PDM & JEM
[2006] FamCA 1182
•8 November 2006
FAMILY COURT OF AUSTRALIA
| PDM & JEM | [2006] FamCA 1182 |
CONTEMPT OF COURT – sanctions – indefinite term of imprisonment – an act contrary to an injunction – sentencing judge found Appellant had benefited from contempt and had a lack of contrition – coercive purpose of an indefinite sentence – within judge’s exercise of discretion
| Family Law Act 1975 (Cth) Part XIIIB ss 112AP Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 and 1260 House v The King (1936) 55 CLR 499 Gronow v Gronow (1979) FLC 90-716 G and G (1981) FLC 91-042 In the Marriage of M (178) FLC 90-495 Abduramanoski and Abduramanoska (2005) FLC 93-215 Schwarzkopff and Schwarzkopff (1992) FLC 92-303 Ascot Investments Pty Ltd and Harper (No 3) (1982) FLC 91-253 L and L (1982) FLC 91-245 Danchevsky v Danchevsky (1974) 3 All ER 934 K & K [2004] FamCA 26 In the Marriage of U and U (1979) FLC 90-648 |
| APPELLANT: | PDM | |
| RESPONDENT: | JEM |
| FILE NUMBER: | PT | 2188 | of | 2001 |
| APPEAL NUMBER: | WA | 08 | of | 2005 |
| DATE DELIVERED: | 8 November 2006 |
| PLACE DELIVERED: | Perth |
| JUDGMENT OF: | Kay, Holden and Boland JJ |
| HEARING DATE: | 21 November 2005 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 6 May 2005 |
| LOWER COURT MNC: | [2005] FCWA 51 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Grieve QC |
| SOLICITORS FOR THE APPELLANT: | Foster Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Castiglione QC |
| SOLICITORS FOR THE RESPONDENT: | Butlers |
Orders
That the appeal be and is hereby dismissed.
| FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA08 of 2005
File Number: PT2188 of 2001
| PDM |
Appellant
And
| JEM |
Respondent
REASONS FOR JUDGMENT
On 9 March 2005, the respondent wife filed an application alleging that the husband was guilty of four contempts of court. He pleaded guilty to the first count and not guilty to the remaining three. The matter came on before Justice Penny on 3 May 2005. On 6 May 2005, she published reasons for judgment acquitting the husband of counts 2 and 3 and finding him guilty of count 4.
The matter came back before Penny J on 13 May 2005 for sentencing. On that day, her Honour made the following order:
"1 In relation to:-
(a)Count 4 of the contempt application, PDM is hereby sentenced to a term of imprisonment for a period of 3 months to commence from the date of this order; and thereafter
(b)Count 1 of the contempt application, PDM, is hereby sentenced to a term of imprisonment and not released until ordered to be released by a Judge of the Family Court of Western Australia."
It is against these orders that the appellant husband appealed. At the conclusion of argument we dismissed the appeal indicating we would give reasons later. These are those reasons.
Background
On 12 March 2001, the wife filed an application for settlement of property. On 23 March 2001, the following order was made by consent:
"1 Until further order the husband be restrained and an injunction be granted restraining him from disposing of or encumbering his estate and interest in [a property in another state], being the whole of the land comprised in Certificate of Title Volume XXX Folio XXX."
The trial of the wife's application for settlement of property and spousal maintenance took place in September 2003. Justice Thackray published reasons for judgment on 20 October 2003 and final orders were made on 28 November 2003.
The orders made on that day, relevant to this appeal, are as follows:
"1The husband pay to the wife within sixty (60) days of the date of these orders the sum of $393,934.
2In default of payment under order 1 above, interest shall accrue on such sum as remains outstanding at the rate as prescribed pursuant to the Family Law Rules.
3Upon payment to the wife of the sum of $393,934 together with all interest accrued thereon, all interest of the wife in the property situated [in another State] do vest in the husband absolutely."
Orders were made providing for a sale of the property [in another state] the event of default of payment. On 17 December 2003, a further order was made that the husband contribute to the wife's costs in relation to the proceedings for adjustment of property interest and spousal maintenance in the sum of $20,000, payment to be made at the same time and on the same conditions as applied to the property settlement orders.
The history of the husband's subsequent actions is as set out in the following passages of her Honour's judgment, delivered 6 May 2005:
"9.The property in [another state] 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 property [in another state]. 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 R, a mortgage provider, setting out the terms of his employment and stating why R 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.
10On 28 October 2003, the husband sent an email to his daughter, S, and son, A, in which he discussed the advantages of keeping the house [on the property in another state] 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.
11On 26 November 2003, while he was in [another country] working, the husband sent an email to S. He asked her 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 S as follows:
"S, 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."
…
"14.On 1 December 2003, S, on the husband's instructions and pursuant to the Power of Attorney, signed an exclusive agency agreement for the sale of the property [in another state] for between $850,000 and $950,000. On 11 December 2003, she signed a contract for sale of the property, on behalf of the husband, to IW, a family friend, for the sum of $700,000.
15On 14 or 15 December 2003, the husband asked S to go to his solicitors [sic] office and sign a mortgage on the property [in another state]. This was done on 16 December 2003.
16On 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 property [in another state] as security. On 17 December 2003, the husband gave S instructions to draw a bank cheque in the name of his maternal grandmother in the sum of $12,000, draw a bank cheque in the sum of $60,000 and deposit it into I and LW's ANZ bank account and transfer $400,000 into the account of the father's girlfriend in [another country]. On 29 December 2003, a further $117,418 was deposited into the husband's Commonwealth bank account. S withdrew another $120,000 from the account and transferred it to the girlfriend’s account.
17The wife subsequently lodged a caveat on the property [in another state] and the sale to Mr W was unable to be effected.
18On 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.
19On 1 February 2004, the husband emailed Ms M 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 on a pipeline 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 in C stating that he would like the automatic payment stopped to "Perpetual". Perpetual Trustees Victoria Ltd was the mortgagee who provided the loan to the husband, secured upon the property [in another state].
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 for expenses associated with the sale, the wife received $38,896, all of which was used to pay legal fees."
The two contempts that the husband was found guilty of were as follows:
"1The respondent husband, in deliberate breach of the Orders made on 23 March 2001, and acting in a manner inconsistent with the Orders made 28 November 2003, entered into a loan agreement with Perpetual Trustees Victoria Ltd ABN 47 004 027 258 ("Perpetual") secured by the property [in another state].
…
4The respondent in deliberate breach of the Orders of the Court made 5 April 2004, failed, neglected or refused to file and supply the applicant wife and the Court with an address for service in Australia, to which he may be served."
The Sentencing Judgment
After reciting the facts leading to the husband being found guilty of count 1, her Honour said:
"10 The effect of the husband's contempt was to reduce the asset pool available to the wife in Australia by $500,000. His further conduct in refusing to make mortgage payments lead [sic] to significant expenses being incurred by the mortgagor, reducing the asset pool even further.
11 In my view, by December 2003 the husband intended to mortgage the property and then to sell it. The effect of these transactions would have been to ensure he received most of the proceeds of the sale of the property [in another state].
12 This contempt of the husband was deliberate and involved a positive course of conduct on his part to ensure the wife would not be able to enforce the judgment sum payable to her. The only other asset of the husband's now left in Australia, are his superannuation valued at approximately $60,000 and a yacht purchased by him in February this year."
Her Honour then referred to the husband's explanation that it was only when he learned that the wife had appealed the property orders and that he had been told by his solicitor that he may have to pay up to $300,000, including legal fees, if the appeal went badly, that he decided to transfer the money out of Australia. Her Honour said:
"15 The facts do not support this proposition of the husband. The mortgage was signed by S on 16 November 2003. The money was transferred into [his girlfriend’s] account on 17 November 2003. The wife did not file her appeal until 24 December 2003. In addition, it was quite clear from the emails sent by the husband to S in October and November 2003 that he was investigating what the consequences would be of disposing of the property.
16 The husband stated he had decided to sell the property only after the wife lodged her appeal. This was not correct. The contract of sale in relation to the property was signed on 11 December 2003, weeks before the appeal was lodged."
Her Honour then referred to the fact that the husband had said he regretted his actions and was sorry for the distress caused to his wife and son and that he had apologised to the Court.
Her Honour said:
"17 The husband says that he regrets his actions and is sorry for the distress caused to his wife and son. He apologised to the Court. It is hard to accept these protestations of remorse made by the husband when one looks at his conduct since returning to Australia. In 2005 he returned to Australia to visit his sick brother. When he attempted to leave the country he was turned away because his name had been added to the airport watch list. He attempted to leave by air more than once. The husband, instead of attempting to resolve the issue with the wife, then set up a plan to leave Australia by way of a cargo ship from Northern Australia to New Guinea. If that was unsuccessful, he then intended to take a yacht from Darwin to Thailand.
18 On 17 April 2005 he sent an email to PS, setting out his requirements for a yacht to be purchased for the sum of $60,000. The boat was to be sailed to Port Moresby. The husband reserved the right to travel on the yacht from Innisfail, or at any point along the route, to Port Moresby. I have no doubt this yacht was to be purchased to effect an escape by the husband from Australia. It was only through having access to the husband's credit card statements that the wife was able to ascertain the husband's whereabouts and have him arrested.
19 In my view, the only thing the husband is remorseful about is being arrested in Queensland, returned to Western Australia, and imprisoned."
Her Honour then set out the relevant subsections of s 112AP. She noted that she was not bound by the sentencing principles of either the Crimes Act1914 (Cth) nor the Sentencing Act 1995 (WA). Her Honour then discussed various cases and dealt with the argument put forward by counsel for the appellant husband. It was argued that she could not make an order imprisoning the appellant husband as he had not been found guilty of any contempt “involving non-payment of monetary” [or of a monetary provision], but rather had been found guilty of doing an act contrary to an injunction.
In rejecting that submission, her Honour said:
"29 I do not accept this submission. Windeyer J in Consolidated Press Pty Ltd v Morgan (supra) stated that a contemnor could purge his contempt by an apology, making reparation for the damage done by the forbidden act and paying costs. In this case the forbidden act was the encumbering of the property. The damage done by the forbidden act was removing of $500,000 from the asset pool so that the wife was unable to enforce the judgment obtained in her favour. It is not suggested by Windeyer J that the contemnor can only purge the contempt by reversing the situation caused by doing the act contrary to the injunction. In my opinion, one of the sentencing options available to me is that the husband be imprisoned until such time as the judgment sums owing to the wife are paid to her up to the sum of s$500,000 [sic]."
Her Honour then turned to consider the criteria referred to in Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 and 1260. She concluded:
· that it was a serious contempt with the aim of very significantly reducing the amount available to the wife pursuant to the judgment;
· that the husband had made enquiries of his daughter to find out what the consequences would be if he sold the property and on the same day enquired what would happen if he transferred the property to his daughter or her partner and whether the wife would be able to "get it back";
· that the reason or motive for the contempt was purely economic; and
· that the husband had received, or sought to receive, a benefit or gain from the contempt. In this regard her Honour said:
"36 The husband has received a benefit from the contempt. He says he forwarded to [his girlfriend] the sum of around $450,000. He says she applied $100,000 of these funds to repay some of his debts. She spent $100,000 on repairs to her parents' and brother's house in [another country]. He says this left approximately $250,000 in the account. To stop her from spending more of the cash, he says he instructed her to purchase some real estate in [another country], and she purchased two town houses and placed a deposit on a piece of land, on which she subsequently built a house. He says the properties are held in [his girlfriend’s] name as he is unable to hold property in [another country] in his name. He estimates the total value of the property she holds at around $250,000.
…
39 The husband alleges that [his girlfriend] will not sell the properties in her name in [another country] and remit the money to him in Australia. He says if he is released from prison and able to return to [another country] he may be able to convince [his girlfriend] to sell one or both of these properties and remit the funds to the wife."
Her Honour also:
· found that the husband had expressed no genuine contrition for the contempt; and
· considered the husband's character antecedents, and his proposal to transfer to the wife the yacht valued at approximately $60,000 and superannuation of $60,000, making an upfront payment of approximately $120,000. He then proposed over 5 years to pay $60,000 a year if he was allowed to leave Australia and work overseas as he has done in the past. Insofar as that proposal is concerned, her Honour said:
"44 I cannot accept that the husband will make the payments over five years. It is very difficult, given the husband's conduct, to accept anything he says as being truthful. At the trial of the property settlement and spousal maintenance claims, he stated his income was reduced to $70,000 per annum. In fact, at that time he was earning US$12,000 per month, plus expenses, and these sums were being paid to [his girlfriend] in [another country]. The husband claimed at trial that he met up with his employer's wife once a month in various Asian locations and she gave him cash. This is untrue. At trial, Thackray J stated in relation to the husband's credibility:
"Given my view of the husband's credibility and given that the husband initially misled the Court in implying that he was paying income taxation, when he does not do so, I am not prepared to find that he has disclosed all his income. He has an enormous sense of grievance that the wife has defrauded him out of his hard earned money. I consider he has probably been resorting to self help to ensure that she does not get any more of his money than he considered appropriate."
45 These comments were prophetic. The husband certainly resorted to self help to ensure the wife did not get the fruits of the judgment.
46 The trial Judge also dismissed the husband's application for divorce. He did not accept the husband's evidence that the parties separated in 1995, but rather found they separated in October 2000.
47 At trial, the husband was not able to explain how payments to his credit card had been made. It is clear now from the plea in mitigation given by the husband that these payments on his credit card had been made by [his girlfriend], from his income paid into her account.
48 Given the lies told by the husband in the past, I cannot accept the evidence of the husband that he:
(a)has no access to funds in [another country] 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."
the grounds of appeal
By a Notice of Appeal filed on 8 June 2005 the appellant husband relied upon the following grounds:
“A. In relation to Order 1(a):
1.The sentence imposed was manifestly excessive having regards to the circumstances.
2.Her Honour’s discretion miscarried by reason of:-
a.Failing to take into account that the Husband had attempted to comply with the Order on 24 May 2004.
b.Failing to take into account that the Wife’s previous solicitor was communicating with the Husband via his fax and email addresses notwithstanding the Husband’s formal non-compliance.
c.Failing to take into account and give any credit to the Husband in reduction of the time specified in the sentence for the Husband being held in custody from the date he was arrested on 13 April 2005 to and including the date the learned Judge imposed the sentence on 16 May 2005.
B.In relation to Order 1(b):
3.Her Honour was in error in imposing an order of indefinite committal in circumstances where the relevant contempt was not of an Order to do a thing, but rather of an injunction not to do a thing, and it was not practicable for the default to be remedied or the contempt purged, and there was not a reasonable prospect of compliance being achieved by such measure.
4.Her Honour erred in finding (if she did so find) that the Appellant was able to make reparation for the effect of the contempt, and/or that and there was a reasonable prospect of compliance being achieved by an order of indefinite committal.”
We permitted an amendment at the hearing to add:
·her Honour erred in failing to set a lesser period such as in G and G (1981) FLC 91-042, In the Marriage of M (1978) FLC 90-495 and U and U (1979) FLC 90-648; or
·her Honour erred in failing to fix a precise period
appellate principles
The principles which govern an appeal such as this from a discretionary order are well known and need not be repeated in the context of this case. See, for example, House v The King (1936) 55 CLR 499, Gronow v Gronow (1979) FLC 90 -716 and G and G (1981) FLC 91-042.
As was pointed out, however, in the latter case by Evatt CJ at 76,366:
“These principles give little guidance to the court in deciding whether a particular sentence is too long or too short. What is manifestly excessive to one may seem inadequate to another. While it is important to allow for the proper exercise of judicial discretion, it seems to me that this discretion ought to be exercised within recognisable boundaries or guidelines. While sentencing cannot be left entirely to the discretion of the trial Judge, it would be equally wrong for an appellate court simply to replace the trial Judge's exercise of discretion with its own. To do so would undermine rather than enhance the authority of the court.
I note in this connection the support expressed by the Australian Law Reform Commission for measures to encourage greater uniformity in sentencing while maintaining judicial discretion and independence:
‘A more scientific and principled approach should be adopted which retains the best elements of judicial independence and discretion, but which incorporates institutions, information and procedures to encourage rationality, consistency, publicity and general uniformity of punishment for like offences.’ (Report No. 15 (Interim) Sentencing of Federal Offenders. 1980 p. 247, para. 402.)
It is not easy to establish principles of uniformity or comparability of sentence in contempt matters. The Family Court is seldom called upon to impose such sentences and individual Judges do so rarely. The circumstances of each case can be subject to wide variations. Nevertheless, to maintain the confidence of the community and to conform with its basic sense of justice and [sic] attempt should be made to lay down general standards.”
Grounds 3 and 4:
At the appeal senior counsel for the appellant husband addressed us on grounds 3 and 4 prior to grounds 1 and 2 given that Order 1(b) imposed the most substantial penalty. We intend to do the same.
Grounds 3 and 4 in relation to Order 1(b) allege her Honour was in error that the contempt was not of an order to do a thing, but rather of an injunction not to do a thing, and it was not practicable for the contempt to be remedied or purged as there was no reasonable prospect of compliance.
The law relating to contempt was recently set out by the Full Court in Abduramanoski and Abduramanoska (2005) FLC ¶93-215 at 79-581-79-584 as follows:
“Relevant law — contempt
45.Part XIIIB, which deals solely with contempt, in its present form was inserted into the Act [Family Law Act 1975 (Cth) (“the Act”)] and became operational on 27 December, 2000. Section 112AP is the only section in Part XIIIB. The forerunner of the present section was inserted into the Act in 1989 by the Family Law Amendment Act 1988 which was enacted following a report by the Australian Law Reform Commission (Contempt ALRC 35 1987). Section 112AP provides:
‘(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.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration 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.
(9)In this section:
“order under this Act means an order under this Act affecting children within the meaning of Division 13A of Part VII or an order under this Act within the meaning of Part XIIIA.''
46.The present rule (rule 21.08 of the Rules) outlines the procedure for hearing, inter alia, a contempt application. It is in substantially the same terms as the former Order 35 rule 14.
47.In Rutherford v Marshal of the Family Court of Australia (1999) FLC ¶92-866 at 86,241, the Full Court described s 112AP, then Part of Division 3 of Part XIIIA after the 1988 amendments, ``a complete code for dealing with contempts of the Court''. The Full Court affirmed the decision in Schwarzkopff (supra), noting that contempt under the Act does not constitute ``an offence against any laws of the Commonwealth''. The Court accepted a submission that s 112AP, as it then was, constituted a self contained code, and general sentencing legislation, whether State or Federal, had no application.
48.Contempt under s 112AP must be proved beyond reasonable doubt (see s 141 of the Evidence Act 1995 (Cth) and the joint judgment of Ellis and Holden JJ in Tate and Tate (2002) FLC ¶93-107 at 89,016, paragraph 75).
49.The principles underlying proceedings for contempt arising out of disobedience of order were recently review by the Full Court in Tate and Tate (No 3) (supra) at 78,299-78,300 as follows:
‘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 [sic] 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.'
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.
62.It should be mentioned that the ALRC, in Chapters 13 and 14 of its report, did draw a distinction between the considerations associated with non-compliance in family law and general civil law. We agree that there is a distinction and in particular that resistance to compliance with orders made in family law litigation may be particularly strong, as this case exemplifies. At par 623 the Commission took the view that 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. We agree with this view which accords with that expressed by Evatt CJ in G and G (1981) FLC ¶91-042 at 76,361.
63.At par 515 of the ALRC report, it is pointed out that there are many cases where the primary goal is to punish the contemnor for past disobedience. It is stated that the sanction serves similar purposes to those imposed by the criminal law: in particular, deterrence (specific and general) and retribution.
64.In this case, the primary aim of the proceedings is clearly punitive and it is clear from the authorities that this is an appropriate aim, at least in circumstances where there has been a flagrant defiance of court orders. In Borrie and Lowe The Law of Contempt (3rd Ed at 629) the following statement of principle appears:
`Blatant and aggravated contempts particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark both of the gravity of the contempt and the court's disapproval and to deter contemnors and others who might be tempted to breach such an order.'
See also Lightfoot v Lightfoot [1989] 1 FLR 414 at 416-417 per Lord Donaldson MR.
65.At pars 516-7, the ALRC pointed out that in the past there had been a reluctance on the part of courts to impose punitive sanctions in the case of mere disobedience in the absence of contumacy, that is, stubborn resistance and defiance of authority. The Commission suggested that this situation has changed in recent times and that courts have increasingly imposed punitive sanctions in cases of disobedience of court orders where there was no flagrant or repeated disobedience or overt challenge to the court's authority. While this has no direct relevance to the present case, in that we are not dealing with mere disobedience of court orders, it highlights the seriousness of contumacious disregard and defiance of court orders.
66.At par 519, the Commission said in terms that might be thought to be highly relevant in the context of this case:
‘On the view just outlined (the need to uphold the authority of the Court), 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 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.’
50.The contemnor's conduct must constitute a flagrant challenge to the authority of the Court (see Ibbotson and Wincen (supra) at 81,162 and s 112AP(1)(b)).”
We have already set out above the parts of her Honour’s reasons where she identified the legislation and noted that she was not bound by either of the Crimes Act 1914 (Cth) or Sentencing Act 1995 (WA) when considering what punishment she could impose. Her Honour further noted that Part VIIIB (in fact Part XIIIB) of the Act granted the Court the widest discretion available to a judge imposing punishment within the overall principles and philosophy of the Act and cited Schwarzkopff and Schwarzkopff (1992) FLC ¶ 92-303.
At the appeal, counsel for the husband, relying upon the authorities of Ascot Investments Pty Ltd and Harper (No 3) (1982) FLC 91-253 at 77,406 and L and L (1982) 91-245 at 77,359 – 77,361 argued that the order made by her Honour was a typical coercive order and inappropriate when there was no reasonable prospect of compliance. It was submitted that her Honour should have imposed a sentence of imprisonment for a fixed term. Accordingly, we were referred to the passage in L and L (supra) quoting the Phillimore Report (a report of the UK Committee on Contempt of Court) where comment was made in regards to imprisonment for an unspecified term:
“Obstinate contemnors have to be released despite non-compliance. A fixed term would save the appearance of a climb down by the court and would obviate the need for an application for release and uncertainty as to the appropriate timing of it.''
In Ascot Investments (supra) the Court quoted the trial Judge’s quotation of Lord Denning MR in Danchevsky v Danchevsky (1974) 3 All E.R. 934 who said:
“`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 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.'
The appropriateness of an indefinite term as an aid to coercion has likewise been emphasised in a number of American cases. In Re Nevitt, for example, Judge Sanborn observed that the person subjected to such a term `carries the keys of his prison in his own pocket'.
(C.J. Miller, Contempt of Court, pp. 10-11.)”
The Court then went on to say:
“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 application to the Court at any time.”
In K & K [2004] FamCA 26 the Full Court after considering the coercive purpose of imposing a sentence, turned to the narrow range of cases where 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. The Court said, “[i]n those circumstances it may be that ultimately the injunctions granted and the orders made in an attempt to coerce compliance have to be dissolved.”
They then went on to say:
“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 that 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 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 was pointless to keep him in prison any longer. As Watkin LJ observed at 904:
‘[He]'s prepared to stay in prison until Doomsday, so fixed is 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 ineffectiveness is amply demonstrated.’”
17. It may well be that the restraints upon Mr K leaving Australia are no longer appropriate given that their coercive nature has 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 K his passport. But such an application, so long as it seeks to reopen issues that have been long settled by the original trial Judge in a succession of appellate courts, is doomed to failure.”
Grounds 1 and 2:
In Grounds 1 and 2 of the grounds of appeal the appellant husband criticises her Honour for imposing a manifestly excessive sentence and that her Honour failed to take into account the appellant husband’s attempts to comply with the order of 24th May 2004; that the respondent wife’s previous solicitor was communicating with the appellant husband; and that there had been no credit given to the appellant husband for the time that he had already been held in custody from the date of arrest.
Counsel for the appellant gave some analysis of other cases and the sentence imposed in each case. He submitted the correct approach to sentencing, and which her Honour should have followed, was that adopted by Palmer J in Australian Securities and Investment Commission v Michalik and Ors (supra) where his Honour imposed substantial fines and a fixed term of imprisonment of 18 months with a non parole period of 12 months on the contemnor.
We note that Palmer J was imposing a sentence in New South Wales where courts have generally accepted that criminal sentencing provisions and legislation are applicable when sentencing for contempt (see Abduramanoski and Abduramanoska (supra) at paragraphs 71 – 72. Whilst reference to criminal sentencing principles, particularly in respect of whether sentences should be served concurrently or cumulatively can provide transparency in sentencing, s 112AP provides the code for dealing with sentencing under the Act.
Counsel also referred to the sentences imposed under the former contempt provision in the Act (s 108) in In the Marriage of M (supra), U and U (supra) and G and G (supra) and in particular that, in the first two cited cases, when imposing a sentence of imprisonment the trial Judge made a provision for the contemnor to apply for earlier release on satisfying certain conditions.
We note that sentencing for contempt involves a consideration of the individual circumstances of the particular case, and we agree with the comments of Palmer J in Australian Securities and Investments Commission v Michalik (supra) at paragraph 49 that:
“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.”
Whilst the sentence prima facie on its face is harsh, the trial Judge’s exercise of discretion must be considered in light of her findings, which are not challenged, about the appellant’s antecedents, and lack of contrition. Further, in our view, what is particularly relevant is s 112AP(7) of the Family Law Act 1975 (Cth) (“the Act”).
Section 112AP(7) of the Act enables the husband to come back at any time and argue for a different order, either on the basis that he cannot comply with the order or that he has complied as far as he can or that the coercive purpose of the order has been exhausted because he will not comply with the order whatever it may be.
The provision in this section is similar to the former s 108(6) under which the orders were made in In the Marriage of M (supra) and U and U (supra). Whilst her Honour noted that the husband should be released when he had purged his contempt, her Honour’s statement does not derogate from the appellant’s rights under s 112AP(7).
Given what we have stated earlier in these reasons we are of the view that the penalty imposed by her Honour was within the range of a reasonable exercise of her discretion and accordingly it was appropriate to dismiss the appeal.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 8 November 2006
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