Tate & Tate (No.3)
[2003] FamCA 112
•13 February 2003
[2003] FamCA 112
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No SA85 of 2002
File No AD4316 of 1993
HEARD VIA VIDEO LINK FROM ADELAIDE TO MELBOURNE
JUDGMENT DELIVERED IN BRISBANE
BETWEEN:
JOHN RICHARD DONALD TATE
Appellant Husband
- and -
MARIE THERESE TATE
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING: 02 December 2002
DATE OF JUDGMENT: 13 February 2003
APPEARANCES: Mr Tilmouth QC with Mr Richards of Counsel, instructed by Camatta Lempens Pty Ltd, Solicitors, 1st Floor, 345 King William Street, Adelaide, SA 5000, appeared on behalf of the Appellant Husband.
Mr Birchall of Counsel instructed by Diane Myers Pty Ltd 189 Greenhill Road, Parkside, SA 5063 on behalf of the Respondent Wife.
Appeal of Tate SA 85 of 2002
Date of Hearing 2 December 2002
Date of Judgment 13 February 2003
Coram Nicholson CJ, Kay and Monteith JJ
CATCHWORDS: Appeal – Contempt – Sentence of imprisonment imposed by trial Judge – Failure to deliver up property – Failure to produce documents by way of discovery – Culmination of flagrant and repeated breaches of orders of the Court - No error of discretion or application of principle by trial Judge – The objects of proceedings for civil contempt include punishment as well as coercion.
INTRODUCTION
This is an appeal against sentences of imprisonment totalling four months imposed on the husband by Murray J on two counts, pursuant to s112AP of the Family Law Act 1975.
The first count, to which the husband pleaded guilty after three days of the trial before Murray J, was:
“That the husband did not retain the model collection within the metropolitan area of Adelaide.”
This related to a valuable collection of model cars in the possession of the husband, which he had been ordered to retain within the metropolitan area of Adelaide.
In order to better understand this count, it is important to note that it was the fourth of four counts that related to this collection, the first of which referred to his failure “to deliver up the whole of the Model car collection to the court appointed valuer in March 1999 as ordered by this Honourable Court on 10 March 1999”.
The other counts contained allegations of breaches of orders in relation to the model car collection that are not relevant for present purposes.
In substance Murray J found on this count that the husband had acted in flagrant breach of this order by causing the collection to be moved from Adelaide two days after Dawe J had conducted the final hearing of the property settlement application. On that occasion her Honour continued the injunction requiring him to retain the collection in Adelaide and otherwise reserved her judgment.
The second count was :
“That the husband did not produce documents by way of discovery as ordered by this Honourable Court on 29 June 2000.”
This count was the culmination of a long series of failures by the husband to make proper discovery. The husband pleaded not guilty to this count but Murray J found him guilty and found that this was a flagrant and deliberate breach of Dawe J’s order.
The Appellant husband’s grounds of appeal are as follows:
1. Exceptional circumstances as required to justify a custodial sentence had not been made out.
2. Her Honour erred in imposing a term of imprisonment to punish the appellant.
3. Her Honour erred in failing to give any weight to the appellant’s personal circumstances that would afford rehabilitation to the appellant.
4. Her Honour erred in failing to fully consider the imposition of any bond to be of good behaviour.
5. Her Honour erred in failing to consider at all the question of suspension of any sentence of imprisonment.
6. That the sentences of imprisonment imposed of 1 month with respect to count 12 of 3 months with respect to count 15 to be applied cumulative are each manifestly excessive.
RELATIONSHIP BACKGROUND
10. The husband was aged 44 at the time of trial, and the wife was aged 46. They were married [in 1983] and separated in 1994 after co-habiting for approximately 11 years. There are two children of the marriage who reside with the wife, namely “C” born … 1985 and “A” born … 1988. The husband has failed to comply with the orders for property settlement made against him and has since become bankrupt.
HISTORY OF THE MATTER
11. In order to form an appreciation of the issues, it is necessary to give some outline of the rather complex history of this matter. It should be said and appreciated at the outset however, that the reason why the matter has had such a long and complex history is significantly the fault of the husband, who has on any view, engaged in what in our experience has been an extraordinary campaign of disobedience and non compliance with Court orders.
12. Mr Tilmouth QC, who appeared with Mr Richards for the Appellant, conceded that it was appropriate to have regard to this background, but also stressed that it was important to make the sentence fit the actual offence as charged. In our view, in dealing with a charge of contempt, while it is true that it is important to concentrate upon the particular offence charged, it is difficult to understand its seriousness or otherwise without having regard to the background and circumstances in which the offence is committed. In this regard, we consider it appropriate to examine those matters.
13. The proceedings were commenced by the wife on 25 November 1995, when she made an application for a property settlement and included with her initiating application, an application for discovery. She made a further request for discovery on 6 November 1996 and a third request for discovery on 2 October 1997. None of these requests were properly complied with. By early 1999, largely as the result of the behaviour of the husband it appears the case had become well bogged down and in March 1999, Dawe J took over its case management.
14. So far as discovery is concerned, it suffices to say that the Appellant had offered no adequate discovery at that time.
15. On 10 March 1999, her Honour made a number of orders, the relevant ones for present purposes being;
7.That the order that model cars and collection remain in the metropolitan area of Adelaide do continue.
8.That within seven days the husband do file and serve up to date affidavit of documents in relation to his current partnership with his new wife supplementing the affidavit of documents and setting out any other material in his possession, custody or control and do provide copies of such documents to the wife and that such inspection and copy be made available by the husband within a further 14 days.”
16. On 26 March 1999, Dawe J made orders that contained a preamble, which stated (inter alia);
“That the affidavit filed by the husband on 17 March 1999 is not an affidavit of documents setting out all documents or materials in his possession, power or control in relation to financial matters, and therefore the husband has not complied with the said order of 10 March 1999.”
17. On 28 July 1999, Dawe J ordered that because of the husband’s failure to comply with orders, his form 7A response filed 13 March 1996 should be struck out, and the wife’s applications by way of form 7 and form 63 (Child Support) be heard as an undefended matters. Her Honour subsequently refused applications by the husband to reinstate his response.
18. On 25 August 1999, her Honour ordered that the reinstatement of the response should be declined and she then made a number of orders restraining the husband from dealing with the property, which included “any collection of model cars, trucks memorabilia and collection”.
19. On 20 September 1999, the wife’s application for property settlement came on for hearing before Dawe J. At that hearing the husband appeared and sought to take part in the proceedings, but his application to do so was refused by Dawe J. On that day she made orders pending delivery of judgment, that all existing injunctions concerning the disposal of property continue in force. This clearly involved a continuation of the injunction preventing him from removing the model collection from the metropolitan area of Adelaide. She also ordered that the husband hold all models forming part of the model car and truck collection on trust for the wife and ordered that he be restrained in any way from dealing with those assets.
20. Murray J found, that two days later on 22 September 1999, the husband caused his model collection to be transferred interstate “in contravention of the order for injunction already referred to”.
21. An issue arose before us as to which order Murray J was referring to. In our view it is quite clear that she was referring to the continued order to retain the collection in the metropolitan area of Adelaide. When the husband pleaded guilty to the charge he therefore admitted a breach of that order.
22. On 18 November 1999, Dawe J delivered her reasons for judgment in relation to the property settlement proceedings. The orders that she made involved the transfer by the husband of certain shares and the payment within two months to the wife of $100,000. Her orders provide that until compliance, the previous injunction orders would continue in force, save and except to the extent necessary to permit the husband to authorise the transfer of assets or payment of sums directly to the wife in satisfaction of the orders.
23. The husband appealed to the Full Court against Dawe J’s orders that the property settlement matter proceed before her undefended and her order excluding him from defending those proceedings.
24. The Full Court, (Nicholson CJ, Kay and Waddy JJ) heard that appeal on 28 March 2000 and on 5 September 2000, dismissed the appeal (reported as Tate and Tate (2000) FLC 93-047).
25. The history of non-compliance by the husband in relation to discovery until the hearing before the Full Court in March 2000 is usefully set out at para 17 – 22 of the Full Court’s judgment. The Full Court commented that after Dawe J took over the case management of the matter, the history of non-compliance by the Appellant if anything worsened. They noted that on 22 June 1999, it was the 25th time that the matter had been before the Court.
26. On 25 May 2000 Dawe J ordered that an enforcement summons issue against the husband. That summons was returnable on 6 June 2000.
27. On 6 June 2000 Dawe J made orders (inter alia) requiring the husband to produce copies of certain documents and to file a full statement of his financial circumstances and the disposable assets since he filed the last statement of financial circumstances.
28. On 29 June 2000, Dawe J, having found that the husband had not complied with her orders of 6 June, ordered that the husband obey all of the orders of 6 June 2000 by 18 July 2000. She made further orders that by 18 July 2000, he file and serve a complete affidavit of documents in relation to his past and present financial circumstances and any transactions relating thereto and that he provide inspection to the wife at the court on 21 July 2000 of all of those documents.
29. In the course of her reasons for judgment delivered on 29 June 2000, her Honour said:
“4. The wife comes along and quite properly puts to me that the husband has not obeyed that order (referring to her order of 6 June 2000) she puts it to me that this is a deliberate attempt by the husband to thwart the authority of the Court, I have said that I agree with that perception. If one looks at the orders the husband has complied with over the years, that is not an unreasonable view for the Court or the wife to hold. I have warned the husband that I consider his behaviour in this regard to be bordering on the contumacious and that he risks being cited for contempt of this Court in that he continuously, and on the face of it, flagrantly fails to comply fully with the orders of the Court despite clear warnings from the Court.
5. Nonetheless, I have indicated that I will give the husband one last chance to provide to the Court full affidavit, full documentary evidence in support of his allegations and full details of his current financial circumstance.”
30. Needless to say, the husband failed to avail himself of this chance. He could not have been given clearer notice of the possible consequences.
31. Following the delivery of the Full Court’s decision, on 15 September 2000, Dawe J ordered the husband to deliver up the model car collection within 7 days. On 5 October 2000, well outside the time prescribed by her Honour’s order, 28 boxes of cars were delivered to the Court, which it would appear was less than half the quantity of the cars under the control of the husband. On 26 October 2000, the husband was fined $2,000 by Dawe J in respect of an offence involving a breach of her order of 18 November 1999 that he pay $100,000 to the wife within two calendar months, and it was common ground that this fine still remains unpaid.
32. On 18 October 2000 the wife filed an application seeking that the husband “be cited for contempt of court” in the course of which she complained of his having removed the model collection from South Australia. This application was found by Dawe J not to be in proper form and it was dismissed on 26 October 2000, with liberty to file a further application after receiving advice.
33. Following this, the wife eventually instituted the proceedings for contempt that we are presently considering. As part of these proceedings, Dawe J made an Anton Pillar order. It should be mentioned that following the making of that order, 12 boxes of model cars were discovered in the premises of the husband’s late mother in … NSW and 52 boxes were discovered at his home in Adelaide. As well, some 200 documents were seized, some of which formed part of the documents the subject of the second count that had never been discovered.
34. The contempt proceedings occupied some 17 days of hearing before Murray J between 29 March 2001 and 11 May 2001. In giving judgment on 25 May 2001, Murray J found the husband guilty on 10 counts and sentenced him to a total of 12 months imprisonment
35. From that decision, the husband appealed to the Full Court (SA 39 of 2001), which heard the matter between 11-13 March 2002 and delivered judgment on 30 May 2002. By a majority, (Ellis and Holden JJ) the Full Court set aside the convictions on all but two of the charges. It ordered that the charges which are the subject of this appeal should be remitted for rehearing on the question of penalty before Murray J. It further ordered that six of the remaining charges should be remitted for re-hearing by a single judge other than Murray J. As we understand those six charges remain to be heard and will not be heard until some time in 2003.
36. Although Kay J was in dissent on the primary issue argued on the appeal, which related to whether Murray J had applied the criminal or civil standard of proof, the majority agreed with his views in relation to the discovery count before us on this appeal. In particular they agreed that it had been proved beyond reasonable doubt.
37. Before that Full Court, this charge was attacked upon the basis that it lacked particularity. Kay J pointed out (at par 147) that by the date of the trial, the husband had been given details of 154 documents that had not been discovered that were subsequently seized under the Anton Pillar order. He said:
“The key finding of the trial judge was the husband had few, if any, documents available to the wife for inspection although ordered to do so, and there were particular documents identified by the trial judge.”
38. His Honour then quoted from the findings of Murray J which it is also appropriate that we reproduce in this judgment where she said:
153 “It appears clear from the exhibits which are affidavits of documents filed by the husband, commencing with document 35 (Affidavit of Documents filed 14 December 1998) that he provided discovery in steps piece by piece, alleging with every affidavit of documents that those referred to in the schedules indicated were the only ones in his possession or power, with no attempt on any occasion to provide comprehensive and proper discovery. And still, by the time of trial, he failed to provide complete discovery. After 5 September 2000, the husband no longer provided a venue for the inspection of documents.
154. I find that the following documents set out in the attachment A referred to were not discovered pursuant to the order of 29 June 2000 are those items numbered 16, 21, 31, 33, 34, 35, 46, 47, 60, 67, 71 and 101. Nor did the husband discover W28, the invoice for the removal of the collection to Queensland, a fairly crucial document.
155. I find that the failure of the husband to address seriously his obligation as to discovery made the task of prosecution by the wife and her claim extremely difficult and costly.”
39. Kay J, after referring to those passages, expressed the view that ample notice had been given to the husband of what it was that amounted to the asserted breach. He concluded as follows:
“The facts that the charge depended on are not disputed. There was no challenge to the conclusion drawn that the facts as established amounted to a flagrant challenge to the authority of the Court. This charge was clearly proved beyond reasonable doubt.”
THE SENTENCING HEARING BEFORE MURRAY J
40. It is convenient to deal with her Honour’s findings in relation to the two charges separately.
Count 12 (model cars)
41. This charge was not framed with particularity. However it is quite clear to us that the husband was in no doubt that the charge related to his whole model car collection.
42. The way in which this charge was couched was such as to lead to submissions from Mr Tilmouth before us that the fact that the husband had pleaded guilty to the count did not mean that he could not rely upon ameliorating factors as to the number of cars in the model collection that were moved or not moved from Adelaide.
43. Her Honour’s findings in relation to this issue are to be found not so much in her judgment of 4 November 2002, but rather in her judgment of 25 May 2001. We have already referred to her Honour’s finding at par 26 of her judgment, that on or about 22 September 1999, the husband caused his model collection to be transferred interstate in contravention of the order for injunction already referred to. It was contended before us that this finding was not open to her Honour, having regard to the whereabouts of the model cars as discovered pursuant to the Anton Pillar order in 2002.
44. Her Honour at para 142 of the judgment said:
“The husband pleaded guilty to charge 12. I find that he sent the whole collection (save that in [NSW] at his mother’s home) to … [a town in] Queensland and did so to avoid orders of the Court.”
45. At para 56 of her judgment, her Honour said:
“Annexure DBM1 to the affidavit of Diana Bothwell Myers filed 14 March 2001 exhibits a booking job sheet from Richard Mitchell Removals in the name of John and Kaye Tate of [a NSW address] showing a removal of 60-80 archive boxes and a large chest on wheels on 22 and 23 September 1999 delivering them to a storage address in Queensland on 27 and 28 September 1999. Ms Myers attests to the fact that the booking sheet bears the signature of the husband as owner, certifying that the work has been completed to his satisfaction. I find that the booking sheet was never discovered by the husband to the wife.”
46. It is clear that her Honour drew the inference that the husband had deliberately flouted this order by moving the collection to Queensland from this evidence and from the fact that this transaction took place two days after Dawe J had made orders for property settlement which continued the restraint upon the model car collection being removed from Adelaide. Although she did not articulate it, it would seem to us that the subsequent discovery of the collection some 18 months later at his home in Adelaide, could not have operated to negate this inference, particularly seeing that Court orders had required him to produce the whole collection to the Court in Adelaide on 15 September 2000.
Count 13
47. The issue as to discovery was described in par 5 of her Honour’s judgment of 4 November 2002 of having made the burden of the wife conducting her proceedings, very onerous. She there referred to par 73 of the Full Court judgment of 5 September 2000, in which it was said:
“ Fourthly the Court of Appeal was not considering an instance of “contumelious” conduct persisted in despite numerous extensions, warnings and vacation of previous trial dates, as was the situation confronting the trial judge in this matter. However the evidence available, that the husband remained both hell bent on delaying the trial and prepared to afford the Court’s orders much lower priority in his life than the asserted higher demands of his practice, was sufficient for the trial judge to make the order she did. The husband’s continual neglect of his duty to provide full and frank disclosure and, moreover, serial non compliance with the Court’s specific orders is all the more culpable when it is remembered that he is and was by profession an accountant. He had the professional ability to purge his contempt at any time; the remedy was in his own hands. No exculpatory evidence was offered, nor any acceptable explanation for his continued conduct.”
48. Her Honour then referred (at par 6) to the following findings she made in her reasons for judgment delivered on 19 October 2001:
That the wife had been compelled to undertake long and meticulous cross-examination to show the number of documents that the husband had failed to discover.
That she had been forced to bring application after application to compel the husband to make full disclosure, which was something that he never did, despite the order from the Court.
She was also compelled to issue a number of subpoenas.
The conduct by the husband was an indication of his intentional pattern of behaviour “to thwart the wife in every way possible as regards pursuing the enforcement of her judgment in the property settlement”.
49. She also referred to the following finding at par 25(c) of her reasons for judgment of 19 October 2001:
“I will regard this as a very serious offence on the part of the husband. The orders of the Court as to discovery have not been able to protect the wife from incurring enormous expense. The husband’s constant failure to make full and frank disclosure to serve his own means of deliberately concealing his true position from the wife is a blatant and contumacious act on his part.”
50. Her Honour referred to her conclusion of 19 October 2001 where she said:
“I find that the failure of the husband to address seriously his obligation as to discovery made the task of prosecution by the wife of her claim extremely difficult and costly and her capacity to obtain clear and concise expert advice and evidence was severely inhibited, much of the lengthy cross-examination of the husband on the question of this charge protracted the proceedings. I find charge 13 proved.”
51. Her Honour also adverted to the remarks of Kay J at par 149 of the Full Court judgment of 30 May 2002, to which we have already referred.
52. Her Honour summarised the submissions of Counsel for the husband to her on this issue as follows:
He submitted that the failure to make discovery was not such a serious offence as parties often fail to make complete discovery for various reasons, which in the long run may only reflect on their credibility at trial.
Her Honour rejected that submission and referred to the remarks of Kay J.
Counsel argued that sub-s6 of s112AP provides a gradation of punishment commencing with the imposition of a good behaviour bond, leading to the ultimate punishment of committal to prison.
Counsel did not argue for the imposition of a fine, conceding that the husband had never paid the fine imposed upon him by Dawe J, but submitted that the most appropriate penalty was a good behaviour bond. He referred to the husband’s good character and lack of prior convictions and submitted that a term of imprisonment should be aimed at rehabilitation and this was not needed in the present case.
He also submitted that the husband had lived in Queensland since June 2002 and practiced as a public accountant before selling his public accountants business for $45,000.
Her Honour noted that the wife received nothing from this sale.
He relied upon evidence of good character.
He said that the husband was the main breadwinner of his family and that his present wife worked part time, but his income was needed and that he had two children aged 5 and 6.
He said that the husband’s health had been poor but much improved since he went to live in Queensland.
He said that because the trial had been completed, the issue in respect of which discovery was sought was no longer a live issue. He argued that it followed from this that there was nothing to be now achieved by punishing the husband for his breach.
Her Honour said that she took into account the possible effect of imprisonment upon the husband’s relationship with the children of his second marriage, and said that it may be relevant but did not distinguish him from any other people.
53. After a discussion of the authorities, and in particular Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866, Marriage of Ibbotsen and Wincen (1994) FLC 92-496, and Fauna Holdings Pty Ltd and Mcgillivray & Ors v Mitchell No. 2 (2000) FLC 93-053, her Honour said (at par 21):
“It appears to me from the above authorities that the attitude of the Court towards flagrant breaches of its orders has leaned considerably more towards committal to prison as punishment.”
54. She then said (at par 23):
“In the circumstances of this case the relevant factors are the need to impose a punishment appropriate to a breach and the need to uphold the authority of the Court to make effective orders. Moreover, in view of the forthcoming proceedings in this matter to be determined when an interstate judge becomes available to hear the Sec. 106B application by the wife against the husband and third parties, there is the need to ensure compliance by the husband with any future orders. There is also the need as Coleman J says (in Rutherford v Marshal of the Family Court of Australia [1999] FLC 92-866) …to send a signal to the community at large that the Court expects its orders to be obeyed and that flagrant breaches will be regarded seriously.”
55. Her Honour considered that a suspended sentence or a fine would be inadequate and that there was no suitable alternative other than a sentence of imprisonment. She said that she took into account the husband’s tardy plead of guilty to charge 12, which she said was the only mitigating factor in relation to that charge and she therefore imposed a lesser term, namely 1 month than that which she intended to impose in respect of charge 13. She continued (at par 26):
“The husband may not have a criminal past but his behaviour in these proceedings as described by the Full Court in their judgment of 5 September 2000 has been culpable in the extreme with regard to the wife and compliance with the Court’s orders. The detriment to the wife has been considerable. The need to ensure compliance with any possible future orders, the husband’s lack of contrition and the need to uphold the authority of the Court can lead to no less a sentence than 3 months.”
56. In determining that the sentences should be imposed cumulatively, her Honour took the view that to have them run concurrently would in effect mean that no punishment at all would be imposed in relation to charge 12.
THE PRINCIPLES UNDERLYING PROCEEDINGS FOR CONTEMPT ARISING OUT OF DISOBEDIENCE OF A NON MONETARY ORDER
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 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 C 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”.
67. In this case, the wife has been subjected to a costly, time consuming, delay causing and no doubt emotionally draining campaign of defiance of these particular court orders.
COUNSEL’S SUBMISSIONS ON THE APPEAL
68. Before us, Mr Tilmouth argued that the conclusions arrived at by her Honour on the facts surrounding the first charge were not open to her. He relied in particular upon Anderson v The Queen (1993) 177 CLR 520 in support of an argument that it was for the prosecutor to prove beyond reasonable doubt the facts upon which the sentence was based.
69. There are several difficulties about this argument. We think it quite clear at the initial hearing before her Honour that the issue in relation to this count when read in context was that the whole of the model collection had been removed by the husband from the Adelaide metropolitan area. In pleading guilty to the charge, we think that the husband effectively admitted this. The husband did not appeal against her Honour’s finding at the first hearing that the whole of the collection had been removed. Counsel for the husband at the sentencing hearing advanced no evidence or argument to this effect. If it was then open to him to allege a different version of the facts, no attempt was made to do so. In any event we think that on the evidence, the conclusion reached by her Honour was open to her. She regarded the husband’s evidence as unworthy of belief and it was clearly open to her to draw the inferences that she did in relation to the evidence of the carrier.
70. So far as the charge of failing to provide discovery was concerned this was clearly a flagrant breach, particularly having regard to the warning that Dawe J gave to the husband at the time that she made the relevant order.
71. In the present case it is quite clear from her Honour’s findings that she regarded the husband’s conduct as falling within the category of involving deliberate defiance and being contumacious.
72. The question is whether having made this finding her Honour deviated from the appropriate principles in imposing the custodial sentences that she did.
73. Mr Tilmouth sought to argue that her Honour was wrong in her understanding of the authorities and that the cases referred to by her involved much more serious breaches and considerably larger sums of money than that involved in this case.
74. In our view this involves a misapprehension of the seriousness of the husband’s conduct in this case. These particular breaches have to be seen in context. They were the culmination of flagrant and repeated breaches of orders of this Court. If parties were to behave in this fashion generally, the business of the Court would come to a standstill and many people would be deprived of their entitlements.
75. We note that at the time of the appeal the husband had not paid a fine imposed by Dawe J of $2000, nor had he complied with her orders in relation to the property settlement. He offered us no acceptable explanation of this behaviour.
76. Mr Tilmouth also argued that the documents that the husband failed to discover were not important enough to warrant a custodial sentence. A similar argument was put to her Honour and we agree with her conclusions about it. Further, it is not for the contemnor to decide to withhold documents that he should have discovered and then seek to exculpate himself relying upon what he asserts to be their relative insignificance.
77. Mr Tilmouth further argued that if custodial sentences were to be imposed, then they should have been concurrent. We are not persuaded that her Honour erred in any way in making the sentences cumulative. They were two distinct contempts and we think that there is substance in her Honour’s comment that to have imposed a concurrent sentence in relation to the model car count would have involved no punishment at all. She had already given the husband an extremely generous discount for his plea of guilty and we think that the result was well within the range of her discretion.
78. It was also put on behalf of the husband that no purpose was to be served by imposing a custodial sentence because the proceedings had been concluded. As her Honour pointed out, this is not correct, as there are other charges pending. In any event, we regard this as an irrelevant consideration in the circumstances of this case. It may have been some notion derived from the principle that the primary object of proceedings for civil contempt is coercive that led counsel to submit that because there was no longer any need for coercion, there is no purpose in imposing a custodial sanction. However, as the authorities to which we have referred demonstrate, another object of proceedings such as this is punishment. It is of great importance that court orders should be obeyed and it is also important that those who choose to deliberately disobey them as the husband has should not go unpunished. In our view it is appropriate that the husband be severely punished for these breaches and we consider that the punishment imposed by her Honour was quite appropriate.
CONCLUSION
79. It follows that we do not consider that any of the grounds of appeal are made out. The circumstances were exceptional and in our view more than justified a custodial sentence. Indeed it is unfortunate that this matter was allowed to drag on without the imposition of such a sentence at a much earlier stage. We think that given the attitude of the husband, the imposition of a good behaviour bond or suspended sentence would have been a waste of time in the circumstances of this case.
80. As to the issue of the husband’s personal circumstances, it is clear that her Honour did consider them but also considered that the enormity of his conduct was such that it far outweighed any such Consideration. We agree with her Honour’s view in this regard. Further, we think that the issue of rehabilitation does not loom large in cases of this nature, having regard to the purposes of punishment for contempt to which we have already referred.
81. The appeal is accordingly dismissed.
ORDERS
82. Mr Tate resides in Brisbane however the Warrant of Commitment that issued pursuant to the orders of the Trial Judge anticipated that he would be confined in South Australia. Accordingly, it will be necessary to cancel the original Warrant and make orders of our own which provide for the sentence which we have upheld in this appeal to be served in Queensland.
83. We will therefore order as follows:
“1. That the appeal is dismissed.
2. That the imprisonment of the appellant, JOHN RICHARD DONALD TATE, pursuant to section 112AP(4) of the Family Law Act 1975 for a cumulative period of four [4] months commence immediately.
3. That the Warrant of Commitment issued by the Adelaide Registry of the Court on 4 November 2002 be cancelled.
4. That a Warrant of Commitment for the imprisonment of the appellant JOHN RICHARD DONALD TATE, by this Court for a period of four [4] months issue forthwith from the Regional Appeals Registrar of the Northern Region of the Court.”
I certify that the previous 83 numbered paragraphs are a true copy of
the reasons for judgment delivered by this Honourable Full Court.
Danny Sandor
Senior Legal Associate to the Chief Justice
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