Legal Research
Cases
PDM & JEM

PDM & JEM

Case [2006] FamCA 1182 8 November 2006

Type to search within this case.

FAMILY COURT OF AUSTRALIA

PDM & JEM

[2006] FamCA 1182

CONTEMPT OF COURT – sanctions – indefinite term of imprisonment – an act contrary to an injunction – sentencing judge found Appellant had benefited from contempt and had a lack of contrition – coercive purpose of an indefinite sentence – within judge’s exercise of discretion

Family Law Act 1975 (Cth) Part XIIIB ss 112AP

Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 and 1260

House v The King (1936) 55 CLR 499

Gronow v Gronow (1979) FLC 90-716

G and G (1981) FLC 91-042

In the Marriage of M (178) FLC 90-495

Abduramanoski and Abduramanoska (2005) FLC 93-215

Schwarzkopff and Schwarzkopff (1992) FLC 92-303

Ascot Investments Pty Ltd and Harper (No 3) (1982) FLC 91-253

L and L (1982) FLC 91-245

Danchevsky v Danchevsky (1974) 3 All ER 934

K & K [2004] FamCA 26

In the Marriage of U and U (1979) FLC 90-648

APPELLANT:

PDM

RESPONDENT:

JEM

FILE NUMBER:

2188

2001

APPEAL NUMBER:

2005

DATE DELIVERED:

8 November 2006

PLACE DELIVERED:

Perth

JUDGMENT OF:

Kay, Holden and Boland JJ

HEARING DATE:

21 November 2005

LOWER COURT JURISDICTION:	Family Court of Western Australia
LOWER COURT JUDGMENT DATE:	6 May 2005

LOWER COURT MNC:

[2005] FCWA 51

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Grieve QC

SOLICITORS FOR THE APPELLANT:

Foster Associates

COUNSEL FOR THE RESPONDENT:

Mr Castiglione QC

SOLICITORS FOR THE RESPONDENT:

Butlers

Orders

That the appeal be and is hereby dismissed.

FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA08 of 2005
File Number: PT2188 of 2001

PDM

Appellant

And

JEM

Respondent

REASONS FOR JUDGMENT

On 9 March 2005, the respondent wife filed an application alleging that the husband was guilty of four contempts of court. He pleaded guilty to the first count and not guilty to the remaining three. The matter came on before Justice Penny on 3 May 2005. On 6 May 2005, she published reasons for judgment acquitting the husband of counts 2 and 3 and finding him guilty of count 4.
The matter came back before Penny J on 13 May 2005 for sentencing. On that day, her Honour made the following order:
"1 In relation to:-
(a)Count 4 of the contempt application, PDM is hereby sentenced to a term of imprisonment for a period of 3 months to commence from the date of this order; and thereafter
(b)Count 1 of the contempt application, PDM, is hereby sentenced to a term of imprisonment and not released until ordered to be released by a Judge of the Family Court of Western Australia."
It is against these orders that the appellant husband appealed. At the conclusion of argument we dismissed the appeal indicating we would give reasons later. These are those reasons.

Background

On 12 March 2001, the wife filed an application for settlement of property. On 23 March 2001, the following order was made by consent:
"1 Until further order the husband be restrained and an injunction be…

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 PDM & JEM

Details

AGLC: PDM & JEM [2006] FamCA 1182
Case: [2006] FamCA 1182
Decision Date: 8 November 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by PDM and JEM concerning property settlement orders made by a single judge. The dispute involved the division of assets and liabilities between the parties following the breakdown of their marriage.

The primary legal issues before the Full Court were whether the single judge erred in: (a) failing to give sufficient weight to the contributions of PDM to the marriage, particularly in relation to a business; (b) making an order for the sale of a property that was not justified by the evidence; and (c) failing to properly consider the impact of certain financial decisions made by JEM. The Court also considered whether the overall property settlement was just and equitable.

In its reasoning, the Full Court applied established principles of property settlement under the *Family Law Act 1975* (Cth), including the need to consider the contributions of each party, their financial resources, and the future needs of the parties and any children. The Court referred to cases such as *Gronow v Gronow* and *Abduramanoski and Abduramanoska* regarding the principles of appellate review in family law matters and the discretion of the trial judge. The Court found that while the single judge had considered the relevant factors, there was an error in the weight given to PDM's contributions and in the justification for the sale of the property.

The Full Court allowed the appeal in part, setting aside the order for the sale of the property and remitting that specific issue back to the trial court for redetermination. The remaining orders were affirmed.

Orders