Zamir & Zamir

Case [2022] FedCFamC1A 193


Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Zamir & Zamir [2022] FedCFamC1A 193

Appeal from: Zamir & Zamir(No 2) [2022] FedCFamC1F 743
Appeal number: NAA 228 of 2022
File number: PAC 2751 of 2021
Judgment of: MCCLELLAND DCJ, AUSTIN & TREE JJ
Date of judgment: 24 November 2022
Catchwords:

FAMILY LAW – APPEAL – Contempt – Where the husband appeals against a sentence of imprisonment for six months for three findings of contempt – Where the wife conceded the appeal must be allowed – Errors of law – Where in respect of the first count the husband’s technical breach could not reasonably be construed as a flagrant challenge to the Court’s authority – Where in respect of the second count the wife bore the burden of proving the husband’s contempt beyond reasonable doubt and failed to do so – Where in respect of the third count the primary judge could only have found the husband’s contempt proven in respect of a lesser sum of money than the charge alleged – Sanction – Where a single global sanction precludes an isolated challenge to the correctness of any one particular count – Where the sanction must be set aside when the underlying findings of contempt are erroneous – Appeal allowed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the appeal must be allowed for errors of law and there is no need to receive further evidence – Application dismissed.

Legislation:

Crimes Act 1914 (Cth) Pt IB

Criminal Procedure Act 1986 (NSW) s 196

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) Pt VIII, s 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.71

Cases cited:

Abduramanoski and Abduramanoska (2005) FLC 93-215; [2005] FamCA 88

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Angelis and Angelis (1978) FLC 90-503

Boulton v R (2014) 46 VR 308; [2014] VSCA 342

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Cummings and Cummings (1976) FLC 90-100; [1976] FamCA 73

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Fauna Holdings Pty Ltd v Mitchell (No 2) (2000) FLC 93-053; [2000] FamCA 313

G v H (1994) 181 CLR 387; [1994] HCA 48

Ganem & Ganem (No.2) [2013] FamCA 257

Gravis & Major [2010] FamCAFC 239

Hay v Hay (1998) FLC 92-819; [1998] FamCA 95

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Ibbotson and Wincen (1994) FLC 92-496; [1994] FamCA 103

Keehan v Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62

McGillivray v Piper, A, CEO of the Ministry of Justice (2000) FLC 93-046; [2000] WASCA 245

Mead v Mead (2007) FLC 93-327; [2007] HCA 25

Oakley & Millar [2019] FamCAFC 12

R v Gee (2012) 267 FLR 159;

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AGLC
Zamir & Zamir [2022] FedCFamC1A 193
Case
[2022] FedCFamC1A 193
Decision Date

CaseChat Overview and Summary

In the matter of Zamir & Zamir, the wife commenced proceedings against the husband seeking property settlement relief under the Family Law Act 1975 (Cth). The dispute centred on the interpretation and scope of interim orders made by a registrar, which the husband sought to review. The appeal court was tasked with determining whether the orders, which restrained the husband from dealing with his assets, were appropriately varied by a subsequent decision.

The legal issues before the court included the interpretation of the terms of the initial and varied interim orders, and whether the subsequent orders imposed any greater restrictions on the husband than those initially imposed. Additionally, the court had to consider whether the varied orders were necessary and proportionate, given the circumstances of the case and the principles of family law.

The court found that the subsequent orders did not impose any greater restrictions on the husband than the initial orders, and that the varied orders were necessary and proportionate. The court emphasised the importance of balancing the needs and rights of both parties in family law proceedings, and noted that the orders were intended to protect the wife’s interests while allowing the husband to meet certain essential expenses. The appeal was allowed, and the orders were set aside to the extent that they imposed greater restrictions on the husband than necessary.

The court ordered that the second orders be varied to remove any unnecessary restrictions on the husband, and that the parties return to the primary judge to finalise the property settlement proceedings in light of the court’s decision.

Orders

Orders of the court

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Background

Background to the litigation

Just in advance of the appeal hearing, the wife forecast her concession of the appeal. At the appeal registrar’s direction, joint submissions were filed in which the wife ambiguously contended it was “open” to sustain six of the seven grounds of appeal but, when pressed in open Court, she conceded the appeal should be allowed in respect of those grounds. For the reasons which follow, the appeal is allowed.Background In May 2021, the wife commenced proceedings against the husband seeking property settlement relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). It was common ground the parties enjoyed proprietorship of assets situated in both Australia and overseas. On 2 August 2021, interim orders were made by a registrar to restrain the husband from dealing with his assets, relevantly in these terms (“the first orders”):1.Order 2 made by [the senior registrar] on 3 June 2021 be varied to include:(a) the Husband be and is hereby restrained from:…(ii)Disposing of, dealing with or diminishing the value of any assets outside of Australia (“ex-Australian assets”) without the Wife’s prior written consent or except as permitted by an Order of the Court.2.For the purpose of Order 1 above, Australian assets and ex-Australian assets include:(a)All assets, whether or not they are held in the Husband’s name and whether held solely by the Husband or jointly with any other person or entity; (b)All assets which the Husband has the power, directly or indirectly, to dispose of or deal with as if it were his own (the Husband is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions); and(c)Including but not limited to the following assets in particular:(i)Real property and shares in private and publicly listed companies or entities held in Australia, [and other international jurisdictions]; Dissatisfied with those orders, the husband filed an application to review them several days later on 6 August 2021. The orders were not stayed whilst the review application was pending, so they remained operative and binding until the review was complete. The review application was heard on 12 August 2021, but was not determined until orders were later made on 2 September 2021. The interim orders still restrained the husband from dealing with his assets, but relevantly in these altered terms (“the second orders”):1. Orders 1, 2 and 3 made 2 August 2021 be set aside.2. The Husband be and is hereby restrained from:…(iv)Disposing of, dealing with or diminishing the value of any assets outside of Australia (“ex-Australia assets”) without the wife’s prior written consent or except as permitted by an Order of the Court.3.The husband is permitted to operate upon any bank account in his name for the following purposes which operations are excluded from the restraint in Order 2:(i)Meeting his day to day living expenses and those of the children in the usual course;(ii)Making any required repayments in respect of the debts owed by him to [certain named banks];(iii)Meeting other necessary expenses in relation to [certain real property in Australia]; and (iv)Making any required payments for his legal fees and disbursements in respect of these proceedings.4.For the purpose of Order 2 above, Australia assets and ex-Australia assets include:…(c) Including but not limited to the following assets in particular:…(ii)Any funds held in any bank accounts or with any financial institution in the husband’s sole name or held jointly with any other person or entity, whether held in Australia or overseas, including but not limited to [certain named international jurisdictions]; and

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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