Relic and Dunwich (No. 2)

[2009] FamCA 599

FAMILY COURT OF AUSTRALIA

RELIC & DUNWICH (NO. 2) [2009] FamCA 599

FAMILY LAW – CONTEMPT – Sentencing

APPLICANT: Mr Relic

RESPONDENT: Ms Dunwich

FILE NUMBER: BRF 12544 of 1998

DATE DELIVERED: 29 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 29 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr F G Forde

SOLICITOR FOR THE APPLICANT: Crimmins Burns, Solicitors, of Brisbane

COUNSEL FOR THE RESPONDENT: Ms C E Carew

SOLICITOR FOR THE RESPONDENT: Habermann & Associates, Solicitors, of Brisbane

Orders

1. Upon the Respondent on 10 June 2009 being found guilty of contempt of the Court the Respondent be sentenced until the rising of the Court.

2. The Respondent pay the costs of the Applicant on an indemnity basis to be assessed but the quantum of costs of the Respondent to be fixed at no more than $31,000.

IT IS NOTED that publication of this judgment under the pseudonym Relic and Dunwich is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF12544 of 1998

MR RELIC

Applicant

And

MS DUNWICH

Respondent

REASONS FOR JUDGMENT

1. Today is the day upon which I have to sentence Ms Dunwich, hereinafter referred to as the accused, on contempt of Court.  The matter has come before me and my decision was given on 10 June wherein, as I have said or inferred, I found the accused guilty of a breach of contempt of Court.

2. I initially wished the matter to be dealt with on 10 June and it was unable to be done so and on hearing today Forde of counsel appears on behalf of the applicant and Carew of counsel appears on behalf of the respondent.

3. The parties have quite properly put before me submissions in relation to not only the question of sentence but in relation to the question of costs.

4. So far as sentence is concerned, this is quite a tragic case.  I have on frequent occasions during this trial indicated that I was concerned about the respondent accused's position.  The reason why I say that is that she is a member of a profession, she was qualified in that profession in about July of last year and she has had a stellar career at the university, receiving honours as well as receiving awards.

5. That in itself may seem to some people to be irrelevant.  As far as I am concerned it is most relevant in relation to punishment.  This is not a case of the butcher, the baker or the candlestick maker flagrantly challenging the authority of the Court, this is a person who when the first challenges took place, if I may find it that way, was not only, I assume, studying, but eventually passed, as I said, with an award and subsequently became a member of her profession and has practised, as I understand, her profession.  That in itself staggers me, that a person who has had such experience as a professional did not realise or did not even contemplate, as I found, that her refusal to comply with an order of this Court, even on one occasion, was not a flagrant challenge to the Court.

6. I regret that she has seen fit for whatever reason, I do not know what it is, but she determined that she was not going to comply with this order.  It was a simple order, as I pointed out in my reasons and I found no reason for her failing to comply with it.

7. She is married, she is pregnant with twins, she is due to be delivered in about October.

   RECORDED  :  NOT TRANSCRIBED

8. She has two other children other than the child the subject of this unfortunate complaint.  She is living with her husband, who is receiving something like $55,000 per year.  He has a home in which they are living which, according to what has been told to me from the Bar table, is heavily encumbered.  She has little or no income but is just making ends meet.  She has no assets.

9. She refers and has made submissions to the fact that the applicant father has considerable means and has in fact, on her allegations, paid 1.8 million cash for a house.  That I feel, with great respect, is to a certain extent irrelevant in relation to the sentence.

10. What am I to do with her?  I am fully aware that the conviction itself may, I emphasise may (I consider that I can be bold since no evidence was put before me to convince me that such conviction would) affect her career. There is some vague suggestion that it may impede her right to practice.  I would have thought that that in itself was exceptionally important and if in fact that was put before me it may be that my view would change.

11. But she is guilty of what I consider to be a serious matter made more serious not only by the frequent number of times she has done it, but by her arrogant disregard of the orders of the Court; by her further arrogance in insisting, as I have pointed out, that the father comply on one occasion with the order and the fact that she, as I have said, is a person who has professional experience, albeit in the early stages thereof.

12. I have a wide discretion in this case to either punish or not to punish, in effect.  I regret that because I am aware of the fact that it is necessary that like-minded persons, notwithstanding the fact they may not be members of a profession, should not be encouraged to think that they can get away with it, to impose a sentence of imprisonment. 

13. However, I am more than satisfied, taking into consideration the matters which have been referred to by Carew of counsel for the mother, that such a term of imprisonment should be of a comparatively minor degree and I will order:

    ORDER DELIVERED

14. So far as costs are concerned.  Forde of counsel has appeared on behalf of the applicant, seeks an order for costs on an indemnity basis.  The only difficulty I have with that is that he is seeking costs on an indemnity basis in particular in relation to a costs agreement which has been put before me in an affidavit of David William Burns filed by leave today.

15. I am always concerned that a party, a respondent, to such an application for costs in relation to the costs agreement should not, I feel, be put at jeopardy or paying more than what is acknowledged under the Family Court rules and regulations unless they are given an opportunity of considering it in depth. 

16. She was not given the opportunity here.  However, quite properly the costs agreement was put before me.  I am very doubtful about whether in my discretion I could order that she pay indemnity costs in relation to the costs agreement.  However, it is quite clear in a case like this that I take in a consideration of Cullen that whilst costs are never to be considered a punishment that there is much in Forde's submission.  He says the victim is the person who is endeavouring to protect and/or enforce the jurisdiction and authority of this Court.  Why then, as Forde has rhetorically put before us, should he be put to costs and expense by endeavouring to protect the Court.

17. I agree.

    ORDER DELIVERED

18. But one further factor is that he estimates, on instructions of course, that the costs sought by the father are $31,000.  I have sought from Carew of counsel - whether she has sought instructions from her client to oppose that quantum.  She has sought instructions and the quantum of 31,000 is opposed and she seeks, should I order costs, that such costs be assessed by the relevant officer.

19. The fact that the trial went for three days, that there is a considerable amount of material which has been prepared, that there is an enormous amount of correspondence between the parties, an amount of $31,000 would be reasonable.

20. However, I do not feel that I can do other than say that the applicant's costs should be paid on an indemnity basis.  Further, that the costs payable by the accused be no more than $31,000.

21. The respondent is sentenced to the rising of the Court.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              10 July 2009