Zamir & Zamir [2022] – Contempt Application Dismissed in Property Settlement Dispute

MCCLELLAND DCJ, AUSTIN & TREE JJ:

1. On 29 September 2022, orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) to determine several disputes between multiple parties.
2. Relevantly for present purposes, as between the spouses, in the appellant husband’s absence, the primary judge sustained three counts of contempt alleged by the respondent wife against him and sentenced him to imprisonment for a period of six months.
3. The particular orders which are the subject of this appeal provide as follows:
   2. The [husband] 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 husband presently resides abroad, but he appealed from the orders through his representation by Australian lawyers.
5. 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

6. 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”).
7. It was common ground the parties enjoyed proprietorship of assets situated in both Australia and overseas.
8. 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];

9. 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.
10. 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

11. For the purposes of both the first-instance hearing and the appeal, only the parties’ assets outside Australia were and are relevant, those assets being:

(a) one parcel of overseas real property (“Property A”), the husband’s dealing with which was the subject of the first count of contempt;(b) another parcel of overseas real property (“Property B”), the husband’s dealing with which was the subject of the second count of contempt; and

(c) the sum of AUD $600,000 (“the funds”), the husband’s dealing with which was the subject of the third count of contempt.

12. The wife believed the husband alienated those assets in deliberate breach of the first and second orders and so filed an Application-Contempt on 22 July 2022 to prosecute him for three specific counts of contempt.
13. The contempt application was listed for hearing in September 2022, at which time there was no appearance either by or on behalf of the husband. The primary judge was satisfied the husband had been properly served and so the hearing proceeded in his absence (at [5]).
14. The three counts of contempt prosecuted against the husband were particularised in these terms:
    1. That on or about 11 August 2021, the [husband] caused to be transferred his interest in an apartment held in his sole name, being an apartment known as [Property A], to the parties’ son, [name], without the Applicant Wife’s prior written consent, contrary to, and in deliberate and flagrant disregard to and contravention of Order 1 of the orders made by [the senior registrar] on 2 August 2021.
    2. That on or about 11 August 2021, the [husband] caused to be transferred his interest in an apartment held in his sole name, being an apartment known as [Property B], to his mother, [name], without the Applicant Wife’s prior written consent, contrary to, and in deliberate and flagrant disregard to and contravention of Order 1 of the orders made by [the senior registrar] on 2 August 2021.
    3. That on or about 24 March 2022, the [husband], caused to be withdrawn from his [bank account] funds in the amount of approximately AUD $586,000 by cheque and AUD $14,000 in cash, without the Applicant Wife’s prior written consent, contrary to, and in deliberate and flagrant disregard to and contravention of Orders 2, 3 and 4 of the orders made by Justice Hannam on 2 September 2021.

(Wife’s Application-Contempt filed 22 July 2022, p.2–3)

15. The primary judge accepted the wife’s unchallenged evidence and submissions, found the three counts were proven, and expressed that conclusion in these terms:
    9. The Court adopts [the wife’s submissions] and is satisfied that the evidence adduced by the wife in relation to each of the three counts establishes those counts to the requisite level. The husband was aware of the terms of the orders made. The Court is satisfied that he acted deliberately, and contrary to the terms of those orders. There is a strong inference that he had acted intentionally and an alternative hypothesis that it was anything else is not available on the evidence. Such acts constitute a flagrant challenge to the authority of the Court.

…

13. The Court is satisfied to the requisite standard that the husband has flagrantly challenged the authority of the Court by wilfully acting contrary to the orders made, as referred to in the contempt application.

16. Moving then to the question of penalty, the primary judge said this:
    14. The husband is committed to prison for six months. This reflects the gravity of his actions and their highly disadvantageous effect on the wife. Before the Court there is no evidence of remorse. Indeed, the time between the transactions referred to above and the correspondence from those representing the wife suggest a level of calculation on the part of the husband that is quite inconsistent with remorse.
17. The appealed orders reflected those findings.

The Appeal

18. The two orders sanctioning the husband’s contempt and directing the issue of a warrant for his arrest and detention represent the “judgment” which is the subject of the appeal (Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64). In challenging the judgment, it is necessary for the husband to demonstrate error in the findings of his contempt expressed within the reasons for judgment, as they are integral to the sanction imposed. The husband attacks the findings made in respect of each of the three counts, as well as the sanction imposed for the multiple acts of contempt.
19. Because the appeal must be allowed for errors of law, there is no need to receive further evidence to demonstrate error and so the husband’s Application in an Appeal filed on 27 October 2022 may be dismissed. However, it may be observed in passing how the application to adduce further evidence in the appeal was misconceived. In the appeal, the husband wanted to rely on an affidavit he filed in March 2022, wherein he had deposed to the circumstances surrounding his transfer of title in Properties A and B, together with some documents annexed to the affidavit. Had he wished, the husband could have attended the contempt hearing, even by electronic means. Had he done so, having heard the evidence adduced against him by the wife, he could have relied upon the historical affidavit in his defence. But he elected not to do so. He cannot now run the case he wishes he had (CDJ v VAJ (1998) 197 CLR 172; Hsiao v Fazarri [2020] HCA 35; (2020) 270 CLR 588 at [53]).

Procedural fairness

20. Ground 6 alleges the husband was denied procedural fairness at the hearing in September 2022 and comprises two separate complaints. The first is that the primary judge did not adhere to the procedure prescribed by r 11.71(6) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The second is that the husband was found guilty of a contempt with which he had not been charged.
21. The second complaint, properly construed, is not one of procedural unfairness but rather one about the validity of the outcome. The efficacy of the findings of contempt are addressed under the other grounds of appeal.
22. As for the first complaint, r 11.71(6) of the Rules provides:

Contempt applications

…

(6) When the person attends before the court, the court must:

(a) tell the person of the allegation; and

(b) ask the person to state whether the person admits or denies the allegation; and

(c) hear any evidence in support of the allegation.

23. As can be seen, the rule prescribes the procedure which should ideally be adopted when the alleged contemnor attends Court to answer the charges of contempt. The rule has nothing to say about the procedure to be adopted when the respondent to the contempt application does not appear, either in person or by legal representatives.
24. The husband was not present at the hearing. There was no evidence – then or now – that he failed to appear due to some misadventure. He chose not to participate. In his absence, once satisfied of his proper service and there being no application made for an adjournment, the primary judge proceeded with the hearing by taking the wife’s evidence of the contempt, receiving her submissions, and reserving judgment.
25. It is a fundamental proposition of common law that a trial for an indictable offence must be conducted in the presence of the accused (Tongahai v The Queen [2014] NSWCCA 81; (2014) 241 A Crim R 217 at [20]), but the principle is not immutable. Though uncommon, the right of an accused person to be present at the trial of an indictable criminal offence may be waived if he or she absents him or herself or escapes from lawful custody (R v Mokbel [2006] VSC 119 at [13]–[14]; R v Gee [2012] SASCFC 86; (2012) 267 FLR 159 at [27] and [57]–[83]). In any event, the hearing of this contempt application was not the trial of an indictable criminal offence and, significantly, most States and Territories have legislated for the ex parte prosecution of summary charges when the defendant fails to appear or wishes to be absent (for example: s 196 of the Criminal Procedure Act 1986 (NSW)).
26. The husband submitted the course which the primary judge should have instead adopted was to hear the wife’s evidence in support of the three counts of contempt, either dismissed or resolved to find a prima facie case established in respect of each, adjourned the part-heard hearing if a prima facie case was found in respect of any count, and then issued a warrant for the husband’s arrest. The corollary of the proposition is that the contempt application would be left in a permanent state of suspension unless and until the husband ever elected to return to Australia so the arrest warrant could be executed. We reject the submission.
27. Had this been a civil cause of action, the primary judge would not have been required to indefinitely delay the hearing merely because the husband declined to appear (see Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 182–186, 189–191; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 4). Given the civil proceedings are still running in parallel, we do not accept the husband was denied procedural fairness in the contempt proceedings. Even if he had been, the error could not be cured by a re-hearing of the contempt application because the husband declines to return to the jurisdiction to re-contest it. It would be an unsatisfactory and incongruent outcome if, by the husband’s choice, he could remain abroad to purposefully avoid answering the contempt charges but still participate freely by electronic means to contest the allied civil financial cause between the parties under Pt VIII of the Act.

Count 1

28. Grounds 1, 2 and 7 concern the findings made to sustain the first count.
29. In essence, the primary judge found the husband deliberately breached the first orders by transferring ownership of Property A to the parties’ adolescent son on 11 August 2021, little more than a week after the first orders were made on 2 August 2021.
30. As the primary judge properly acknowledged in the reasons for judgment (at [8]), proof of the contempt alleged against the husband required proof beyond reasonable doubt of acts done in breach of court orders which wilfully and flagrantly challenged the Court’s authority. Integral to such proof is demonstration of the contemnor’s knowledge of the terms and meaning of the breached orders (Mead v Mead [2007] HCA 25; (2007) FLC 93-327; Fauna Holdings Pty Ltd v Mitchell (No 2) [2000] FamCA 313; (2000) FLC 93-053; Hay v Hay [1998] FamCA 95; (1998) FLC 92-819; Ibbotson and Wincen [1994] FamCA 103; (1994) FLC 92-496 at 81,162). While the husband was not physically present when the first orders were made, the Court record shows he was legally represented at the time and a sealed copy of the orders was sent to his solicitors on the record. The husband takes no issue in the appeal about his knowledge and understanding of the first orders.
31. These grounds contend for error by the primary judge in several respects: first, by finding the husband dealt with Property A in breach of the first orders when the reasons for judgment do not identify the nature of his acts which amount to such breach (Ground 1); secondly, by sustaining the first count in the face of a contradictory finding of fact (Ground 2); and thirdly, that it was “unsafe” for the primary judge to sustain the first count because the wife “failed to disclose all relevant information” when prosecuting it (Ground 7).
32. It is unnecessary to delve into the intricacies of the grounds and the submissions made in support of them because proof of the first count against the husband was foreclosed by the unchallenged evidence adduced by the wife to prove it.
33. The wife deposed the husband bought Property A in 2018 and it was registered in his sole name. She admits the husband entered into a contract to transfer title in Property A to their son on 6 March 2021 – five months before the first orders were made restraining the husband from doing so. A translated copy of the contract was in evidence, as was a letter written by the husband’s solicitors to the wife’s solicitors in January 2022 explaining how the transfer process began well before the first orders were made.
34. Evidently, the wife doubted the husband’s assertion about the history of the transaction, but she did nothing to controvert it. In another letter written by the husband’s solicitors to the wife’s solicitors in February 2022, he suggested that they procure single expert opinion evidence to verify his contention about the conveyancing law and practice in the jurisdiction where Properties A and B are situated, but there was no evidence before the primary judge of the wife embracing that idea before she filed the contempt application in July 2022. It must follow that the wife failed to countermand the truth of the husband’s assertions about the manner in which Property A was lawfully transferred.
35. Audaciously, the wife’s solicitors submitted to the primary judge that there was “not a scintilla of evidence that would objectively establish” the husband’s account of the transaction (at [8]), which submission the primary judge wrongly accepted (at [9]). The submission inverted the onus of proof. The husband had to prove nothing. The wife had to prove his contempt beyond reasonable doubt and, given the state of the evidence she adduced, she was unable to do so.
36. While registration of the transfer of Property A to the parties’ son was not completed until 11 August 2021, being some days after the first orders were made, there was no evidence to elucidate whether that registration was due to the act of the husband or the omission of some government department. Even if it was the husband who delayed the registration of the transfer until after the injunction applied, his legal obligation to complete the transfer at least arguably arose from and was governed by the contract he entered into months before in March 2021. The injunction within the first orders could not be reasonably construed to operate in such a manner as to restrain him from fulfilling his pre-existing legal obligations to complete the transfer, in which case it could not be found the husband acted in contempt.
37. Conversely, even if the first orders did operate so oppressively, the husband’s technical breach of them by registering the transfer with the relevant sovereign authorities in fulfilment of his pre-existing legal obligations could not be reasonably construed as a wilful and flagrant challenge to the Court’s authority according to the criminal onus of proof, again foreclosing the finding of contempt.

Count 2

38. Grounds 3 and 7 concern the findings made to sustain the second count. It is contended that the primary judge erred by finding the husband dealt with Property B in breach of the second orders, particularly in the face of a mistaken finding of fact (Ground 3), and that it was “unsafe” for the primary judge to sustain the second count because the wife “failed to disclose all relevant information” when prosecuting it (Ground 7).
39. Similarly, it is unnecessary to consider the premise of these grounds and the submissions made in support of them because appealable error is manifest from the evidence.
40. The wife deposed how the husband received Property B from his father as a gift in 2012 and the property was registered in his name. The husband transferred title in the property to his mother on 11 August 2021, several days after the first orders were made. In a letter written by the husband’s solicitors to the wife’s solicitors in January 2022, it was alleged the husband contracted to transfer the property to his mother years before on 22 September 2017. A copy of the alleged “sales contract” supposedly verifying the fact was attached to the letter, but it was written in Language HH and was not translated. In February 2022, the wife’s solicitors wrote back saying they were yet to receive a translated copy of the contract, but the evidentiary trail runs cold at that point.
41. Again, the wife’s solicitors rebuffed the husband’s proposal to procure single expert opinion evidence about the conveyancing law and practice in the jurisdiction where Properties A and B are situated, which evidence could have either verified or debunked his assertions about the circumstances surrounding the transfer of Property B.
42. Similarly, the primary judge accepted (at [9]) the wife’s submission (at [8]) that:

There is not a scintilla of evidence that would objectively establish that the [husband] entered into a valid contract of sale [in respect of Property B]…

43. On the contrary, the husband asserted he had entered into a “sales contract” in September 2017 and produced to the wife a copy of the contract (albeit not translated) by way of corroboration. The wife did not adduce in evidence before the primary judge either that contract or any other transfer document pre-dating the registration of the transfer of title between the husband and his mother on 11 August 2021, but that was her choice. She bore the burden of excluding the possible validity of the “sales contract” which the husband provided to her in January 2022. The husband bore no burden of proving anything.
44. At the very least, on the state of the evidence, the wife failed to exclude the reasonable possibility that the husband contracted to transfer the property before the injunction was made, in which case she could not prove the husband’s contempt beyond reasonable doubt for the same reasons discussed in respect of Count 1 (covered by Grounds 1 and 2).

Count 3

45. Ground 4 concerns the findings made to sustain the third count, but raises several complaints in relation thereto.
46. It is contended the primary judge erred by sustaining the third count alleging the husband’s withdrawal of the funds from the foreign account in Australian dollars when the withdrawal was actually made in the currency of the jurisdiction in which the husband holds the bank account (Ground 4.4). We reject this complaint. The bank documents verifying the withdrawal were in evidence, as was correspondence about the bank documents between the parties’ solicitors. Such correspondence expressly discussed the transactions by converting the foreign currency to comparable sums in Australian dollars. The husband admitted withdrawing and using such converted sums from the account. In any event, the conversion of the foreign currency sums to Australian dollars would be easily capable of verification by reference to a currency conversion document, the authority of which could not be questioned (s 144(1)(b) of the Evidence Act 1995 (Cth)).
47. It is next contended the primary judge wrongly sustained the third count because the second orders only restrained the withdrawal of any money deposited in the account at the time the second orders were made in September 2021, but did not restrain the withdrawal and use of money subsequently deposited to the account (Ground 4.3). We reject this complaint. Orders are construed objectively (Lim v Comcare [2019] FCAFC 104; (2019) 165 ALD 217; Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25) and we are satisfied the orders restrained all future withdrawals from the account, other than for limited excluded purposes.
48. It is next contended the primary judge erred in sustaining the third count by finding the husband breached the second orders by lending to a friend the withdrawn funds when the third count only alleged he withdrew the funds from the account and did not allege the use to which the funds were put (Ground 4.1). We reject this complaint. The second orders precluded the withdrawal of any funds from the account, aside for very limited purposes. The count alleged withdrawal of the funds from the account in breach of the second orders and the evidence led in support of the charge proved most (but not all) of the withdrawn money was used in a way other than as permitted.
49. Lastly, it is contended the husband had no knowledge or understanding of the second orders (Ground 4.2), which proposition is also rejected. The husband was legally represented by counsel when the orders were made, so it was open to impute his constructive knowledge of their existence and meaning, even though a sealed copy of the orders was sent to the solicitors who had ceased to act for him. It may be rhetorically asked why the husband would have ensured he was legally represented unless he wanted to contest and know the outcome of the hearing conducted in August 2021 resulting in the second orders made in September 2021? If he had no interest, he need not have bothered with legal representation.
50. The husband cited two single-judge decisions in support of the proposition that an absent litigant is not necessarily proven to have knowledge of orders made in the presence of the litigant’s lawyers (Ganem & Ganem (No.2) [2013] FamCA 257; Angelis and Angelis [1978] FamCA 55; (1978) FLC 90-503). However, those decisions cannot be authority for any binding legal principle because no legal principle governs the manner in which inferences are drawn.
51. As the High Court of Australia said in G v H [1994] HCA 48; (1994) 181 CLR 387 at 390:

…An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law…But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle…

(Emphasis added)

52. The husband also cited Mead v Mead [2007] HCA 25; (2007) FLC 93-327, but no support for his position can be derived therefrom. In that case, the High Court allowed an appeal as it was open for the trial judge to have inferred a contemnor knew of court orders through her solicitor (at 81,641–81,642).
53. Although we are not persuaded by this ground of appeal as particularised, there is still a good reason why the third count could not have been found proven.
54. The second orders were made in September 2021. The wife deposed how the husband received and banked an employment bonus of AUD $659,000 on 21 March 2022, but then withdrew from his bank account AUD $600,000 three days later on 24 March 2022. In June 2022, as part of the husband’s ongoing duty of financial disclosure, his solicitors sent updated bank statements to the wife’s solicitors, who then sought an explanation for the bank transactions in March 2022. The husband’s solicitor’s confirmed the funds were withdrawn to lend AUD $580,000 to the husband’s friend on terms that it be repaid in full, but without interest, by April 2023.
55. According to the admission made by the husband to the wife, he withdrew the sum of $580,000 from his bank account without either notice to her or her consent, for a reason which did not fall within one of the exceptions to the operation of the injunction. However, on the available evidence, the primary judge could only have found the husband’s contempt proven in respect of that sum of $580,000; not the whole sum of $600,000 as charged. There was no evidence of what the husband did with the residue $20,000 withdrawn from the account, in which event the wife did not prove $600,000 was withdrawn in wilful and flagrant breach of the second orders, as the charge alleged.

Sanction

56. Ground 5 concerns the sanction imposed for the three proven acts of contempt.
57. The sanction must be set aside when the underlying findings of contempt are erroneous, but it is worthwhile dwelling upon the merit of this ground in isolation.
58. It is contended the primary judge erred in principle by failing to give adequate reasons for the penalty imposed upon the husband. We accept that proposition to be correct, though there is a broader question about the principled approach to adopt when imposing penalty for contempt, in respect of which the authority on the point is not all one way.
59. A person found to have acted in contempt of a court exercising federal jurisdiction is not a federal offender for the purposes of the Crimes Act 1914 (Cth), in which case the provisions of Pt IB of the statute concerning the sentence, imprisonment and release of federal offenders do not apply (Re Colina; ex parte Torney (1999) 200 CLR 386 at [25], [108] and [113]; McGillivray v Piper, A, CEO of the Ministry of Justice [2000] WASCA 245; (2000) FLC 93-046 at [15]–[18]; Schwarzkopff and Schwarzkopff [1992] FamCA 30; (1992) FLC 92-303 at 79,287–79,290). Nonetheless, the practices adopted by courts imposing sentences for criminal offences are instructive.
60. Significantly in this instance, the primary judge did not impose separate sanctions upon the husband in respect of each individual count of contempt found proven. Instead, an indivisible sentence of imprisonment covering all three separate acts of contempt was imposed. The single global sanction precludes an isolated challenge to the correctness of any one particular count and, in the event of complaint about one, forces an appeal against all. It also hinders the consideration of an appeal directed only to the severity of the sanction because it is impossible to discern what parts of the overall sanction are intended to reflect the individual counts.
61. The practice of imposing one sanction to cover multiple counts of contempt has not been uniformly deprecated (Abduramanoski and Abduramanoska [2005] FamCA 88; (2005) FLC 93-215 at [60]–[86]; Cummings and Cummings [1976] FamCA 73; (1976) FLC 90-100), though the Full Court has more recently commented upon the general undesirability of the practice (Gravis & Major [2010] FamCAFC 239 at [169]).
62. The disquiet about the practice is becoming ever louder, with the Court of Appeal of Western Australia recently saying this (R v T [2022] WASCA 34):
    78. There have been a number of occasions on which the Family Court of Australia has considered the proper approach to sentencing for multiple charges of contempt under s 112AP of the Family Law Act 1975 (Cth), which is the equivalent of s 234 of the [Family Court Act 1997 (WA)].
    79. The decisions were reviewed in [Abduramanoski and Abduramanoska]. In an early decision, [Cummings and Cummings [1976] FamCA 73; (1976) FLC 90-100], the Full Court of the Family Court of Australia had expressed the view that, under a precursor to s 112AP, it was preferable to consider the penalty globally rather than in reference to particular ‘charges’ or ‘counts’. However, views on the correctness of that proposition have differed since that time. In [Abduramanoski and Abduramanoska], the Full Court of the Family Court of Australia noted that s 112AP did not specify whether a ‘global’ penalty may be, or should be, imposed for more than one offence, or whether multiple allegations, if proved, should be the subject of discrete sentences including imprisonment to be served either concurrently or cumulatively. The court concluded that s 112AP affords a sentencing judge a wide discretion, which is to be exercised transparently and in light of the individual facts and circumstances of the case.
    80. In our view, approaching a case by way of the imposition of a global penalty should not lead to a different total sentence than would be arrived at by imposing individual sentences for discrete charges and then applying the totality principle by ordering the sentences to be served cumulatively or concurrently.
    81. In the former case, the court looks to the sentence that is proportionate to the criminality involved in the offending considered as a whole, having regard to all of the circumstances, including those personal to the contemnor.

…

84. The totality principle is a common law concept, the application of which does not depend on express provision being made by the relevant sentencing legislation. The principle has been applied in a wide variety of contexts, as illustrated by the High Court of Australia’s discussion in [Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59]. While questions of cumulation and concurrence may well be affected by particular statutory rules, the totality principle itself is an aspect of the general law against which statutory provisions must be read.
85. In [Lescosky v Durante [2020] FamCAFC 179], Strickland J was concerned with a global fine imposed by a magistrate as a sanction for a series of contraventions of orders without reasonable excuse. Section 112AD of the Family Law Act, in Pt XIIIA of that Act, empowers the court to sanction the contravention of orders in those circumstances. The contemnor appealed, contending that the total effective sentence infringed the totality principle. Strickland J held that it is not open to the contemnor to assert error by the magistrate failing to apply the totality principle. We do not agree with that view. The court’s approach in Lescosky should not be applied to sentences of imprisonment for contempt imposed under s 234 of the Act.

(Footnotes omitted)

63. We agree. It would also be best to dispense with that former approach when applying s 112AP of the Act. To ensure the transparency which is obligatory when sanctioning proven counts of contempt, it is better for the primary judge to impose a separate sanction for each count, representing the ideal balance between relevant objective and subjective factors. The balance should properly reflect the principled consideration of the need to punish the contemnor for the flagrant breach of orders, encourage the contemnor’s future compliance with orders, deter the contemnor from acting in contempt again, and deter others from so acting (Keehan v Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276 at [23]; Oakley & Millar [2019] FamCAFC 12 at [45]; McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401 at [150]–[151]). Having determined an appropriate sanction for each proven count of contempt, the primary judge should then consider the extent to which any sentences of imprisonment should be served cumulatively or concurrently.
64. It will be remembered the reasons for that aspect of the decision comprised only this:
    14. The husband is committed to prison for six months. This reflects the gravity of his actions and their highly disadvantageous effect on the wife. Before the Court there is no evidence of remorse. Indeed, the time between the transactions referred to above and the correspondence from those representing the wife suggest a level of calculation on the part of the husband that is quite inconsistent with remorse.
65. Section 112AP(4) of the Act prescribes the punishment for a natural person found in contempt of the Court to be “committal to prison or fine or both”. No maximum sentence is prescribed for the prison term. Section 112AP(6) of the Act provides the Court may order the contemnor’s punishment on terms, suspension of the punishment, or for the contemnor to give security for good behaviour.
66. It is a fundamental principle of common law that the imposition of a custodial sentence ought be the sanction of last resort (Boulton v R [2014] VSCA 342; (2014) 46 VR 308 at [111]). The primary judge’s reasons offer no explanation for why a fine, security for good behaviour, or suspended sentence of imprisonment were rejected as inadequate sanctions. Nor do the reasons explicate why a full-time custodial sentence of six months was chosen.
67. Some simple examples will illustrate the shortcoming of the determination of and reasons given for the sanction. The primary judge seems to have assumed that the husband’s contempt caused two properties and the funds to all be permanently alienated beyond the reach of the wife and the Court, yet the evidence the wife adduced in support of the third count is that the sum of $580,000 loaned to the husband’s friend is due to be repaid by April 2023, in which event it will be repatriated to the matrimonial pool of property available for division between the parties. The primary judge took into account the husband’s apparent lack of remorse, but not other salient considerations like (for example) the husband’s motivations, the apparent lack of any advantage accrued by him personally, and whether the contempt was uncharacteristic or part of a wider pattern of disobedience by him.

Disposition

68. The appeal is allowed.
69. The appealed orders must be set aside, but an ancillary order should be made dismissing the Application-Contempt since none of the counts within it could be sustained by the evidence led in support of them. The wife acceded to an order in those terms.
70. The parties agreed there should be no order for costs in the appeal.