Reid and Secco

[2018] FamCA 95

FAMILY COURT OF AUSTRALIA

REID & SECCO [2018] FamCA 95

FAMILY LAW – CONTEMPT – Sentencing – Good behaviour bond

Abduramanoski v Abduramanoska (2005) FLC 93-215
Cluny & Skinner [2017] FamCA 547
In the Marriage of Tate (2002) FLC 93-107
Pearce v R (1998) 194 CLR 610
R v De Simoni (1981) 147 CLR 383
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359

Evidence Act 1995 (Cth)

APPLICANT: Mr Reid

RESPONDENT: Ms Secco

INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

FILE NUMBER: CAC 1283 of 2008

DATE DELIVERED: 9 February 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 February 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Howard

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

SOLICITOR FOR THE ICL: Ms McGregor

Orders

1. Ms Secco give security for good behaviour in the terms below:

   (a)I, Ms Secco undertake that for a period of 24 months from the giving of this undertaking I will be of good behaviour by complying with the following condition:

   (i)I will not remove, or refuse, or fail to deliver the child X, to Mr Reid,  other than in accordance with the orders of the Family Court of Australia or the Federal Circuit Court regarding the child that are from time to time in force.

   (b)By way of security for the above undertaking, I acknowledge that I owe the Commonwealth of Australia the sum of $5,000 to be made and levied upon my property (real or personal) to the use of the Commonwealth if I fail to meet the condition of good behaviour.

   (c)I acknowledge that should it be proven that I have not complied with the condition of good behaviour I will be liable to be dealt with for the contempt found against me on 10 November 2017 again.

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 Reid & Secco 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 CANBERRA

FILE NUMBER: CAC 1283 of 2008

Mr Reid

Applicant

And

Ms Secco

Respondent

REASONS FOR JUDGMENT

1. The facts of the contempt as set out in the judgment of 10 November 2017 need not be recited in full.  The central matters of importance leading to the finding of contempt were the contravention of orders made by the Federal Circuit Court on 13 December 2013 that provided for the return of the parties’ child, X, from Country B to Australia in order to resume substantial and significant time with his father from 1 March 2017.

2. There was a long-standing hope or desire on the mother’s part to extend the child’s stay in Country B by an extension of the posting that she had.  There was an awareness on her part that the extension of the posting may not occur.  There was an awareness on her part of a significant risk that the posting would not extend beyond 28 February 2017.  There was an awareness by her that retention beyond that time would be inconsistent with the obligations under the orders and she had received legal advice that failure to comply would be in contravention of the orders. 

3. She retained the child in Country B beyond what was allowed in the orders and had no intention to comply with the orders from at least as early as 25 January 2017.  She took no steps to return the child until orders were made by me in March 2017 for his return.  The effect of that conduct was a significant extension to the hiatus in substantial and significant time with the father that was otherwise provided for in the orders that constituted a serious breach.  Other factual matters were advanced on determining what would be the appropriate punishment for the contempt.  In relation to these, a question arose as to the applicable standard of proof of factual matters that aggravated the contempt and the factual matters in mitigation of the contempt. 

4. In the High Court case of Olbrich, Gleeson CJ and Gaudron, Hayne and Callinan JJs on sentencing in the circumstances of a plea of guilty said:

   It may be accepted that if the prosecution seeks to have a sentencing judge take a matter into account in passing sentence, it will be for the prosecution to bring that matter to the attention of the judge and if necessary, call evidence about it.  Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and again, if necessary, call evidence about it.

5. They commented that it was qualified by the phrase “if necessary” because it would only become necessary if those particular facts were controverted.  That case went on to adopt what had been said in R v Storey.  In Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJs said:

   As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey that a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt.  On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

6. In citing Olbrich, I am aware that punishment is in the nature of a sentence here, not for an offence against a law of the Commonwealth, but for an offence arising under Australian law (see Tate).  The statutory provisions under Federal, State and Territory law are inapplicable, but the principles of the common law are applicable, but not mandatory, in relation to contempt under s 112AP (see the discussion of this matter in Abduramanoski where it discussed the application of the principles coming from Pearce for applying separate penalties in relation to separate counts).

7. Further, as to the additional facts, there initially arose a question as to the admissibility of some of those, given the hearsay rule. However, it was accepted that s 4 of the Evidence Act 1995 applied and that that did not mount a barrier to the reception of the hearsay material.

8. On the further facts that were asked to be taken into account, the father pointed to an alleged contravention of the current orders by the mother on the Monday before these proceedings by her interfering with time that he was to spend with the child.  If such a matter were to be proven, it is, of course, not to be the subject of punishment itself (see R v De Simoni) as it did not form a part of the contempt of which the mother was found guilty, but rather the matter was relevantly put forward to establish, in particular, an ongoing need for specific deterrence and the need to ensure compliance with the orders. 

9. On the question of what happened last Monday, it may be found on concession that it was the child’s first day at high school, that after school he called the mother, that the mother attended and collected him from school and this was done under circumstances where the orders provided for the father to collect the child after school.  The father alleges that this removal was done without steps to advise of the whereabouts of the child.  The mother says it was a necessary step that she took because the child was distressed and crying as the father had not collected him and for that reason, she collected him.

10. There was subsequent advice from the father later that day that the child should remain with the mother overnight and that he would collect the child the next day.  Aside from the mother’s oral evidence that she was unaware of the father’s whereabouts when she collected the child and that she did so because of the child’s distress in the absence of the father, there was exhibit R2 which set out the messages that passed.  The mother’s further oral evidence was that these messages were interspersed with telephone calls which showed that the child was distressed.

11. She also gave evidence that the child did not receive the text from his father that indicated his father had only just missed him and had been at the school elsewhere until after the child had got to the mother’s home.  On that material, it could neither be safely concluded that there was a relevant removal or refusal or failure or interference by the mother in conflict with the general obligations under a parenting order, nor that she exhibited a disregard for those obligations.  While, in context, it is perfectly understandable, given the contempt matter, why the father might have been highly suspicious under those circumstances, such is not established.

12. The balance of the factual matters go to the character of the mother and whether she is remorseful for the contempt, being matters that go to her application that was ultimately made in this Court and the compliance with the further orders of this Court which subsequently caused the child to be returned to the father.  Those matters are set out also in the contempt judgment.  Further matters are the impact of imprisonment on the child and on his sister, Y, who is now an adult, and the mother’s personal circumstances at the time of the contempt, now and into the future, at least insofar as imprisonment might impact on those.

13. Before turning to the significance of the factual contentions, it is important to consider the principles underlying the imposition of punishment under s 112AP.  I was helpfully taken by the legal representative for the father to Cluny & Skinner which picks up the principles set out in Abduramanoski.  Essentially, it provides that s 112AP is a complete code.  That matter reflects the case law that states that these proceedings do not incorporate Federal or State or Territory sentencing laws, although as noted previously, that does not render the principles of the common law irrelevant. 

14. Secondly, that it is a wide discretion that is to be exercised by the Court and is to be exercised transparently in the light of the individual facts and circumstances of the case – comments that echo the importance placed by the common law on individualised justice in sentencing.  Thirdly, it notes that other examples of punishment are necessarily limited in the assistance that they give which is the corollary of the above point.  Fourthly, that particular difficulty is brought about in the exercise of such a broad discretion where there is no maximum term of imprisonment.  I note that the general sentencing principles provide that maximum penalties are to form a key consideration in the exercise of discretion for sentencing.

15. Fifthly, and importantly, the case identifies the purposes of punishment under s 112AP.  One is to coerce a person in breach to comply with the orders.  That is a matter which is inapplicable here.  The second is to punish.  There are a number of purposes for that punishment and one is for individual or specific deterrence, notwithstanding that there might be realistic doubts as to its efficacy to support general deterrence, and another is for the purpose of retribution.

16. The case notes that it is essential to the proper working of the Court system that Court orders are obeyed.  That is, it is in the interests of the administration of justice to demonstrate that the Court’s orders will be enforced.  It may be observed that in each case, the seriousness of the contempt and the circumstances of the person in contempt will be necessary considerations in meeting the above purposes. 

17. Turning back to the facts of this case, the contempt had serious consequences in interference with the substantial and significant time the child was to have with his father.  This was one of the matters that brought the matter to be found as contempt.  However, in the context of the various examples of contempt identified in the case law for these proceedings, it may be seen that this matter falls at the lower end of the spectrum of contempt despite it coming at the tail of long held hopes and plans to remain in Country B.  For example, it does not involve the evasion and pursuit or complete subversion of parenting orders that occur in a number of those other examples.  Here, the child was in plain sight, albeit, in Country B. 

18. Further, also disputed as irrelevant, the subsequent conduct of the mother is of considerable weight in determining punishment in this particular case.  The application by the mother by which stage the contempt was complete and which did not remove the ongoing breach of the orders pending resolution was an act of submission to the Court’s authority, which on the making of orders sounded in submission to and compliance with the Court’s authority in the orders to return the child.  It did not remove the contempt, but is an essential matter in considering the seriousness of the contempt and in assessing the ongoing attitude to the Court’s authority.

19. Further, the character evidence, particularly of Mr R and Ms S, neither of whom were challenged on their assessments, noted an attitude of compliance and submission to principle on the part of the mother and her shame at the contempt which spoke clearly to this conduct as being out of character.  Her personal circumstances speak to why there is this departure from acting in accordance with character.  At about the time of contempt, she faced loss of her work through a voluntary redundancy, the illness of Y, the pending loss of the home in Country B and pressures relating to the changes for the mother and the child and Y. The stress and anxiety which could almost be assumed on those circumstances were supported by the evidence of Dr J which became exhibit R1.

20. These matters mean that despite the calls for imprisonment, it is not warranted, even without considering the other matters raised about the potential effects of imprisonment on the mother’s future or work or travel.  Imprisonment is the sentence of final resort.  It is only available where no other penalty is appropriate.  It is not appropriate here despite the fact that many contempt cases will call for it because of the matters identified.  That it is not appropriate is particularly so where other more appropriate punishments are available under s 112AP.  Section 112AP, subsections (4) and (6) properly lay open an appropriately broad range of powers to deal with contempt.  In this case, s 112AP(6)(c) gives the appropriate mechanism for punishment. 

21. Noting a finding of contempt in itself is a significant matter in punishment and in the vindication of the Court’s authority and the vindication of the father’s position under the orders, and that the finding speaks loudly on its own of the questions of specific and general deterrence, in this case, it alone is not adequate.  The further punishment and deterrence is to be met by security for good behaviour directed to compliance with orders concerning the child. 

22. I note that a further matter that was raised was the impact of the order for imprisonment on the child.  It may be observed that such would be bound to adversely affect him. In the general criminal law, such a matter is generally of little weight.  Given that there is a broad discretion under s 112AP, it may be the case that it carries greater weight in here. As the submissions were directed to its relevance with respect to imprisonment only and that for other reasons I have found imprisonment inappropriate, it is not a matter that needs to be resolved today.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 9 February 2018.

Associate: 

Date:  26 February 2018