JEM and PDM

[2007] FCWA 85

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	JEM and PDM [2007] FCWA 85
CORAM:	PENNY J
HEARD:	21 MAY 2007
DELIVERED:	5 JULY 2007
FILE NO/S:	PT 2188 of 2001
BETWEEN:	JEM

Applicant/Wife

AND

PDM

Respondent/Husband

(Page 2)

Catchwords:

Husband sentenced to imprisonment pending purging of his contempt - application to be released - contempt not purged nor was it likely to be - husband to be released

Legislation:

Family Law Act 1975 - s112AP

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr F Castiglione QC
Respondent:	Self Represented Litigant

Solicitors:

Applicant:	Butlers
Respondent:	Not Applicable

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

Abduramanoski v Abduramanoska (2005) FLC 93-215
Ascot Investments Pty Ltd and Harper and Harper (No. 3)

Australian Securities and Investments Commission v Michalik & Ors [2004]

NSWSC 1259

Danchevsky v Danchevsky (1974) 3 All ER 934
Enfield London Borough Council and Mahoney (1983) 2 All ER 901
Khademollah and Khademollah [2004] FamCA 26
L and L (1982) FLC 91-245
Pelechowski v Registrar of Supreme Court (1999) 198 CLR 435
Tate and Tate (No 3) (2003) FLC 93-138
(Page 3)

1 The issue before the Court is the husband’s application to be released from prison or in the alternative, for the imposition of fixed term sentence. The husband was sentenced to an indefinite term of imprisonment on 13 May 2005 for contempt of court for deliberately breaching court orders and acting in a manner inconsistent with court orders. The husband has been imprisoned for approximately two years.

2 The wife opposes the husband’s application as she believes the husband should not be freed until the Court is satisfied that he is unable to purge his contempt. The wife argues that the husband has not produced any persuasive and credible evidence that he has no funds or assets which would allow him to purge his contempt in part or whole.

Background

3 The background to this application relates to the husband’s behaviour as a result of the property settlement proceedings instituted in this Court by the wife in March 2001.

4 During the property proceedings, the husband was restrained by court order made on 23 March 2001 from disposing of or encumbering the property in [the suburb] in [another state]. At the conclusion of the proceedings it was determined that the wife should receive 57.5% of the parties’ assets. Orders were made on 28 November 2003 requiring the husband to pay the wife $393,934 and upon the payment of such sum all rights in the [the suburban] property would vest in the husband. In default of the payment it was ordered that interest would accrue on the outstanding sum as prescribed by the Family Law Rules. It was also determined that the husband pay spousal maintenance to the wife and contribute towards her costs of the proceedings.

5 The details of the husband’s subsequent actions were summarised by me in my judgment delivered on 6 May 2005, these facts were also repeated in the appeal decision delivered on 8 November 2006. For the purposes of this judgment, it is worth repeating them again:

(Page 4)

“[9] The property in [the suburb] was registered in the husband's name only. Until 2004 there was no caveat registered on that property to protect the wife's interest. In October 2003 the husband applied to various financial institutions for a loan to be secured over the [the suburban] property. Annexure "A" to the affidavit of [SM], the husband's adult daughter from a previous marriage, sworn 15 June 2004, is an email sent by the husband to [DL] of [the named] mortgage provider, setting out the terms of his employment and stating why [the mortgage provider] should be satisfied that in making a loan to him, he had the funds to repay it and there was sufficient equity in the property as security for the loan.

[10] On 28 October 2003, the husband sent an email to his daughter, [SM], and son, [AM] in which he discussed the advantages of keeping the house in [the suburb] and the disadvantages of doing so. In that letter the husband stated it was likely, if the wife subpoenaed his loan application for finance, she would discover he had lied about his current salary, or has lied about his previous salary at trial. He believed she would try and enforce the maintenance order and may be awarded back maintenance. In the email the husband asked his children to make enquiries with a solicitor in relation to his obligation to pay maintenance, even if he is not paying tax and not working for an Australian company. He also wanted to know how serious it would be for him if the wife's subpoenaed his loan application form and discovered he had lied at trial.

[11] On 26 November 2003, while he was working [overseas], the husband sent an email to [SM]. He asked [SM] to find out what the consequences would be if he sold the house. He wanted to know whether it was a criminal act; would it stop him coming in and out of Australia and would a summons need to be issued and served upon him if he did it. Although not stated by him, it was clear he wanted to know the ramifications of selling the house without paying the wife the sums owing to her. On the same day, the husband sent a further email to [SM] as follows:

"[SM], can we sign the house over to you or [P] and, if so,

what can the ex do to get it back? All my love, your Dad."

[12] The contents of these emails, obtained recently by way of an
Anton Pillar order, are in stark contrast to [SM]'s version of her

(Page 5)

dealings with the husband around this time. In paragraph 9 of her
affidavit sworn 15 June 2004, she stated as follows:

“8 After my father left [the city] for [overseas], I was in contact with him on a weekly basis, usually by mobile phone, and occasionally by email. Our conversations were usually general in nature. When he gave me written instructions they were brief and uncomplicated and I felt no need to keep the messages. I therefore deleted all but the current message from my hotmail account.

9 I can recall my father mentioning "Family Court proceedings" once or twice. I recall he said he might need to sell or mortgage the property at [the suburb] to pay [the wife] out. Because I was responsible for paying my father's bills, I was occasionally copied on emails between my father and his solicitors where payment of his legal fees were in issue. I kept these emails for as long as they were relevant and then deleted them. I was otherwise not included in his legal affairs.

[13] I do not accept the protestations of [SM] that she was apparently an innocent pawn of the husband when acting on his behalf, pursuant to the Power of Attorney he gave to her in November 2003. As early as 26 November 2003 she was well aware the husband was considering dealing with the [the suburban] property in a manner which would ensure that the wife would not be paid the judgment sums ordered in her favour.

[14] On 1 December 2003, [SM], on the husband's instructions and pursuant to the Power of Attorney, signed an exclusive agency agreement for the sale of the [the suburban property] for between $850,000 and $950,000. On 11 December 2003, she signed a contract for sale of [the suburban] property, on behalf of the husband, to [IW], a family friend, for the sum of $700,000.

[15] On 14 or 15 December 2003, the husband asked [SM] to go to his solicitor’s office and sign a mortgage on the property at [the suburb]. This was done on 16 December 2003.

[16] On the same day, the sum of $497,669.50 was deposited into the husband's Commonwealth Bank account, being the funds borrowed by the husband, using the [suburban] property as security. On 17 December 2003, the husband gave [SM] instructions to draw a bank cheque in the name of his maternal

(Page 6)

grandmother in the sum of $12,000, draw a bank cheque in the sum of $60,000 and deposit it into [I & LW]s' ANZ bank account and transfer $400,000 into the account of the father's girlfriend, [NS], [overseas]. On 29 December 2003, a further $117,418 was deposited into the husband's Commonwealth bank account. [SM] withdrew another $120,000 from the account and transferred it to [NS]'s [overseas] account.

[17] The wife subsequently lodged a caveat on the [the suburban]
property and the sale to [IW] was unable to be effected.
[18] On 24 December 2003, the wife's solicitors filed a Notice of
Appeal on her behalf seeking an increase of the sums ordered to
be paid to her by way of property settlement, and an increase of
the costs awarded on 17 December 2003.
[19] On 1 February 2004, the husband emailed [SM] and stated
as follows:

"Don't worry about the mortgage. I have decided to let everything go. If she does not accept the settlement offer?? Could you keep an eye on my credit cards for me.

I am sorry to have had to drag you into this mess, it is not that I am running away from this, it is purely economics which is driving my decision.

I will always love and miss you heaps?? What a dysfunctional life I lead?? My mother and father would be ashamed of me, that is for sure?? Perhaps the fact that they have not worked [overseas] is my excuse?? Not much of a one, that is for sure. .."

[20] On 25 March 2004, the husband sent a facsimile to the Commonwealth Bank [interstate] stating that he would like the automatic payment stopped to "Perpetual". Perpetual Trustees [State] Ltd was the mortgagee who provided the loan to the husband, secured upon the [suburban] property.

[21] On 25 May 2004, a default notice was forwarded by them to the husband alleging arrears of $14,003. The husband refused to make any payments in reduction of the loan. The property was subsequently sold at auction. After deduction of the amounts owed on the mortgage, and the amounts owed to the mortgagors

(Page 7)

for expenses associated with the sale, the wife received $38,896,
all of which was used to pay legal fees.

6 On 9 March 2005 the wife bought proceedings against the husband for four counts of contempt. The total amount owing to the wife at that time was $438,068. The husband pleaded guilty to the first count, namely that he deliberately breached the orders made on 23 March 2001 and acted in a manner inconsistent with the orders made on 28 November 2003, by entering into a loan agreement with Perpetual Trustees which was secured by the [the suburban] property. He pleaded not guilty to the other three counts.

7 On 6 May 2005 I acquitted the husband of Counts 2 and 3 but found him guilty of Counts 1 and 4. Count 4 was that the husband deliberately breached the orders made on 5 April 2004 by failing, neglecting or refusing to file and supply the wife and the Court with an address for service in Australia, to which he may be served.

8 On 13 May 2005 the husband was sentenced for his contempt. He was ordered to serve 3 months imprisonment on Count 4 and an indefinite term of imprisonment on Count 1. In sentencing the husband to an indefinite term, I said:

“[50] In relation to count 1, the husband should be imprisoned until he purges his contempt. The damage caused by the contempt was to remove $500,000 from the asset pool. There appears, at the present time, to be approximately $120,000 which can be made available to the wife in part performance of the judgment. The husband cannot be released from prison until the balance is paid up to a total sum of $500,000.

[51] In addition, the husband’s contempt will not be purged until he pays the wife’s costs of enforcing the judgment and the contempt proceedings, both of which result from the contempt. These should be fixed on a solicitor/client basis…”

9 The husband unsuccessfully appealed the sentence.

10 The husband has now made this application to be released from prison on the basis of fresh evidence or in the alternative, sentenced to a fixed term for his contempt. The husband says he is unable to purge his contempt because he cannot retrieve the money he transferred to his girlfriend, [NS]. However he says that if he is released he will seek employment in an attempt to meet his obligations.

(Page 8)

Orders Sought

11 The husband in his affidavit in reply to the wife’s submissions received by the Court on 17 May 2007 seeks the following orders:

1.	That the punishment Order in relation to Count 1 of the Contempt judgment of Her Honour Justice Penny on 13 May 2005 be set aside or dissolved in the absolute; and or
2.	That forthwith [PDM] be sentenced to a term of finite incarceration; and or
3.	That forthwith [PDM] be set free from prison and be allowed to seek employment overseas, to pay child maintenance of 25% of this net wage. To be able to be retrained if necessary.
4.	That the two passports of [PDM] be returned.
5.	That the restraining order place on [PDM] at the international airport preventing him from leaving be removed.
6.	That the respondent returns the two hard drives and that of the electronic diary.

12 The wife in her submissions received by the Court on 14 May 2007 opposes the husband’s alternative applications. She argues that 2 years is insufficient on the punitive aspect alone and further the husband has not provided sufficient evidence that there is an actual incapacity to pay. The wife says if the husband furnishes such evidence then the Court can revisit the matter at anytime.

13 In the event that the Court converts the indefinite sentence to a fixed term of imprisonment then the wife is seeking that the term be between 4 – 5 years. Further, the wife says that if the sum to be paid by the husband is not paid in whole or part, the Family Court Registry should retain the husband’s passports. That is, if the husband is to meet his obligations through employment, as he has suggested, then the wife says it should be here in Australia on terms. The wife argues that pursuant to s 112AP(6) the Court is permitted to order a conditional release requiring the husband to pay a periodic amount, together with a requirement for notification of his address details and injunction preventing him from leaving Australia.

Law
14	As I stated in sentencing the husband, the Court has the power to punish a contemnor for contempt using orders that are both coercive
(Page 9)
and punitive in nature. In my judgment I referred to the decision in Tate and Tate (No 3) (2003) FLC 93-138, where the Full Court made the following comments in relation to contempt arising from disobedience of a non-monetary order:

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

……..

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

15 The Full Court in both L and L (1982) FLC 91-245 and Ascot Investments Pty Ltd and Harper and Harper (No. 3) (1982) FLC 91- 253 referred to the decision of Lord Denning in Danchevsky v Danchevsky (1974) 3 All ER 934 where his Honour said at 937:

“….It seems to me that when the object of the committal is punishment for a past offence, then, if he is to be imprisoned at all, the appropriate order is a fixed term. When it is a matter of

(Page 10)

getting a person to do something in the future – and there is a reasonable prospect of him doing it – then it may be quite appropriate to have an indefinite order against him and to commit him until he does do it. But if there is no such prospect – as here – there should not be an indefinite term.”

16 In Khademollah and Khademollah [2004] FamCA 26, the Full Court identified some cases where a coercive sentence ceased being coercive:

“[13] The purpose of a coercive order or an injunction in aid of enforcement is to ensure as far as possible that the orders of the Court will be obeyed. As the Full Court observed in Ascot Investments v Harper (No 3) (1982) FLC 91-253, (1982) 8 Fam LR 521 at 531:

“In the circumstances of this particular case, it was within the discretion of the trial judge to impose a coercive sentence of indefinite duration if he was satisfied that there was a reasonable prospect of the husband complying with the orders either in full or at least to a significant extent. The order does not, in any event, preclude the husband from making an application to the court at any time.”

[14] There exists, however, a narrow range of cases when it becomes apparent that no matter what attempts are made by the Court to give effect to its orders, a stubborn or recalcitrant litigant will not comply with the orders and the orders remain unfilled. In those circumstances it may be that ultimately the injunctions granted and the orders made in an attempt to coerce compliance have to be dissolved.

[15] In Enfield London Borough Council and Mahoney (1983) 2 All ER 901 a local council in England instituted contempt proceedings in an effort to enforce an order than an amateur archaeologist deliver up to it a valuable object believed to be the original Glastonbury Cross. The defendant had found the cross during excavations on council land and had steadfastly refused to hand it over to the council who claimed ownership. The trial Judge committed him to prison for two years. Eight months later the matter came before the court again, the defendant again refused to comply and the original order was continued. Nearly a year after he was first committed the Court of Appeal ordered his

(Page 11)

release on the ground that it was obvious that no form of coercion, including no matter how long a stay in prison, was going to cause him to change his mind and it pointless to keep him in prison any longer. As Watkin J observed at 904:

“[He]’s prepared to stay in prison until Doomsday, so fixed in his determination that any desire to reclaim his cross is thwarted.”

[16] As observed by the Law Reform Commission in its Report
No 35 Contempt at para 541:

“there may come a time when a coercive sentence ceases to be coercive because its effectiveness is amply demonstrated.”

17 The Full Court went on to apply these principles to the particular factual scenario in the case. In dismissing the husband’s application for leave to appeal an order made by the Court relating to the return of the husband’s passport, the Full Court said:

“[17] It may well be that the restraints upon Mr Khademollah leaving Australia are no longer appropriate given that their coercive natures has been proven to be totally ineffective. It may well be that a Court faced with an application based entirely upon the unwillingness of the litigant to comply with the orders may feel properly disposed to discharge injunctions and return Mr Khademollah his passport. But such an application, so long as it seeks to reopen issues that have been long settled by the original trial Judge of appellate courts, is doomed to failure.

[18] We see no error in the approach of Mushin J and therefore no grounds for now granting leave to appeal. However, our rejection of this application should not be seen as the final death knell to Mr Khademollah’s endeavours to be able to leave Australia. As indicated, providing an application brought, based upon the reality that the orders will not be complied with rather than the assertion that the orders were wrong in the first place, then such an application may be more sympathetically accepted by a trial judge.”

18 Returning to the decision in Enfield London Borough Council and Mahoney (supra) (as referred to in Khademollah and Khademollah (supra)) Watkins LJ made further comments in relation to the imprisonment of the amateur archaeologist:

(Page 12)

“Of the two elements of the punishment inflicted by the original order, one has by now surely been served, namely that of punishment for the contempt itself. All that remains now of the order, so it is asserted, is that part if the period of two years which can only be said to relate to the coercive effect which it was hoped by the judge the sentence would impose on him. It being obvious to everyone now that no form of coercion, including no matter how long a stay in prison, is going to cause this man to change his mind; it is pointless to keep him where he is.”

19 May LJ also agreed with Watkins LJ stating:
“….Once a contemnor has been sufficiently punished for
disobeying a court order he should not, in my judgment, be
punished further for continuing to do the same thing, even
though in a sense this shows that he is continuing to be
contumacious. Given therefore that the court should not punish
twice for the same offence, when an application is made for a
contemnor to be released during the fixed term of custody
imposed, the first question for the court must be whether the
contemnor has been punished enough for the contempt for which
he was sent to prison. If, in the view of the court, he has not, then
probably the court will not release him. If, on the other hand, at
the time of such an application the court takes the view he has
been punished enough for the original contempt, then the only
remaining justification for continuing to keep him in custody is
that this may still have a coercive effect and make him comply
with the original order. If it is quite clear that he is not going to
comply however long he stay in custody, then provided, as I say,
that he has been punished enough there is on my view no
justification for continuing to keep him in prison.”

20 The question that now arises in this particular case is two-fold. Is the punitive nature of the punishment been satisfied and if so, is the husband unable to purge his contempt so that the coercive nature of the punishment is made redundant. These questions need to be assessed based on the specific factual circumstances of the husband’s contempt. As Palmer J, in Australian Securities and Investments Commission v Michalik & Ors [2004] NSWSC 1259 at paragraph 49 stated a:

(Page 13)

“……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.”

Punitive nature of the sentence

21 Section 112AP does not impose limits on the length of a sentence of imprisonment that may be imposed on the contemnor. As held by the Full Court in Abduramanoski v Abduramanoska (2005) FLC 93- 215:

“Section 112AP(3), construed in its ordinary meaning, does not provide for the making of rules of court to deal with sentencing. Section 112AP gives a wide discretion to the court on imposing sentence. The section does not impose limits on the length of a sentence of imprisonment which may be imposed although punishment may be on terms, a suspended sentence imposed, or the Court may order the discharge of a sentence prior to the expiry of a term of imprisonment: (cf Contempt of Court Act 1981 (UK) s 14(1) where the maximum sentence for a contempt is confined to two years.)”

22 It was pointed out in the wife’s submissions that it was recommended in the Western Australia Law Reform Commission Report 93 – the Final Report on Contempt that the maximum penalty for contempt is 5 years imprisonment. Based on this recommendation, the wife submits that the husband be sentenced to a term between 4 – 5 years with s 112AP(7) continuing to be available to him at all times.

23 Despite the wife’s recommendation based on the Western Australia Law Reform Commission Report, it is noted that this Report was not intended to apply to the Family Court. At page 8 of the Report it says:

“The Commission accepts that with the recent legislative reform in this area, it is not realistic to propose further reforms in relation to contempt in the Family Court, although it also notes that this will mean that a common law contempt jurisdiction will remain in Western Australia.”

24 The Report further states on page 91:
“As indicated in Part 1, in September 2002 Western Australia
passed legislation that largely mirrors the Commonwealth

(Page 14)

approach to contempt in all relevant family law matters. This has
since been proclaimed.
……..

As indicated in Part 1, the recommended reforms in this Report are not intended to apply to contempt under the Family Court Act 1997 (WA).”

25 The punitive aspect of a punishment is to deter any blatant disregard to the Court’s authority. In sentencing the husband I referred to the statement of Kirby J in Pelechowski v Registrar of Supreme Court (1999) 198 CLR 435 at 485:

“149. Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of dispute of law would be undermined. And if they were not effective, “serious and lasting damage to the fabric of the law many result.” Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.”

26 The Full Court in Tate and Tate (supra) also referred to the Australian Law Reform Commission in its 1987 report Contempt (Report No 35) in which the ALRC states at paragraph 519:

“Maintaining the effectiveness of court orders. On the view just

outlined, the imposition of punitive sanctions for disobedience is justifiable in terms of maintaining the effectiveness of court orders. In our society, courts are the ultimate arbiters of disputes. This system of dispute resolution depends upon, among other things, their making orders and, if necessary, enforcing them. Given that litigation can be frustrating, time consuming and costly, there would be no incentive at all in undertaking it, if there were no likelihood that orders made by the court in settlement of a dispute could not be enforced. The imposition of coercive sanctions is clearly directed towards this goal; the imposition of punitive sanctions re-inforces (sic) it. In circumstances where enforcement is no longer relevant, either because the order has since been complied with, or is no longer

(Page 15)

capable of being complied with, the imposition of a punitive sanction vindicates the claims of the aggrieved party, signifies the disapproval of the court, and acts as both as a specific deterrent (that is, to the particular contemnor) and as a general deterrent (that is to future would-be contemnors). The Commission endorses the general principle that punitive sanctions should be available to the court to the extent that they are necessary to uphold the effectiveness of court orders”.

27 The sentence imposed on the husband as a result of his contempt should be not only be sufficient in terms of punishing him for his actions but also act as a general deterrence to others from committing such a contempt and as a consequence uphold the authority and effectiveness of the Court.

Coercive nature of the sentence

28 The husband says that he is unable to retrieve the money he transferred to his girlfriend, [NS] to purge his contempt. Of the money the husband transferred to [NS], she apparently applied $100,000 to reduce the debts of the husband, another $100,000 to repair her parent’s and brother’s houses and approximately $250,000 was used, in accordance with the husband’s instructions, to invest in real estate. He says that [NS] has sold the two townhouses she originally purchased and has subsequently purchased a block of land on which she has built a house. He says [NS] now has a mortgage over the property. The husband argues that even if he was able to sell the house the proceeds would not cover the whole debt to purge his contempt and further he has personal debts amounting to approximately $157,000.

29 The reasoning the husband has provided in this application as to his inability to meet the obligations under the court orders, and therefore purge his contempt, are the same reasons provided at the sentencing hearing. Namely, that he cannot persuade [NS] to sell the properties and remit the money to him. He says that [NS] will not sell the property as it is in her name; she will have no funds to purchase a new house; she has a cultural and moral responsibility to her extended family that live in the house, and she believes she has a rightfully entitled to the property as she has been the husband’s de facto partner

(Page 16)

for approximately 14 years. He says that he, his son, [AM] and his daughter, [SM] have all unsuccessfully attempted to persuade [NS] to return the money. He provided to the Court statutory declarations from [NS], [AM] and [SM] all attesting to this position.

30 Excluding the statutory declarations, the husband has not provided any further evidence but rather a repetition of the same explanation. Further the husband has made a similar proposal to repay the money to the one he made at his sentencing hearing. At the sentencing hearing the husband said that if he was given the opportunity to seek employment he could make periodic payments to the wife. At the time of that hearing I also noted that there appeared to be $120,000 that the husband could pay to the wife in part performance of his obligations. This consisted of approximately $60,000 in superannuation and a yacht valued at approximately $60,000. Two years on, the wife says in her submissions that the husband has paid nothing.

31 The husband’s credibility has not only been challenged in my sentencing judgment delivered on 13 May 2005 but was also challenged by Thackray AJ at the parties’ property settlement trial. In sentencing the husband, at paragraph 48 of my judgment, I assessed the husband’s character antecedents and his proposals and I concluded I could not accept the husband’s evidence that he:

“(a) has no access to funds [overseas] and cannot cause them to
be remitted to Australia;
(b) that he would make any payments to the wife upon leaving
Australia; and
(c) that he would ever again return to Australia to enable further
enforcement proceedings to be taken.”

32 The wife says that the husband has provided far from sufficient evidence that there is incapacity to pay. I agree with the wife’s submissions in that much of the husband’s supporting affidavit is prolix and contains a great deal of irrelevant material. The wife says that the husband has failed to provide a full and frank disclosure of his finances. In particular, she says the husband has not revealed the state of various bank accounts, the address of the houses and block of land [overseas], his earnings from previous employers including expenses, and details of his divestment of earnings and expenses to family. The wife says the husband has made little effort in meeting any part of the

(Page 17)

orders and further, the evidence he has provided in relation to persuading [NS] to sell the property is untested, and given the history is likely unreliable. The wife says that there is a very significant likelihood that he is aware of the very fact that if he obstinately refuses to purge his contempt he will be released soon and able to rely on the coercive nature of the sentencing becoming less and less productive.

33 If the husband is released the wife seeks that the husband’s passport be retained to prevent him from leaving Australia. She says that if he is to meet his obligations through employment then it should be here in Australia. The husband opposes this position. He says there is no opportunity for employment in his industry, which he describes as the construction of international cross country oil and gas pipeline projects, in Australia. As a result he believes that if he was required to stay in Australia it would be more likely that he would be unemployed and required to apply for a social security benefit. He says that if the Court entertained such a position he would prefer imprisonment then to sit the rest of his life on social security. Further he does not see himself as a risk of not returning to Australia as he has strong family ties in Australia and he is considering Sydney as his home base.

34 There are obviously still doubts as to the credibility of the husband’s evidence. However the husband’s credibility is not the only factor to consider when determining whether the coercive effect of the punishment has ceased to be coercive. The wife argues that the husband is not saying that he cannot comply with the court orders but that he will not. The wife says that this is not a case where a partly coercive sentence has failed or is failing by a simple obstinate refusal to comply. She says the husband has not produced any persuasive and credible evidence that he has no other funds or assets which would allow him to purge his contempt in part or whole. However, as was seen in the case of the amateur archaeologist in Enfield London Borough Council and Mahoney (supra) in determining whether a contemnor is capable of being coerced is not simply a matter of whether the contemnor can purge his contempt but whether he will.

Conclusion

35 I have doubts as to the husband’s credibility in his attempts to retrieve the money from his girlfriend. I did not accept this

(Page 18)

proposition at the time of sentencing and I am reluctant to believe there has been any great change in circumstances in relation to the property held by the husband’s girlfriend. However there comes a point where the punishment must be reviewed on the basis that the purposes for which it was imposed are no longer effective.

36 The husband has spent two years in prison and I am of the opinion that if he has not purged himself as yet then I do not think he will. As such it appears to me that the husband is not capable of being coerced into purging his contempt. The question then arises as to whether the husband has been sufficiently punished for his contempt. On consideration of the particular facts of this case I am of the opinion that two years’ imprisonment is sufficiently punitive.

37 Although I do not consider the husband’s behaviour acceptable in any means I have to agree with May LJ in Enfield London Borough Council and Mahoney (supra) when his honour was said: “….Once a contemnor has been sufficiently punished for disobeying a court order he should not, in my judgment, be punished further for continuing to do the same thing, even though in a sense this shows that he is continuing to be contumacious.”

Proposed Orders

1. The husband is to be released from his indefinite term of imprisonment at [the particular prison] in the State of Western Australia;

2. In relation to the husband’s hard drives and electronic materials held by [his], Solicitors, the court order made on 20 November 2006 still stands. The hard drives and electronic material is to be copied by an independent person with the cost of such copying to be paid by the husband, and the hard drives and electronic are then to be returned to the husband;

3. The husband’s passport be returned to the husband.

I certify that the preceding [37] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

(Page 19)

Associate