Cluny & Skinner (No 2)
[2017] FamCA 547
•31 July 2017
FAMILY COURT OF AUSTRALIA
| CLUNY & SKINNER (NO 2) | [2017] FamCA 547 |
| FAMILY LAW – CONTEMPT – SENTENCE – where the husband was found guilty of contempt for breaching an order in a manner which involved a flagrant challenge to the authority of the Court – where the order required the husband to hand his passport to the wife’s solicitors only to be released with the consent of both parties or Court order – where the husband deposited his passport with the wife’s solicitors – where the husband subsequently applied for and obtained a new passport by making a false declaration to the relevant department – where the husband subsequently received and retained in his possession the replacement passport – where that conduct amounted to contempt – where the wife sought an order that the husband be imprisoned for a period of two years – where the husband was fined $30,000. FAMILY LAW – CONTRAVENTION – SANCTION – breach of financial orders – where the subject orders were made in 2013 – where the husband failed to meet various cash payments to the wife including by way of maintenance, child support, lump sum arrears and costs – where those liabilities now exceed $280,000 in total – where the husband sought a period of 24 months to enable him to meet those payments – where the husband made an open offer for the wife to receive the whole of the husband’s lifetime accumulated superannuation in satisfaction of this liability – where the wife refused that offer – where the husband was afforded a further 24 months to meet these obligations – where in default of the husband meeting the outstanding liability, he will be required to show cause as to why he should not be sentenced to a term of imprisonment of three (3) months. FAMILY LAW – COSTS – INDEMNITY BASIS – where husband willing to consent to an order that he pay the wife’s costs on an indemnity basis in a fixed sum as claimed by the wife – time to pay – interest imposed and payment of costs a condition to be fulfilled by husband to avoid sentence of imprisonment taking effect. | |
| Australian Passports Act 2005 (Cth) Family Law Rules 2004 (Cth) | |
| Abduramanoski and Abduramanoska (2005) FLC 93-215 |
Ascot Investments Pty. Ltd. and Harper and Harper (No. 3) (1982) FLC 91-253
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Securities & Investments Commission v Michalik [2004] NSWSC 1259 Gaunt and Gaunt (1978) FLC 90-468
Hay v Hay (1998) FLC 92-819
Ibbotson v Wincen (1994) FLC 92-496
In the marriage of “M” (1978) FLC 90-495
Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384
LGM & CAM (Contempt) (No 2) (2008) FLC 93-355
Myers and Myers (2006) FLC 93-291
Russell and Russell (1983) FLC 91-356
Sahari and Sahari (1976) FLC 90-086
U and U (1979) FLC 90-648
| APPLICANT: | Ms Cluny |
| RESPONDENT: | Mr Skinner | ||||
| FILE NUMBER: | BRC | 812 | of | 2010 | |
| DATE DELIVERED: | 31 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 10 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Minnery |
| SOLICITOR FOR THE APPLICANT: | Anthony Black Family Law Services |
| THE RESPONDENT: | In person |
Orders
MR SKINNER (“the husband”) shall remedy his
non-compliance with the Orders made on 16 April 2013 by paying to MS CLUNY (“the wife”) on or before 4:00 pm on 31 July 2019 the entirety of the following amounts:
(a) the amount of $288,562.13 due and payable as at 10 July 2017, pursuant to the declaration made by this Honourable Court on 28 April 2017;
(b) any and all sums otherwise due and payable by the husband to the wife pursuant to the Orders of 16 April 2013 from the date of those Orders to 31 July 2019;
(c) interest on the said amounts or any of them that remain unpaid after 10 July 2017, such interest to be calculated in accordance with s 117B of the Family Law Act 1975 (Cth) (“the Act”) and r 17.03 of the Family Law Rules 2004 (Cth) (“the Rules”) from 10 July 2017 to the date of payment.
The husband shall, on or before 4:00 pm on 31 July 2019, pay to the wife the amount of $91,664.00, being her costs of the proceedings, together with interest on that sum from the date of this Order to the date of payment, calculated in accordance with s 117B of the Act and r 17.03 of the Rules.
In default of the husband paying to the wife the entirety of the payments identified in Orders (1) and (2) of these Orders on or before 31 July 2019, the husband shall attend at the Family Court of Australia at Brisbane at 10:00 am on 1 August 2019 before Kent J or such other Judge as his Honour nominates so as to:
(a) show cause why, despite his default he should not be imprisoned for a period of three (3) months from that date; and
(b)
in default of showing cause in accordance with the preceding
sub-paragraph of these Orders, the husband shall be taken into custody that day so as to commence the said period of three (3) months imprisonment.
In default of the husband’s appearance in accordance with Order (3) of these Orders, pursuant to r 21.16 of the Rules a warrant of arrest shall issue to the Marshal and to all members of the Australian Federal Police and of all State and Territory police forces to arrest MR SKINNER born on … 1967 and to bring him before this Court.
In the event that the amounts specified in Orders (1) and (2) of these Orders are paid in their entirety on or before 4:00 pm on 31 July 2019, Orders (3) and (4) shall be forthwith discharged.
That all outstanding applications, aside from any applications for parenting orders, be removed from the pending cases list.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cluny & Skinner (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 812 of 2010
| Ms Cluny |
Applicant
And
| Mr Skinner |
Respondent
REASONS FOR JUDGMENT
On 28 April 2017 I delivered reasons for judgment in respect of the application of Ms Cluny (“the wife”) that Mr Skinner (“the husband”) be punished for contempt, within the meaning of s 112AP of the Family Law Act 1975 (Cth) (“the Act”), of an order made on 29 November 2012; and the further application of the wife that the husband be sanctioned for failure to comply with orders made on 16 April 2013, within the meaning of s 112AD of the Act.
As is recorded in those reasons for judgment, the husband was found in contempt of an order made on 29 November 2012 in the manner and respects identified in those reasons. Further, with respect to the application for contravention, those reasons record the husband’s contraventions, without reasonable excuse, of orders made on 16 April 2013. Consequent upon the husband’s contraventions, declarations of sums owing by the husband to the wife were made.
The reasons for judgment delivered on 28 April 2017 were in respect of what may conveniently be described as the first stage of a bifurcated approach to, respectively, the application for contempt and the application for contravention on the basis that a discrete further hearing would be necessary to consider the appropriate sanctions to be imposed, if either or both of contempt or contravention were established.
The hearing in respect of sanctions to be imposed took place on 10 July 2017. These reasons deal with the sanctions to be imposed. I incorporate, without unnecessary repetition of them, the reasons for judgment delivered on 28 April 2017 as part of these reasons for judgment, given that the reasons delivered on 28 April 2017 are an integral part of these reasons dealing with sanctions.
Sanction for contempt
As is recorded in the reasons for judgment delivered on 28 April 2017, the relevant injunction made on 29 November 2012 was in these terms:
The Husband forthwith to hand his passport over to the Respondent Wife’s Solicitors, Hirst & Co, to be placed in their safe custody, to only be released by consent of the parties or by an Order of this Honourable Court on the giving of forty-eight (48) hours notice.
As is also recorded in those reasons, having handed over his passport in accordance with the injunction, the husband’s contempt was constituted by his acting wilfully, deliberately and intentionally in making an application to the Department of Foreign Affairs and Trade (“DFAT”) for a replacement passport by falsely claiming that his then current passport had been lost and he did not know its whereabouts; and his receiving and retaining the replacement passport he applied for.
At the hearing on 10 July 2017 the following orders were made, the first by way of sanction for contempt pursuant to Part XIIIB of the Act and the second, in association with that, concerning the husband’s passport:
1.On the findings of the Court recorded in the Reasons for Judgment delivered on 28 April 2017 that the Respondent Husband, MR SKINNER, is guilty of contempt within the meaning of s 112AP(1)(b) of the Family Law Act 1975 (Cth) in the respects identified in those Reasons for Judgment, the sanction imposed is that the Respondent Husband pay a fine of $30,000 to be paid by the Respondent Husband to the Registrar of the Family Court of Australia within six (6) months of today.
2.That Order (7) of the Orders made on 29 November 2012 together with any subsequent Orders precluding the Respondent Husband from holding his passport be discharged and this Order be authority for release to him of the Respondent Husband’s passport.
In conjunction with the reasons for judgment delivered on 28 April 2017 these are the reasons for those orders.
The provisions of Part XIIIB – Contempt of court of central relevance to this case are as follows:
112AP Contempt
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
…
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
…
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.
…
It is evident from the authorities that the following general principles or guidelines concerning the application of these provisions and the imposition of sanctions for contempt are applicable:
a)State and federal sentencing laws have no application (Abduramanoski and Abduramanoska (2005) FLC 93-215 (“Abduramanski”)); s 112AP of the Act provides the code for dealing with sentencing under the Act (Myers and Myers (2006) FLC 93-291 (“Myers”));
b)Section 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 (Abduramanski (supra) at [80]); (Australian Securities & Investments Commission v Michalik [2004] NSWSC 1259 (“ASIC v Michalik”) cited with approval in Myers (supra));
c)“…review of the punishments in other cases is of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts”. (ASIC v Michalik (supra) at [49] cited with approval in Myers at [34]);
d)“This is particularly so where, as in the case of s 112AP of the Act, there is no provision for a maximum term of imprisonment. The difficulty which confronts courts exercising criminal jurisdiction in sentencing for offences for which maximum penalties are provided is thus even greater for courts exercising the sentencing powers conferred by s 112AP of the Act”. (Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384 (“Kendling”));
e)Normally, the purpose of contempt proceedings is to coerce a person in breach of an order to comply with it. Another purpose may be punishment. The purpose of imposing punishment reflects 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 (Kendling (supra)). In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 Gibbs CJ, Mason, Wilson & Deane JA stated the purpose of proceedings for civil contempt of an injunction was as follows:
…Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced…
As is recorded in the reasons for judgment delivered on 28 April 2017, having surrendered his then current passport in compliance with the terms of the injunction made on 29 November 2012, it was on 7 January 2013 that the husband acted in contempt of the order by applying for a replacement passport and retaining that passport upon its issue in early 2013, until the husband surrendered the replacement passport, in early 2015.
It is uncontroversial that the husband used the replacement passport to travel overseas on multiple occasions from obtaining it in early 2013 until the husband surrendered it in early 2015, although as is recorded in the reasons delivered on 28 April 2017, I was not satisfied that the husband’s conduct in travelling overseas was itself captured by the terms of the subject injunction, such as to itself constitute a particular of contempt.
It also seemed uncontroversial in the course of the hearing on 10 July 2017 that the relevant injunction imposed by order on 29 November 2012 was imposed in the first place on the wife’s application and contention then that the husband constituted a potential flight risk. That is, that he might act to permanently absent himself from the jurisdiction of the Commonwealth of Australia.
The husband was prosecuted for an indictable offence under s 29 of the Australian Passports Act 2005 (Cth) for making a false declaration with respect to his application for the replacement passport. On 29 August 2014 the husband pleaded guilty to the offence dealt with summarily in the Magistrates Court of Queensland at Brisbane, and was ordered to be of good behaviour for a period of 12 months. No conviction was recorded on the basis that the husband provide security by recognisance of $1,000 to comply with the condition that he be of good behaviour for a period of 12 months. The husband complied with that condition and no further action was taken with respect to the order of the Magistrates Court.
I interpolate here that if a contemnor has already been punished under the criminal law for commission of a criminal offence on the same facts as those constituting the contempt of court, the Court may take that punishment into account, but it must nonetheless have regard to the purposes of punishing for contempt, which in the case of civil contempt is to punish for disobedience of a court order or an undertaking given to the Court (see: Russell and Russell (1983) FLC 91-356 at p 78,385). I therefore take into account the exceedingly modest, as it seems to me, punishment imposed by the Magistrates Court.
Several aspects of relevance to the appropriate sanction to be imposed for the husband’s contempt flow from the foregoing history of events.
First, and perhaps ironically, in circumstances where the primary foundation for imposition of the subject injunction in the first place was to guard against the alleged potential flight risk of the husband referred to, the fact is that the husband’s conduct demonstrates that he did not seek to utilise the replacement passport to realise that risk over the period between early 2013 and early 2015, when he had and used the replacement passport for international travel on multiple occasions.
Second, the fact is that since early 2015 and until the recent order made on 10 July 2017, the husband’s freedom of movement to travel overseas has been forfeited by his inability to hold a passport. That can be accepted as a particular privation in the case of the husband given his longstanding pursuit of business interests, quite apart from any personal privation of being precluded from engaging in international travel. In short, the period of time the husband has been without a passport is itself a relevant consideration.
In association with that, the shadow of contempt proceedings have been upon the husband since the wife filed her application on 24 August 2015. Throughout the period since, the husband has faced the prospect of being found guilty of contempt and consequent sanctions being imposed, including the prospect of imprisonment. By its enduring nature over the period since the application was first filed, this is akin to a form of punishment.
Finally, upon the husband surrendering his replacement passport in early 2015, there remained no action available to be taken by the husband to purge his contempt of the 29 November 2012 order. That is, the contempt proceedings in this case, and any sanction imposed as a consequence, could not fulfil any purpose in the nature of coercing the contemnor into compliance with the subject order.
At the hearing on 10 July 2017 counsel for the wife contended that the appropriate punishment to be imposed was for the husband to be sentenced to a term of imprisonment of two years. In support of that contention counsel emphasised the objects of general and specific deterrence and retribution in the context of the husband’s flagrant challenge to the authority of the Court. Counsel also sought to emphasise, by reference to paragraph 40 of the wife’s affidavit filed on 3 July 2017, that the husband’s travels overseas during the subject period when he contemptuously obtained and held the replacement passport “coincided with [the husband] creating new corporate entities in [China] where other persons were in control.” Paragraph 40 sets out what is contended to be the relevant chronology of events supporting that broad allegation. Properly understood, the allegation is to the effect that the husband utilised his trips to China to structure his affairs so as to distance himself from assets or business entities or corporate entities in fact within his actual control.
Several observations need to be made about the wife’s broad allegation in paragraph 40 of her affidavit and counsel’s submissions referred to. First, as is recorded in the reasons for judgment delivered on 28 April 2017, whilst I acknowledged that the subject injunction was intended to restrict the husband’s travel, as must have been known to the husband, I rejected the proposition that the injunction was drawn in wide enough terms to capture the travel itself, such that the travel itself did not constitute a particular of contempt. Second, and more importantly, no relevant nexus has ever been established between the fact of the husband travelling to China in the subject period, and what did or did not occur as regards the establishment of corporate entities in China or any transfers of shareholdings in such entities. That is, it has never been demonstrated that there is a relevant nexus between the husband’s presence in China, as a necessary element, to any steps taken that might just as readily have been undertaken if the husband remained in Australia. Moreover, in this context, whilst my reasons for judgment delivered on 28 April 2017 record significantly adverse credit findings concerning the husband and his evidence, in association with a number of adverse findings concerning the husband’s lack of full and frank disclosure as to his financial circumstances, it is not the husband’s travel to, or presence in, China in the subject period, per se, which informs those findings.
In short, it has never been demonstrated that any relevant steps taken by the husband (if there in fact are such steps) could not have been performed if he remained at all times in Australia or, conversely, that the purpose of him travelling to China was to effect steps that could not otherwise be achieved, in distancing himself from asset-holding or in distorting his true financial position.
For these reasons it would not be legitimate, in my judgment, to approach the question of appropriate sanction for the subject contempt on the basis that the contempt had relevant financial consequences for, or impacted upon, the wife’s rights or caused significant detriment to the wife of the kinds concerned in other decided cases which shortly will be referred to.
I have found that the husband acted wilfully, deliberately and intentionally in breaching the subject injunction and that such contempt involves a flagrant challenge to the authority of the Court. Whilst those findings alone might be thought to render a sentence of imprisonment as inevitably an appropriate punishment, there are in my judgment some important countervailing factors.
First, the subject contempt did not involve any element of violence, or threats to the personal safety of any person, or any other form of interference with the personal rights of others.
Second, for the reasons already discussed, it cannot be legitimately concluded that the contempt, in and of itself, had the consequence of financial disadvantage to the wife, or impacted adversely upon the wife’s rights, or adversely affected any cause of action or remedy available to the wife. The subject contempt here, unlike other cases, did not involve damage to, or destruction of, the subject matter of the litigation.
In this context, the submissions of counsel for the wife focusing upon the effect upon the wife and upon the child of the parties of the husband not having complied with orders for the payment of maintenance and child support, were apt to distract focus from the actual consequences of the subject contempt. The matters referred to by counsel are not the consequence referable to the subject contempt and thus do not fall to be considered in determining an appropriate sanction for the subject contempt.
Third, reference has already been made to the period of time the proceedings for contempt have been extant and also reference has been made to the period of time that the husband has been without a passport. These are relevant factors to determining a further appropriate punishment for the husband’s contempt.
Next is the husband’s relevant antecedents. The husband is 50 years of age having been born in 1967. Beyond the penalty imposed by the Magistrates Court in relation to his offence under the Australian Passports Act earlier referred to, there is no evidence of the husband being charged with, or convicted of, any offences. His own evidence, and that of his character witnesses, Mr MM, Mr OO, and Mr PP attest to the husband’s general good character and positive contributions to his community. The evidence of the statutory liquidators of the husband’s former company speaks of the husband’s cooperation and assistance throughout the liquidation process.
The husband is the father of two children, a daughter aged 14 years from his earlier marriage and a son aged seven years, the product of his relationship with the wife. I accept the husband’s evidence as to his active involvement and interest in the lives of his children and that a sentence of imprisonment would have a devastating impact, not only upon the husband, but upon each of his children. The husband is a business owner and operator. He has employees as well as substantial creditors, his substantial debts being the subject of discussion in the 28 April 2017 reasons. A sentence of imprisonment of the husband would obviously adversely affect the husband’s employees and any continuing viability of his business. I accept the husband’s evidence that it would likely have the consequence of the husband being made bankrupt by one or other of his creditors and otherwise would impact upon the prospects of the husband’s creditors ever being paid. In this context, it is to be noted that the wife is one of the husband’s substantial creditors in respect of unmet payments pursuant to orders, the subject of the contravention application further discussed later in these reasons. The husband’s imprisonment now would likely end any prospect of the husband paying the wife and would have obvious consequences for the husband’s capacity to meet or contribute to the future financial support of his children.
Finally, notwithstanding that the husband defended the contempt application, his expressions of contrition for his conduct, both in his evidence at the first stage and in his evidence at this stage of the proceedings are relevant. At paragraph 31 of his affidavit filed on 26 June 2017 the husband deposes:
I know I made a serious error of judgment with respect to my passport and am sincerely remorseful and apologise sincerely to the Court. Nothing of this kind will ever happen again.
I am satisfied that the husband’s apology is indicative of real remorse on his part.
I note in passing that whilst the husband defended the contempt application he did so without raising any dispute as to the facts but, as discussed in the reasons delivered on 28 April 2017, on the contention that the terms of the injunction were not sufficiently clear and unambiguous to found punishment for contempt.
The fact that the husband defended the application does not eliminate contrition as a relevant factor. In Kendling the Full Court observed at [421] and [422]:
421.There is little doubt that contrition is a matter that may be taken into account in favour of a person found guilty after pleading not guilty. The more difficult question is how, in the circumstances of this case, the issue of contrition could or should have been considered.
422.The authorities establish that a qualified or belated apology may be afforded less weight than an unqualified earlier apology (see Ex parte Attorney-General; Re Goodwin [1969] 2 NSWLR 360; Director of Public Prosecution v Wran (1987) 7 NSWLR 616 at 639; Registrar of Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 317-18). A sentencing judge is entitled to examine a proffered apology in order to determine whether the proffered apology is indicative of “real remorse” (BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2002] FCA 702). Relevant to that issue are the timing of the proffered apology and the terms in which the apology has been made…
I take contrition into account to the husband’s benefit.
Counsel for the wife did not direct the Court’s attention to any decided cases notwithstanding his consequently remarkable submission on behalf of the wife that the appropriate penalty was imprisonment for two years to take effect immediately. This harkens the discussion by Finn J as to the complicated nature of the exercise of discretion in these circumstances. Finn J said in LGM & CAM (Contempt) (No 2) (2008) FLC 93-355 at [145]:
Furthermore, such cases are complicated, to say the least, by the fact that the person in the position of prosecutor (who can, and did in this case, make submissions on penalty) is not an independent public authority, but rather the other party to a failed marriage, or similar relationship, whose motives may well go beyond issues of principle such as the upholding of the dignity of courts and court orders. The discretion in relation to penalty for the contravention of court orders must therefore be exercised with great care.
The distinction referred to by Finn J between the assistance that the Court might gain from the submission of an impartial and independent prosecutor as compared with those of counsel bound by the instructions of a wholly partisan party was apparent in this case.
Counsel for the wife did not assist the Court with any authorities as to an appropriate fine to be imposed if the Court was not satisfied that imprisonment was the appropriate sanction. Beyond contending that a fine would be too modest a sanction, counsel for the wife submitted that any fine would have to be in the order of several hundred thousand dollars. I reiterate that these submissions were not burdened with references to any decided cases.
In my judgment, recognising that each of these cases must be decided on their own individual facts and, as earlier noted, that there is limited assistance to be gained from other cases, review of authority does not support the imposition of the ultimate sanction of imprisonment in this case, nor in the alternative a fine of the magnitude nominated by counsel for the wife.
In In the marriage of “M” (1978) FLC 90-495 the Court considered a case where a husband breached orders of the Family Court by failing to surrender passports. However, in that case the husband’s breach of orders included removing the children of the marriage from Sydney and by depriving his wife by the children living with him. He had attempted to stow away with the children in a ship bound for Singapore. Having considered the husband’s defiant breaches of the orders, his lack of repentance, and the necessity to ensure both the safety of the wife and children and obedience to the Court’s orders, Watson SJ sentenced the husband to imprisonment for a fixed term of nearly 11 months with a provision that he could apply to enter a recognisance, and thereupon be released from prison, after five months’ imprisonment. Plainly, the nature and seriousness of the breaches of the orders in that case is far removed from this one. The point to be made is that even in that case nothing like a term of two years was in contemplation in the face of the nature and extent of the breaches of orders.
In U and U (1979) FLC 90-648 the husband had forcibly taken a child, when he was living with his mother, and kept the child for four months until he was arrested by the Commonwealth Police pursuant to a warrant issued by the Family Court. The trial judge ordered that the husband be imprisoned for 12 months with the opportunity to apply for earlier release on conditions, at any time after five months. The trial judge referred to “particularly disturbing” aspects of the evidence as follows:
a)The kidnapping was carried out with some degree of violence as the children were manhandled from the premises; the eldest child escaped;
b)There was obviously a great deal of planning and deception which went into the operation;
c)The father made contradictory explanations of his actions; and
d)The evidence of the father’s partner indicated that he intended to retain the child permanently.
The trial judge found the father to be a prevaricating and untruthful witness and that he was unable to place any credit on the father’s evidence and unable to accept his assertions of contrition or his undertakings as to his future conduct.
In Ibbotson v Wincen (1994) FLC 92-496 the father had taken the subject child to the USA for a holiday (initially with the mother’s consent) on the basis that the child would return by 1 October 1993. The father wrote prior to 1 October 1993 advising that he decided to extend the stay. The mother ultimately (in May 1994) traced the father and child to Cyprus and recovered the child.
The trial judge found the father guilty of contempt and he was sentenced to imprisonment for 12 months to be suspended after six months, provided he pay the wife the total amount of $70,000 for her costs and expenses. The Full Court observed of this case “[t]he facts of this case are particularly blatant. It was a conscious and deliberate attempt by the husband to thwart the orders of the Court and to act in complete disregard of the rights of his former wife and child. In addition, it is important to bear in mind the substantial community interest which is involved in cases of this type and the importance of a general deterrent” (at 81,164).
Obviously enough the kidnapping or removal and retention of children in defiance of Court orders connotes culpability of a particularly high degree and invites commensurate responses in terms of sanction. That is far removed from the circumstances here but reference to these cases highlights the circumstances in which a term of imprisonment of any significant duration is called for.
In Abduramanoski, involving the contempt of money orders, the husband appealed against the severity of the sentence imposed upon him for contempt. The trial judge sentenced the husband to a term of imprisonment for a period of 18 months. Importantly, the trial judge also noted that consideration would be given to reduction in the term of that sentence should the husband’s contempt be remedied, that contempt involving the removal of funds.
Shortly before separation the husband had removed from the nett proceeds of sale of the parties’ former matrimonial home sums totalling approximately $250,000 and had transferred funds to his own account and subsequently to various members of his family.
Despite interlocutory injunctive orders made in property settlement proceedings the husband transferred funds to Switzerland.
The trial judge noted that a fine would not be appropriate as it would only reduce the matrimonial pool. Her Honour stated:
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.
The Full Court did not disturb the decision of the trial judge concluding that the husband had engaged in “a positive course of conduct by the husband designed to ensure that orders made by the Court would have no effect”. The Full Court noted that the husband was afforded every opportunity to return the funds and reduce his sentence and that the husband still had the opportunity to reduce his sentence should he return the funds. The Full Court noted that the trial judge structured a sentence with a strong coercive element.
As noted earlier, in this case, there is no step available to the husband to remedy his contempt. There is no coercive element involved here as to any sanction to be imposed. Having regard to the “normal” purpose of contempt proceedings earlier referred to, it is not uncommon for the Court to impose a coercive sentence if it is satisfied that the contemnor can reasonably comply with the order either in full or to a significant extent: Ascot Investments Pty. Ltd. and Harper and Harper (No. 3) (1982) FLC 91-253 at pp 77,406 and 77,407.
Thus in Myers the Court considered a case where the husband’s contempt arose out of breach of property settlement orders by which the husband was restrained from disposing of or encumbering his interest in certain named real property. The husband was subsequently ordered to pay the wife a sum of approximately $400,000 and upon such payment all of the wife’s interest in the property would vest in the husband. While the husband was out of the country he arranged for his adult daughter of a previous relationship to sell the named property to a family friend. The husband also made an application for a loan (of nearly $500,000) secured by the property which money was subsequently disbursed in almost its entirety on the husband’s instructions. There was evidence of emails by which the husband was seeking advice as to the consequences of moving the property out of the grasp of the wife and breaching the Court’s injunction.
The trial judge sentenced the husband to two terms of imprisonment, one in respect of each count of contempt of which he was found guilty. One term was for three months, and the second indefinitely pending order of the Court, being in the nature of a coercive order directed to the husband remedying his contempt. The Full Court made reference to subsection (7) of s 112AP quoted above, which enabled the husband to seek orders for his release should he purge his contempt.
In Hay v Hay (1998) FLC 92-819 (“Hay’s case”) an injunction had been granted restraining the husband until further order from “assigning, transferring, encumbering by mortgage or charge or otherwise or in any way dealing with… a certain named property”. Subsequently, an order was made by consent that the husband was, notwithstanding the injunction, permitted to lodge a mortgage between the husband and a particular bank over the property the subject of the injunction. This mortgage was to enable the husband to borrow $50,000 which was to be paid to the wife as security for her costs in property settlement proceedings between the husband and wife.
After the property settlement proceedings had been heard at a trial, but prior to judgment, the husband obtained an advance of $400,000 from the bank upon the existing mortgage over the subject property.
The trial judge subsequently found the husband guilty of contempt and sentenced the husband to a term of six months imprisonment.
On appeal, the Full Court set aside the penalty of imprisonment imposed by the trial judge. The Full Court found that it was an error to impose a term of imprisonment upon the husband given other findings to the effect that there had in fact in the end result been no significant detriment to the wife brought about by the husband’s contempt, and that it was not necessary to take steps to ensure further compliance on the part of the husband, and the relevant breach of orders did not involve violence or interference with any person. On that basis, the Full Court concluded that in lieu of imprisonment the appropriate penalty was the imposition of a fine. Accordingly, the Full Court set aside the trial judge’s imposition of a term of imprisonment and upon a re-exercise of discretion the Full Court imposed a fine of $15,000 to be paid within three months.
In my judgment, by analogy with Hay’scase (supra), the imposition of the ultimate sanction of imprisonment is not warranted in this case. In my judgment, deterring the husband from future breaches of Court orders, upholding the authority of the Court and maintaining public confidence in the ability of the Court to deter others from breaching the Court’s orders, are insufficient grounds in the circumstances of this case to require the imposition of a custodial sentence upon the husband.
In my judgment, the imposition of a significant fine in the amount of $30,000 reflects the appropriate penalty in the circumstances of this case and achieves the objects of imposing a sanction for contempt where there is no coercive objective to be fulfilled by the sanction imposed.
On the evidence of the husband as to his present financial circumstances and viability, which I accept, to require the payment of a fine of $30,000 within any shorter period than six months would likely be self-defeating.
Whilst the wife opposed the husband’s application that his passport be returned to him, and the injunctions restraining the husband from holding a passport be dissolved, I am satisfied on the husband’s evidence that his ability to maximise his financial capacity so as to pay outstanding liabilities, including to the wife, and to pay the fine imposed for contempt, is achieved if the husband is able to travel overseas to pursue business opportunities. As earlier referred to, the contention that the husband was a potential flight risk as a foundation in the first instance for the imposition of the injunction is demonstrated by the facts earlier referred to, to be without substance. Also earlier referred to is the fact that for a significant period now the husband has endured the privations imposed by the passport restriction, in circumstances where, as I accept, his capacity to travel overseas is important in the husband’s ability to maximise his business interests and earnings.
For these reasons the orders of 10 July 2017 were made.
Sanction for contraventions
As is referred to in the reasons for judgment delivered on 28 April 2017, the husband’s relevant contraventions of the orders of 16 April 2013 are substantial and enduring. As is reflected in the amounts declared in the orders of 28 April 2017, the husband’s contraventions have the consequence that a very substantial total sum is owed to the wife. On the evidence of the wife’s solicitor via her affidavit filed on 3 July 2017 for the hearing on 10 July 2017, as at that latter date the total amount outstanding, inclusive of interest, is $288,562.13. The husband did not challenge that figure.
However, it must be emphasised that the husband is to be sanctioned for, and only for, his contraventions of orders that were the subject of the wife’s application and which have been found to be established. The capital amounts declared in Order (3) of the orders made on 28 April 2017 total $256,055.52 plus interest on some of the components of that total from 20 August 2015, as identified in the declaration. Whilst it is the contraventions which fall to be sanctioned, it is to be noted that s 112AD(4) permits, where a sanction is imposed under s 112AD(1), the making of such other orders as the Court considers necessary to ensure compliance with the order that was contravened. That section thus authorises the Court making orders, as part of a sanction order or in addition to such an order, which address ongoing defaults or
non-compliance with orders, as has occurred here.
It is important that it be understood that, as is reflected in the reasons for judgment delivered on 28 April 2017, the husband failed to establish reasonable excuse for his contraventions, within the meaning of s 112AC of the Act, given the evidence of the husband’s historical financial capacity, including via borrowing substantial funds, to meet liabilities he elected to meet in priority to meeting his Court ordered obligations. That is obviously not the same thing as a conclusion that the husband has the capacity to immediately pay to the wife the lump sum amount owed to her. Put another way, the findings recorded in the reasons delivered on 28 April 2017 to the effect that the husband and his evidence lacked credibility (including, for example, the finding at [113] that the husband has not fully and accurately explained transactions with offshore entities) do not translate to a conclusion that the husband has now the capacity to immediately remedy his breaches by paying in full the substantial sum now owed.
It cannot be doubted on the evidence that the husband has accumulated very substantial liabilities, aside from his liability to the wife. These are discussed in the reasons delivered on 28 April 2017 and having incorporated those reasons here, I need not repeat that discussion. Suffice to note that aside from substantial creditors such as SS Holdings, the evidence of each Mr YY, Mss NN, Ms MM and Mr PP was not sought to be challenged by cross-examination. Those witnesses alone attest to personal debts owing by the husband to them totalling $978,012, plus any additional interest accrued on the capital amounts of the debts since the time of the respective affidavits of those witnesses.
Part XIIIA Division 2 of the Act contains the relevant provisions regarding sanctions for failure to comply with orders. The provisions within Division 2 of central relevance to this case are as follows:
112AD Sanctions for failure to comply with orders
(1)If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
(1A)The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.
(2) The sanctions that are available to be imposed by the court are:
(a) to require the person to enter into a bond in accordance with section 112AF; or
(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c) to fine the person not more than 60 penalty units; or
(d)subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
(2A)The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent.
(3)An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
(4)Where a court makes an order under subsection (1), the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened.
112AE Sentences of imprisonment
(1)A sentence of imprisonment imposed on a person pursuant to paragraph 112AD(2)(d) shall be expressed to be:
(a) for a specified period of 12 months or less; or
(b) for a period ending when the person:
(i) complies with the order concerned; or
(ii)has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the court;
whichever happens first.
(2)A court shall not sentence a person to imprisonment pursuant to paragraph 112AD(2)(d) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).
(3)If a court sentences a person to imprisonment pursuant to paragraph 112AD(2)(d), the court shall:
(a)state the reasons why it is satisfied as mentioned in subsection (2); and
(b) cause those reasons to be entered in the records of the court.
(4)The failure of a court to comply with subsection (3) does not invalidate a sentence.
(4A)A court that sentences a person to imprisonment under paragraph 112AD(2)(d) may:
(a)suspend the sentence upon the terms and conditions determined by the court; and
(b) terminate a suspension made under paragraph (a).
(5)A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment.
(6)A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.
(7)Without limiting the circumstances in which a court may discharge an order under section 112AK, a court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.
(8)To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person’s liability to make the payment.
112AF Bonds
(1)This section provides for bonds that a court may require a person to enter into under paragraph 112AD(2)(a).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4)The conditions that may be imposed on a person by a bond include a condition requiring the person to be of good behaviour.
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person fails:
(i) to enter into the bond; or
(ii)having entered into the bond – to act in accordance with the bond.
112AG Additional sentencing alternatives
(1) Subject to this section, where:
(a)under the law of a participating State or a participating Territory, a court is empowered (whether generally or in particular cases) to impose a sentence by order or make an order of a kind to which subsection (3) applies in respect of a person convicted of an offence against the law of the State or Territory; and
(b)an arrangement under section 112AN in respect of the State or Territory makes provision for and in relation to the carrying out of sentences imposed, or orders made, of that kind under this Division;
a court exercising jurisdiction in the State or Territory may, pursuant to paragraph 112AD(2)(b), impose a sentence or make an order of that kind.
(2)A sentence imposed on a person, or an order directed to a person, pursuant to paragraph 112AD(2)(b):
(a)shall be such that the total number of hours during which the sentence or order regulates the conduct of the person does not exceed the maximum period in relation to the State or Territory in which the sentence is imposed or the order is made; and
(b)ceases to have effect 2 years after it was made, or after such lesser period as is specified in the order.
(3)This subsection applies to sentences or orders of the following kinds:
(a) a sentence or order known as:
(i) a community service order;
(ii) a work order;
(iii) a sentence of periodic detention;
(iv) an attendance centre order;
(v) a sentence of weekend detention;
(vi) an attendance order; or
(vii) a community based order;
(b)a sentence or order that is similar to a sentence or order referred to in paragraph (a);
(c)a sentence or order prescribed for the purposes of this subsection.
(4)Where a court proposes to impose a sentence on a person, or make an order directed to a person, pursuant to paragraph 112AD(2)(b), it shall, before doing so, explain or cause to be explained to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed sentence or order;
(b)the consequences that may follow if the person fails to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the applied provisions; and
(c)if the proposed sentence or order may be revoked or varied under the applied provisions—that the proposed sentence or order may be so revoked or varied.
(5)Where a court exercising jurisdiction under section 112AD in a particular State or Territory imposes a sentence or makes an order pursuant to paragraph 112AD(2)(b), the provisions of the laws of the State or Territory with respect to a sentence or order of that kind that is imposed or made under those laws shall, to the extent provided by the regulations and subject to such modifications as are specified in the regulations, apply in relation to the sentence or order.
(6) In this section:
maximum period, in relation to a State or Territory, means 500 hours or such lesser period as is prescribed in relation to the State or Territory.
participating State means a State in relation to which an agreement under section 112AN is in force.
participating Territory means a Territory in relation to which an agreement under section 112AN is in force.
Section 112AE(2) prescribes that a court shall not sentence a person to imprisonment unless satisfied that in all the circumstances of the case it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).
Given the nature, extent and consequences of the husband’s contraventions, it could not sensibly be contended that requiring the husband to enter into a bond under s 112AF would be the most appropriate sanction in the circumstances of this case. In my judgment, it is not possible to conceive conditions of a bond that would render a bond a meaningful sanction of the contraventions involved here.
Neither party contended that a bond, or indeed another sentence of the kind prescribed in s 112AG would be the most appropriate sanction of the contraventions in this case.
Whilst s 112AD(2)(c) allows for the imposition of a fine, there are two obvious reasons that a fine would not be an appropriate sanction here. First, s 112AD(2)(c) prescribes a limit to a fine of 60 penalty units. Section 4AA of the Crimes Act 1914 (Cth) currently provides that “penalty unit” in Commonwealth legislation means the amount of $210, so the maximum limit of the prescribed fine is $12,600. A fine of that amount could not be characterised as appropriate, let alone the “most appropriate” sanction in this case. In circumstances where the subject contraventions entail non-payment by the husband of Court ordered obligations totalling the substantial sum of $288,562.13 earlier referred to, a fine even at the maximum of $12,600 would be relatively meaningless. Second, assuming multiple fines could legitimately be imposed for each of the husband’s multiple contraventions, to bring the overall total sum to a substantial sum, that imposition would only serve to reduce the husband’s capacity to remedy the non-compliance and be of no benefit to the wife. The subject orders are for the payment of money. It is counter-intuitive to the fact that the subject contraventions concern money payments to impose a substantial fine as the “most appropriate” sanction, whilst the contraventions remain unremedied.
I am therefore satisfied, within the meaning of s 112AE(2), that in all the circumstances of this case it would not be appropriate for the Court to deal with the husband’s contraventions pursuant to any of the other paragraphs of subsection 112AD(2) other than paragraph (d).
For the reasons identified in the reasons for judgment delivered on 28 April 2017, to the extent that the husband’s contraventions include the contravention of a maintenance order, it can be concluded that the husband’s contravention was intentional, for the purposes of s 112AD(2A).
For reasons about to be discussed, in this case particular emphasis needs to be placed upon s 112AD(3), s 112AD(4), s 112AE(1), s 112AE(4A) and s 112AE(8) and the combined effect of those provisions. The summary of those provisions relevant to the imposition of any sentence of imprisonment imposed pursuant to s 112AD(2)(d) is:
a)a term of imprisonment for a specified period, up to a prescribed maximum of 12 months (s 112AE(1)) may be expressed to take effect immediately, or at the end of a specified period, or on the occurrence of a specified event (s 112AD(3));
b)the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened (s 112AD(4));
c)the court may specify that a sentence of imprisonment ends when the person complies with the order concerned (s 112AE(1)(b)(i));
d)the court may suspend a sentence of imprisonment upon the terms and conditions determined by the court (s 112AE(4A));
e)the serving by a person of a period of imprisonment imposed for failure to make a payment of ordered maintenance does not affect the person’s liability to pay (s 112AE(8)).
These provisions fall to be applied under the over-arching requirement of s 112AD(1) that the sanction imposed “be the most appropriate in the circumstances” (of the individual case).
Aside from the obviously wide discretion conferred by them, these provisions reflect the principle that the imposition of penalties should be directed primarily to securing compliance with the subject orders of the Court (Gaunt and Gaunt (1978) FLC 90-468; Sahari and Sahari (1976) FLC 90-086 at 75,407).
That principle comes into focus in this case given the husband’s evidence and submissions that he fully intends to redeem himself by paying all that he owes to the wife, taken with his evidence and submissions that if given sufficient opportunity to pursue identified business prospects (including via necessary travel overseas with the restoration to him of his passport), the husband will likely have the means to discharge his debts to the wife (see paragraphs 47 and 48 of the husband’s affidavit filed on 26 June 2017).
Counsel for the wife understandably pointed out that the husband has had ample opportunity to remedy his longstanding non-compliance with orders and submitted to the effect that “we have heard it all before” in relation to the husband’s potential business opportunities, a reference to the husband’s evidence at the first stage of these proceedings. However, the husband urged propositions to the effect that restoration to him of his passport made a fundamental difference to him maximising his business opportunities in general, and in pursuing a particular opportunity identified in his affidavit evidence as referred to in particular.
In my judgment, highly relevant to assessing the husband’s expression of intention to see the wife paid, and also of central importance overall to the imposition of an appropriate sanction, is the fact that both at the first stage of these proceedings, and continuing, the husband has maintained an open offer to the wife to assign to her his lifetime accumulated interest in superannuation in extinguishment of his liabilities to the wife. As is recorded in the reasons for judgment delivered on 28 April 2017, this Court would only have power to activate the husband’s offer if the wife were prepared to consent to a variation of previously made final property orders pursuant to s 79A(1A) of the Act to enable the Court to make a splitting order with respect to the husband’s superannuation interest. The wife has not been prepared to consent for a range of reasons not relevant to the present discussion.
The husband’s affidavit filed on 26 June 2017, with the associated annexure, demonstrates that the current worth of the husband’s superannuation interest is $320,193.
The wife has elected not to accept that offer (with its associated terms and conditions) but the point of the offer being made on an open basis throughout these proceedings is an important one both as to assessing the husband’s intentions, and moreover as to his willingness to attempt to remedy his
non-compliance with orders.
In my judgment, this feature is highly relevant to the appropriate term of any sentence of imprisonment of the husband and whether there ought be further opportunity for the husband to remedy his non-compliance before any term of imprisonment takes effect. It also dispels the proposition, contended for by counsel for the wife, that the maximum term of imprisonment of 12 months prescribed by s 112AE(1)(a) is appropriate in the circumstances of this case.
Moreover, a relevant consideration is that the wife sought an order that the husband pay her costs of and incidental to the contempt proceedings and the contravention proceedings (together with the associated applications made by the husband for variation of orders and return of his passport) on an indemnity basis fixed in the sum of $91,664. That is, the wife’s primary application was for costs to be ordered on an indemnity basis and ordered in a fixed sum rather than being assessed pursuant to the Family Law Rules 2004 (Cth). In the alternative, the wife sought her costs on a party and party basis.
It was explained to the husband at the hearing on 10 July 2017, the difference between an award of costs on an indemnity basis as compared with costs on a party and party assessment. It was also explained to the husband the difference between awarding costs in a fixed sum, as distinct from the amount of costs undergoing an assessment. Notwithstanding those explanations, the husband submitted that he would not seek to have the wife out of pocket for her legal costs of these proceedings, and that he was willing to consent to an order that he pay the wife’s costs on an indemnity basis and fixed in the sum as sought by the wife. What the husband sought was a timeframe to enable him to pay those costs, having regard also to the feature that he must pay the fine imposed for contempt within the six month period prescribed under the orders made on 10 July 2017.
In terms of his intentions, the husband also sought to emphasise that if he was determined to see the wife unpaid he would long ago have declared bankruptcy given also his other substantial liabilities.
The primary position of counsel for the wife was that the only appropriate sentence would be one of imprisonment for 12 months. Counsel submitted that the sentence ought to be suspended after six months (or for such other period as amounts to half of the head sentence imposed by the Court) to afford the husband the opportunity to remedy his contraventions. It was submitted that such suspension ought be conditional upon the husband’s good behaviour and his repayment of the monies owed within a period of approximately six months. In the event that the husband does not repay the monies then outstanding, he would be remanded back into custody to serve the balance of the head sentence.
Upon exchanges between Bench and Bar as to incentivising the husband to remedy his contraventions and to afford the husband the opportunity to so do, counsel acknowledged (but could not be said to concede on the wife’s behalf) the availability of the option to suspend the sentence initially for a period of six months or possibly 12 months, and in default of the husband making payment by the end of such period, the husband could either be required to show cause as to why he should not be remanded in custody to serve his sentence of imprisonment, or alternatively the order could be self-executing.
The husband’s submissions included submissions to the effect that if his business opportunities yield desirable results in the immediate future, the husband will thereupon remedy his non-compliance with the subject orders in full as soon as he has the capacity to so do. The husband’s stated ambition is to achieve that in the immediate future. However, the husband pointed to the feature that this timeframe could not be guaranteed and moreover, as his evidence addresses, he has already fallen in default of his repayment obligations to SS Holdings and that entity or another of his creditors may take bankruptcy action against him such as to impede his business progression and ambition to produce sufficient funds in the immediate/medium term future to extinguish his liability to the wife in full.
The husband contended that if he was afforded a period of 24 months from the date of orders he would, subject to the contingency of action by creditors referred to, likely be able to discharge in full his obligations to the wife by the end of that period.
I have earlier made reference to the sentencing principles in relation to contempt, which apply with necessary modifications to consideration of the sanction to be imposed here for contravention. I need not repeat that discussion nor the references made to decided cases.
I have also earlier referred to, and need not repeat, relevant aspects of the husband’s antecedents, nor as to the effects not only upon the husband but upon his children, his employees, and his other creditors that a sentence of imprisonment to take immediate effect would have. In all likelihood, such a sentence would eliminate any real prospect of the husband ever remedying his contraventions.
Counsel for the wife contended that allowing the husband a period of 24 months from orders to remedy his non-compliance would be too long a period having regard also to the lengthy period now since the subject orders were made. Moreover, counsel contended that immediate actual imprisonment was a necessary penalty of the husband given the nature and extent of his contraventions.
But for the husband’s open offer to assign to the wife his substantial superannuation interests there would be some potency in these submissions. I do not consider that the significance of the husband’s open offer should be lost in terms of considering a further timeframe for the husband to remedy his
non-compliance before a term of imprisonment is imposed.
In my judgment, in all of the circumstances of this case and giving the necessary primacy to orders which allow for the husband to remedy his contraventions, an allowance of 24 months from orders ought be made to afford the husband a final opportunity to remedy his non-compliance. Monies owing under the orders continue to accumulate in that period and interest on relevant components continues to accumulate. Obviously, provision needs to be made for the sentence of imprisonment not to take effect if the husband fully remedies his non-compliance with the subject orders as a means of incentivisation to the husband to so do.
As regards the term of imprisonment to be imposed, having regard to the maximum prescribed period of 12 months, in my judgment a period of three months imprisonment is appropriate in the circumstances of this case, particularly the circumstance of the husband’s now longstanding preparedness to assign to the wife his lifetime accumulated superannuation interest.
For the same reasons I would accede to the husband’s request that he be permitted the timeframe of 24 months from orders to enable him to discharge the order for substantial indemnity costs imposed by these orders. However, for that indulgence it would be unfair to the wife if she did not receive interest on the amount of her ordered costs in respect of any period the costs remain unpaid. Moreover, in my judgment it is within the discretion conferred by subsections (3) and (4) of s 112AD to include compliance with the costs order as part of the conditions to be met by the husband for the sentence of imprisonment to not take immediate effect. The husband is being afforded a period of 24 months to meet the obligations imposed by the orders he has contravened. This outcome is fortified by the feature that the husband’s willingness to pay the wife’s indemnity costs has been taken into account in his favour in deferring the sentence of imprisonment for the 24 month period.
For these reasons I make the orders set at out the commencement of these reasons.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 July 2017.
Associate:
Date: 31 July 2017
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