Giddens and Giddens
[2016] FCCA 3201
•18 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIDDENS & GIDDENS | [2016] FCCA 3201 |
| Catchwords: FAMILY LAW – Contempt – Flagrant challenge to the authority of the Court – mental illness and physical disabilities – custodial sentence. |
| Legislation: Family Law Act1975 (Cth), ss.112AP, 112AD, 112AE, 112AF, 112AG |
| Cases cited: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 |
| Applicant: | MS GIDDENS |
| Respondent: | MR GIDDENS |
| File Number: | WOC 1057 of 2015 |
| Judgment of: | Judge Hughes |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Canberra |
| Delivered on: | 18 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Groch |
| Solicitors for the Applicant: | Merimbula Legal |
| Counsel for the Respondent: | Mr Haddock |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
The respondent is found to be in contempt of order 1 of 16 February 2016 by selling the Holden (omitted) motor vehicle NSW registration number (omitted) in direct contravention of the order restraining him from doing so.
The respondent is committed to an immediate term of imprisonment for a period of six months, to be suspended after serving two months upon the respondent entering into a bond, self-surety in the sum of $5,000, with the condition that he be of good behaviour for a period of 12 months from the date of the bond.
To give effect to order 2, a warrant of commitment shall issue forthwith.
Otherwise, all extant applications are hereby dismissed.
AND IT IS NOTED: The Court requests that particular attention is paid to the physical and mental health needs of the respondent at the incarceration intake assessment given his history of physical and mental illness and attempted suicide.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Hughes delivered this day will for all publication and reporting purposes be referred to as Giddens & Giddens.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
WOC 1057 of 2015
| MS GIDDENS |
Applicant
And
| MR GIDDENS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed by the wife on 22 April 2016 for the husband to be dealt with for contempt of Court pursuant to section 112AP of the Family Law Act 1975. The contempt comprises contravention of an injunctive property order and involves a flagrant challenge to the authority of the Court.
On 9 November 2016, upon being formally charged, the husband admitted the contempt and his counsel made submissions in mitigation of penalty. The proceedings were then adjourned for sentencing today.
Background
The applicant wife is aged 38 and is a (occupation omitted). The husband is aged 47. He is unemployed, in receipt of a Centrelink Newstart Allowance and has applied for a Disability Support Pension.
The parties commenced cohabitation on (omitted) 2008, married on (omitted) 2009 and separated on 14 February 2014.
The parties have no children together. The wife has two children from a previous relationship.
For the whole of the parties’ relationship the husband was in receipt of worker’s compensation payments as a result of a workplace injury he suffered in 2006 during employment as a (occupation omitted).
In about April 2014, two months after the parties’ separation, the husband received his first lump sum compensation payment of $47,500. He said he paid out a number of loans leaving a balance of $29,000 from which he paid the wife $4,500.
In September 2015 the husband received a second compensation payment of $290,000 net of legal fees.
On 23 October 2015 the wife commenced proceedings for property settlement. She initially sought a lump sum payment of $20,000 but, following discovery, sought a payment of $60,000.
The proceedings were listed initially in the Federal Circuit Court at Wollongong but transferred to the Canberra Registry and listed for directions on 31 May 2016.
On 12 February 2016 the wife filed an urgent application in a case seeking orders for seizure of the husband’s vehicle pending the property settlement. In her supporting affidavit she said she had seen the husband’s bank statements which revealed he had spent over $200,000 in three months. She alleged the husband had previously said to her “I’ll make sure you get nothing.” She feared the husband was carrying out that threat.
On the same day, 12 February 2016, the husband had filed an affidavit and financial statement. In the financial statement he declared that he had spent $255,200 on dental work, travel and the purchase of two vehicles. The more expensive vehicle was a Holden (omitted) which he declared was worth $33,000. In his affidavit he made no mention of his expenditure.
The application in a case came before me on 16 February 2016. I ordered that the husband be restrained from selling, transferring, encumbering or taking any action which might cause diminution in the value of the vehicle pending further order. The wife was permitted to lodge a notice with the New South Wales Register of Encumbered Vehicles.
The husband was present in Court on the day the order was made. On a date which is not specified in the evidence, he drove to Canberra (presumably to avoid the operation of the NSW Register of Encumbered Vehicles) and sold the vehicle to a Canberra car yard. He said he achieved $25,000 from the sale. He said he gave $3,000 to his mother for room and board and used the remainder for a holiday to (country omitted).
The husband filed an affidavit on 9 November 2016 in which he conceded he had breached the order but said that he wanted to provide the Court with some context to his actions. He said he was feeling suicidal at the time he sold the car and planned to kill himself in (country omitted). He said he was talked out of that by an old friend he ran into who persuaded him to wait until he returned to Australia as it would be very difficult for the family if he died overseas. He accepted the advice and returned to Australia, still intent on suicide.
The husband said he had first contemplated suicide in October 2015 but the court orders against him were “the final straw”. Presumably he is referring to the orders made on 16 February 2016 restraining him from disposing of the vehicle. He had argued on 16 February that he ought to be permitted to sell the car as he needed the money for living expenses and to pay for necessary medication.
The husband said that he next planned to kill himself on 27 March 2016. He said he drove to a secluded spot in the (omitted), attached a hose to the exhaust pipe of the vehicle, put it through the rear window of the car and taped up the window. He then took 30 Panadeine tablets. He said he fell asleep but woke up approximately three hours later and drove home. He said his mother called the police as she was worried about him. When the police arrived they called an ambulance and he was taken to hospital. The husband said he was admitted to the intensive care unit of (omitted) Hospital for three days with carbon monoxide poisoning. He was then transferred to the mental health ward for a further two days. He was re-admitted about one and a half weeks later, suffering further suicidal ideation. He said that, since then, he has been under the care of a psychologist, Dr S, and his general practitioner, Dr H. He said he sees Dr H about every ten days and Dr S approximately every two weeks.
In his affidavit the husband expressed remorse about selling the car contrary to the order of 16 February 2016. He said at paragraph 27 the following:
I understand that I was challenging the authority of Judge Hughes when I broke the Order about selling the car. I know it was wrong to sell the car. I feel terrible about breaking the Court’s Order and I am sorry and regretful for my actions. The only thing I can say is such actions are completely out of character for me and were taken at a time when I was in terrible pain, feeling depressed about going to Court, and planning to kill myself. I genuinely believed that I would not be here. I have always stood up for the mistakes that I have made in the past, and part of this is admitting the contempt I have committed, even though I know there is a risk I will be going to jail.
The husband has been diagnosed as suffering anxiety, chronic depression and post-traumatic stress disorder. Annexed to the husband’s affidavit are a range of statements by his GP, Dr H, made between 23 October 2015 and 6 October 2016. The relevant portion of the statement of 6 October 2016 is as follows:
This letter is to confirm that Mr Giddens experienced an acute deterioration of his depression/anxiety, starting in September 2015, which worsened over a period of several months, culminating in a suicide attempt in April 2016.
Mr Giddens is quite compliant with treatment. He attends regular appointments, is compliant with medications, and has a current Mental Health Care Plan in place. I feel that incarceration would be detrimental to his health and sincerely hope that an alternative arrangement could be considered. I am happy to help in any way, whether it is confirmed attendance at appointments or even completing periodic reports for the court. Mr Giddens is a very genuine patient who has worked very hard over the past year in relation to his mental health issues as well as his significant physical issues.
The husband annexed to his affidavit of 9 November 2016 a statement from Dr S, whom he described as a psychologist but who described herself as a mental health practitioner. It is in the form of a letter to Dr H. The body of it reads as follows:
Thank you for your referral of Mr Giddens for treatment of anxiety, depression and post-traumatic stress disorder (PTSD). He has engaged well in the counselling process and acknowledged he was, “Messed up in the head” in March when he made an attempt on his life. He describes himself as an, “All or nothing” type person, who usually has good insight and perspective on his problems, but became, “Tipped over the edge” by the pressure of the legal issues regarding a property settlement with his ex-wife. Mr Giddens is being offered cognitive behaviour therapy (CBT) relaxation strategies and a goal focussed problem solving approach to therapy. He has been assisted to challenge unhelpful attitudes and beliefs, and has been offered acceptance and commitment therapy (ACT) to help him work towards positive goals for his health and well-being. He already faces considerable disadvantage in the employment field due to his physical disabilities, chronic pain and PTSD symptoms. If non-custodial options are considered for reparation, he hopes to continue his work towards rehabilitation and recovery with this service, which he is finding useful to help with emotion regulation and clarity of thinking. He assures me that if he again feels at risk of self-harm behaviour, he would contact the mental health crisis line or present to hospital. Please review his Mental Health Care Plan in November 2016.
I am satisfied on the evidence the husband has had some significant physical, emotional and mental health issues. However I have some scepticism about his declared remorse. He did not explain why he disposed of the bulk of his compensation monies and then the car, other than to say that he was stressed and suicidal at the time. The evidence as a whole suggests his actions were borne of spite and designed to prevent the wife obtaining even a modest property settlement.
The husband’s communication with the wife’s solicitors suggests he was anything but remorseful for his actions. Ms B, a legal secretary employed by the wife’s solicitors filed an affidavit on 22 April 2016 to which she annexed a number of file notes she made following telephone conversations with the husband. She deposed that on 24 March 2016 the husband said to her during a telephone conversation, referring to Mr Stephen Groch, the wife’s solicitor, “Let’s put it this way. I know I’m going to jail in April so I couldn’t give a shit about the rest of this stuff and you can tell Stephen that.”[1]
[1] Affidavit of Ms B filed 22 April 2016 at Annexure B 3
On 31 March 2016 Ms B made the following file note after a conversation with the husband:
Mr Giddens phoned about the letter we sent him again. He said he had just gotten out of ICU as he tried to kill himself on Sunday and he will keep going until he gets it right. He advised he had sold the car even though he had been told not to and he had $4 to his name and Stephen could go his hardest and do what he wants and to pass that message on to him.[2]
[2] Ibid at Annexure B 4
On 9 April 2016 the husband wrote to the wife’s solicitors in which he said amongst other things:
The only things I feel I have done wrong is (sic) have a bad work accident in 2006, and marry the wrong woman a couple of years later. I have broken no laws, I do not accept that the court can dictate what I can and cannot do with my property.[3][Emphasis added]
[3] Ibid at Annexure B 6
This statement, made less than two weeks after the husband’s alleged suicide attempt is not at all remorseful. It is self-pitying, self-justifying and an unambiguous challenge to the Court’s authority.
The legal principles
Section 112AP of the Family Law Act empowers a Court to punish a person for contempt.[4] The contempt must be proved beyond reasonable doubt but that is conceded by the respondent.
[4] See generally in relation to the applicable principles for sentencing for contempt: LGM v CAM (No 2) (2008) 38 Fam LR 229; McClintock v Levier (2009) 41 Fam LR 245; and Bande v Cade (2012) 45 Fam LR 376
Section 112AP(4) provides that the Court may punish the contempt by committal to prison or fine or both.
A term of imprisonment is a sanction of last resort. [5] The various non-custodial sanctions provided for contravention of Court orders under sections 112AD to 112AG are also available as a penalty for contempt.[6] With this in mind, on 9 November 2016 I ordered the husband to be assessed by the duty officer for ACT Corrective Services. A report of that assessment was available later that day and was received into evidence as exhibit H1.
[5] Sahari and Sahari (1976) FLC 90-086
[6] Cummings & Cummings (1976) FLC 90-100
In her report the duty officer, Ms W, assessed the husband’s suitability for a range of sentencing options in the event an alternative to a custodial sentence was being considered by the Court. She assessed the husband as being at minimum risk of re-offending. She said he demonstrated insight, appeared to take responsibility for his actions and was addressing his mental health issues.
Ms W said the husband had limited financial resources and would have difficulty paying a fine. I accept that. She recommended against a deferral of sentence but that is not contemplated. She assessed the husband as not suitable for a community service work order due to being medically unfit and being on a significant amount of medication for his physical and mental health conditions.
The husband was assessed as suitable for a good behaviour order. Ms W suggested the husband may benefit from a period of supervision as a condition of such an order but recommended the supervision be required only for so long as deemed necessary by ACT Corrective Services. She noted that the husband may be referred to other services during that period. In my view the imposition of a good behaviour order would not be an appropriate sanction given the gravity of husband’s actions. The wife had taken lawful steps to obtain a property settlement. The husband had disposed of the bulk of his compensation monies in what could aptly be described as “cutting off his nose to spite his face” given the wife was seeking an amount equivalent to 20 per cent of the compensation. Even if she had been entirely successful, the husband would have retained the majority of the funds and been able to adequately support himself. His subsequent actions in disposing of the one remaining asset deprived her of any opportunity to achieve a property settlement and were a clear, conscious and deliberate contravention of the order.
It is essential to the effective functioning of a legal system that court orders are obeyed.
In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [7] the High Court of Australia (per Gibbs CJ, Mason, Wilson and Deane JJ) made the following statement about the purpose of civil contempt proceedings:
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.
[7] (1986) 161 CLR 98 at 107
The principles of sentencing for civil contempt involve specific deterrence, general deterrence and retribution as discussed by the Full Court of the Family Court in Tate and Tate (No.3) (2003) FLC 93–138. At paragraph 57 of that judgement their Honours said the following:
Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.
Arguably, given the particular circumstances of this case, the need for individual deterrence is low because the husband is unlikely to be in a similar situation in the future. However if he escapes punishment altogether or the punishment has no real impact on him he may feel emboldened to act contrary to other orders or laws. The principle of general deterrence is important. If the husband receives no substantial penalty, it will send a message to other litigants that the Court’s orders can be contravened with impunity.
In my view the only appropriate sanction in the circumstances of this case is a custodial sentence. I bear in mind that, in conceding the contempt, the husband saved the wife and the community at large the cost of a hearing on that issue. That should be reflected in the sentence.
I do not accept as genuine the husband’s statements of remorse except to the extent they reflect regret at the serious situation in which he finds himself.
I accept that a custodial sentence is likely to cause the respondent hardship given his physical and mental health issues. The husband described a range of physical disabilities resulting from injuries to his neck, back, ankle and knee. He said his knee, in particular, has significant swelling, causes him a lot of pain and makes it difficult to walk. The husband’s mental health practitioner, Dr S, referred to him suffering chronic pain, which I accept. His GP, Dr H, emphasised the potential adverse impact of a custodial sentence on his mental health rather than on his physical health. I accept that both his physical and mental health may be adversely affected by a custodial sentence. I will ask that particular attention be paid to those issues at the intake assessment when he is taken into custody.
In my view the appropriate length of sentence is six months, to be suspended after serving two months upon the respondent entering into a bond, self-surety in the sum of $5,000, with the condition that he be of good behaviour for a period of twelve months from the date of the bond.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hughes
Date: 9 December 2016