A and A

[2004] FCWA 112

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	A and A [2004] FCWA 112
CORAM:	PENNY J
HEARD:	6 AUGUST 2004
DELIVERED:	6 AUGUST 2004
FILE NO/S:	PT 245 of 2004
BETWEEN:	A

Applicant

AND

A

Respondent

Catchwords:
Reasons for Judgment (Punishment)
Legislation:
Family Law Act 1975 - s 112AP(4), s 112AP(6), s 112AP(7)

Category: Not Reportable

Representation:
Counsel:

Applicant	:	Mr E Stanley
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	JAMES CHONG & CO
Respondent	:	Self Represented Litigant

Case(s) referred to in judgment(s):

Schwarzkopff and Schwarzkopff (1992) FLC 92-303
Tait and Tait (no 3) (2003) FLC 93-138

1 Having found that the husband is in contempt of the Court in relation to the three breach allegations made by the wife, I now need to consider the issue of punishment. Section 112AP(7) states:

"In spite of any other law, the Court having jurisdiction under

this Act may punish a person for contempt of that Court."

Section 112AP(4) states that:

"Where a natural person is in contempt, the Court may punish

the contempt by committal to prison or fine or both."

Section 112AP(6) states that:

"The Court may make an order for punishment on terms, suspension of punishment or the giving of security for good behaviour."

2 I am not bound by the sentencing principles of either the Commonwealth Crimes Act nor the Western Australian Sentencing Act 1995. Section 3(3) of the Sentencing Act states that the Act does not apply in respect of a person being punished by the Supreme Court or any other Court for contempt of Court.

3 When considering what penalty to apply, Part VIIIB of the Family Law Act gives the Court the widest possible discretion to mould the sanction of the circumstances of the individual situation within the overall principles and philosophy of the Family Law Act. (Schwarzkopff and Schwarzkopff (1992) FLC 92-303)

4 In Tait and Tait (no 3) (2003) FLC 93-138 the Full Court discussed the principles underlying proceedings for contempt arising out of disobedience of a non-monetary order.

"57. Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, It is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

……………..

61. The Australian Law Reform Commission (''ALRC'') in its 1987 report Contempt (Report No 35) pointed out (at par 508) that it is important to recall that proceedings for disobedience contempt may serve one or both of two distinct functions: enforcement of the order and punishment of disobedience of the order. It similarly drew a distinction between situations where the primary aim is coercive as distinct from punitive. In the former case, the sanction imposed is expressed only to last until the occurrence of a specific event that is within the power of the person upon whom the sanction is imposed. In the latter the punishment (if custodial) is imposed for a finite period, usually after the relevant events have occurred."

5 In the circumstances of this case I intend to mould an order that provides for both punishment of the disobedience and enforcement of the order. The breaches of the orders set out in my judgment are serious and have to be looked at in light of the husband's conduct. I stress that it is not the conduct overall which is being punished, but the breaches, but I cannot look at the breaches without looking also at the context in which those breaches occurred.

6 The first breach is that he deliberately failed to provide the addresses of various family members. This was not simply forgetfulness. It was not a matter of just not complying with the order. There was a reason why he did not want the wife or her solicitors to go to those family members and talk to them. He did not want the wife's solicitors to become aware that the money, in fact, was not held by them but was held by him. It gave the husband time to make arrangements to transfer the money overseas.

7 The second breach related to dealing inconsistently with $180,000. In breach of this order the husband transferred the money to Switzerland.

8 In relation to the third breach, the husband failed to ensure that a direction was given to his aunt to return the money to Australia. By this breach he has ensured that the money remained overseas.

9 These are very serious matters. It was not a matter of simply not complying with orders. This was a positive course of conduct by the husband designed to ensure that orders made by the Court would have no effect.

10 In my view, there can be no alternative punishment but to imprison the husband. A fine would be totally inappropriate and in any event, would have the effect of diminishing the asset pool for distribution to the wife. The husband alleges that he has net assets, taking into account liabilities, of approximately $10,000. The wife has funds of approximately $17,000, excluding funds from the sale of the property. The funds from the sale of the matrimonial home amounted to approximately 233,000. As a result of the husband's conduct, only $12,800 remains within the jurisdiction of the Court.

11 I have previously advised the husband that if he was found guilty of the contempts and the funds forwarded to a person overseas were returned, I would consider this a significant mitigating factor. To date this has not occurred. It is important, in my view, to structure a sentence which will encourage the husband to ensure prompt return of the funds which have been sent to Switzerland and to appropriately punish him, both as a deterrent to himself, and others who may be tempted to follow his example.

12 The husband should be sentenced to a term of imprisonment of 18 months. I have already stated that the return of the funds would be a significant mitigating factor. Section 112AP(7) of the Family Law Act gives the Court the power to order the discharge of a person committed for contempt before the expiry of the term of imprisonment. If the husband took steps to ensure that the money was returned from Switzerland and placed into the joint account of the parties, then I would consider an application by the husband to discharge him before the expiry of the 18 month period. The key to a reduction in his sentence is in the husband's hand.

I certify that the preceding [12] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate