Bande & Cade
[2011] FamCAFC 93
•28 April 2011
FAMILY COURT OF AUSTRALIA
| BANDE & CADE | [2011] FamCAFC 93 |
| FAMILY LAW - APPEAL – CONTEMPT – Contravention of Court order - Matters which can amount to a contempt within s 112AP of the Family Law Act 1975 (Cth) – Denial of natural justice – Appeal allowed. FAMILY LAW - COSTS – Costs certificate granted to the appellant. |
| Family Law Act 1975 (Cth) English & English (1986) FLC 91-729 |
| APPELLANT: | Ms Bande |
| RESPONDENT: | Mr Cade |
| FILE NUMBER: | HBC | 1233 | of | 2008 |
| APPEAL NUMBER: | EAA SA | 123 72 | Of of | 2010 2009 |
| DATE DELIVERED: | Amended pursuant to the slip rule 28 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace and Johnston JJ |
| HEARING DATE: | 15 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 August 2010 |
| LOWER COURT MNC: | [2010] FamCA 789 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Goodchild |
| SOLICITOR FOR THE APPELLANT: | Neisha Shepherd Solicitor |
| THE RESPONDENT: | No appearance |
Orders
The father’s contempt application filed on 28 January 2009 is dismissed.
The appeal against the conviction imposed by Benjamin J on 24 August 2010 is allowed and the sentence set aside.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Bande & Cade is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 123 of 2010 and SA 72 of 2009
File Number: HBC 1233 of 2008
| Ms Bande |
Appellant
And
| Mr Cade |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal against a conviction and sentence for contempt imposed by Benjamin J on 24 August 2010.
The matter arises out of orders made by Burr J on 31 October 2008.
The respondent father, although ordered to file a written outline of argument and list of authorities, declined to do so. On the morning of the hearing of the appeal the mother was represented by counsel. The father was called twice, once at 10 am and again at 10.15 am. He failed to appear. The hearing was thus conducted in his absence.
The procedural history of the matter is somewhat convoluted and it is necessary to traverse it in some detail to give context to the appeal before us.
When the appeal was argued, counsel for the mother said that on some occasions when the matter was before Benjamin J the proceedings had not been recorded and no transcript was available. After the appeal hearing it came to our notice that, in fact, the hearings on 17 and 25 March and 13 July 2009 had been recorded and transcribed. Counsel for the mother and the father were contacted, the transcripts sent to them, and consent sought for us to consider them as part of our determination of the matter. Further submissions were invited if counsel or the father wished to make them.
On 31 March 2011, counsel for the mother filed supplementary submissions pursuant to the directions made at the conclusion of the hearing of the appeal on 15 March 2011. For reasons which will become apparent, we do not need to refer to those submissions in order to determine the mother’s appeal. Unsurprisingly, the father filed no further submissions pursuant to the orders of 15 March 2011.
Procedural history
The parties, Ms Bande (formerly Partington) (“the mother”) and Mr Cade (“the father”) met in 1994 in New South Wales (“NSW”) and started to live together in 1995. There are two children of that relationship, F, born in December 1999 and C, born in April 2001. The parties married in September 2000 and divorced in February 2007.
In July 2005 the mother said that the older of the children had made an allegation of sexual impropriety against the father. A little later the younger child too made a disclosure of sexual impropriety. The matter was investigated and the father charged with a criminal offence which was later withdrawn.
In the course of the relationship the parties lived at times on the south coast of NSW and also in Tasmania. They were living in Tasmania at about the time the relationship ended. The mother then moved with the children to NSW.
Without going into detail, it seems to be accepted that after the mother moved to NSW, on a number of occasions, at the father’s behest, the Court ordered her to return the children to Tasmania. In July 2007 the mother applied for an order permitting her to relocate to NSW. That was refused and orders were made restraining her from taking the children out of Tasmania.
In November 2007, with the father’s consent, the mother took the children to NSW, ostensibly for a holiday. She did not return with the children as agreed.
A hearing of contested parenting issues was conducted by Burr J in Hobart in April 2008, then adjourned to two further days in June and July 2008. His Honour reserved his decision, made orders, and delivered reasons for those orders on 31 October 2008.
His Honour ordered (relevantly to this matter):
…
2.That the mother’s application for permission to relocate to the State of New South Wales with the children … be and the same is hereby refused.
3.That at her expense in all respects the mother do return with the said children to Hobart in the State of Tasmania by no later than 28 December 2008.
4.That the said children live with the mother and that she have sole parental responsibility for the said children.
His Honour also ordered that the time the father spend with the children be supervised, having found (at paragraph 130 of his reasons) that the children would be at an unacceptable risk of abuse by the father if they remained in his unsupervised care.
His Honour also found (at paragraph 163) that the mother wanted the father to have no time with the children despite the fact that the experts who gave evidence in the case did not agree that there should be no contact, and where his Honour found (at paragraph 173) that the children wanted to see the father.
His Honour detailed the mother’s past conduct in removing the children from Tasmania necessitating orders requiring their return (at paragraphs 211 and following), having found that:
… Her breaches of Court Orders have been blatant and frequent. I am satisfied that her actions in that regard not just had the effect of impacting upon the children’s relationship with their father, but were designed to do so. She is a consistent, persistent and serial offender.
The mother did not return with the children to Tasmania in compliance with the orders of Burr J. The mother has, at all material times, lived on the south coast of NSW.
Appeal against Burr J’s Orders
On 28 November 2008 the mother filed a notice of appeal against the orders of Burr J. On 4 December 2008 she applied for a stay of Burr J’s orders. The application was heard by Benjamin J who refused to grant the stay.
On 5 May 2009 the Full Court granted the mother leave to appeal against Benjamin J’s refusal to stay the operation of the orders made by Burr J on 31 October 2008.
The mother also appealed against orders made by Benjamin J on 28 April 2009 and 11 May 2009 in the course of his dealing with the contempt application.
The mother’s appeals were heard together in June 2009.
The Full Court reserved its decision and, on 22 December 2009, upheld the mother’s appeal and set aside orders 2 and 3 that refused permission for the mother to relocate to NSW and required the mother and children to return to live in Tasmania. The orders providing for time to be spent between the father and the children were also set aside. The Full Court remitted the mother’s application for permission to relocate with the children from Tasmania to NSW for re-hearing by another Judge and made orders for the father to see the children under supervision in NSW.
The balance of the mother’s appeals were dismissed consistent with the Full Court’s determination on the primary appeal.
Contempt Application
On 13 January 2009 the father filed an application in the Hobart registry of the Court seeking an order that the mother return to Tasmania. On 28 January 2009 he filed an application in the Hobart registry to have the mother dealt with for contempt because she failed to return with the children by 28 December 2008 in accordance with the orders of Burr J. He supported his application with an affidavit sworn on 27 January 2009. There appears to have been no proof of service of those documents on the mother and, as will later appear, we accept that the mother was never personally served with this application before the matter was first before the Court on 3 February 2009.
The matter was first returnable before the Court on 3 February 2009 in Hobart. It is not clear what occurred on that day. The mother did not appear and the matter was stood over until 10 February 2009 before Benjamin J in Hobart.
10 February 2009
The matter again came before Benjamin J on 10 February 2009 when there was no appearance for the mother. His Honour stood over the contempt application to 17 March 2009 at Parramatta and made the following orders:
…
IT IS DIRECTED
2.The respondent mother appear in person at that Court on that day at that time.
IT IS FURTHER ORDERED
3.Leave be given to the Independent Children's Lawyer and the applicant father to appear by video to Parramatta Registry on 17 March 2009.
4.A warrant issue to the Marshall, Federal and all Police of the State and Territories for the arrest of [Ms Partington] (aka [Bande]) in the form which will require her to be taken before a Family Court Judge or Federal Magistrate and bailed to appear before the Court on 17 March 2009 at 9.00am.
His Honour ordered that a copy of the reasons for the orders made on this day not be published but be placed on the Court file. His Honour made similar orders on a number of occasions in this matter. We are not altogether sure why this was done. As a consequence, the reasons were not included in the Appeal Books. We formed the view that a proper consideration of the appeal required his Honour’s reasons delivered from time to time to be before us, if for no other reason than to give context to that which his Honour ultimately ordered. At the commencement of the appeal hearing we asked whether there was any objection to us having regard to those reasons. Counsel for the mother said that there was none and indicated that she had not seen copies of those reasons. We then had regard to the reasons delivered on 24 April, 11 May, 15 May and 13 July 2009.
A warrant in the form foreshadowed by his Honour was issued, the mother was arrested at her home on 17 February 2009, taken to a police station and released to bail conditional on her appearing on 17 March 2009.
As it later became apparent, not only had the mother not been served with the father’s contempt application before the hearing of 3 February 2009, but the first she knew of the application was when a copy was sent to her by the Independent Children’s Lawyer, which she received on 9 February 2009, the day before the matter was to be before the Court and in circumstances in which she was unable to attend Court on such short notice.
Whilst not the subject of specific challenge before us, we have some reservations as to the appropriateness of, and possibly legal basis for, the utilisation of warrants for arrest in the circumstances of this case.
17 March 2009
On 17 March 2009 the matter was again before his Honour. The mother appeared with counsel representing her.
His Honour enquired whether counsel then appearing for the mother had a copy of the father’s contempt application and the father’s affidavit of 13 January 2009. Counsel had not and copies were made available to him. We observe that while his Honour indicated that he was considering the father’s contempt application filed on 28 January 2009, it was supported by an affidavit of the father sworn on 27 January 2009. The affidavit of 13 January 2009 was sworn in support of the father’s application of that date seeking an order that the mother return to Tasmania in accordance with the orders of Burr J. It is not clear whether counsel who appeared for the mother on this day had the father’s affidavit sworn in support of the contempt application.
After acceding to the application on behalf of the mother to adjourn the proceedings so that proper instructions could be obtained, his Honour said at p 6 of the transcript:
The realistic issue is whether your client is imprisoned or not imprisoned in this case. That’s what this case is about. Now that’s if the contravention is established. I don’t know – and I say this very carefully – I don’t know how – that it’s going to be that hard to establish it on the basis that your client seems to concede that she lives in New South Wales and that the order of Burr J is that she lives with the – or that the children live in Tasmania. Now there may be other factors as to - which can bound [sic] on that and that will, no doubt, be matters that you or whoever you may brief - or will look at.
But if it’s established that a Judge of this Court has made findings of regular and consistent breaches of the order to live in – that the children live in Tasmania, and then there is a finding that she’s in contempt of the Court order that she lives – it narrows the options that this Court has in relation to how it deals with that. So I form no view, and I can form no view. But what I want clear in everyone’s mind is that this is a matter where there can be very serious consequences if the contempt is established. Now I say that knowing your client is in court and knowing you are here.
In earlier discussion with counsel for the mother, his Honour had referred to Burr J’s findings repeated above in these reasons in relation to the mother’s failure to comply with Court orders.
His Honour ordered that the contempt proceedings be adjourned to Parramatta on 25 March 2009 and directed that the mother appear in person at the hearing on that date. His Honour discharged the warrant for her arrest.
His Honour gave leave for both the father and the Independent Children's Lawyer to appear by video link or telephone, whichever was available.
25 March 2009
On 25 March 2009 the matter was again before his Honour.
On this day, another counsel, Mr Evers, appeared for the mother. He applied for the matter to be adjourned to:
… allow Ms [Bande] a very short period of time to essentially purge – if I can use that word – the contempt, that is to come back to this Court with evidence that she has taken significant steps to relocate into Tasmania, if she hasn’t done so already …
His Honour clarified with Mr Evers whether the mother does “admit the breach but there’s an issue as to whether it’s a contempt.” Counsel agreed.
In his Honour’s reasons for orders made on 11 May 2009, he referred back to the events of 25 March 2009.
His Honour said:
10. The matter came back before me on 25 March 2009 and the mother attended at the Family Court in Parramatta with Mr Eavers [sic] of counsel. There was a robust discussion between myself and Mr Eavers [sic] when a number of matters became clear. First of all the mother, if she defended the contempt matter, would not take issue that she was not complying with the order of Burr J, but would take issue that it did amount to a flagrant breach; and further, that if it was a flagrant breach, he said his client was prepared to consent to a number of orders which would either prevent a conviction for contempt or purge any contempt if such contempt existed.
11. Orders were then made by consent that the contempt application be adjourned to a judicial duty list before me on 27 April 2009 and that the mother provide evidence that she was returning to Hobart and that the children would be enrolled in school in Hobart commencing 20 April 2009 after Easter break.
12. The mother agreed to provide evidence to the Independent Children's Lawyer of air fares, the names of schools and enrolment. The mother also agreed and consented to a direction that she attends court on 27 April 2009 at 10am.
His Honour made orders by consent that the mother provide the Independent Children's Lawyer with information about:
…
(a)evidence of airfares and/or other appropriate travel arrangements being booked for the return of the mother and children … to Hobart;
(b) the name of the school to which the children are enrolled;
(c)evidence of the application for enrolment of the children in such school.
The matter was adjourned to 27 April 2009 in Hobart and the mother was directed to attend Court in Hobart on that day.
The orders continued:
…
IT IS NOTED:
4(a)the mother admits at the present time she is in breach of the orders but there is an issue as to whether this amounts to a contempt within the legal meaning of that term.
(b)the mother will enrol the children in school in Tasmania for the term commencing 20 April 2009.
27 and 28 April 2009
On 27 April 2009 the mother did not attend in person but was available by phone. The father did not appear. His Honour stood the matter over to the next day, 28 April 2009, and directed, as he had on 25 March 2009, that the mother appear in person in Hobart.
When the matter was called on before his Honour on 28 April 2009, the mother did not appear in person. Counsel appeared on her behalf.
The transcript of this day’s proceeding was before us as were his Honour’s reasons for decision.
Counsel for the mother (Mr Gunson) informed his Honour that the mother was in Sydney in the chambers of her Sydney counsel, Ms Goodchild. Mr Gunson’s understanding was that the mother had, prior to that day, made an application to appear before his Honour by telephone. He told the Court that the mother was then available by phone to participate in the proceedings. His Honour declined to allow that.
The mother had filed an affidavit (sworn on 24 April 2009) in the proceedings. His Honour indicated that he was aware of that affidavit.
In that affidavit the mother said that she had been unable to comply with the orders of 25 March 2009 because her husband was not able to find work in Tasmania and she could not find accommodation in Tasmania, organise travel arrangements, move to Tasmania and enrol the children in school. She continued that her husband had applied for many jobs without success. The affidavit contained details of her husband’s attempts to find work and her attempts to find accommodation. Annexed to her affidavit were documents that included copies of bank documents which appeared to support her contentions.
From the transcript of the hearing, it seems that his Honour adjourned the matter briefly to allow Mr Gunson to obtain instructions from the mother. After the adjournment, Mr Gunson indicated that the mother needed time to make the necessary arrangements to travel to Tasmania, taking into account that she had an infant child.
His Honour adjourned the matter until 11 May 2009 at 4pm in Hobart and ordered:
…
IT IS DIRECTED
The respondent mother appear personally at Hobart on that day.
IT IS FURTHER ORDERED
A warrant issue for the respondent’s [sic] mother’s arrest to be brought to court on 11 May 2009 such operation of such warrant to be suspended until 4.00 pm 11 May 2009.
His Honour’s reasons for decision delivered on 28 April 2009 were on the Court file and we have considered them. After traversing the procedural history of the matter, his Honour said:
13. The court is extraordinarily concerned that she did not firstly return to Tasmania with the children as was implicit in the orders of 25 March 2009; and secondly that she did not attend in person as she was required to do on 27 April 2009.
14. The mother appeared by counsel on 28 April 2009 and sought an adjournment of five weeks so that she could arrange an orderly transition to Tasmania. This must be seen in the light of the orders that she consented to on 25 March 2009, which orders have not been complied with, although I am not able to say that there is a reasonable excuse in respect of that.
In dealing with the mother’s application made to his Honour on 28 April 2009 that the matter be adjourned for five weeks so that she could arrange to move to Tasmania, his Honour said:
15. I declined that application but stood the matter over to the next duty list before I take leave and issue the warrant to lie in the Registry pending the mother’s appearance on the next occasion.
16. The purpose for that was to ensure the mother’s appearance in person at court on the next occasion and that is in Tasmania.
17. It is only appropriate that if a contempt application is to be dealt with the mother ought to be here in person rather than in an electronic way or in a circumstance where she remains, on the face of it, in breach of the order which bases the contempt.
11 May 2009
On 11 May 2009 counsel appeared for the mother but she did not appear before the Court. Her counsel indicated that the mother did not have the finances available to her to appear. He said:
… it would appear that Thursday is the cheapest flight between Hobart and Sydney and the cost is about $400 and Ms [Partington] indicates that the next family payment that they receive … will be in early June. When I say “they”, Ms [Partington], Ms [Cade] and her new partner have exhausted all avenues of borrowing …
Counsel referred the Court to an affidavit filed by the mother on 8 May 2009.
His Honour adjourned the proceedings to 21 May 2009 in Hobart.
His Honour said in his reasons delivered on that day:
21. The mother filed an affidavit today setting out a series of reasons why she couldn’t be here and informing the court that she has now sought and obtained leave to appeal my decision in relation to the stay and offering the reason that she is not here that she does not have the funds to come down here, notwithstanding that her present husband earns some $1000 per week, and notwithstanding her assertion on 25 March 2009 through counsel that she had the capacity to come down here in April for the children to commence school.
22. I have some concerns about the bona fides of those statements she makes, and in saying that I make no criticism of counsel in any way shape or form; and I note that Mr Crotty appears today on a pro bono basis and observe that the mother has been well served by the legal profession. I am not prepared to wait at the end of a string for another set of reasons and another set of excuses.
23. The father is quite properly entitled to have his applications heard. The mother firstly ought to be here and secondly has promised to be here. I do not accept for the reasons already articulated that she cannot be here, particularly having regard to the promises she made to the court when the contempt application could have been dealt with on 25 March 2009.
His Honour continued:
26. The mother expresses a concern that this court should await the outcome of the appeal which is only in June. I have concerns about the mother’s bona fides in that regard, and when I say I have concerns, I make no findings but I am entitled to express concerns which may be clarified in affidavit or further explanation, but the mother was aware on 25 March 2009 that there had been no appeal of my decision with regard to the stay and yet that appeal was only lodged, as I understand it, in late April or early May.
…
28. The mother must appear before me. I have given her as much scope as I could possibly give to enable her to attend at this court and face the contempt proceedings.
29. On the last occasion I issued a warrant and I made it clear it ought to lie in the registry. The whole point of that was to express to the mother the concerns that I have about her failing to attend this court; failing to do what she said she was going to do.
As can be seen, his Honour expressed some hesitation in accepting the mother’s sworn evidence. We observe that no application was ever made (so far as we can tell from the transcripts before us and according to submissions of counsel for the mother) to cross-examine the mother on her affidavits. According to the transcript of 11 May 2009 (at p 9), the Independent Children's Lawyer submitted to his Honour that she had “concerns” about the mother’s evidence about her finances, but that it seems was the limit of her “concerns”.
His Honour’s expressed reservations about the mother’s “bona fides” seems not to have been in response to a submission made by one of the parties and is not further explained in his reasons.
His Honour ordered a warrant issue for the arrest of the mother, “… to be brought to the Family Court of Australia at Hobart on 21 May 2009 at 3.00 pm”. It is not clear whether his Honour intended that, when arrested, the mother would be taken into custody and remain there until 21 May 2009.
His Honour said to counsel for the mother at the conclusion of the hearing (transcript of 11 May 2009 at p 11):
Mr Crotty, I suspect it will take some time for the police to arrest your client – probably a week or so. It seems to me that if she chooses to attend this court with the children some time this week, not Friday, that may do …
15 May 2009
On 15 May 2009 the mother was arrested pursuant to the warrant issued on 11 May 2009. A telephone hearing before his Honour was arranged.
There is no transcript of the proceeding before his Honour on 15 May 2009.
His Honour ordered (relevantly):
…
5. Bail be granted to [the mother] conditional upon the following:-
(a)the applicant attend in person at the Hobart registry of the Family Court of Australia at 4.00 pm on 22 June 2009;
(b)the applicant uses all appropriate endeavours to ensure that [the father] see the children … on a supervised basis on 29 May 2009.
…
7. The Officers of the Australian Federal Police release the respondent in accordance with the conditions imposed in order 5 above.
His Honour’s reasons were on the Court file and we have had regard to them.
As can be seen from his Honour’s orders, the mother apparently made an application for a stay. Whilst the reasons do not mention it, the orders reflect that his Honour gave the mother leave to make an oral application for a stay, made directions for the filing of affidavits in support of the stay and stood it over to 22 June 2009 at Hobart.
On 19 June 2009 the mother again sought to adjourn the proceedings, and filed an affidavit (sworn on 19 June 2009) in support of the application, because the children were ill with influenza.
It seems that her application was granted because the matter was next before his Honour on 13 July 2009.
13 July 2009
The transcript of what occurred before his Honour on this day became available after the hearing of the appeal.
The mother appeared in person.
The orders made were as follows:
1. IT IS NOTED that the court finds that the mother has contravened the order made in this Court on 31 October 2008 pursuant to s112AP of the Family Law Act 1965 [sic]
2. The application be adjourned for evidence, submission and argument on penalty.
…
After granting leave to the mother to appear the next day either in person or by counsel the orders continued:
…
IT IS NOTED
5. The Court will not be determining a penalty until such time as the Full Court delivers itself of the appeal to the orders made 31 October 2008 and consequential orders.
His Honour directed that a copy of the reasons for decision be given to the parties and placed on the file. As we have indicated, with the consent of counsel for the mother, we have considered his Honour’s reasons for his orders made on this day. We have also considered the transcript of the proceedings.
The mother was unrepresented on this day. The mother told his Honour that her barrister was unable to appear for her and she asked that the hearing of the contempt application be adjourned until after the appeals were heard. Mr Cade did not oppose that course, nor did the Independent Children's Lawyer. His Honour indicated (transcript at p 4) that he was “… probably content in the circumstances to adjourn the contempt application and have that stood over until after the determination of the appeal”. His Honour said at p 6 of the transcript, after reiterating that he was not concerned about adjourning the contempt application until after the appeal:
Because one of the factors, I suspect, I will have to take into account is if the Full Court says that the orders were not appropriate orders that will have some bearing on – perhaps not on whether there ought to be a conviction because there was no stay when the orders were made but it would certainly have a significant bearing on the penalty because I think last time we were here there was no appeal against my decision not to stay the orders. I made it very clear that gaoling was an option but if the Full Court determined that the appeal ought to be allowed then that changes the whole process of that …
His Honour then said:
… One of the things I may be doing, Mrs [Bande], is this: I may be changing the nature of the orders I’ve made because I’m being very concerned that for whatever reasons when I’ve made orders for you to appear sometimes you haven’t appeared. I understand, I’ve read your affidavits. I’m not going to go into that at the moment but what I will probably do is, I think there is an arrest warrant out in place, isn’t there? I will probably grant the mother bail rather than an order to come back to court. You may need to talk to your barrister about that. The reason I’m thinking about granting you bail rather than make an order is that if you are bailed to attend court and you don’t attend then there will be much more severe consequences arising out of that. Do you understand what I am saying?
To which the mother replied:
No I don’t really. Are you saying that I will have to attend court again in Hobart? It’s just that this has caused us a lot of financial difficulty just to appear today and that’s one of the big appeal reasons.
His Honour told the mother that she had to be in Hobart for the contempt application and refused her request to appear by telephone.
The matter was stood down briefly while the Independent Children's Lawyer made some enquiries as to whether the father could spend some time with the children in a contact centre in NSW close to where the mother was living.
When the hearing resumed, his Honour had apparently changed his mind about adjourning the matter and told the mother that he proposed to hear the contempt application. The mother said (at p 9 of the transcript):
Is that able to go over because I’m not legally represented today and I was under the assumption that the hearing would be to apply for a stay of the orders until the appeal decision was handed down.
To which his Honour replied:
Well, I’ve already determined that and the stay hasn’t been granted. The Full Court, if they had chosen, could have dismissed, sorry, could have overturned my decision on the stay and granted a stay pending the determination of the appeal because I had already refused the stay on the case …
The mother again said to his Honour that she was not ready to deal with the matter that day, that she was not represented and not prepared to do it.
His Honour then proceeded to determine the contempt application.
At p 10 of the transcript, his Honour read out the charge to the mother and said:
… You’re unrepresented today and I will treat – I won’t ask you to enter a plea unless you particularly want to. You can either admit the contempt or deny the contempt. There are two aspects to the contempt.
The mother said:
I’m not prepared to do either today.
To which his Honour replied:
Thank you. I will treat that as a denial. Do you have any questions that you wish to ask Mr [Cade] in relation to the matter bearing in mind his affidavit?
The mother declined, saying again that she was not prepared.
Contrary to his indication earlier given, his Honour said that he proposed to deal with the question of whether there was a breach of an order but would not deal with the question of penalty until after the Full Court had delivered its decision on the appeals. He said at p 11 of the transcript:
… There is one aspect which is probably not in issue, that is, you were required to return the children to Tasmania after 28 December 2008. There is no issue that you haven’t returned the children as far as I’m aware, isn’t that the case?
The mother said, “I think, yes.”
His Honour said:
The real issue is whether it amounts to a flagrant contravention of the court orders. Do you have anything to say in relation to that?
The mother replied:
No, it’s not that I have not complied with the orders. I’ve been unable to. Haven’t been able to afford to move. I haven’t been able to afford to get down there. I have taken the children to the contact centre once on 29 November last year, to the Wollongong Centacare. The children both refused to see Mr [Cade]. I dropped them off. They refused to the workers, independent of myself. I took the children to the Centacare Campbelltown centre on 29 May, I believe it was, this year and [F] refused to see Mr [Cade]. [S] [sic] asked if she could just say hello so he has seen [S] [sic] this year on 29 May but she did not want to stay.
The mother added that all of her evidence was in affidavit form.
His Honour then said:
I find that the mother has contravened the order made 31 October 2008 and such contravention involves a flagrant challenge to the authority of the court.
His Honour noted in his reasons for judgment that:
2. There are a number of matters which are not in issue. Firstly, that the children … have not been returned to Tasmania … Secondly, there is no issue that the mother knew of the order, as she made an application to me in December 2008 for a stay of the order made by Burr J and that stay application was dismissed.
3. Accordingly, there is no doubt, on the material before me, that there is a breach of the order. The question is whether the breach is a breach which is a flagrant challenge to the authority of the court as is required by the case law. The power to punish someone for contempt of a court order in this Court is a statutory power under section 112AP, so it is an application under section 112AP, which requires there to be a flagrant challenge.
…
5. The mother consented to an order in March 2009 to comply with the orders, or to commence complying with the orders of Burr J, by moving back to Tasmania and enrolling the children in school. This was done at a time shortly after she had been arrested and bailed to appear before me at the Family Court Registry in Parramatta.
His Honour noted (in paragraph 7) that (at the date of this judgment) the Full Court had not determined the matter and the orders of Burr J remained in force.
His Honour then said:
8. The mother, after being arrested and bailed to appear before me, attended at the Parramatta registry of the Family Court. On the first appearance she was represented and sought an adjournment to properly instruct counsel. I had informed her then counsel at that time I would be hearing and determining the contempt application. The application came back before me that following week at Parramatta and the mother had different counsel. That counsel acknowledged that the mother was in breach of the order of Burr J and said the issue was whether it amounted to a flagrant breach. The mother sought an adjournment until late April 2009 to enable her to return to live in Tasmania with the children pending the determination of the appeal. The father and Independent Children's Lawyer consented to that course and consent orders were made, including an order that the mother appear in person in the Family Court Hobart on that April date.
9. When the matter came before me in April 2009 the mother did not appear in person and informed the Court that she could not comply with the orders made in March 2009 due to her financial circumstances. The mother had changed legal representation at that time, who sought to appear via telephone-link, that application was refused and local counsel appeared pro bono to represent the mother. I am satisfied in those circumstances and in those facts, which are essentially uncontroversial, that the mother is in contempt of that earlier order. Accordingly, I find that the mother has contravened the order made 31 October 2008 and such contravention involves a flagrant challenge to the authority of the court.
24 August 2010
The matter was finalised by his Honour on 24 August 2010. His Honour made the following orders:
1. [The mother] is convicted of a contravention of the orders of Justice Burr made 31 October 2008 that the children of the parties reside in Tasmania. Such a contravention being a flagrant challenge to the authority of the Court.
2. A consequential order that the mother enter into a Bond, without surety, for a period of two (2) years from the date of this order such Bond to provide that the mother comply with the orders of this Court in regard to the children … spend time with the father.
3. Orders 1 and 2 be stayed pending determination of an appeal in respect of these orders or for a period of thirty (30) days whichever is the longer.
By the time of this hearing, the Full Court had heard and upheld the mother’s appeal against the orders of Burr J requiring, amongst other things, her to return with the children to Tasmania.
Reasons for judgment 24 August 2010
His Honour commenced the reasons by noting the father’s assertion that the mother has been in “flagrant breach” of Burr J’s order from October 2008 until at least 25 March 2009. He noted that the mother conceded in March 2009 that she was in breach of Burr J’s order but that there was a dispute as to whether this amounted to contempt. His Honour noted that in July 2009 that he found the mother guilty of contempt of Burr J’s order.
His Honour continued:
…
5. The second aspect is that the orders of Burr J provided that the mother live in Tasmania, pending the existence of those orders or any stay of those orders or any determination of the Full Court. There was, of course, a determination of the Full Court later in 2009. I could not and would not have had regard to the mother’s conduct in not returning to Tasmania in April 2009 as she promised in respect of any finding of flagrant contempt. However, I can have regard to the failure of the mother to comply with her undertaking or promise to return to Tasmania in terms of sentencing.
6. The mother said to this Court in March of last year when she appeared at Parramatta, through learned counsel and in person, that she would return the children to Tasmania pending the outcome of the appeal. At that stage, the stay application had been refused by me the preceding December and there was no appeal in relation to that stay. The appeal in relation to that stay was not lodged until either late April 2009 or early May 2009. I have had regard to that history in terms of sentencing.
His Honour proceeded to discuss the sentence to be imposed.
It is apparent that paragraphs 1 to 10 of the reasons published in August 2010 related to the sentence to be imposed on the mother, she having been found guilty of contempt.
From paragraph 11 his Honour includes, by reference, paragraphs from his reasons delivered on 13 July 2009.
It seems that the ex tempore reasons delivered on 24 August 2010 contained about 14 paragraphs of that published decision. Some time later his Honour revised those reasons and added a further 34 paragraphs under the heading “Supplemental Reasons for Judgment”.
In paragraph 20 his Honour noted again the procedural history of the matter before him and concluded that the “… mother continued to decline to appear in person as ordered by this Court”.
At paragraph 21, his Honour adverted to a further application made by the mother for an adjournment of the proceedings before him, which appears to refer to the hearing on 13 July 2009, and said:
Her appearance on this date was the first appearance by her at the court in Hobart since the contempt application had been filed. The mother had more than enough notice to be aware of the hearing and appeared in person, there was no satisfactory explanation as to why she did not arrange counsel for that day. As such I declined her application for [sic] further adjournment.
His Honour referred to the law and authorities relevant to dealing with an application that a party be declared to be in contempt of an order of the court. He also set out the procedural history of the matter, much of which appears above.
At paragraph 45 his Honour said:
I am satisfied that her breach of the orders, having regard to the evidence, is a flagrant [sic] in terms of the section. It could not be otherwise. Court are [sic] entitled to expect litigants to comply with orders, they are not requests that are to be treated seriously. The mother has had ample time to address the circumstances of the admitted breach but has chosen not to do so.
As we have indicated, having found the contempt established, his Honour chose not to proceed to sentence but deferred that until the Full Court had determined the mother’s appeal.
The mother’s evidence
In total, the mother filed six affidavits relevant to the contempt proceedings sworn on 24 April 2009, 8 May 2009, 19 June 2009, 9 July 2009, 23 August 2010 and 23 September 2010.
The mother was not required for cross-examination on any of those affidavits. It is clear, from the transcripts, that his Honour was aware of those affidavits.
Each of her affidavits was prepared in relation to an occasion on which the matter came before the Court. It is of assistance to include her evidence as part of the narrative of the procedural history.
The affidavits are somewhat repetitive, each containing information preceding the date of filing of the affidavit. For these purposes, the mother’s evidence can be readily obtained from her affidavit of 23 August 2010. We will set out relevant paragraphs of that affidavit.
…
9. On 9 February 2009 I received a letter dated 3 February 2009 from the Independent Children's Lawyer, Louise Mollross (referred to as the ICL) advising me of a court date on 10 February 2009. This letter enclosed an amended application in a case and an application for contempt and an affidavit by Mr [Cade] sworn 27 January 2009. I had not been telephoned by Ms Mollross or Mr [Cade] regarding the proceedings on 10th February 2009. I had not been served separately with the original application in a case ...
10. I have never been served by Mr [Cade] with the contempt documentation. I was unaware of a court date of 3 February 2009 until after I received the correspondence from Ms Mollross dated 9th February 2009.
11. On 9 February 2009, I phoned the national enquiry line to say it would not be possible for me to attend court the next day due to financial difficulties and my child rearing responsibilities and at such short notice. ‘John’ said to email the Hobart Registry and gave me the email address.
12. On 9th February 2009, I emailed the Hobart Registry. I received a reply email the morning of 10th February 2009 saying they had received it.
13. On 17 February 2009 I received a letter dated 12 February 2009 from the ICL saying I was required to attend court on 17 March 2009 at 9am at Parramatta. There were no orders or applications accompanying that correspondence …
14. On 17 February 2009 in the afternoon a Police Officer came to my residence with a warrant for my arrest for not attending court on 10th February 2009. I did not know a warrant had been issued for my arrest, the letter from the ICL did not advise me of a Warrant being issued. I understood that the proceedings had been adjourned until 17 March 2009 in Parramatta. I was extremely upset about being arrested.
15. At the police station I received the orders that were made on 10 February 2009 in my absence.
16. I was charged and police bailed without needing to go to court on the condition that I appeared in person at Parramatta Family Court on 17 March 2009 at 9am, which I did.
17. I entered into consent orders on 25 March 2009.
18. The contempt proceedings were set for mention again on Monday 27th April 2009. The counsel that the NSW Bar Association had arranged to represent me on a pro bono basis in those proceedings was unable to appear with me on that day.
19. I then made arrangements for Ms Goodchild to represent me [sic] 27th April 2009. I filed an application to attend the court electronically and I provided the contact details for Ms Goodchild’s chambers. I travelled to Sydney and waited with Ms Goodchild in her chambers to be contacted by the court. In my presence Ms Goodchild contacted the National Inquiry Line on one occasions to let the court know that I was available. I was unable to contact the Registry in Hobart directly.
20. At 12.45pm on 27th April 2009 the ICL, Ms Louise Mollross, contacted Ms Goodchild by telephone. I am informed and verily believe that the father did not appear on that day. I understand also that the father had consented to the contempt proceedings being adjourned.
21. For reasons that are still not clear to me, the court did not call me on Monday 27th April 2009. I am informed by Ms Goodchild and verily believe that [sic] ICL informed Ms Goodchild that the matter had been put over for the Tuesday 28th April 2009 at 3.30pm and that I and Ms Goodchild were ordered to appear in person in Hobart.
22. It was impossible for me to appear in Hobart that day. I was informed by Ms Goodchild and verily believe that it was not possible for her to appear in Hobart in person on that day.
23. I am informed by Ms Goodchild and verily believe that Ms Goodchild arranged for an appearance of Counsel, Mr Chris Gunson, to appear for me on a direct access pro bono basis before his Honour in Hobart at 3.30 pm on Tuesday 28 April 2009. I again travelled to Sydney and met with Ms Goodchild in her Chambers in anticipation that the court would contact me. I spoke with Mr Gunson.
The mother then referred to a conversation with Mr Gunson about when she could travel to Hobart. The mother said that she told him that she could not travel sooner than the beginning of June because of financial difficulties. The mother said that she was later informed by Mr Gunson that the matter had been adjourned until 11 May 2009, that she had been ordered to appear and that, in default, a warrant would issue for her arrest.
After noting that on 15 May 2009 she sought an adjournment of the hearing of 22 June 2009 because the children were ill, the mother said at paragraphs 29 to 32 of her affidavit:
29. … The court appearance I was requesting an adjournment for I was informed on 15 May 2009 in the Sydney family Court, was to seek an oral application for a stay of Order 3 of the 31 October 2008 Orders.
…
31. Court was adjourned till 13 July 2009 in the Hobart Family Court.
32. On 13 July 2009 I attended Hobart Family Court. His Honour Benjamin ordered that ‘the court finds that the mother has contravened the order made in this court on 31 October…’, and as I was of the understanding that these proceedings were for the purpose of seeking an oral application for a stay I was not legally represented or prepared for the contempt application to be run. I have appealed these orders.
At paragraphs 35 to 37, the mother said:
35. In relation to the contempt proceedings I did not intentionally not appear at the proceedings as evidenced by my affidavit. I believe that I made genuine efforts to appear on the occasions that I was aware of. I did not deliberately breach the orders regarding my appearance.
36. In relation to the contempt proceedings concerning relocation to Tasmania, I did appeal the final orders made by Justice Burr on 31st October 2008 which was successful.
37. At the time of the contravention application and contempt proceedings I was caring for a young family and dealing with the many applications before the court including Appeal Applications. I could not afford legal representation for the contempt or contraventions proceedings and Ms Goodchild appeared at the Full Court regarding the Appeals concerning the Orders of 31st October 2008 on a pro bono basis.
The relevant law
Section 112AP of the Family Law Act 1975 (Cth) (“the Act”) provides that a Court may punish a person for contempt of court where the matter concerns a breach of an order which “constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court” (s 112AP(1)(b)).
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1994) FLC 92-496 the Full Court held (at 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 the general run of breaches which are intended to be dealt with under s 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied…”
The breach in question must be wilful (that is deliberate, as distinct from inadvertent) but not necessarily contumacious. In English & English (1986) FLC 91-729 the Full Court held (at 75,294): “In our opinion the line of authorities … demonstrate that in proceedings for civil contempt it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent. It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or omission was done with a deliberate intention to break or disregard the undertaking or order.”
Rule 21.08 of the Family Law Rules 2004 provides, in effect, that at the hearing of an application the Court must (our emphasis):
a)inform the respondent of the allegation;
b)ask the respondent whether he or she admits or denies the allegation;
c)hear any evidence in support of the allegation;
d)ask the respondent to state their response to the allegation;
e)hear any evidence for the respondent; and
f)determine the case.
The standard of proof in s 112AP applications is that the charge must be proved beyond reasonable doubt. In Tate & Tate (2002) FLC 93-107 the Full Court stated as a matter of principle (at paragraph 63) that: “In our view, having regard to Witham v Holloway … the standard of proof to be applied in proceedings in the Family Court seeking that the respondent be dealt with for contempt of court is proof beyond reasonable doubt, unless the Evidence Act provides to the contrary.”
Appeal Grounds
The notice of appeal filed on 29 October 2010 contains seven challenges to his Honour’s findings:
1. His Honour erred in imposing a sanction on the mother in circumstances where Order 2, 3, 6, 8, 10 and 12 of the Orders of Justice Burr dated 31st October 2008 were set aside by the Full Court on 22nd December 2009.
2. That His Honour’s discretion miscarried in that the penalty he imposed was plainly unjust and manifestly wrong.
3. His Honour erred in finding that there was a flagrant challenge to the authority of the court by the mother.
4. His Honour erred in failing to give any or sufficient weight on the evidence filed by the mother in the proceedings and erred by failing to consider sufficiently the mother’s circumstances in any reasons for the finding of contempt.
5. His Honour erred in finding the mother guilty of the charges of contempt beyond a reasonable doubt.
6. His Honour erred in his sentencing discretion by imposing an excessive sentence on the mother.
7. His Honour erred by imposing a sanction on the mother with respect to the flagrant challenges to the authority of the Court found by His Honour Justice Benjamin on 13th July 2009.
When the matter was heard, counsel for the mother argued the grounds under the rubric of a denial of natural justice. We too will consider the appeal under that heading as it is sufficiently compendious to include the seven articulated grounds.
Counsel for the mother argued that the Family Law Rules 2004 provide the process by which matters under s 112AP of the Act are to be conducted and his Honour had failed to afford the mother the protection of this procedure.
As we observed in the course of argument, these rules merely articulate that which has been enshrined in the criminal law for hundreds of years.
The mother conceded that she was in breach of Burr J’s orders of 31 October 2008 as she had not returned with the children to Tasmania.
That concession, in our view, fell far short of providing the basis for a finding of contempt as defined by s 112AP of the Act. On 25 March 2009, his Honour’s orders noted that while the mother admitted the breach there remained an issue of whether it amounted to contempt within the meaning of the section. In a discussion between his Honour and Mr Gunson on 28 April 2009, his Honour accepted that he was dealing not with a contravention of an order but an allegation of contempt and made a similar comment on 11 May 2009.
Flagrant Breach
As we have indicated, on 13 July 2009, when the mother appeared and sought an adjournment of the application until after the appeals had been heard, his Honour was, at first, content to allow that to happen. However, instead of taking that course, his Honour proceeded to determine the issue of contempt, taking the mother’s protestations of being unprepared to meet that charge as a plea of not guilty. It is also clear that his Honour, although aware of her affidavits, made no reference to them in determining whether the breach was flagrant.
On 13 July 2009, having found that the mother had contravened the 31 October 2008 order, “… pursuant to s112AP of the Family Law Act …”, his Honour noted that the mother had not complied with Burr J’s orders, which had not been stayed. He then outlined the procedural history to which we have referred earlier in these reasons.
At paragraphs 8 and 9 of the reasons delivered ex tempore on 13 July 2009 his Honour made reference to the mother appearing and seeking adjournments and said (at paragraph 9):
… I am satisfied in those circumstances and in those facts, which are essentially uncontroversial, that the mother is in contempt of that earlier order. Accordingly, I find that the mother has contravened the order made 31 October 2008 and such contravention involves a flagrant challenge to the authority of the court.
His Honour gave no further reasons for his finding that the mother’s failure to comply with Burr J’s orders was of such an order that it amounted to a flagrant challenge to the Court’s authority.
In the revised reasons, his Honour returned to the question of flagrancy at paragraphs 44 and 45. At paragraph 45 he said:
I am satisfied that her breach of the orders, having regard to the evidence, is a flagrant in terms of the section. It could not be otherwise. Court[s] are entitled to expect litigants to comply with orders, they are not requests they are to be treated seriously. The mother has had ample time to address the circumstances of the admitted breach but has chosen not to do so.
For our part, we have difficulty in understanding the basis on which his Honour was able to make that finding. We observe that this was a finding of which his Honour was to be satisfied beyond reasonable doubt. Although in his “Supplemental Reasons for Judgment” of 24 August 2010 his Honour acknowledges that he must reach that level of satisfaction, no analysis or articulation of the basis for the finding is found in the reasons.
In the revised judgment of 24 August 2010 from paragraph 20, his Honour expanded on the procedural history. At paragraph 43, his Honour outlined the evidence in the matter, made reference to the, “… mother [sic] unsworn statements and those of her various legal representatives as to the status of her appeals”. He made no reference to her many affidavits filed in the proceedings. His Honour was not unaware of those affidavits because they had been referred to during discussions with counsel who appeared for the mother. Indeed, his Honour indicated, in paragraph 37 of his reasons, that the mother did not appear on 11 May 2009 and:
… Instead she filed an affidavit setting out a series of reasons why she could not attend and informed the court that she had sought and obtained leave to appeal my decision in relation to the stay. One of the reasons that the mother offered to the court as an explanation as to why she could not attend was that she did not have the funds to come to Tasmania, notwithstanding that her present husband earns some $1000 per week, and notwithstanding her assertion on 25 March 2009 through counsel that she had the capacity to come to Tasmania in April for the children to commence school.
It appears that his Honour, having expressed the “concerns” about the mother’s evidence to which we have earlier referred, came to a concluded view that the mother’s sworn evidence was not worthy of credit and he did not give it any weight in determining the matter. We accept the submission of counsel for the mother that, in the absence of any significant challenge to her credit, his Honour ought to have given weight to her affidavits and, if he did not, should have provided clear reasons why he would not.
We are of the view that it was incumbent on his Honour to have regard to the mother’s evidence in the determination of whether her failure to comply with Burr J’s order amounted to contempt within the meaning of the section. It is clear that he did not do so. To this extent we find that his Honour was in error and we are of the view that, had his Honour considered the mother’s sworn evidence, he may have come to a different view of the seriousness of the breach.
The course which the father’s contempt application took undoubtedly created difficulties for the trial Judge. As our detailed analysis of the occasions when the application was before him confirms, the trial Judge was obliged to deal with the matter somewhat “on the run” over a long period of time, and at different venues, on a number of occasions with a party or counsel appearing by telephone. His Honour’s difficulties were not assisted by the spectre of the mother’s appeal against the orders of Burr J which gave rise to the father’s contempt application and the Full Court’s reserved judgment with respect to that appeal.
Notwithstanding that we are not unsympathetic to the position in which the trial Judge found himself, we are persuaded that his Honour erred, in the absence of more exposition than he provided, in finding that the mother’s breach of Burr J’s orders was “flagrant”. The mother’s appeal is thus entitled to succeed.
Although, with respect to the challenge to the trial Judge’s conclusion that the evidence established beyond reasonable doubt that the mother’s contravention of Burr J’s order constituted a “flagrant challenge to the authority of the Court”, it is strictly unnecessary to do so, were it necessary, we would conclude that, in the circumstances as we have outlined them, and particularly having regard to the gravity of the complaint against her, the trial Judge denied the mother procedural fairness on 13 July 2009. Were it necessary to do so, we would allow her appeal on that basis.
Sentence
On 24 August 2010 his Honour sentenced the mother for being in contempt of the order. There is no doubt that, in his determination of sentence, his Honour took into account the mother’s evidence contained in her affidavits.
Of course, by the time his Honour came to sentence the mother, the orders of Burr J had been set aside.
Leaving aside the question of whether his Honour was able, on the evidence, to come to the conclusion that the mother’s non-compliance was such that it amounted to a flagrant contempt, whilst taking into account that the order made by Burr J which the mother breached was no longer extant at the date of sentence, that did not necessarily mean that no sanctions should have been imposed on the mother. Indeed, failing to impose any sanctions on a party who had been successfully prosecuted under s 112AP, on the basis that the order which gave rise to the successful prosecution of that party was no longer extant, could be seen as accepting that subsequent success on appeal justified failing to comply with court orders which had not been stayed. Court orders are valid and enforceable unless and until they are stayed or discharged by a Court on appeal.
When his Honour came to deal with sentence, he said at paragraph 7 of the reasons for decision of 24 August 2010:
7. I have also had regard to the matters set out in the mother’s affidavit. That is, the health of the children and her need to care for them and another child of her present relationship. I have regard to her studies and to the moneys that she has expended in terms of these proceedings. However, she was obliged to reside in Tasmania with the children until a determination of the appeal and she did not do so, knowing full well of her obligation to do so. She argues through her counsel that this was a protective mechanism. I do not accept that submission on the basis that the orders of Burr J, as reflected in the order of Coleman J, provided for supervision.
8. The mother was able to protect her children in Tasmania through the orders of Burr J, pending the outcome of the appeal. It is not a minor factor that children are deprived of a relationship with a parent with whom a court initially and even the parties now say has some significant meaning for the children. That can be the only conclusion I draw from the consent orders made before Coleman J of April this year. Accordingly, I intend to convict the mother in respect of the contempt application.
His Honour had, at this time, already found that the mother’s conduct in failing to comply with Burr J’s order was such that it amounted to a flagrant challenge to the authority of the court. The remarks to which we have referred were articulated on the sentencing process and, in our view, were matters to which he was entitled to have regard in determining what sentence to pass.
His Honour said at paragraph 5 of the reasons of 24 August 2010:
… There was, of course, a determination of the Full Court later in 2009. I could not and would not have had regard to the mother’s conduct in not returning to Tasmania in April 2009 as she promised in respect of any finding of flagrant contempt. However, I can have regard to the failure of the mother to comply with her undertaking or promise to return to Tasmania in terms of sentencing.
His Honour went on to refer to the mother’s failure to return to Tasmania and the fact that her appeal against his refusal to stay Burr J’s orders was not filed until after she was to return to Tasmania in accordance with the order of March 2009.
If his Honour proposed to take into account the mother’s conduct in failing to comply with his orders in determining sentence, he was obliged to have clearly articulated in what way he was taking it into account in determining punishment.
The mother’s conduct in not complying with his Honour’s orders could only be relevant to his consideration of sentence if it related to some proper sentencing consideration. His Honour gave no reasons, nor made any analysis of how this conduct was taken into account, nor what weight he attributed to it. In this regard, his Honour erred.
We find that his Honour’s discretion miscarried and the sentence should be set aside.
Conclusion
We are of the view that the process by which his Honour found that the mother had committed a contempt of the order of Burr J within the meaning of s 112AP of the Act was erroneous and his Honour failed to afford the mother procedural fairness. We also find that the process by which the sentence was imposed was erroneous.
We propose to uphold the appeal.
Clearly, there is no utility in remitting the matter to be re-heard since the orders in respect of which the contempt has been alleged are set aside. Accordingly, we will quash the finding of contempt and set aside the conviction and sentence imposed on the mother. We will dismiss the application of the father filed on 28 January 2009 that the mother be dealt with for contempt.
This is a matter in which we believe it appropriate that the mother have a costs certificate in relation to the appeal.
I certify that the preceding one hundred and fifty four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Johnston JJ) delivered on 28 April 2011.
Associate:
Date: 28 April 2011
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