schedule a meeting for [K] and you on Saturday the 6^th of July. I told her that I am happy to attend as long as you pay my travel costs for Saturday of $30 and the outstanding amount of $40 that I faxed to you. She said that she will need to organise staff by Wednesday the 3^rd of July at the latest. I need you to put $70 into my account by tomorrow at the latest or I will be unable to travel to [Town T] this Saturday.

   Regards

   [Ms G]

6. The husband in response sent an email to the wife saying:

   Hi [Ms G]

   i have not revised (sic) and fax from you However just send me your bank details i will transfer the $70.00 to your account

   Regards

   [Mr Ganem]

   On Tuesday 2 July 2013 at approximately 9 am the wife sent an email to the husband containing the BSB number and account number of her bank. She did not include the name of the bank.

7. On 2 July 2013 the husband emailed the wife asking for the name of the bank. At 10.13 am on the same day the wife provided that information.

8. At 2.40 pm on 3 July 2013 the wife sent an email to the husband in the following terms:

   Hi [Mr Ganem],

   I spoke to [Ms CC] from S Centre today and have advised her that you have not put my travel costs into my account. I told her that as soon as the money hits my account I will advise her so she can organise a meeting with [K] and yourself. It is now up to you what you do.

   Regards

   [Ms Ganem]

9. Annexed to the husband’s affidavit is a transfer receipt issued by the Commonwealth Bank indicating that on Wednesday 3 July 2013 at approximately 2.25 pm the husband electronically transferred $70 to the wife’s account. Significantly the document which is headed “Transfer Receipt” contains these words “The funds should be available in the ‘To account’ tomorrow (except on public holidays).” There is no evidence provided by the husband about the actual time that the funds became available in the wife’s account and it cannot be assumed that the funds were available to her on Wednesday 3 July 2013.

10. On 5 July 2013 Ms CC from S Centre advised the husband that the session had been cancelled by the wife.

11. Annexed to the husband’s affidavit is a letter written by the solicitors for the wife to the husband. Relevantly the letter provided:

    We confirm that contact with [K] will not be proceeding tomorrow (6 July 2013) at [S Centre, Town T].

    This is due to late confirmation by yourself that you had reimbursed [Ms Ganem] for travel costs already incurred and future costs for this coming weekend.

    We confirm that [Ms Ganem] asked you by way of email that you fax her notification that you had reimbursed her the aforementioned costs no later than Tuesday, 2 July 2013 in order for her to confirm with [Ms CC] of [S Centre] no later than Wednesday, 3 July 2013 that contact was able to go ahead.

    We confirm that your fax to [Ms Ganem] was sent after normal business hours on Wednesday, 3 July 2013. This was too late for [Ms Ganem] to contact [S Centre], and indeed, too late for [S Centre] to confirm their staffing arrangements for the upcoming weekend.

    We advise that we have today contacted [S Centre, Town T] and spoke to [Ms CC] who confirmed that they required notice by Wednesday 3 July 2013, as to whether or not contact was able to go ahead.

12. The husband has not established that the funds to cover the cost of travel for the child to and from S Centre at Town T were provided by him within the timeframe which was nominated by S Centre.

13. It was clear that the husband was aware that S Centre needed to know whether or not the visit would be going ahead by Wednesday 3 July 2013 at the latest. There is no evidence that the husband put the wife in funds to facilitate the visit by the time which was nominated by S Centre.

14. Nothing in the wife’s conduct involved a flagrant challenge to the authority of the Court. It is not disputed that on the next occasion when supervised time was organised the child attended.

15. I accept the submission of Counsel of the wife that the wife was at all times willing to bring the child to S Centre at Town T but that the husband did not put her in funds in sufficient time for the contact visit to be arranged by S Centre.

16. Accordingly the application of the husband is dismissed.

Costs

1. The wife seeks an order for costs which is opposed by the husband.

2. She relies upon an affidavit by her solicitor which sets out the charges which she has incurred being solicitors costs of $5284.30 and Counsel’s fees of $6,600.

3. The wife’s solicitor also relies upon a letter forwarded to the husband on 29 July 2013 which invited the husband to withdraw his application and advised the husband that, if he should continue with his application for the wife to be dealt with for contempt, then the solicitors were instructed to seek costs on an indemnity basis.

4. There is no information before the Court about the financial position of either of the parties.

5. Since the husband appeared on his own behalf I assume that he is not in receipt of a grant of legal aid.

6. The husband has pursued an application pursuant to s 112AP of the Act rather than an application for contravention. He has been entirely unsuccessful in that application.

7. An offer of settlement was made on behalf of the wife although I note that the offer of settlement did not set out the basis upon which it was asserted that the application would be opposed.

8. In all of those circumstances it is appropriate that the husband pay the wife’s costs of the application.

9. The circumstances in which indemnity costs are appropriate were recently dealt with by the Full Court of the Family Court in Prantage & Prantage [2013] FamCAFC 105. I am not satisfied that there is any special or unusual feature in the case before me which would justify my departing from the usual course that costs should be assessed on a party and party basis.

Conclusion

1. The orders therefore will be that the application for contempt filed 19 July 2013 be dismissed with costs as assessed or agreed on a party and party basis.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 October 2013

Associate:

Date: 4 October 2013