KERRIGAN & RAIFFE (No.2)
[2013] FCCA 2240
•18 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KERRIGAN & RAIFFE (No.2) | [2013] FCCA 2240 |
| Catchwords: FAMILY LAW – Contempt – two charges – proved beyond reasonable doubt – no defence made out. |
| Legislation: Evidence Act 1995, s.141. |
| Langer & Griffin [2013] FamCAFC 170 Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 |
| Applicant: | MS KERRIGAN |
| Respondent: | MR RAIFFE |
| File Number: | BRC 3509 of 2012 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 18 December 2013 |
| Date of Last Submission: | 18 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 18 December 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Cooper Family Law |
| Solicitors for the Respondent: | In person |
ORDERS
With respect to Charge 1, being that the respondent is in contempt of this Court for failing to comply with Order 2 of Orders of this Court dated 16 August 2013, the respondent is sentenced to a term of imprisonment of one (1) month.
With respect to Charge 2, being that the father is in contempt of this Court for failing to comply with Order 3 of the Orders of this Court dated 2 October 2013, the respondent is sentenced to a term of imprisonment to expire upon the return of the child [X] born [in] 2003 (“the child”) to Australia.
That this matter be adjourned for mention only at 9.30am on 28 January 2014 in the Federal Circuit Court of Australia at Brisbane.
In the event that the father is incarcerated on 28 January 2014, the father be at liberty to appear by telephone on that date.
NOTATION:
(A)It is noted, in reference to Order 2 herein, that evidence of the return of the child to Australia for the purpose of release of the respondent is an Order of this Court.
IT IS NOTED that publication of this judgment under the pseudonym Kerrigan & Raiffe (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3509 of 2012
| MS KERRIGAN |
Applicant
And
| MR RAIFFE |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(AS CORRECTED)
Introduction
In this matter the father has been charged with two counts of contempt pursuant to s.112AP of the Family Law Act 1975 (Cth) (as amended) (hereinafter referred to as “the Act”). The father had notice of these charges on 13 December 2013.
Charge 1
The charges are that the father is in contempt of this Court for failing to comply with order 2 of orders of this Court dated 16 August 2013. Particulars: the father failed to do all acts and things and sign all documents to facilitate the return of the child, [X] born [in] 2003, to Australia forthwith.
Charge 2
That the father is in contempt of this Court for failing to comply with order 3 of the orders of this Court dated 2 October 2013. Particulars: the father failed to do all acts and things and sign all documents necessary to ensure that the child, [X] born [in] 2003, be returned to Australia by 6.00am on 29 November 2013.
I note that the order dated 13 December 2013 (which adjourned the matter to today’s date for the hearing of the contempt) set out the charges in the notation. The order also noted:
“… that the Court considers that the father may be sentenced to a term of imprisonment from 18 December 2013 until such time as the child has been returned to Australia from India. It is therefore requested, given the penalty the Court is considering imposing, that Legal Aid Queensland give consideration to representing the respondent in this matter.”
The Material
The material I considered in relation to this matter was:
a)An affidavit filed by the mother, Ms Kerrigan, on 13 December 2013; and
b)Exhibits 1 to 3, being documents that were tendered in the case:
i)Exhibit 1, being two pages of the documents returned under subpoena from the Department of Immigration and Border Protection showing the International Movement History Record of the child, [X] born [in] 2003;
ii)Exhibit 2, being paragraph 28 of the affidavit of the father filed 11 December 2013; and
iii)Exhibit 3, being annexures 15 and 16 of the father’s affidavit filed 25 September 2013, being Indian Court documents.
The orders of this Court that I considered were as follows.
The order of 16 August 2013 which provided that the matter was dealt with ex parte. There was no appearance by the father. The orders were:
“[1] That the child [X] born [in] 2003 live with the mother.
[2] That the father MR RAIFFE born [in] 1974 do all acts and things and sign all documents to facilitate the return of the child to Australia forthwith.
[3] Pursuant to s.114 of the Family Law Act the father MR RAIFFE born [in] 1974 be restrained from leaving Australia until such time as the child is returned to Australia.”
Then there was an order putting an airport watch in place in respect of the child preventing the removal of the child from the Commonwealth of Australia. I also made an order that the mother personally serve her application, affidavit and a copy of the order on the father within three working days and an order that the matter be adjourned to 9.30am on 4 September 2013. There was a notation on that order that the matter was to be listed on the first available date before Judge Cassidy with priority, should the father seek an urgent return date.
The matter was then before the Court on 4 September 2013. On that date the matter was adjourned to 2 October 2013. The father appeared, as did Mr Cooper, at the September Court date and I made a notation that:
“[A] It is requested that any contravention application filed by the mother be listed to 2 October 2013 before Judge Cassidy to be mentioned with the substantive proceedings.”
The matter then came before the Court on 2 October 2013 and the mother, through her solicitor Mr Cooper, and the father were again present on that occasion. I made orders on that day that order 1 of the orders of 16 August 2013 be stayed, which stayed the order that the child live with the mother. I made an order that, upon the child returning to Australia, that the child live with the father. I made an order that the father do all acts and things and sign all documents necessary to ensure that the child returned to Australia by 6.00am on 29 November 2013.
I made an order that the father place the child in child care on Level 3 of the Commonwealth Law Courts building at 9.00am on 29 November 2013 and I adjourned the matter for mention at 9.15am on 29 November 2013.
I further made an order that the mother attend at Court 13 on 29 November 2013 and, upon the mother being advised by the Judge’s associate that the child had been delivered to child care, the mother attend child care and view the child through a one-way mirror for the sole purpose of establishing the child’s identity. Then the child was to remain in child care until the conclusion of the matter on that day. I made various orders with respect to the preparation of a family report, including a notation that the interviews for the family report were to take place by 12 December 2013. The mention of the matter was then set down for 29 November 2013.
On 29 November 2013 the father was present and Mr Cooper represented the mother on that occasion. I made an order that the mother, the father and the child, [X] (also referred to as “[omitted]”), attend the family report interviews on 5 December 2013. I made an order that an application in a case filed by the mother on 27 November 2013 be listed for mention today and an application for contravention filed by the mother was also listed today. I made a notation on the orders of 29 November 2013 that it was requested that Legal Aid Queensland give consideration to representing the father as the Court was giving consideration to sentencing the father to a term of imprisonment that would last until the child is produced to the Court from India.
I made a further notation that:
“[B]it is noted that the Applicant Mother will pay into the Court the cost of a one way air fare ticket for the child from [omitted], India to Brisbane.”
Subsequently, on 13 December 2013, the father was charged by the Court with two charges of contempt that I have read onto the record. The contempt application was adjourned to 10.00am this morning and that is the application that I am now dealing with.
The Law
The statutory references and authorities that are relevant to a contempt application include s.112AP of the Act which provides that:
“(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.
(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that 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.
(8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.”
Subsection 8 is not relevant to this matter today.
This Court has the power to deal with contempts pursuant to s.17 of the Federal Circuit Court of Australia Act1999. Section 17 provides:
“(1) The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3) The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.”
Subsection 3 is not relevant here because it is not a contempt in the face of the Court.
The authority that has been provided to me that is of assistance in this matter is the case of Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866, a decision of Dawe J from Adelaide. Her Honour sets our very useful guidelines with respect to contempt at paragraphs 8 through to 14 of that case:
“The Law on Consequences of Contempt
[8] Pursuant to s 112AP(4) the penalties available for consideration are, committal to prison, a fine or both committal to prison and a fine. Section 112AP(6) provides for punishment on terms, suspension of punishment, or the giving of security for good behaviour.
[9] In the Full court decision of Tate and Tate (No 3) (2003) FLC 93-138 Nicholson CJ, Kay and Monteith JJ said:
“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.
58. The majority of the Full court (Ellis and Holden JJ) in the husband's most recent appeal (SA 39 of 2001 delivered 30 May 2002) referred to the decision of the High Court in Witham v Holloway (1995) 183 CLR 525. In that case, in the joint judgment of Brennan, Deane, Toohey and Gaudron JJ, their Honours referred (at 530) to the distinction between civil and criminal contempt as being that a civil contempt involves disobedience of a court order in civil proceedings, whereas a criminal contempt involves either a contempt in the face of the court or an interference with the course of justice. They qualified this distinction by saying:
“However disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious.”
59. They further commented that the differences upon which the distinction between criminal and civil contempt are based are, in significant respects, illusory. In a separate judgment McHugh J expressed himself in similar terms on this issue.
60. In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) the purpose of proceedings for civil contempt was stated 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.”” (My emphasis).
[10] At para 62 of Tate and Tate (No 3) (above) it was said:
“… the purpose of punishment in family law proceedings was not so much upholding the court's authority as an end in itself, but in fulfilling the expectations of the litigant's themselves that court orders will be obeyed and imposing sanctions if this does not occur.”
[11] Counsel for the wife referred to the decision of Justice Kirby in Pelechowski v Registrar court of Appeal (NSW) (1999) 198 CLR 435 and at paras 147 and 148:
“147. … In determining the order which is appropriate to the contempt found, the court must take into account those general principles which govern the sentencing of persons convicted of criminal offences which are apt to the peculiar character of contempt. …
148. … a fine (and sometimes more) may be needed to vindicate the authority of the court. But in a case of contumacious defiance of a court's orders and authority, it will frequently be appropriate for a custodial sentence to be imposed as a response to an apparent challenge to the authority of the law.”
[12] The recent authorities on sentencing for contempt are few. In DAI and DAA (2005) FLC 93-215 the Full court indicated that s 112AP gives the court a wide discretion with respect to consequences and does not impose limits on the length of the sentence of imprisonment. At p 79,592 in para 85 the Full court stated:
“85. In summary, we are satisfied that, in dealing with contempts under s 112AP, the following factors are relevant:
• The Division provides a code for dealing with contempt under the Act.
• A trial Judge must comply with the procedure set out in r 21.08 on hearing the application.
• The allegation must be proved beyond reasonable doubt (s 141 of the Evidence Act 1995 (Cth)).
• The procedure is a summary one, conducted in accordance with the Rules and the guidelines for the conduct of a criminal trial do not apply.
• If a custodial sentence is to be imposed, transparency in the sentence imposed will be afforded in an appropriate case if general criminal law sentencing procedures are adopted including imposing sentence for each offence to be served either cumulatively or currently, but such procedure is not mandatory;
• State and Federal sentencing laws have no application;
• In imposing penalty reference to relevant factors to be considered provides a useful framework, but ultimately the penalty should be structured having regard to the individual facts of the particular case.”
[13] In that case the Full court reviewed some earlier judgments dealing with sentencing but agreed with the comments by his Honour Justice Palmer in Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115 ; [2004] NSWSC 1259 at para 49:
“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.”
[14] More recently in LGM and CAM (Contempt) (No 2) (2008) FLC 93-355 her Honour Justice Finn agreed with the other members of the Full court (Chief Justice Bryant and Justice Warnick) that the appeal from the sentence imposed could not succeed. Her Honour said at paras 144 and 145:
“144. The decision as to whether a term of imprisonment is an appropriate punishment for the contravention of an order made under the Act where the contravention has been found (as it was in this case) to involve a flagrant challenge to the authority of the court, and then the further decision as to the appropriate length of the term of imprisonment are, in my view, particularly difficult decisions on which minds are likely to vary greatly. This is because, given the relatively few cases that have arisen over the life of the Act and the fact (recognised by the Chief Justice and Warnick J) that each case turns much on its own facts, no sentencing guidelines have been developed (unlike in the criminal law area).
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.” [Emphasis added]”
In summary, normally the purpose of contempt proceedings against a person for breach of an order is to coerce the person to comply with it. 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 an individual and general deterrents and retribution for the party’s failure to comply with an order.
Retribution is called for because it is essential to the proper working of a Court system that Court orders are obeyed. If they are ignored or defied, the whole system of dispute resolution in Australia runs the risk of falling down because parties rely on Court orders to resolve matters. Once orders are not complied with, the Court is left in a situation where, in serious contravention cases, it has no option but to punish.
The Evidence
The father conceded that he had:
a)Failed to do all acts and sign all documents to facilitate the return of the child forthwith in relation to charge one; and
b)Failed to do all acts and things and sign all documents necessary to ensure that the child was returned to Australia by 6.00am on 29 November 2013 in relation to charge two.
The father conceded these matters but indicated that he had a reasonable excuse. The evidence the father gave was that he had an order in relation to reasonable excuse.
The evidence the father gave was that he had an order of a Court in India that he relied on to not have to return the child to Australia. The documents that he relied on are contained in exhibit 3 of the exhibits in these contempt proceedings. These documents do not amount to an order that would prevent the father from returning the child to Australia, where both parents currently are.
The father did not annunciate particularly a very specific concern about the safety of the child in the mother’s care. However, any concern that the father might have had about the safety of the child in the mother’s care was alleviated by orders that were made on 2 October 2013 which had the child returning to Australia and remaining exclusively in the father’s care, with no order for time with the mother. The order even had a precaution that had the mother looking to identify the child through a one-way mirror, so that the child would not even know that the mother was there.
Because this order placed the child in the father’s care upon the child’s return to Australia, with the mother precluded from seeing the child through this order before a family report was prepared, any allegation that there might be a risk in terms of the safety of the child returning to Australia was overcome by those orders. Despite this, the father failed to define particularly clearly or well what the risk may have been to the child in the mother’s care.
I also note, given the evidence the father gave today, that he had debts only in Australia and that he was virtually impoverished here. The orders of 29 November 2013 noted that the mother was prepared to pay for the child’s airfare to Australia and this was made in the father’s presence in open Court. Any doubt that may have existed about that was clarified and made absolutely clear by the letter the mother sent the father which is annexed to her affidavit at “AK3”. In particular, that letter indicates the same position, that the mother is prepared to pay the airfare, but it goes on further to say:
“We advise and make it very clear that your lack of funds will not excuse you. We advise that our client will pay the airfares of [X] and an accompanying adult from [omitted] to Brisbane, should that be necessary.”
In respect of these matters, I note the father conceded that he had failed to comply with order 2 of 16 August 2013 and order 3 of 2 October 2013. I am satisfied that the father failed to do as required by those orders. He has admitted as much. The evidence he gave provided me with confidence that I would be able to find, beyond reasonable doubt, that the father failed to comply with those orders. That evidence was in cross-examination.
I am satisfied that the father had full knowledge of these orders, given that they were required to be personally served on him and that he has been in attendance in the Court for all but the first occasion when this matter came before the Court in relation to the return of this child to Australia.
I am satisfied that the father understood what was required of him. His only act or thing that he did do to return the child to Australia, and he admitted to doing this, was to require or ask the Court to lift the s.114 of the Act injunction that restricted him from leaving Australia until the child returned to Australia.
The father wanted to be allowed to travel to India to collect the child. That injunction under s.114 remains in place. I am satisfied therefore, beyond reasonable doubt, that the father failed to do the acts and things required of him to ensure that the child was returned to Australia pursuant to the charges 1 and 2.
I do not consider that the father proved, on the balance of probability, an excuse that was reasonable to enable me to be satisfied that it was not proper to proceed under the contempt power that I have.
I consider these two contraventions to be a flagrant challenge to the authority of this Court for the following reasons:
a)India is not a Hague convention country;
b)The mother and father are presently in Australia;
c)The child is presently in India.
The Court has given the father a number of opportunities, in fact, almost a daily opportunity since August, to return the child to Australia. The father has chosen not to do that in circumstances where he has been given sufficient warning that if he continues to fail to do what is necessary to return the child to Australia, that he could face a term of imprisonment. There could be no more direct example of a flagrant challenge to the authority of this Court and I am therefore satisfied that he is guilty of both contempts as charged.
Sentence
I have to consider what is an appropriate sentence. In sentencing, I have to be guided by the principles set out in Langer & Griffin [2013] FamCAFC 170. In particular at paragraph 55, where it is said, it is important to:
“[55] … address any of the well known and well accepted matters that are seminal considerations to the sentencing procedure such as an assessment of the objective seriousness of the conduct, general or specific deterrence, rehabilitation, mitigation or aggravating factors.”
In the present case I am satisfied that this man’s liberty is at stake and a term of imprisonment is an absolute last resort in respect of these matters.
I have to be satisfied, pursuant to s.141 of the Evidence Act 1995 that the contempt was proved beyond reasonable doubt and I am satisfied of that.
I have to look at the objective seriousness of the conduct. It is extremely serious, because the mother suggests in her affidavit, and it is not evidence that I take into account in finding that there was a contempt but evidence I do take into account in the sentence, that this child is unwell. It is something the father seems to have given evidence to the Court in India about, because there is mention of it in the judgments of that Court. The child is now in India without either parent. It seems to me that it is very serious conduct, to choose not to return the child to Australia, and to not return the child to Australia in circumstances where this Court made orders that gave him absolute control over the child. That is, that the child live with the father until further order, with the mother to have no time.
So I am satisfied the seriousness of the conduct is very serious. In terms of general deterrence, it is very important that Courts be able to impress upon parties that orders are made to be complied with. Particularly orders like this, where there is no alternative means of enforcement because the Hague convention is not applicable to allow the Commonwealth to use what would be other means to enable the child to be brought back to Australia. This is and in a situation where the mother holds an Australian passport.
The objective seriousness of the conduct is very serious. The general deterrence is important. The specific deterrence is significant. There cannot be anything more important than returning this child, at the moment with both parents here in Australia, to enable the Court to be able to ascertain what is in the child’s best interests.
There do not seem to be any circumstances of mitigation. The father seemed prepared for the mother to spend time with the child if his comment from the bar table could be taken into account in sentencing. I could look at a fine, but I do not see that it would in any way achieve what has to occur in this matter, which is to have the child returned to Australia.
With the orders that I am making, the child will need to be produced to the Court to enable me to make the order for the release of the father.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cassidy.
Date: 20 December 2013.
Corrections
1. In para.5, the child’s year of birth was corrected to 2003.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Charge
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Sentencing
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Remedies
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Jurisdiction
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