Millar and Oakley (No. 4)

[2018] FamCA 122

FAMILY COURT OF AUSTRALIA

MILLAR & OAKLEY (NO. 4) [2018] FamCA 122

FAMILY LAW – CONTEMPT – suspended sentence – discussion of penalty – retribution and coercion.

Family Law Act 1975 (Cth)

AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
In the Marriage of Tate (No. 3) (2003) 30 Fam LR 427

APPLICANT: Ms Millar

RESPONDENT: Mr Oakley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2195 of 2016

DATE DELIVERED: 12 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Goddard

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

COUNSEL FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

In person

Excused

Orders

1. HAVING FOUND MR OAKLEY (RESPONDENT HUSBAND) GUILTY OF CONTEMPT OF COURT ON 30 JANUARY 2018, the husband is sentenced to six months imprisonment suspended for a period of two years from this date on condition that he complies with all orders of the court and does all things necessary to give effect to paragraphs (4) and (5) of the orders made on 9 June 2017.

2. That the wife’s application for contempt is otherwise dismissed.

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 Millar & Oakley (No 4) 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 MELBOURNE

FILE NUMBER: MLC 2195 of 2016

Ms Millar

Applicant

And

Mr Oakley

Respondent

REASONS FOR JUDGMENT

1. On 30 January 2018, I found Mr Oakley guilty of contempt of court within the meaning as set out in s 112AP of the Family Law Act 1975 (Cth) (“the Act”). The purpose of s 112AP is to ensure that the court’s orders are carried out. In this case, the orders that were relevant were those made on 9 June 2017. Two specific orders of that day are relevant.

2. The first order was that, until further order, Mr Oakley was restrained by injunction from proceeding with, or prosecuting, any legal action in Country B relating to the whereabouts and residence of his children and, in particular, any restraint upon the children and their mother leaving that country. 

3. The second order required Mr Oakley, including by his agents, to sign all consequential documents that would authorise the removal of the applicant mother and the parties’ children from any injunctive order in Country B to enable them to return to Australia.

4. Mr Oakley declined to sign the document presented to him and, having had a look at that document on the previous occasion, it was clear that, whilst it would not bind Country B authorities and courts, if it had been signed, it would have complied with the orders of 9 June.  Mr Oakley consistently declined to sign it, saying that it was all based on lies.

5. On 30 January 2018, I heard both parties and, upon the evidence, made findings not only that Mr Oakley was in contempt of court, but that each of the grounds upon which he relied, and there were four of them, were rejected as not a defence to failing to comply with the orders.

6. The authorities in Australia do not really distinguish between civil and criminal contempt.  In AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107, Gibbs CJ, Mason, Wilson and Deane JJ, said that the situation was of an unsatisfactory nature. The distinction between civil and criminal contempt has two different purposes. In respect of the civil contempt, the person who is entitled to an order is thwarted in some way by not being able to carry out their entitlements. In respect of the criminal contempt, society as a whole suffers when the court’s authority is challenged. Section 112AP is directed to the latter situation, rather than the former.

7. This court has struggled with the issue of contempt over the years, and it is said that contempt is difficult to deal with because, ultimately, it is the children who suffer. 

8. This morning, at what could only be described as the 11^th hour, Mr Oakley handed to the court the signed document, but he has indicated that he intends to continue his appeal against the orders of the court.

9. The difficulty that I have with that statement is twofold.  First, it indicates that he does not accept that it is in the best interests of his children, as was found by both the Federal Circuit Court and this court in 2016 and 207 respectively for their return, but the second issue is that there must be a risk that he, through his servants and agents, may thwart the process in any event.

10. As the Full Court In the Marriage of Tate (No. 3) (2003) 30 Fam LR 427 said, normally the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply. However, another purpose of bringing proceedings for contempt of the court may be that of punishment.

11. The purposes of imposing punishment is to reflect the need for individual and general deterrence but also retribution for the party’s failure to comply with the order. 

12. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed.  If orders are defied or ignored, the system of dispute resolution 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 hear it. 

13. The purpose here of making the order arose out of the determination that the relevant Australian citizens named in the order had a right to both of their parents and a right to be in Australia.  The actions taken by Mr Oakley have undoubtedly thwarted that, not only by virtue of what he was doing in Country B, and that can be seen from his evidence on the last occasion when he was found guilty of contempt, but also because he declined to sign the form now signed today.

14. Thus, whilst the order on the last occasion has enabled the form and the order to be complied with, and therefore the coercive power is at an end, this is a case where retribution is called for, because it is essential for the proper working of the court system that court orders are obeyed.  Mr Oakley does not seem to accept that, even though he certainly says that he respects the system.  I have doubts about that.

15. His argument is that the whole basis of the orders in 2016 and 2017 was lies and forgeries.  There is a real risk that he, through his servants and agents, may endeavour to thwart this process instigated by the document he has now signed.  I understand that document will not guarantee the return of the children to Australia.

16. In my view, retribution is called for here, but at the same time there is still an element of coercion about the orders, because I want to ensure that every attempt now made by the wife to leave that country with her children is not thwarted by some further conduct on the part of Mr Oakley.

17. The appropriate course of action here is to fix a term of imprisonment, leaving Mr Oakley in the position where he knows exactly what will happen if he is found guilty of thwarting the process.  How long that process will take is not known but it seems to me that I should anticipate a period of at least two years from today.

18. The order of the court will therefore be that he is sentenced to six months imprisonment, which is suspended for a period of two years from this date specifically on condition that he comply with and do all things necessary to give effect to paragraphs 4 and 5 of the orders made on 9 June 2017.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 February 2018.

Associate: 

Date:  2 March 2018