Ganem & Ganem (No. 2)
[2013] FamCA 257
•19 April 2013
FAMILY COURT OF AUSTRALIA
| GANEM & GANEM (NO.2) | [2013] FamCA 257 |
| FAMILY LAW – CONTEMPT – Contravention of Court order – Where there was some evidence husband complied with orders – Where wife’s applications for contempt not established – Where wife’s applications for contempt is dismissed. |
| Family Law Act 1975 (Cth) ss:112AP; 112AA; 112AD Family Law Rules 2004 r 21.08 |
| Bande and Cade 45 FAM LR 376 In the Marriage of English (1986) FLC 91-729 In the Marriage of Tate (2002) 29 Fam LR 195 Mead & Mead (2006) FLC 93-267 |
| APPLICANT: | Ms Ganem |
| RESPONDENT: | Mr Ganem |
| FILE NUMBER: | SYC | 931 | of | 2012 |
| DATE DELIVERED: | 19 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 12 & 21 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Siggins |
| SOLICITOR FOR THE APPLICANT: | Mason Mia & Associates-Solicitors & Advocates |
| THE RESPONDENT IN PERSON: | Mr Ganem |
Orders
That the Application for Contempt filed on 3 September 2012 is dismissed.
That the Application for Contempt filed on 24 January 2013 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganem & Ganem (No.2) 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 |
FILE NUMBER: SYC 931 of 2012
| Ms Ganem |
Applicant
And
| Mr Ganem |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Ganem (“the wife”) charging Mr Ganem (“the husband”) with contempt pursuant to section 112AP of the Family Law Act 1975. There are two applications before the Court – one filed on 3 September 2012 and one filed on 24 January 2013 making in total 33 separate allegations of contempt.
Section 112AP relevantly provides:
(1) Subject to subsection (1A), this section applies to a contempt of 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.
Subsection 112AP(9) provides:
“order under this Act” means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Section 112AA defines “an order under this Act” as, in part,
An order (however described) made by the court under this Act other than a parenting order.
The orders that founded the contempt charges were interim orders made by this Court on 26 March 2012 requiring the respondent to do certain acts and to refrain from doing certain other acts in relation to Ganem Pty Limited.
The applicant and respondent were directors and share holders of Ganem Pty Limited. The interim orders of 26 March 2012 came about because of the alleged exclusion of the applicant from the affairs of that company and allegations that the respondent was improperly paying away funds from that company. The orders referred to in the charges were part of a collection of orders that restrained the respondent from dealing with the assets of the company in the manner described in the orders and placing restrictions on how creditors were to be paid.
The relevant orders were:
3.That on or before the 15th day of each month the respondent cause to be sent to the applicant, in respect of the companies, photocopies of:
i.all bank statements in respect of the companies for the preceding month.
ii.all bank statements in respect of the partnership for the preceding month.
iii.all invoices prepared and sent out by the company for the preceding month
4.That the respondent will, within 24 hours, provide to the applicant non-transactionable internet access to the following account:
(a)Account no. …93 BSB being the “[Ganem] Pty Limited” bank account with the National Australia Bank.
These orders were clearly orders to which section 112AP applies.
Principles and procedure to be applied
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.
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)
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.
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.
Contained within the two applications for contempt were thirty-three individual allegations or charges to be brought by the applicant. On 12 March 2013 I found, for the reasons which I then gave, that all but two of the allegations were incompetent and could not be brought against the respondent.
The first of the two surviving allegations and formulated charges was that from 15 April 2012 and continuing the respondent failed to provide to the applicant, on or before the fifteenth day of each month, photocopies of all bank statements and invoices in respect of Ganem Pty Ltd without reasonable excuse in breach of Order 4.3 made on 26 March 2012 which was that on or before the fifteenth day of each month the respondent cause to be sent to the applicant, in respect of the companies, photocopies of:
(a) all bank statements in respect of the companies for the preceding month.
(b)all bank statements in respect of the partnership for the preceding month.
(c) all invoices prepared and sent out by the company for the preceding month
When charged the respondent pleaded not guilty.
The second charge was that between 26 March 2012 and 3 September 2012 the respondent refused to provide the applicant with non-transactionable internet access to the Ganem Pty Ltd account in deliberate breach of Order 4.4(a) made on 26 March 2012 which was that the respondent will, within 24 hours, provide to the applicant non-transactionable internet access to the following account:
(a)account number account no. …93 BSB … being the “[Ganem Pty Ltd]” bank account with the National Australia Bank.
When charged the respondent pleaded not guilty.
At the conclusion of the evidence for the applicant I formed the view that there was evidence, albeit some of a weak, tenuous or vague nature for each of the elements of the two charges.
The respondent did not give evidence.
During his submissions the respondent often stated facts which he wished to have taken into account. As I informed him many times during the course of the hearing and his submissions, I could not and would not, take into account any facts stated from the bar table but would only take into account facts adduced as evidence by way of affidavit or oral evidence.
Charge 1
The charge is that from 15 April 2012 and continuing the respondent failed to provide to the applicant, on or before the fifteenth day of each month, photocopies of all bank statements, and invoices in respect of Ganem Pty Ltd without reasonable excuse in breach of Order 4.3 made on 26 March 2012 which was that on or before the fifteenth day of each month the respondent cause to be sent to the applicant, in respect of the companies, photocopies of:
(a) all bank statements in respect of the companies for the preceding month.
(b)all bank statements in respect of the partnership for the preceding month.
(c)all invoices prepared and sent out by the company for the preceding month.
The first issue to be determined is whether or not there was evidence that the respondent was aware of the orders.
The respondent relied on the following paragraph in her affidavit:
On 26 March 2012, the Family Court of Australia made injunctive Orders by consent in regard to the former marital property. On that day, I attended court and observed that the Respondent was legally represented. Annexed hereto and marked with the letter “D” is a true copy of those Orders
In Mead v Mead supra, the majority of the court was not prepared to draw an inference from the fact that the wife had been legally represented at the time the orders were made that the wife in that case must have been aware of them, there being no direct evidence of such knowledge. That issue was the subject of an application for special leave to the High Court. In Mead v Mead [2007] HCATrans 219 the Court, on the leave application, allowed the appeal. The Court said:
It appears from some of the things said in the reasons for judgment in the Full Court, that in addition to the matters to which Cohen J referred to in his reasons, there was evidence to show that, between the time of the making of Rose J’s order and the dealings in the property in question, there had been further proceedings between the appellant and the respondent relating to the question of sales and property and variation of the order made by Rose J and, in addition, that at some time between the first relevant dealing and the second relevant dealing the respondent had personally examined the whole of the court file.
The court then went on to hold that the court was entitled to draw an inference from all of the facts, in the absence of any counter evidence that might have been given, that the respondent knew of the orders. The law relating to professional legal privilege did not prevent the drawing of an inference that the respondent was aware of the orders.
The circumstances in this case differed from those in Mead and Mead. Here there was no evidence of subsequent applications, variation to orders or inspections of the file.
I would not be prepared to find, beyond a reasonable doubt, on this evidence alone that the respondent was aware of the orders.
The applicant relied on two further pieces of evidence. On 30 March 2012 Ganem Pty Ltd made an internet transfer payment of $7 000 to the applicant. On 5 April 2012 that company made an internet transfer payment of $3 000 to the parties’ daughter G. Orders 2 and 3 made on 26 March 2012 were as follows:
(2)The husband will upon the provision by the wife of account number and account details release from the [Ganem Pty Ltd] account the sum of $3.000.00 to be paid to [G] for the purpose of her support and education.
(3)That within seven days of these orders the husband will release to the wife by way of interim spousal maintenance a lump sum payment of $7,200.00.
It is an appropriate inference, which I draw, that these payments were made in compliance with the orders of 26 March 2012 and that the respondent was aware of the orders when he made the payments.
On 3 May 2012 the solicitor for the applicant wrote to the respondent. In part the letter provided:
We note that in regards to order 3(3) of the orders for the court dated 26 March 2012 you have not complied with these orders and we ask that you do so as soon as possible, given that 15 April has already past and 15 May is far approachable. We enclose you with a copy of the orders made on 26 March 2012 and the directions made by Registrar Chayna on 26 March 2012.
We note that in regard to order 3(4) the orders of the court dated 26 March 2012 you have not provided any such access. We suggest you contact [Mr P] at [Town L] NAB and arrange the same as a matter of urgency.
Your continued failure to comply with the orders of the court will be brought to court attention in any event. (Errors as per original).
By way of a letter dated April 2012 the respondent replied:
With respect to the court orders with order 3 and 4 which relate to the company I’ve contacted [Mr P] at [Town L] NAB but he has not replied to my calls but I do have the bank statement enclosed here for the month of Jan/Feb/March and April 2012 I am forwarding it to you however at the end of tax time all company documents will be available to you. (Errors as per original)
Taking these matters into account I was satisfied that the evidence was capable of establishing that from 30 March 2012, at the latest, the respondent was aware of the orders.
I am satisfied beyond reasonable doubt that the respondent knew of the orders of the court from 30 March 2012.
The affidavit of the solicitor for the applicant sets out the bank accounts of Ganem Pty Ltd which were provided to her. Bundles of bank statements were provided by the respondent on 12 May 2012, 11 September 2012, 10 November 2012, 12 November 2012 and 14 December 2012. Statements for the periods 24 – 27 January 2012, 5 April 2012 – 30 June 2012 and 10 – 13 July 2012 were not provided at all. Thus the statements that were provided were provided late and not complete.
This evidence is capable of establishing that providing the statements as he did the respondent had deliberately failed to send them to the applicant in a timely manner. The order and the charge also referred to invoices. No invoices were provided within the period set out above. As statements for a later period were subsequently provided by the respondent I was satisfied that there was some evidence of this element as to both the bank accounts and invoices.
There was no evidence before me as to when the respondent received the bank statements that he did provide to the applicant. It is therefore not possible to be satisfied beyond a reasonable doubt that the respondent, having received the bank statements, deliberately delayed providing them to the applicant. Similarly it was not established that the respondent had received the bank statements that he did not provide to the applicant.
Having regard to the evidence summarised above I am not satisfied beyond reasonable doubt that the respondent deliberately failed to provide the bank statements in a timely fashion or at all in the cases where he did not do so. I am not prepared to find beyond a reasonable doubt that there were invoices in fact issued by the company which the respondent failed to provide as required. The applicant did not establish that the company had issued invoices which the respondent then failed to forward as ordered. Mere evidence that no invoices were provided by the respondent to the applicant is insufficient.
The conduct required to establish a flagrant challenge to the court’s authority is conduct of an exceptional, striking or repeated nature. The requirements of this section are described as stringent. Contempt under section 112AP is different from the general run of breaches which are intended to be dealt with under section 112AD.
I am not satisfied beyond a reasonable doubt that the conduct of the respondent was a flagrant challenge to the authority of the court. The conduct was not exceptional or striking. It was repeated but there was, however, eventually a provision of many of the bank statements. Even if there was a contravention of the order it was not a contravention that was exceptional or striking.
For example the bank statements due on or before 15 April 2012 were provided on 12 May 2012. They were provided late but there is no evidence as to when they were received by the respondent. At that time some of the bank statements relating to May were also provided. These were provided before the time required. It seems to me very much that these contraventions, to the extent they were contraventions, might be described as within the general run of breaches for which contravention proceedings under section 112AD would be appropriate. I am not satisfied beyond a reasonable doubt that the contravention was a flagrant challenge to the authority of the court. This charge will be dismissed.
Charge 2 – non provision of internet access service
The charge is that between 26 March 2012 and 3 September 2012 the respondent refused to provide the applicant with non-transactionable internet access to the Ganem Pty Ltd account in deliberate breach of order 4.4(a) made on 26 March 2012 which was that the respondent will, within 24 hours, provide to the applicant non-transactionable internet access to the following account:
(a)Account number account No. …93 BSB … being the “[Ganem] Pty Limited” bank account with the National Australia Bank.
I have dealt with the issue of knowledge of the orders in paragraphs 20 to 31 above.
The applicant said that non-transactional internet access to the Ganem Pty Ltd bank account was never given to her as required by the order. There is no reason not to accept that evidence.
There is evidence that the respondent had it in his power to cause the requisite access to be granted to the applicant. There is some evidence, in the letters referred to, that he was attempting to contact Mr P to do so. Not withstanding that access was not granted over several months I am not satisfied that the failure to have access granted was deliberate. I am not satisfied beyond reasonable doubt that that these two elements are established.
I am not satisfied beyond reasonable doubt that the failure to provide the internet access was in flagrant challenge to the authority of the court. Although the failure continued for some time it cannot be regarded as exceptional or striking so as to bring the conduct within the range of conduct which is in breach of section 112AP. This failure is one which can be described as very much a general run of breach intended to be dealt within contravention applications. The failure made the applicant’s access to the bank accounts more difficult and the accounts had to be obtained by subpoena but did not, ultimately, prevent it. There was some evidence of attempted compliance. In his letter of 20 April 2012 set out above the respondent said that he had contacted the relevant bank officer is relation to Orders 3 and 4. Order 4 relates to the non-transactional internet access.
It follows that this second charge must also be dismissed.
Conclusion
Both the allegations dealt with in this judgment arose from the application for contempt of 3 September 2012 and accordingly it will be dismissed. I did not find any of the allegations made in the application for contempt on 24 January 2013 to be competent and accordingly it will also be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 April 2013.
Associate:
Date: 18 April 2013
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