Federal Circuit and Family Court of Australia
(DIVISION 1)
Zamir & Zamir (No 2) [2022] FedCFamC1F 743
File number(s): PAC 2751 of 2021 Judgment of: ALTOBELLI J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – CONTEMPT – First respondent found to have acted in contempt of Court on three counts – Serious, ongoing and flagrant breaches of Court orders – Sentence of six months’ imprisonment – Warrant of Commitment issued.
FAMILY LAW – ANTI-SUIT INJUNCTION – Orders made restraining first respondent from commencing proceedings overseas.
FAMILY LAW – PRACTICE AND PROCEDURE – Litigation guardian – Application for appointment of litigation guardian dismissed.
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.12 Cases cited: Zamir & Zamir [2021] FedCFamC1F 9 Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 20 September 2022 Place: Sydney (via videoconference) Counsel for the Applicant: Mr Fermanis Solicitor for the Applicant: Gramelis Attorneys The Respondents: No appearance ORDERS
PAC 2751 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZAMIR
Applicant
AND: MR ZAMIR
First Respondent
MS R ZAMIR
Second Respondent
J PTY LTD
Third Respondent
Y
Fourth Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
29 September 2022
THE COURT ORDERS PENDING FURTHER ORDRER THAT:
1.The First Respondent is restrained from prosecuting, maintaining or continuing any legal proceedings against the Applicant, or any person acting as her agent, in any foreign jurisdictions, including but not limited to City K and Country F, with respect to any financial, property or parenting matters (with the exception of any child who is not currently living in Australia), except to cause any such legal proceedings in those jurisdictions to be withdrawn.
THE COURT ORDERS THAT:
2.The First Respondent MR ZAMIR is found to have acted in contempt of Court and is sentenced to six months’ imprisonment commencing immediately.
3.For the purposes of Order 2, a Warrant of Commitment be issued in the usual form.
4.The operation of Order 3 is stayed for a period of 28 days.
5.Within seven days of the date of these orders, the Applicant’s legal representatives notify the First Respondent of these orders in accordance with Order 3 of the orders made 2 September 2022.
6.The application for the appointment of a litigation guardian for the Fourth Respondent is dismissed.
The Court notes that:
A.These orders were made in the absence of the respondents and that the provisions of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) may apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules…
Continue reading Zamir & Zamir (No 2)
Sign in free to access the full text
Details
- AGLC
- Zamir & Zamir (No 2) [2022] FedCFamC1F 743
- Case
- [2022] FedCFamC1F 743
- Decision Date
CaseChat Overview and Summary
This case involves the wife's application for contempt against the husband in the context of ongoing family law proceedings. The wife and husband are engaged in financial and parenting proceedings in the Family Court of Australia. The wife alleges that the husband has disposed of most of the family assets, accessed the line of credit secured over the family home, and is in breach of court orders. The husband has not appeared or participated in these proceedings since his lawyers filed a Notice of Ceasing to Act on 13 July 2022.
The legal issues before the court were whether the husband had breached the court orders by disposing of family assets and lending money to a friend, and if so, whether those breaches constituted contempt. The wife relied on three counts to support her application for contempt: the transfer of two apartments to the parties' son and mother, and the husband's loan of a significant sum of money to a friend. The wife argued that these actions were in flagrant defiance of the court's orders and constituted contempt.
In considering the application, the court noted that contempt is a criminal proceeding and must be proven beyond reasonable doubt. The court found that the husband had indeed breached the court orders by disposing of family assets and lending money to a friend. The court held that the husband's actions constituted a flagrant challenge to the authority of the court, as they were deliberate, intentional, and in clear defiance of the court's orders. Accordingly, the court found the husband in contempt of court.
The court made orders appointing the wife as trustee for the sale of the family home and imposing financial penalties on the husband for his contempt. The court also noted that it was unlikely that the husband would return to Australia and that the wife and children would likely remain in Australia.
The legal issues before the court were whether the husband had breached the court orders by disposing of family assets and lending money to a friend, and if so, whether those breaches constituted contempt. The wife relied on three counts to support her application for contempt: the transfer of two apartments to the parties' son and mother, and the husband's loan of a significant sum of money to a friend. The wife argued that these actions were in flagrant defiance of the court's orders and constituted contempt.
In considering the application, the court noted that contempt is a criminal proceeding and must be proven beyond reasonable doubt. The court found that the husband had indeed breached the court orders by disposing of family assets and lending money to a friend. The court held that the husband's actions constituted a flagrant challenge to the authority of the court, as they were deliberate, intentional, and in clear defiance of the court's orders. Accordingly, the court found the husband in contempt of court.
The court made orders appointing the wife as trustee for the sale of the family home and imposing financial penalties on the husband for his contempt. The court also noted that it was unlikely that the husband would return to Australia and that the wife and children would likely remain in Australia.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
These reasons for judgment explain the orders made on an undefended basis against Mr Zamir, the first respondent husband (“the husband”) on the application of Ms Zamir, the applicant wife (“the wife”).Background The wife and the husband are engaged in financial and parenting proceedings in this Court. The wife currently resides in Australia with four of the children, and the husband resides in the Country H with one of the children. In Zamir & Zamir [2021] FedCFamC1F 9, Hannam J determined a review of a registrar’s decision to grant orders on 2 August 2021. Her Honour set aside those orders and made fresh orders in lieu. For present purposes, the Court adopts her Honour’s statements of background at [1]–[44] of those reasons. The children of the relationship are aged 23, 22, 16 (a son), 16 (a daughter) and 12. Only the 16 year old son remains living with the husband overseas. The rest of the children live with the wife in Australia. The wife and children in Australia live in what appears to be the only remaining asset in Australia which is the family home located in a suburb of Sydney. The wife alleges, and the evidence suggests, that the husband has disposed of most of the assets that were formerly in Australia and has accessed the line of credit secured over the family home, thus reducing the available equity. All relevant assets are in the name of the husband. The husband, who was paying the mortgage over the home is no longer doing so. The mortgage is in default. The mortgagee bank appeared at the interim defended hearing on 20 September 2022 and neither consented to nor opposed the orders made. Counsel for the wife conceded that it is unlikely that the husband will return to Australia. The Court made orders on 20 September 2022, one of which appointed the wife as trustee for sale of the family home. These orders are reproduced in the Schedule A to these reasons. Ex tempore reasons were given for making those orders. The Court observes that the reasons for judgment of Hannam J dated 2 September 2021 also provide ample foundation for the making of those orders. The husband has not appeared or participated in these proceedings since his lawyers filed a Notice of Ceasing to Act on 13 July 2022. Various orders for substituted service have been made and the Court is satisfied that all such orders have been complied with. There was no appearance by or on behalf of the husband when the matter was called. Having regard to the urgency of the issues raised, the Court proceeded to hear the wife’s application on an undefended basis. A more comprehensive chronology prepared on behalf of the wife is reproduced in Schedule B to these reasons.The Evidence In support of her case, the wife relied on the following material:(a)Her Application in a Proceeding filed 24 December 2021;(b)Affidavit of Mr L filed 24 December 2021;(c)Her Amended Initiating Application filed 15 December 2021;(d)Affidavit of Ms M filed 20 January 2022;(e)Typescript of consent orders signed by the wife and husband on 2 March 2022;(f)Her Application – Contempt filed 22 July 2022;(g)Her affidavit filed 22 July 2022;(h)Her Application in a Proceeding filed 10 August 2022;(i)Her affidavit and corresponding exhibits filed 10 August 2022;(j)Her letter for urgency filed 10 August 2022;(k)Her Financial Statement filed 10 August 2022;(l)Her Financial Questionnaire filed 10 August 2022;(m)Her affidavit filed 15 August 2022;(n)Affidavit of Mr L filed 19 September 2022;(o)Her case outline filed 19 September 2022; (p)Her chronology provided to the Court on 20 September 2022; and(q)Her minute of order provided to the Court on 20 September 2022.The Contempt Application
Evidence
Evidence Before The Court
A more comprehensive chronology prepared on behalf of the wife is reproduced in Schedule B to these reasons.The Evidence In support of her case, the wife relied on the following material:(a)Her Application in a Proceeding filed 24 December 2021;(b)Affidavit of Mr L filed 24 December 2021;(c)Her Amended Initiating Application filed 15 December 2021;(d)Affidavit of Ms M filed 20 January 2022;(e)Typescript of consent orders signed by the wife and husband on 2 March 2022;(f)Her Application – Contempt filed 22 July 2022;(g)Her affidavit filed 22 July 2022;(h)Her Application in a Proceeding filed 10 August 2022;(i)Her affidavit and corresponding exhibits filed 10 August 2022;(j)Her letter for urgency filed 10 August 2022;(k)Her Financial Statement filed 10 August 2022;(l)Her Financial Questionnaire filed 10 August 2022;(m)Her affidavit filed 15 August 2022;(n)Affidavit of Mr L filed 19 September 2022;(o)Her case outline filed 19 September 2022; (p)Her chronology provided to the Court on 20 September 2022; and(q)Her minute of order provided to the Court on 20 September 2022.The Contempt Application The wife’s case outline filed 19 September 2022 sets out at paragraphs 34–54 her submissions with respect to this part of her application.34.In Ganem & Ganem (No.2) [2013] FamCA 257, Aldridge J held (approved by the Full Court in Oakley & Millar [2019] FamCAFC 12):10.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] FamCA 356; (2002) 29 Fam LR 195; (2002) FLC 93-107)11.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] FamCA 435; (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 [2011] FamCAFC 93; 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 [1994] FamCA 103; (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.The Orders35.On 2 August 2021, a Senior Judicial Registrar made injunctive orders which ostensibly restrained the Respondent from dealing with his assets. (the First Orders) The Respondent was represented at the time of the hearing.36.On 6 August 2021, the Respondent filed an Application for Review in respect of the First Orders. The Respondent did not seek a stay of the orders. The Respondent filed this application via his then solicitors.37.On 2 September 2021, Hannam J made injunctive orders which had the effect of restraining the Respondent from, inter alia, diminishing the value of any assets outside of Australia. (the Second Orders) The Respondent was represented at the time of the hearing. There is no stay of those orders.38.The Applicant relies on three counts in support of her Application for Contempt:38.1.A transfer of property being an apartment known as and located at [Suburb N, City O, Country F], ([Suburb N] Apartment) to [Y] which took place [in mid] 2021 (the First Count).38.2.A transfer of property being an an apartment known as and located at [Suburb P, City O, Country F] ([Suburb P] Apartment) to [Ms S] which took place on or about [mid] 2021 (the Second Count)38.3.On 21 March 2022, the Respondent received a bonus (via two separate payments) in the amount of approximately AUD$659,000. [In early] 2022, the Respondent disbursed the sum of AUD$580,000 asserting it was a loan to [Mr Q]. (the Third Count)The First Count39. The Applicant submits as follows:39.1.On 6 March 2021, the Respondent purportedly entered into a contract of sale with the effect of transferring his interest in the [Suburb N] Apartment to the parties’ son. The said purported transaction is said to have been conducted by the Respondent in his capacity as [Y’s] guardian as well as on his behalf.39.2.[In mid-2021], the Respondent purportedly completed the said contract.39.3.[In mid-2021], the Respondent purportedly received the sum of 570,821,026 [Country F currency] in consideration for the socalled conveyance.40.There is not a scintilla of evidence that would objectively establish the foregoing.41.Somewhat curiously, the purported contract does not stipulate a time for completion.42.The purported sale transaction took place after the making of the First Orders and with the Respondent knowing the terms of those orders.43.Respectfully, the breach of the First Order is so serious that it is a flagrant challenge to the authority of the Court.The Second Count44.In late 2002, the Respondent became the registered proprietor of the [Suburb P] Apartment.45.In mid-2021, the Respondent purported to transfer his interest in the [Suburb P] Apartment to his mother.46.There is not a scintilla of evidence that would objectively establish that the Respondent entered into a valid contract of sale and that any consideration was paid in respect of same.47.The purported sale transaction took place after the making of the First Orders and with the Respondent knowing the terms of those orders.48.Respectfully, the breach of the First Order is so serious that it is a flagrant challenge to the authority of the Court.The Third Count49.In early 2022, the Respondent received the sum of 1,686,009 [Country H currency]50.In early 2022, the Respondent purportedly lent the sum of 1,500,000 [Country H currency] to [Mr Q].51. Order 3 of the Second Orders states the following: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 the [D Bank] and the [E Bank];(iii)Meeting other necessary expenses in relation to the property at [B Street Suburb C]; and(iv)Making any required payments for his legal fees and disbursements in respect of these proceedings.52. Order 3 does not permit the Respondent to lend funds to a friend.53.The transfer of the funds took place after the making of the Second Orders and with the Respondent knowing the terms of those orders.54.Respectfully, the breach of the Second Order is so serious that it is a flagrant challenge to the authority of the Court.(As per the original) (Emphasis in original)
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.