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

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

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

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).
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…

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

Case: [2013] FamCA 769
Decision Date: 4 October 2013

CaseChat Overview and Summary

The Family Court of Australia, constituted by Rees J, considered an application brought by the applicant pursuant to section 112AP of the *Family Law Act 1975* (Cth). The specific nature of the dispute between the applicant and the respondent is not detailed in the provided text, beyond the fact that it concerned an application filed on 19 July 2013.

The central legal issue before the Court was whether the applicant's application, made under section 112AP of the *Family Law Act 1975* (Cth), should be granted. The Court was required to determine the merits of this application and whether it met the necessary legal threshold for success.

The Court dismissed the applicant's application. While the reasoning behind this dismissal is not elaborated upon in the provided text, the outcome indicates that the applicant failed to satisfy the Court of the grounds upon which the application was made. Consequently, the Court ordered that the applicant pay the respondent's costs of the application, to be assessed or agreed on a party and party basis.

Orders

Orders of the court

IT IS ORDERED

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.