Senna and Aldenberg and Anor
[2018] FCCA 2711
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SENNA & ALDENBERG & ANOR | [2018] FCCA 2711 |
| Catchwords: COURTS AND JUDGES – Contempt – punishment and enforcement – punishment – order – nature of punishment – imprisonment. |
| Legislation: Family Law Act 1975 (Cth) ss.67N(2), 1124AP(1)(b), 112AP(4), 112AP(6) |
| Cases cited: Abduramanoski & Abduramanoski (2005) FLC 93-215 Witham v Holloway [1995] 183 CLR 525 |
| Applicant: | MR SENNA |
| First Respondent: | MS ALDENBERG |
| Second Respondent: | MS ABRAHAM |
| File Number: | BRC 3467 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 3 August 2018 |
| Date of Last Submission: | 3 August 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Keim SC |
| Solicitors for the Applicant: | Harrington Family Lawyers |
| Counsel for the First Respondent: | Mr Page QC |
| Solicitors for the First Respondent: | SBA (Shila Batenburg & Associates) |
| Solicitors for the Second Respondent: | Cooroy Legal Centre |
ORDERS
UPON THE COURT FINDING that the first respondent, Ms Aldenberg is, upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act1975 (Cth) on 9 October, 2014
AND UPON THE COURT FINDING that the second respondent Ms Abraham is upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act 1975 (Cth) on 13 April, 2016
THE COURT ORDERS THAT:
Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the first respondent, Ms Aldenberg, is sentenced to serve a term of imprisonment for a period of 18 months;
Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the second respondent, Ms Abraham is sentenced to serve a term of imprisonment for six months, such imprisonment to be fully suspended after three months have been served;
To give effect to clauses (1) and (2) of this order, a warrant of commitment forthwith issue in the usual form in each case;
The respondent, Ms Aldenberg pay the applicant Mr Senna’s costs of and incidental to the contempt application filed on 31 January, 2018 to be assessed on the indemnity basis;
The respondent, Ms Abraham pay the applicant Mr Senna’s costs of and incidental to the application for contempt filed on 31 January, 2018 to be assessed on the indemnity basis.
IT IS NOTED that publication of this judgment under the pseudonym Senna & Aldenberg & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3467 of 2011
| MR SENNA |
Applicant
And
| MS ALDENBERG |
First Respondent
And
| MS ABRAHAM |
Second Respondent
REASONS FOR JUDGMENT
On 9 October 2014, orders were made between the parties, Mr Senna and Ms Aldenberg, concerning the parenting of their children, [X] and [Y]. Those orders were made by consent. When the orders were made, both parties were represented by counsel; the respondent by senior counsel.
The orders provided for Mr Senna and Ms Aldenberg to have equal shared parental responsibility for the children. From immediately the orders were made until 12 December 2014, the children were to live with their mother and spend time with their father as might be agreed and, failing agreement, in a two-weekly cycle: in week 1, from 5pm on a Wednesday to 5pm on a Friday and, in week 2, from 5pm on a Thursday to 5pm on a Sunday.
Commencing 12 December 2014 the children were to live with the mother and father as agreed and failing agreement, in week 1 with the father from the conclusion of school on Friday 12 December 2014 until the conclusion of school on Friday 19 December 2014 and each alternate week thereafter. In week 2, the children were to live with the mother. There were a range of other orders made that one might expect to see upon the finalisation of proceedings involving parenting issues in this court. The orders were lengthy and detailed.
The present application before me is that the respondent to those orders be dealt with for contempt. She admits the contempt and the task today is to impose a sanction upon her for that contempt. As will become apparent, the orders were not complied with and the children were prevented from having time with their father in accordance with their terms. In fact, they had no time with him at all for a long time. During that period, he commenced proceedings in this court to attempt to find the children and to have them returned to his care.
During the course of those proceedings, a judge of this court made some orders designed to obtain information about where the children might be. He made, amongst other orders, what is called a location order. That order, to which I will refer in some more detail later, was made against the respondent to the second contempt application before me, Ms Abraham. It is alleged that Ms Abraham failed to comply with that order and that her failure to comply with the order was a contempt. She admits the contempt. These reasons also deal with the sanction to be imposed upon her for that contempt.
Some background is necessary. The parties commenced their cohabitation in 2008. Their first child, [X], was born in 2009. The parties married in 2009. [Y] was born in, 2010. There were some intermediate periods of separation, but they finally separated in about July, 2013. Not long after, in August, 2013 Mr Senna commenced proceedings in this court for parenting orders and property adjustment. At around the same time, there were proceedings in state courts involving allegations of family or domestic violence. Those proceedings seem to have run concurrently with the parenting proceedings in this court.
On 16 October, 2013 there were some interim parenting orders made providing for the children to live with Ms Aldenberg and for them to spend time with Mr Senna from 9am on a Saturday until 9am on a Sunday. A couple of months later, in December of 2013, more interim parenting orders were made, this time by consent, which provided for the children to live with their mother and for them to continue to spend time with their father, this time for three nights a fortnight, two consecutive nights in the first week and one in the second.
In September, 2014 in the course of preparing the matter for a final hearing, Ms Aldenberg filed a very large affidavit in which she made a number of serious allegations against Mr Senna. The allegations were of what is euphemistically described as “domestic and family violence” that she claimed was directed by the father towards her and the children. There were some specific incidents that were raised in the affidavit material. Notwithstanding that, she also swore in the same affidavit:
I accept that Mr Senna would not intentionally place the children in danger. I accept that Mr Senna would not knowingly harm the children.
She expressed some insight by accepting in her affidavit the possibility that what she otherwise viewed as a particular sinister incident involving perhaps intentional or, at the very least, reckless injury to [Y] was indeed nothing more than an accident. Her own case was that the children should continue to spend time with their father. She was not suggesting that there should be no time at all and, indeed, having regard to the other evidence, it would be surprising for her to advance such a case. It was she, in her proposals who suggested there should be equal shared parental responsibility. That is not to suggest that Mr Senna was not also seeking that, but it was one of Ms Aldenberg’s proposals.
The matter came before the court for final hearing on 9 October, 2014 and, as is sometimes the case, the parties reached an agreement about how the proceedings should be resolved. Their agreement resolved, relevantly, the dispute between them about their children and I have already recounted the effect of those orders insofar as they are relevant.
Soon afterwards, in November, 2014 Ms Aldenberg provided a comprehensive and lengthy submission to a local parliamentarian that dealt extensively with what she alleged was family and domestic violence levelled at her and the children by Mr Senna and a whole range of other things. Soon after and before the time the children were to move to a week-about arrangement between their parents, Ms Aldenberg absconded with the children. She left in the circumstances described in Mr Senna’s affidavit, and from that point, some time in the first week of December, 2014 until the children were ultimately found and recovered late in 2017, they spent no time with him. They did not communicate with him. He was unaware of where they were and they knew that he did not know where they were. There was no contact at all.
So, all of the orders that were made by consent between these parties were frustrated and intentionally so by Ms Aldenberg. It is that conduct and the holding of the children away from their father until they were recovered that constitutes the contempt in these proceedings. There are specifics in the contempt application filed on 31 January, 2018. The particulars are all admitted and it must be the case that, by her admission, Ms Aldenberg accepts that her contraventions of those orders are a flagrant challenge to the authority of the court. That must be so, having regard to the provisions of s.112AP(1)(b) of the Family Law Act.
On 8 December, 2014 – so at about the time the children went missing – the respondent to the other contempt application, Ms Abraham, found a letter from Ms Aldenberg. It is necessary to set it out in full, I think. She said:
Mum, I can’t stand by and continue to watch [X] and [Y] be emotionally and psychologically abused any longer. All of us already so traumatised that none of us can take it any more. It is only going to get even more horribly worse next week when the children have to go week-about with dickhead. I’m tired of the placitudes –
but I think she meant “platitudes”:
Don’t worry. Children are resilient. What a cop out. We both know emotional and psychological scars run deep and forever. We know children of abusers either grow up to be abusers themselves or get into relationships where they are abused because that is what they have grown up with. I can’t stand by and just allow that to happen. You know I have tried all the legal and social support avenues for help. Whilst it is obvious to family and friends that the children are abused, the “system” fails to do so. I have to protect the children if the system won’t. Every person deserves the right to be safe and protected. I have never thought I would break the law deliberately, but when the system doesn’t believe in your domestic violence or the child abuse your children face each week, then the laws and the court orders I have are not worth the paper they are written on. I prayed Ms K can help to change the domestic violence/child abuse laws so we can return, otherwise we will be in hiding forever. How many times do I have to run away from this man for someone to believe me and help us get the safety, peace and protection we need? Surely three times is enough. I pray that things improve and the powers that be realise abusers have a public face and a private face, and the private face of my ex makes me fear for the lives of the children and I. Please look after my affairs whilst I am gone. Do whatever you think needs to be done. The children and I love you forever. Ms Aldenberg, [X] and [Y].
The irony of what is written there is palpable. The evidence reveals that when the mother absconded with the children they led a nomadic lifestyle. On her own evidence, they stayed in one place no longer than three or four months at a time. The children were not taken to school. They were “homeschooled”, and when they moved from one place to another they were moved at night time, often under blankets. Their identities were changed. They were permitted no time or contact with their father or anyone else with whom they might have been familiar.
Upon discovering that the children had been taken away by their mother, the father commenced some further proceedings. Those proceedings were commenced early in 2015 and have continued ever since. Throughout 2015, 2016 and 2017 there were orders made, warrants of arrest issued, location orders made and recovery orders made in an attempt to locate the whereabouts of these children.
On 13 April, 2016 a judge of this Court made a location order directed to Centrelink, child support, the Bank 1 and Ms Abraham. The order provided that the Court was satisfied that Ms Abraham was likely to have information in relation to the location of [Y] and [X] or in relation to persons who had possession of the children, i.e., Ms Aldenberg. The judge ordered that there be a location order issued pursuant to s.67N(2) of the Family Law Act1975. That required Ms Abraham to furnish to the Registrar of this Court such information as she might have in relation to the address at which the children or the respondent might be found. That location order was expressed to continue in effect for two years from the date of the order. That is to say Ms Abraham was under a continuing obligation to furnish forthwith to the Registrar of the Court such information as she may have in relation to the address at which the children and/or the respondent might be found.
On 20 December, 2017 the respondent and the children were located at a property owned by Ms Abraham. As it turns out, they had been there since about July, 2017. Despite being subject to the location order, Ms Abraham did not inform the Registrar of this Court of her knowledge about the whereabouts of the children and Ms Aldenberg. That forms the subject of the contempt application against her. She has pleaded guilty to that contempt, and I approach the case on the basis that her non-compliance with the location order is a flagrant challenge to the authority of the Court.
Since the recovery of the children they have been in the care of their father and they have spent no time with the respondent or Ms Abraham.
In January of this year, pursuant to an order to do so, Ms Aldenberg filed an affidavit in which she set out, amongst other things, the following:
The primary reason for my regrettable failure to comply with orders made by this honourable Court since December 2014 and my subsequent action of going into hiding with the children relate to the ongoing mental and emotional abuse and family violence which the children and I were being subjected to by Mr Senna. My concerns relating to the children were that they were being abused by Mr Senna whilst they were in his care. I was also in constant and overwhelming fear for mine and my children’s lives due to death threats, domestic violence and continuous intimidation by Mr Senna over the course of our relationship and afterwards, the true extent of which I felt was not being adequately recognised and the impact understood by authorities.
It is important to record, I think, that Ms Aldenberg’s complaints about violence – family violence and domestic violence – are complaints about emotional or psychological harm. It is not contended, as I understand her material as it has been filed from time to time, that there was any physical violence. Indeed, she told a doctor she consulted for the purposes of these proceedings, Dr C, that there was, in fact, no physical violence. That is not to suggest for a moment that physical violence is more serious than emotional or psychological violence. It is not. But it provides context to the complaints. That is necessary because there has never been any finding that there has ever been any conduct by the father which might meet the description of emotional or psychological violence. There have certainly been no findings to that effect in these proceedings from their commencement.
One might get some flavour of the assertions made by Ms Aldenberg from what appears at paragraph 19 of her affidavit that she filed on 5 January this year. She says this:
Between October 2014 and December 2014 I recall an occasion where a death threat from Mr Senna was relayed to me through the children when they were approximately four and five years of age. In particular, I recall that I had attended at changeover to collect the children from Mr Senna’s place of residence. I recall that the children came out of the home and approached me. Before they got into the car the children then stated to me words to the effect, “Daddy is going to kill you.” At the time I was absolutely shocked by what I had heard to even ask the children anything more about, and I proceeded to transport the children home. Later on I attempted to ask the children if there was anything more that I needed to know; however, they did not say anything to me.
One might think, of course, that if what was reported as having been said was indeed said, it may simply have been a turn of phrase used by people who were too young to know better. In any event, the mother’s case was then and continues to be now that she is so afeard of the children being harmed by their father that she was justified in her actions. That is despite some statements by her in her most recent affidavit that are intended, I suspect, to be statements of contrition.
Both Ms Aldenberg and Ms Abraham rely upon some opinion evidence from Dr C. There is an affidavit filed on 13 April, 2018 sworn by Dr C. He is a child, adolescent and adult consultant psychiatrist in private practice. He has consulted with each of the respondents to the contempt applications and has rendered a report in respect of each of them.
As to Ms Aldenberg, Dr C formed the view that she had developed post-traumatic stress disorder secondary to being chronically exposed to emotional abuse and controlling behaviours. Dr C’s opinion, his conclusion and summary says this:
Ms Aldenberg described a long history of emotional abuse and control behaviours by her husband. Although there was no documented history of physical abuse, the emotional stress experienced by Ms Aldenberg was significant.
Significantly, the written material considered by Dr C was provided to the doctor by the respondent’s lawyer and was supplemented by a consultations with Ms Aldenberg and Ms Abraham. Having read Dr C’s reports, however, it is apparent that there was no attempt by the doctor to test the veracity of any of the statements or assertions made to him either in the written material or elicited in consultation with either respondent. That seriously undermines the opinions expressed by Dr C. By way of example, there seems to be an assertion by Ms Aldenberg to Dr C that one of the precipitant factors in her post-traumatic stress disorder and her subsequent conduct was a finding or determination by the Court about what ought to happen with the children. At page 34 of 51 of Dr C’s report in respect of Ms Aldenberg he says this:
Ms Aldenberg believed that the children were physically and emotionally abused by her ex-husband. She had seen physical injuries on the children, and she took the children to the emergency department. One of the registrars reported the situation to the Department of Child Safety. However, after the investigation DOCS reported that they did not feel there was any serious harm to the children. The situation continued for a further 12 months. Her ex-husband took her to Court on 10 to 12 occasions over 13 months, and he instigated all the Court proceedings amounting to psychological harassment. In a Family Court report in December 2013 it was recommended that the children were to have a gradual increase in time spent with their father until fifty-fifty involvement was achieved. An attempt at mediation and parenting agreement was stopped by her ex-husband.
In October 2014 a trial was scheduled. One day before the trial her legal representation had advised that the Court will likely accept the family report. However, to her shock and horror the Court dictated that she had to accept fifty-fifty custody (week about) as she would lose the children to the father. Ms Aldenberg was shocked about the Court decision and she felt helpless, numb and scared for the children’s wellbeing. The conditions were strict. It was impossible to co-parent on a fifty-fifty basis. She was disappointed that the Court decision would not follow the family report suggestions.
What was reported to Dr C and reflected in his report is plainly wrong. The orders that were reached between the parties were consent orders, something to which they each agreed. There was no decision by any Court about “fifty-fifty” or anything else save in the context of the Court making consent orders after the parties had reached agreement. And indeed, to the extent that the “Family Court report in December 2013” recommended that the children were to have gradual increasing time spent with their father until “fifty-fifty involvement” was achieved, that seems to be more or less what was set out in the orders of 9 October 2014.
It is clear, it seems to me, from at least that – but there are other examples – that Dr C was seriously misled. I place no weight on the evidence of Dr C in relation to Ms Aldenberg.
The same criticisms can be made of Dr C’s report in respect of Ms Abraham although there are no comparatively stark examples of the difficulties as there are with the report concerning Ms Aldenberg. There is, however, an unquestioning acceptance of all that was said to him and that undermines, in my view, the authority of the report and the opinion expressed in it. Having said those things it is hardly surprising that the litigation that commenced and continued after the children were abducted has weighed heavily upon Ms Abraham.
Section 112AP(4) of the Act provides that where a natural person is in contempt the Court may punish the contempt by committal to prison or fine or both. There is also another alternative, of course. The Court may choose to impose no sanction for the contempt if the circumstances of the case suggest that it is an appropriate course. Section 112AP(6) provides that the Court may make an order for punishment on terms, suspension of punishment, or the giving of security for good behaviour.
The general principles that guide the approach to an application for contempt are not in dispute. The authorities reveal that:
a)State and Federal sentencing laws have no application. See Abduramanoski (2005) FLC 93-215. Section 112AP of the Act provides the code for dealing with sentencing under the Act. Myers and Myers 2006 FLC 93-291;
b)s.112AP affords the sentencing judge a wide discretion which is to be exercised transparently and in light of the individual facts and circumstances of the case. Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 cited with approval in Myers (above);
c)“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”, see ASIC v Michalik (above);
d)“This is particularly so where, as in the case of section 112AP of the Act, there is no provision for a maximum term of imprisonment. The difficulty which confronts courts exercising criminal jurisdiction in sentencing for offences for which maximum penalties are provided is thus even greater for courts exercising a sentencing power conferred by section 112AP of the Act”, see Kendling v Kendling(Contempt) (2008) FLC 93-384.
e)“Normally the purpose of contempt proceedings is to coerce a person in breach of an order to comply with it. Another purpose may be punishment. The purpose of imposing punishment reflects the need for individual and general deterrence and retribution for the parties’ failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system the court orders are obeyed.” see Kendling (above).
Having regard to the authorities to which I have been directed and the facts of this case it seems to me that the following matters are relevant:
a)Ms Aldenberg and Ms Abraham’s personal circumstances;
b)the nature and circumstances of their contempts;
c)the effect of the contempts upon the administration of justice;
d)the culpability of each of Ms Aldenberg and Ms Abraham;
e)the need to deter Ms Aldenberg and Ms Abraham from repeating their contempts;
f)the need to deter others from repeating the contempts;
g)the absence or presence of a prior conviction for contempt; and
h)contrition if any.
I turn to those matters in respect of Ms Aldenberg. On this application, she relied on only one affidavit that she has recently filed. That affidavit provides very little by way of assistance. She is about 49 years of age. She relies upon the opinion of Dr C to the effect that she suffers from post-traumatic stress disorder. She says that she did not break the order to be vindictive but that her actions were as a result of a genuine belief that she needed to save her children’s and her own life.
She says that the reason she chose to go into hiding with the children was because she felt that was the only way she would be able to protect her children and herself from the longstanding:
...domestic violence, child abuse and death threats that we had endured prior to our going into hiding.
The respondent apologises in her affidavit for
having taken the law into my own hands and causing considerable concerns as a result of my actions.
She complains, in her affidavit, that Mr Senna’s ongoing litigation since she returned to Brisbane has caused her:
…quite incredible trauma on not only me but also my mother.
There are orders in place which restrict Ms Aldenberg’s access to money, and she says that that has had a significant and profound effect upon her financially. She lives with her mother, who, she says, provides support to her from her own, limited, financial resources.
Ms Aldenberg says that she has no income, no assets, and no access to a bank account, and that for the past three years she has had to live off the charity of others. The evidence demonstrates that is so. She has had the assistance of others, sometimes knowingly, sometimes not knowingly, to assist her and the children to live.
Ms Aldenberg’s mother was diagnosed with cancer in early 2017. That precipitated Ms Aldenberg’s return to Brisbane in the middle of 2017. She wished to be present with her mother so that she could support her. That is entirely understandable. She claims, however, that she had not had any contact with her mother at all for some time prior to that and she was unaware of the litigation that had been instigated by Mr Senna in an attempt to find the children. She gives evidence of observing that Mr Senna’s litigation had an effect on Ms Abraham.
Ms Aldenberg deposes that she is assisting her mother to manage her health. Other evidence reveals that Ms Abraham has been diagnosed with cancer. It was treated, but the cancer has metastasised to her lungs. Chemotherapy has, according to the material I have read, been recommended for her, but she has preferred to take a “natural therapies approach” towards her health and she is supported in doing that by her daughter, Ms Aldenberg.
According to Ms Aldenberg’s evidence, the care that she provides to her mother is significant. Her mother takes up to “80 plus” doses of natural medicines a day, which Ms Aldenberg is responsible for concocting and administering. She does that on a daily basis, as well as managing her health in other ways. Ms Aldenberg says that that is something of significance that ought to be taken into account.
Nowhere in Ms Aldenberg’s affidavit does she provide any lucid explanation for her actions, other than her ongoing suggestion that there was domestic violence, child abuse, and death threats directed to her and the children. However, none of those allegations are particularised to the extent to which one might expect it to be particularised on an application such as this. It is general assertion and hyperbole.
To the extent that facts might be taken into account by the Court in mitigation of any sentence, those facts need only be proved by a respondent on the balance of probabilities. But even on the balance of probabilities, I am not satisfied that Ms Aldenberg was subjected to the types of domestic or family violence that she describes in her affidavit of 13 April, 2018 and elsewhere. Her lack of particularity is of grave concern.
As to Ms Abraham’s circumstances, she is a woman of about 74 years of age. She is still working. She says that she can no longer afford to retire, and she is of poor health. She has a diagnosis of cancer, but she has elected to treat that through the remedies that I have already discussed. As to why she did not comply with the location order, her evidence is very thin on the ground, indeed. In her affidavit filed on 13 April, 2018 she swears this:
9. In July 2017, Ms Aldenberg and the children turned up at my new home. She told me that she returned because she had been told that I had cancer.
10. I accept that the Federal Circuit Court made an order in April 2016 that required me to divulge the whereabouts of Ms Aldenberg and the children if I knew their whereabouts, and that my solicitors wrote to me to inform me about that order. I was under the impression that the order made in 2016 lasted for 12 months.
11. I did not inform the police, or anyone else, about Ms Aldenberg’s reappearance because I was very worried that the children would be returned to the care of their father. I was worried that they would again be abused by him, and that Ms Aldenberg and I and the children would again experience the trauma we had suffered for many years.
12. I accept that I should have informed the police that Ms Aldenberg and the children were living with me, but I did not because I was fearful for my own safety and the safety of my daughter and grandchildren.
Ms Abraham also suggests that she too has some caring responsibilities for another person.
Ms Abraham’s non-compliance with the orders has deprived these children of the opportunity of continuing and developing their relationship with their other parent, which in this case happens to be their father. That is a significant matter. Even more significant is the trauma, no doubt, these children have been subjected to by reason of the many shifts from residence to residence, as described by Ms Aldenberg to Dr C, in the dark of the night, hidden under blankets, and the like.
It is ironic, as I observed earlier in these reasons, that the very thing that she hoped to avoid for these children – emotional and psychological trauma – is most probably the very thing that she has inflicted on them.
In 1987, the Australian Law Reform Commission released its report entitled Contempt (Report No. 35). It has been often cited in decisions of the Full Court of the Family Court of Australia that deal with contempt. It is important. In Tate & Tate (No.3) (2003) FLC 93-138, the Full Court said this:
57. Normally the purpose of the contempt proceedings against the 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 parties’ failure to comply with the order. Retribution is called for because it is essential on 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 the 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 delivered 13 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 & Gaudron JJ their Honours referred 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 the 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 the issue.
60. In Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577, the plurality said the purpose of proceedings for contempt, 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 the court’s orders will be enforced.”
61. The Australian Law Reform Commission (“ALRC”) in its 1987 report Contempt (Report No. 35) pointed out that it is important to recall the 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 specified 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 litigants themselves that court orders will be obeyed, and imposing sanctions if this does not occur. We agree with this which accords with the views expressed by Evatt CJ in G and G (981) 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 sanctions serve similar purposes to those imposed by the criminal law, in particular deterrents, 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 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 of 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.
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 [and I would interpolate there certainly in the context of the present 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, amongst 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 was to be no likelihood that orders made by a 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 reinforces it. In circumstances where enforcement is no longer relevant, either because the order had 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 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 in the court to the extent that they are necessary to uphold the effectiveness of court orders.”
Those passages have been cited subsequently with approval in cases like Abduramanoski (above).
The present proceedings are not proceedings taken by Mr Senna to coerce Ms Aldenberg or Ms Abraham into meeting their obligations under their respective orders. It is the case, and it seems to me entirely apparent from the evidence, that the purpose of these proceedings is to impose a punitive sanction to meet the egregious nature of the respondents’ conduct and to satiate the demand that the administration of justice and the authority of the Court be restored.
The contempt application against Ms Aldenberg is serious. Her actions are serious and they ought to be treated seriously. In my view, her actions warrant a significant penalty. Under s.112AP(4) of the Family Law Act I have the power to impose a fine, but in circumstances where she has no income and no assets, although she may have some funds in a bank account, it is unlikely that a fine would be of any particular purpose. In any event, given the gravity of the contempt, it seems to me that a fine would nonetheless be inappropriate, because it would not appropriately mark the serious nature of her contempt. The orders were clearly deliberately contravened. Whilst the orders were made in inter partes litigation, they were orders that concerned the best interests of children. That, in my view, is something which also underscores the gravity of Ms Aldenberg’s conduct.
Although there are some expressions to which I have already referred in her affidavit that are apologetic in nature, I am not satisfied at all that Ms Aldenberg is contrite about her actions. She demonstrates no insight into the effect of her actions upon the children. She is seemingly fixated upon her case.
In my view, the imposition of a custodial sentence is appropriate to mark the significance of her conduct and to underscore the importance of compliance with orders of a court exercising jurisdiction under the Family Law Act, whether those orders be consent orders or otherwise. There is a significant aspect of general deterrence involved in the sanction to be imposed in this case. Likeminded contemnors need to be dissuaded from taking the type of action that Ms Aldenberg took. Not only does it have a very real potential – in my view a likelihood – to affect the children who are the subject of such actions, but as the Australian Law Reform Commission in its report remarked, and as the Court remarked in the passage to which I have cited extensively, there is a real risk that the administration of justice will be brought down if parties do not abide by court orders. In my view, an appropriate sanction for Ms Aldenberg is to sentence her to a term of imprisonment.
I have taken into account her early plea of guilty. These proceedings have been dealt with expeditiously and she ought to receive credit for that. In acknowledgment of that credit I reduce what in my view would otherwise be an appropriate custodial term of two years to 18 months. Other than that, there is no basis for suspending any portion of her sentence. In those circumstances I will order that Ms Aldenberg be sentenced to a term of imprisonment of 18 months in respect of her contempt.
In respect of Ms Abraham, her contravention is quite different, but it nonetheless is a contumelious disregard of the Court’s authority. If the Court is unable to enforce its orders through the mechanisms set out in the Family Law Act, then there is anarchy. There is very little that can be done sometimes when parties, particularly parents, choose not to comply with court orders. The armoury that parties and courts have to enforce compliance with orders is necessarily limited, but those orders that the Court can make ought to be observed and in this case the order was ignored – not just ignored, but deliberately ignored.
In my view, it is appropriate that there be a custodial sentence for Ms Abraham. A fine is simply insufficient, in my view, to mark the seriousness of her conduct in the circumstances of this case. It is necessary to take into account the fact that she too has pleaded guilty to the contempt application and the matter has proceeded expeditiously. I take those matters into account.
I also particularly take into account her age and her health and I have no doubt that any custodial sentence will be difficult for her, but there is, as in the case of Ms Aldenberg, a significant aspect of general deterrence in imposing a sentence here. Parties, litigants in this Court and in other courts exercising jurisdiction under the Family Law Act, ought be left in no doubt that court orders are to be obeyed and any breach of a court order will be dealt with. In my view, a sentence of imprisonment of six months is appropriate, but that that should be suspended after three months has been served, to take into account her age and health.
There is an application for costs dealt with in the submissions for the applicant. He seeks his orders of these contempt applications on an indemnity basis. That is appropriate.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 21 September 2018
Key Legal Topics
Areas of Law
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Family Law
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Criminal Law
Legal Concepts
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Sentencing
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Costs
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Charge
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