Rand and Rand - [2008] FamCA 281

FAMILY COURT OF AUSTRALIA

RAND & RAND

[2008] FamCA 281

FAMILY LAW – CONTEMPT - Contravention of Court order

Family Law Act 1975 (Cth)

The Marshall of the Court v Rutherford (1999) FLC 92-866
Australian Consolidated Press v Morgan (1965) 112 CLR 483
Abduramanoski (2005) FLC 93-215
K & J (2004) FLC 93-117
Myers & Myers (2004) FLC 93-291
Australian Meat Industry Employees Union v Minchinbury Station Pty Limited (1986) 66 ALR 557

APPLICANT WIFE:

MS RAND

RESPONDENT HUSBAND:

MR RAND

FILE NUMBER:

SYF

2153

2001

DATE DELIVERED:

28 MARCH 2008

PLACE DELIVERED:

PARRAMATTA

PLACE HEARD:

PARRAMATTA

JUDGMENT OF:

COLLIER J

HEARING DATE:

12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR RICHARDSON S.C.

SOLICITOR FOR THE APPLICANT:

Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT:

MR MAIDEN S.C.

SOLICITOR FOR THE RESPONDENT:

Benjamin & Robinson

Orders

That in respect of the contempt of the orders of 10 January 2006 THE HUSBAND is to be forthwith imprisoned, to be held in prison until discharged by order of the Family Court of Australia, such sentence to commence immediately.
That in respect of the contempt of the orders of 24 October 2006 THE HUSBAND is to be forthwith imprisoned to be held in prison until four months from this date, such sentence to commence immediately.
That the two terms of imprisonment are to be served concurrently.
That a warrant of commitment reflecting the orders of this Court issue forthwith.

IT IS NOTED that publication of this judgment under the pseudonym Rand & Rand is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYF 2153 of 2001

MS RAND

Applicant

And

MR RAND

Respondent

REASONS FOR JUDGMENT

Introduction and Background

On 25 June 2007 I found two contempts against the respondent husband proven. I set out my reasons for those findings in a judgment delivered on 25 June 2007. The matter was then stood over for sentence. The matter came before me on 21 September 2007. On that day and on the application of the respondent, and subject to orders made on that day for the filing of documents and payment of costs, the matter was adjourned. The matter came before me again on 12 November 2007 and on that day I heard evidence from Daniel George Saad, solicitor, the respondent himself, and detailed and carefully reasoned submissions by senior counsel for each of the applicant and the respondent.
When the matter commenced before me on 12 November 2007 a considerable period of time was taken in dealing with alleged breaches of my orders of 21 September by the respondent. Senior counsel for the applicant raised the issue that a cheque had been forwarded by the respondent’s solicitors to the applicant’s solicitors in purported compliance with my order for the respondent to pay the applicant’s costs. It was explained to me that the cheque was not the respondent’s cheque. The cheque postdated to 12 November. Additionally the letter which enclosed…

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 Rand and Rand

Details

AGLC: Rand and Rand [2008] FamCA 281
Case: [2008] FamCA 281
Decision Date: 28 March 2008

CaseChat Overview and Summary

In the matter of *Rand and Rand*, Collier J of the Family Court of Australia considered the husband's contempt of court. The proceedings concerned the husband's failure to comply with previous orders made by the Court on 10 January 2006 and 24 October 2006.

The central legal issue before the Court was the appropriate penalty for the husband's contempt of the earlier orders. The Court was required to determine whether imprisonment was a necessary and proportionate response to the husband's non-compliance.

Collier J found the husband to be in contempt of both sets of orders. In relation to the contempt of the orders of 10 January 2006, the husband was sentenced to immediate imprisonment until discharged by order of the Court. For the contempt of the orders of 24 October 2006, the husband was sentenced to immediate imprisonment for a term of four months. The Court ordered that these two terms of imprisonment were to be served concurrently. A warrant of commitment was to issue forthwith.

Orders

Orders of the court

That in respect of the contempt of the orders of 10 January 2006 THE HUSBAND is to be forthwith imprisoned, to be held in prison until discharged by order of the Family Court of Australia, such sentence to commence immediately.

That in respect of the contempt of the orders of 24 October 2006 THE HUSBAND is to be forthwith imprisoned to be held in prison until four months from this date, such sentence to commence immediately.

That the two terms of imprisonment are to be served concurrently.

That a warrant of commitment reflecting the orders of this Court issue forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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