WEIRS & WEIRS
[2012] FMCAfam 247
•7 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEIRS & WEIRS | [2012] FMCAfam 247 |
| FAMILY LAW – Contempt application – breaches of orders pursuant to s.112AP of the Family Law Act 1975 – order to serve a term of imprisonment. |
| Family Law Act 1975, ss.112AP, 90MT, 108 Federal Magistrates Court Rules 2001 Family Law Rules 2004 New South Wales Sentencing Act 1989 Crimes Act 1900 |
| LGM & CAM (2008) FamCAFC1 A Bank & Coleiro [2011] FamCAFC 157 English & English (1986) FLC 91-729 Abduramanoski & Abduramanoski (2005) FLC 93-215 Rand & Rand [2010] FamCAFC 167 Milford & Milford (No.2) [2008] FMCAfam 1239 DAI & DAA [2005] FamCA 88 Schwarzkopff & Schwarzkopff (1992) FLC 92 – 303 Rutherford & Marshal of the Family Court of Australia (1999) FLC 92-866 Tate & Tate (No.3) (2003) FLC 93-138 Australasian Meat Industry Employees Union & Mudginberri Station Pty Ltd (1986) 161 CLR 98 N & N (unreported, Coleman J, 7 May 1993) |
| Applicant: | MS WEIRS |
| Respondent: | MR WEIRS |
| File Number: | PAC 6763 of 2007 |
| Judgment of: | Harman FM |
| Hearing date: | 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 7 March 2012 |
ORDERS
The respondent is hereby found to have been in contempt of orders made by Henderson FM on each of the 18 August 2009 and 8 October 2009, and specifically through having dealt with and applied, contrary to such orders, funds of a self-managed superannuation fund on each of 8 September 2009, 22 September 2009, 28 September 2009, 8 October 2009, and 19 October 2009.
The respondent is sentenced to a term of imprisonment for a period of nine months to commence from 23 March 2012 and to conclude 23 December 2012, and to give effect to this order a warrant of commitment forthwith issue in the usual form.
To give effect to order 2 hereof that:
(a)The Registrar is requested to provide a copy of this order and the commitment warrant to the Patrol Commander, Parramatta Police, and to the relevant officer of the Department of Corrective Services, and;
(b)Mr Weirs is to present himself to Parramatta Police Station for the purpose of being processed and commencing sentence no later than 2 pm of 23 March 2012.
All outstanding applications and responses are dismissed and all issues are removed from the list of cases awaiting hearing.
These reasons are to be published.
IT IS NOTED that publication of this judgment under the pseudonym Weirs & Weirs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6763 of 2007
| MS WEIRS |
Applicant
And
| MR WEIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings are commenced by way of contempt application pursuant to s.112AP of the Family Law Act 1975.
The application was filed by the applicant wife in the proceedings, Ms Weirs, on 9 June 2010.
The respondent to the proceedings, Mr Weirs, was served with that application and an affidavit in support of it some short time after it was filed and specifically on 27 June 2010. Service was affected by special service as defined in Federal Magistrates Court Rules 2001 and an affidavit of service was filed on 9 July 2010. In any event, no issue has been taken with respect to service of the application or subsequent affidavits which have been relied upon in the proceedings and service is conceded.
The matter is tinged with some particular sadness and tragedy in that these parties had been married and in a relationship together for something in the order of 24 years and at this point would appear, financially, to have lost everything.
The applicant wife, Ms Weirs, is 51 years of age, and the respondent, Mr Weirs, is 56 years of age. There are three children of their marriage, who are now all adults but the last of whom has only recently reached his majority.
The parties have, during their marriage, not only raised their three children but have also, at different times during the relationship and certainly at the date of separation, accumulated not insubstantial assets, which had included a small farm property and commercial premises in [Suburb B], as well as superannuation entitlements which are perhaps the most the germane asset or resource for the purpose of these proceedings.
Material Considered
In the case of the applicant, I have read and considered:
a)the application to which I have referred;
b)the wife’s affidavit filed on the same date;
c)the affidavit of service previously identified;
d)an affidavit of the wife filed on 2 October 2009; and,
e)a further affidavit filed by the wife on 26 October 2011.
A subsequent affidavit sworn 4 March 2011 was filed in Court today but is not being relied upon in these proceedings as nothing raised in that affidavit is the subject of controversy.
In the respondent’s case I have read and had regard to:
a)an affidavit filed by him on 23 September 2010;
b)an affidavit of a Dr B filed on 11 November 2010;
c)the husband’s financial statement filed on 23 September 2010; and,
d)a further affidavit of the husband which was filed in Court today pursuant to leave that affidavit having been sworn on 15 December 2010.
I have also received into evidence a number of exhibits, comprising:
a)exhibit H1, a report prepared by a psychologist with whom the husband had consulted, it would appear, on three occasions, being 2 April, 8 April and 21 April 2009;
b)exhibit H2, being a letter forwarded by the husband, it would appear, to his solicitors and through them to the solicitors for the wife on or about 15 February 2011, and which related to a superannuation fund, which is again the central issue to these proceedings.
c)In the wife’s case, I have received one exhibit W1, being a spreadsheet setting out scheduled payments that were to have been received by her pursuant to orders made by the Court, together with an itemisation of payments in fact received.
In addition to the affidavit material and exhibits, I have also had the benefit of written submissions provided by each of the parties and subject to issues that have been identified and spoken to by each with respect to the submissions of the other.
Mr Weirs has also given oral evidence and been cross-examined, albeit very briefly, with respect to that evidence.
History of the Proceedings
This application, being an application for contempt, has been before the Court for a significant period of time. Indeed, the parties have been engaged in litigation somewhat continuously since the filing of an application initiating proceedings on 11 December 2007.
Prior to the filing of the contempt application the substantive proceedings had proceeded from the date of filing of the initial application in December 2007 until the making of final orders by the Court on an undefended basis on 8 October 2009.
In relation to the prior proceedings, there are a number of Court events which are of some significance.
The proceedings had been commenced initially in the Family Court. The matter had been the subject of, it would appear, a significant number of procedural mentions and directions before it was transferred to the Federal Magistrates Court.
It would appear that there was somewhat sporadic participation in the proceedings by Mr Weirs. Mr Weirs had indicated during his evidence today that he had not participated in the proceedings at all, and certainly it is fair to describe that he has not participated in the substantive proceedings in any fulsome fashion.
On 1 April 2008, a conciliation conference was scheduled, and it would appear from the bench sheet, wherein it was recorded by the Registrar who conducted the conference, that the matter did not resolve. It is less clear whether the conference was able to properly proceed to conclusion, as at the end of the conference a number of notations were made regarding dispute as to the present state of the asset pool and valuations. It was also clear that prior to an appearance on 19 February 2008 that Mr Weirs had not participated in the proceedings, although it would appear that only one Court event had occurred prior to that.
Following the conciliation conference to which I have referred, Mr Weirs attended the next mention by telephone on 30 May 2008 as did the wife’s solicitor. On that date, the proceedings were adjourned to enable progress to be undertaken as to the determination of the asset pool.
The matter was again mentioned by telephone on 11 August 2008, and on that date the proceedings were adjourned and expressed to be so adjourned “for the parties to continue resolve issues with the husband having his accounts properly organised”.
A further mention occurred on 29 September 2008 when, again, the attorneys for Ms Weirs and Mr Weirs both appeared by telephone. On that date an order was made for the husband to provide an irrevocable authority to the wife to permit her to contact his accountant and for the wife’s solicitors to prepare and forward same.
A further mention occurred, it would appear, on 3 November 2008, and on that date, again, the attorneys for Ms Weirs and Mr Weirs both appeared by telephone. It would appear that on that date the proceedings were adjourned. An order was made that the matter could be restored to the list if any difficulties arose.
More importantly on 3 November 2008, an undertaking by the husband was offered and accepted in the following terms:
“The husband undertakes not to deal with any asset in any superannuation fund pending the determination of the matter.”
It is not clear from the bench sheet generated for that event whether the undertaking was inter parties or to the Court. One can infer from the fact of its inclusion within a Court order that it was to the Court.
Following that event, it would appear that participation in the proceedings by Mr Weirs flagged.
At a subsequent mention on 23 February 2009, there was no appearance by Mr Weirs. Accordingly, the proceedings were adjourned to 20 April 2009 for undefended hearing and orders made with respect to notification to be provided to Mr Weirs.
On 20 April 2009, and for reasons that are not at all apparent - other than a notation that one purpose of the adjournment was to allow the wife to pursue a further superannuation interest of $60,000, which the husband had apparently asserted was is in a Macquarie Bank Investment Endowment Fund - the proceedings were adjourned to 12 June 2009 again for undefended hearing, there having been no appearance by or on behalf of Mr Weirs.
On 12 June 2009, there was again no appearance by or on behalf of Mr Weirs, and on that date the proceedings were, again, adjourned for undefended hearing. I note that this was the third occasion that such a direction was made.
On 14 August 2009, there was again no appearance by Mr Weirs. On that date, however, something of substance occurred in that an injunctive order was made, presumably on the application of the wife, in the following terms:
“The husband is hereby injuncted and restrained from accessing, transferring, withdrawing or in any way dealing with any superannuation in any superannuation funds, including but not limited to:
a) Macquarie Cash Management Trust
b) The Prime Retirement and Aged Care Property Trust
c) Orchard Fund Management
d) The self-managed fund of Mr Weirs as trustee for the Weirs superannuation fund in respect of the [omitted] Endowment Warrant Investment.”
It subsequently transpires from the material presently before the Court that the latter of the above referred funds was a self-managed fund which held its investments with the Macquarie Bank.
Otherwise, on 14 August 2009, the proceedings were again adjourned, this time to 8 October 2009, and again noting the listing was for undefended hearing.
On 8 October 2009, the matter proceeded to finality in the husband’s absence and on an undefended basis. On that day, an order was made pursuant to s.90MT of the Family Law Act 1975 which provided that the wife was to receive 100 per cent of the husband’s interests in the self-managed super fund, named and styled Mr Weirs as trustee for the Weirs super fund.
What is also important with respect to the history of the matter is to note aspects that did not involve Court events but were of some significance in relation to the chronology. That arises from material that is annexed to the parties’ material and in particular the affidavit material of Ms Weirs.
On 29 January 2009, a cheque was generated by the Macquarie Bank in the sum of $116,237.44. On 13 February 2009, that cheque was forwarded to Mr Weirs by covering letter from the Macquarie Bank. It is suggested by Mr Weirs that he had never received that letter and its attached cheque.
Subsequently and as a consequence, it would appear, of a subpoena that had been issued and correspondence which followed an inspection of the material produced in response to the subpoena, Mr Weirs contacted the attorneys for Ms Weirs to indicate that the figures that they presumed and believed with respect to the value of the investment with the Macquarie Bank, being about $23,000, were incorrect, and that there was the additional sum of about $100,000 that should be included.
On 27 July 2009, the Macquarie Bank corresponded to indicate that the cheque which had been drawn on 29 January 2009 and forwarded by letter 13 February 2009 were still unpresented. Material in that regard is annexed to Ms Weirs’ affidavit.
On 18 August 2009, and after the Court event at which the injunction was made, correspondence was forwarded to Mr Weirs by Ms Weirs’ attorneys. There is no dispute that the correspondence was received by Mr Weirs. The correspondence advised of the adjourn date, its purpose, (i.e., the matter being listed for undefended hearing), and advised of the injunction made by the Court that day and attached a copy of the Order containing the injunction.
Following the making of orders on an undefended basis on 8 October 2009, correspondence was also forwarded by the attorneys for Ms Weirs, such correspondence being dated 11 October 2009. The correspondence that was forwarded to Mr Weirs, attached a copy of the final orders made on 8 October 2009. Again there is no suggestion by Mr Weirs that he did not receive that letter. Approximately one week after that letter was forwarded, and even with allowance for the date of receipt of same being unclear, but through application of the Postal Acceptance Rule, certainly prior to 19 October 2009, it is suggested in correspondence from the Macquarie Bank annexed to Ms Weirs’ material, exhibit HA to her affidavit filed 9 June 2010, as follows:
“As requested, we confirm that Mr Weirs has withdrawn an amount of $116,237.44 from the Weirs super fund account in respect of the [omitted] Endowment Warrants Investment. This was paid by Macquarie Securities (Australia) Limited to Mr Weirs as trustee for the Weirs super fund account and was presented on 19 October 2009. We are unable to ascertain any details relating to where Mr Weirs has deposited the cheque.”
It would appear, although it is not specifically before the Court but is referred to inferentially if nothing else, that correspondence then occurred between the attorneys for Mrs Weirs and Mr Weirs regarding the cashing of that cheque. In any event on 9 June 2010, the application for contempt was filed. It was first returnable before the Court on 26 July 2010 on which date Ms Weirs appeared in person and Mr Weirs appeared by his legal representative. On that date, orders were made by Henderson FM listing the proceedings for final hearing on 15 December 2010, making orders for the provision and filing of affidavit material including, unusually and erroneously, a response, as well as the obtaining, commissioning, and service of the psychiatric report with respect to Mr Weirs that has been filed. Those orders would appear, by and large, to have been complied with.
Orders are also made on 26 July 2010 that Mr Weirs was to forthwith cause a sum of $17,000, being moneys deducted from the self-managed superannuation fund and it having been suggested by Mr Weirs all that remained, to be deposited to Ms Weirs' St George bank account. It is the evidence of Mr Weirs, by affidavit filed at that time, that this was the total of funds which remained in his hands, which represented an expenditure of something in the order of a little short of $100,000 of the funds in fact received by him.
Orders were also made restraining the husband from leaving the Commonwealth of Australia and placing the husband on the PACE alert system.
When the matter came before the Court on 15 December 2010, Ms Weirs appeared in person, and Mr Weirs appeared and was legally represented. On that date, the proceedings were adjourned to 22 June 2011, and orders made, it would appear by consent, same having been contained within a document, not signed by the parties but headed terms of settlement, which required that the husband pay to the wife in partial satisfaction of the superannuation entitlement dealt with by the orders of 8 October 2009 the sum of $325 per week. Orders were also made to secure payment of those funds by way of garnishee order against the husband’s then employer, [organisation omitted], [Suburb A], South Australia. The husband was also compelled by order to cause funds of $2,391.37 held in an account which the husband controlled, but which was styled in the name of his sister, to be paid to the wife. Further orders were made of a procedural nature regarding attending to various aspects of administration of the self-managed super fund.
On 22 June 2011, the proceedings returned before Henderson FM. On that date, Ms Weirs was represented, and Mr Weirs appeared by telephone. Her Honour made an order adjourning the proceedings to 10 October 2011, and again required that the husband provide a revokable authority so that Ms Weirs could obtain information from his accountants.
When the matter returned on 10 October 2011, the proceedings were listed for a one-day hearing, 24 November 2011, and directions made for both parties to file any updating affidavit material. It is unclear, exactly, what transpired when the matter came before the Court on 24 November 2011. However, I am satisfied, whilst it was raised by the parties at the outset of the hearing today, that a hearing did not occur and did not commence, and accordingly the matter was not part-heard. In any event, orders were made by her Honour which adjourned the proceedings for hearing to 7 March 2012, being today, and noted:
“The husband is aware of the charges he is facing as set out in the application filed 9 June 2010.”
Relevant Law
The Full Court has provided a useful and a succinct summary of the matters to be addressed with respect to and in the conduct of applications for contempt. The Full Court, and in particular the authoritative decision of Bryant CJ in A Bank & Coleiro [2011] FamCAFC 157, sets out that which is to occur, commencing at paragraph 19 thereof. It establishes that the following process should be followed.
“1. First, set out the charge which can be done orally or in writing, however, it is essential that the alleged contemptor understands the charge that is being laid.
2. Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned so it can be heard before another judicial officer.”
It may well be that, whilst it is not clear or apparent from any of the orders to which I have referred, that the matter was specifically and deliberately listed by her Honour before me rather than herself on that basis.
“3. To afford the alleged contemptor the opportunity to consider the charge and to adjourn for that purpose, if necessary.”
I note in that regard that the proceedings have been before the Court for approaching two years and I had inquired of both Ms Weirs, who has appeared today in person, and Mr Weirs through his attorney as to whether any adjournment was sought to enable further consideration or provision of advice or instruction. No such adjournment was sought. The matter has accordingly proceeded.
“4. To give the alleged contemptor the opportunity to state whether he or she pleads guilty or not guilty to the charge.
5. To determine whether the charge requires the alleged contemnor to be held in custody and to hear submissions on the issue.”
I have not determined that this is an appropriate step to take and it has not been taken.
“6. In the event the alleged contemptor pleads not guilty, to give him/her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.”
I will return to that issue shortly, but suffice to note at this point that a plea of guilty was entered with respect to the charge as formulated. The charge as formulated from that set out in the application for contempt, which is otherwise somewhat broad and would pose some degree of complexity, was in the following terms:
“that it is alleged that you did, without reasonable excuse and as a flagrant challenge to the authority of the Court, fail to comply with an undertaking given to the Court on 3 November 2008, orders made by the Court 14 August 2009 and substantive orders made by the Court 8 October 2009 by withdrawing funds from a superannuation account on each of 8 September 2009, 22 September 2009, 28 September 2009, 8 October 2009 and 19 October 2009.”
As indicated, a plea of guilty was entered with respect to that charge as formulated. Accordingly, no real issue has arisen regarding the opportunity to present evidence or make submissions regarding a defence or determination of the charge, as a concession has occurred.
I am satisfied that the plea can and should and has been accepted as the evidence that is before the Court and the relevant portions thereof which would establish a breach or contravention of the order, irrespective of any finding or determination as to flagrant challenge to the authority of the Court, are conceded.
“7. Having heard the defence to determine the charge beyond reasonable doubt and if established, convict the alleged contemptor.”
With respect to that element I am satisfied that even in the face of a plea of guilty the Court still has an obligation to satisfy itself beyond reasonable doubt that the contravention is made out. That would appear so notwithstanding the concessions made and the conceded facts which support the contention that the order has not been complied with.
As regards the issue of a flagrant challenge to the Court’s authority, I shall return and make a determination separate to any concession or plea of guilty entered by the respondent.
“8. To make an order for punishment if convicted, or discharge if not.
9. If sentencing, to have regard to relevant sentencing principles.
10. To give reasons for the decision to convict and sentence.”
A number of authorities have been referred to in the written submissions provided by each of the parties or on their behalf. Those authorities, to a large extent, go to the issue of sentence and would appear inferentially, if nothing else, to accept that a conviction is to occur.
It is to be noted in that regard, by reference to the Full Court’s decision in LGM & CAM (2008) FamCAFC1, that a Court can, and in most circumstances would, appropriately proceed to deal with the matter on the basis of two fact finding exercises or hearings, being a hearing as to whether a conviction is to be recorded and then a second, presumably subsequent, hearing with respect to sentence. That issue has been raised with both Ms Weirs and Counsel for Mr Weirs, and there has been no issue or objection to both of those hearings occurring today, whether consecutively or sequentially, particularly in light of the plea of guilty as it is offered today and would appear to have been offered on previous occasions.
I am also satisfied, with respect to due process being afforded to both parties, that the history of the matter and the fact that these proceedings with respect to the application for contempt have been before the Court on not less than six occasions and over a period well in excess of 18 months, that due process has more than amply been afforded in that opportunity has been given for the case against Mr Weirs to be made known and made clear. I am satisfied by reference to the above matters and chronology that:
a)ample opportunity has been given for the case against Mr Weirs to be made out clearly,
b)Without relying upon it as an accepted fact, her Honour has been noted in the orders of 24 November 2011 as being aware of the charges that he is facing.
c)Both parties have filed substantial affidavit material in the proceedings.
d)Mr Weirs has been afforded the opportunity to make submissions in writing and orally as well as the opportunity, with little or no cross-examination by Ms Weirs, (that being no criticism of her but simply a reflection of that which transpired), to give evidence with respect to the issue of sentence and the circumstances generally surrounding the separation of the parties and the circumstances relevant to and pertaining to the application for contempt.
I have indicated that the above is not taken as an accepted fact on the basis that I am of the view that my obligation, in accordance with the Full Court authority to which I have referred, A Bank & Coleiro, to satisfy myself that the husband is aware of and able to answer the charge, is a personal obligation and not one which can be founded upon a notation made by another judicial officer.
I am, accordingly, satisfied that due process has been afforded to both parties and most particularly to Mr Weirs.
Findings with Respect to Contravention
The primary and central issues which are not factually disputed, (and it is some credit and will be the subject of some benefit to Mr Weirs), relate to the chronology to which I have referred.
An undertaking was provided to the Court on 3 November 2008 that superannuation funds in any fund would not be dealt with by Mr Weirs. As indicated, whilst it is not apparent from the terms of that undertaking whether it is inter parties or an undertaking to the Court, I am satisfied that it can and must be, in the circumstances in which it arose and as it is recorded, an undertaking to the Court.
That, however, does not necessarily end the issue in my mind. That is so as:
a)the rules of the Federal Magistrates CourtRules 2001 and the Family Law Rules 2004 require that an undertaking of such nature be given in writing,
b)the same rules require that such an undertaking be the subject of clear and specific legal advice to the person giving the undertaking. It is not a criticism of the acceptance of the undertaking at the time that it was accepted by the Court, however, it may have been constituted, but clearly its acceptance was not in compliance with the Family Law Rules and the Federal Magistrates Court Rules.
Accordingly, if the only matter upon which it was sought to prosecute this application were an alleged breach of that undertaking, I would be loathed to find a contravention. Such reticence is further compounded by the evidence which Mr Weirs has put before the Court, which casts some doubt as to his mental functioning and mental state at the time that he gave the undertaking. However, an order was subsequently made on 18 August 2009 which clearly and specifically injuncted and restrained Mr Weirs from dealing with superannuation funds in any fund and particularly naming and nominating the fund from which the amount of $116,237.44 was ultimately withdrawn.
The evidence available regarding Mr Weirs’ mental state does not go so far, however, as to suggest a lack of cognizance or inability to understand his actions or the consequences of his actions and it is not suggested by Counsel for Mr Weirs that this is so.
There is no factual dispute in the proceedings that the order was made known to Mr Weirs well prior to his dealing with those funds and being notice by letter 18 August 2009, which by operation of the Postal Acceptance Rule, I can infer would have been received by him on or about 22 August 2009. Again, as was submitted by Counsel on Mr Weirs’ behalf, it is to his credit that he had, in fact, alerted the attorneys for Ms Weirs to the fact that the amount held in the fund, as then understood by them being some $23,000, was significantly less than that which was, in fact, available.
What is of some concern in relation to the evidence given by Mr Weirs in that regard, however, and whilst he was not specifically cross-examined by Ms Weirs or the Court with respect to it, is the assertion by Mr Weirs that he had never received the first cheque and that the funds had come into his possession at some later time in September or October of 2009 by a deposit of some fashion to a cash management fund or the superannuation fund’s bank account. That would appear contrary to the document to which I have referred, annexure ‘HA’ to the wife’s affidavit, which clearly suggests that the cheque was still at large at the time of that correspondence and had been unpresented certainly as late as 27 July 2009, but without any reference to the cheque being reissued or any other form of payment being requested or attended to. The Bank’s advice clearly and unequivocally states that the cheque was presented and met on or about 19 October 2009.
The above was a date:
a)well after notice was given of the injunction of 18 August 2009; and,
b)a week or so after clear written notice was given of the order made on 8 October 2009, which had the effect of rendering all such funds, whether held in cash or in the form of an unpresented cheque, the property of Ms Weirs.
In essence, at the date of the order of 8 October 2009, the assets of these parties, if they might be so described for present purposes, comprised a fund of $23,760.91 asserted to be held in the self-managed superannuation fund together with the cheque for $116,000.
As it transpires, it would appear that the orders made on 8 October 2009 did not reflect the reality of funds held in the self-managed fund. Indeed, the funds held in the self-managed fund would appear to have been largely represented by the unpresented cheque. That does not in my mind, however, render void or voidable the orders made by Henderson FM on 8 October 2009. The husband’s September withdrawals do not and cannot be suggested to in any way interfere with the orders that had been made in August 2009 and which restrained any dealings with any funds belonging to that particular self-managed fund.
As I have indicated, a plea of guilty was entered by the husband to the charge as formulated. However, that includes the contention of a flagrant challenge to the authority of the Court. That is not, in fairness to Mr Weirs, a matter for him to concede. However, it is and, again, it is to his credit and that of his legal advisers, not in issue that indeed
a)orders were in force which precluded dealing with the funds;
b)orders were in force which rendered the funds the property of the wife;
c)the husband was aware of those orders; and,
d)notwithstanding his awareness of and knowledge of those orders the husband disregarded them and dealt with the funds as his own and so as to expend all but $17,000 of them.
The husband’s dealing with the funds has had the effect that Ms Weirs has been deprived entirely of what would ordinarily be referred to as “the fruits of her litigation”. She has also incurred, although there is no evidence before the Court to quantify them, costs with respect of prosecuting the substantive proceedings and at least to the extent that appearances have occurred or written submissions have been prepared on behalf of Ms Weirs, costs with respect to this application.
As to whether a flagrant challenge to the authority of the Court is established, one must turn to the broader evidence in these proceedings.
The material filed by Mr Weirs includes an affidavit of Dr B sworn or affirmed on 8 November 2010 which annexes a report by way of consultant medico legal report of some 12 pages. It has not been suggested that Dr B would be or is available for cross-examination, and no request to cross-examine him has been made. However, that being the case, and it being clear and apparent from the terms of that document that it is a document prepared at the request of Mr Weirs or his attorneys in compliance with an order made by Henderson FM that such a report be commissioned and filed, is a report of a one off medico legal consultation and must be viewed in that context.
It is noteworthy that the history that is related in that report, by and large, and in places word for word, replicates the evidence given by Mr Weirs in his affidavit. It also makes reference, in fairness to its author of whom no criticism is made, to the evidence given by Ms Weirs and to his knowledge that these proceedings were on foot. The good doctor has indicated matters beyond those which Mr Weirs has indicated in his affidavit material. Particularly of importance in that regard is the correlation between that which is suggested as a justifying circumstance, being Mr Weirs’ care of a child of the marriage, [X], who was then 16 years of age and is now 18 or 19 years of age, versus the manner in which funds are expended.
An important element of that which is put by Mr Weirs is that he had the care of himself and this child [X], that he was not working and that he needed the funds to meet his living expenses. However, what is then set out on page 3 of the report is as follows:
“Mr Weirs dedicated himself to his son but gambling remained a major problem.”
“I struggled with it. The business in Adelaide was close to where I could gamble.”
“At one stage, Mr Weirs sought assistance for compulsive gambling via [organisation omitted] but he did not follow it up. I inquired about any other compulsions.”
“I have to be totally honest with you. I spend a lot of money on prostitutes as well.”
“Mr Weirs was using prostitutes on a weekly basis.”
“I just needed the comfort of a woman.”
There are a number of other financial transactions that have occurred between the parties, some of which are deposed to in the affidavit material of the parties as read, some of which have been referred to in submissions. I have not had regard to those circumstances other than to note in passing that it is common ground between the parties that:
a)at the time of their separation a farm of some 60 acres was held by the parties at [Suburb B] and that Ms Weirs remained living on that property;
b)the property was owned in the sole name of Mr Weirs but subject to a mortgage in both names;
c)the parties also had conducted a real estate agency business from commercial premises in [Suburb B] which they owned;
d)having moved to Adelaide, funds were borrowed by the husband secured against the farm of an amount not in evidence. This would appear to have occurred with the knowledge if not the consent of Ms Weirs and which had the effect that both the [Suburb B] farm, and its mortgage then passed into the sole name of Mr Weirs; and
e)without intending to apportion blame in any fashion to either party, both the farm and the commercial premises were ultimately sold by the mortgagee in possession and it would appear with no profit realised to be returned to these parties.
What follows in the report is, at page 4, is as follows:
“Mr Weirs received a Family Court application from his wife, which he did not respond to…[That is certainly true in the sense that a response would not appear to have ever been filed]. At this time, Mr Weirs was in the throes of a major depressive episode and had no consideration for the consequences of his action.”
One can only presume that this diagnosis is based upon the history that was provided, as clearly the author of the report was not a treating doctor at or during that period.
The report writer continues in the following paragraph:
“Mr Weirs received a cheque from Macquarie Bank for a total of $116,000, which he understood was his superannuation money and chose to bank. At the time, Mr Weirs had closed his [omitted] business and was unemployed. His priority was to support his son, [X], who was settled in [omitted] High School and did not want to move.”
It is concerning that the history provided by Mr Weirs, (and I wholeheartedly accept that which is expressed by Mr Weirs and accepted by the report writer that Mr Weirs was honest with the report writer) is that the history as provided is contrary to his evidence today.
The report clearly suggests a recognition and acceptance by Mr Weirs that he had received a cheque from the Macquarie Bank and that he chose to bank it and banked it shortly after being served with final orders and having retained it in his possession for some months.
It is quite clear that ultimately, whether through a cheque or any other form of deposit, the funds came in to Mr Weirs’ hands and were, but for $17,000 expended by him.
The report otherwise suggests that for some years prior to separation and continuing thereafter that Mr Weirs was prescribed and took antidepressant medication. It is clear that this occurred prior to separation both from Mr Weirs’ oral evidence today and the report of the history provided by Mr Weirs on page 5:
“I told my wife what the doctor said. She just walked away.”
The issue that the medico legal report goes to is whether I can safely be satisfied that the actions undertaken by Mr Weirs represent a flagrant challenge to the authority of the Court. To be so satisfied, I would need to be satisfied that:
a)Mr Weirs was not labouring under an incapacity which would render him incapable of understanding his actions. I am satisfied Mr Weirs was incapacitated nor is it suggested by his Counsel that he was); and/or
b)Mr Weirs was labouring under a mental illness or mental disorder as defined by appropriate state legislation so as to not be responsible for, insightful into, or cognisant of the consequences of his actions.
The authorities to which I have been referred and the submissions that have been put to me do not seek to go so far as to establish the above elements. They are, however, put as a mitigating circumstance to suggest some real difficulties plaguing the life of Mr Weirs at that time and particularly in light of the financial difficulties he was facing, and his having the full-time care of [X]. It is to be remembered, however, that at all relevant times with respect to the period to which the contempt relates, separate to and distinct from that which has followed since the alleged contempt, that Ms Weirs similarly was labouring under financial difficulties and had the care of a child of the marriage. She did not have the benefit or receipt of $116,000 to expend on gambling, prostitutes or any other activity.
The balance of authorities to which I have referred and to which I have been referred by the submissions of the parties go to the issue of sentence rather than culpability and finding of contempt as required by s.112AP(1) of the Act.
In relation to whether there has been a flagrant challenge to the Court’s authority, I am satisfied that Mr Weirs:
a)was conscious of, aware of and fully understood the existence of orders made in August and October of 2009
b)held an unpresented cheque at the time that each of the above orders was made that cheque being made payable to him and which representing funds the property of the superannuation fund and following the orders of 8 October 2009 effectively the property of Ms Weirs;
c)in full knowledge of those orders, cashed the cheque and received the benefit of the cash funds then released; and,
d)in full knowledge of the above orders expended those funds in a fashion that was inconsistent with the expressed terms and spirit of the orders to which I have referred and which also had the effect of depriving Ms Weirs of the benefit of those orders.
That chronology and those findings would, even absent Mr Weirs’ plea, clearly establish a contravention of the order. In any event, as I have indicated, the contravention is conceded.
As to whether it is a flagrant challenge to the authority of the Court, it is submitted on behalf of Mr Weirs that I would not be satisfied that this is so having regard to the totality of circumstances surrounding the proceedings and, in particular, the events that had occurred in early 2009 when Mr Weirs, it is to be remembered, advised Mr M, the then attorney for Ms Weirs, of the greater quantum of funds held by or due to the superannuation fund.
I am satisfied that as regards as a consideration of whether the actions of Mr Weirs represent a flagrant challenge to the authority of the Court that my focus must be upon the period prior to the filing by Ms Weirs of the application for contempt.
It is put with some force and appropriately so that I would have regard to the efforts that have been made by Mr Weirs to purge his contempt, if contempt is so found, since these proceedings have been on foot. It is to be remembered that orders have been made by Henderson FM which require:
a)the payment forthwith of $17,000, which has occurred;
b)the payment over of the funds held in the account maintained in the name of Mr Weirs’ sister, which has occurred;
c)the winding up and otherwise attending to the accounting of the self-managed superannuation fund. That has again, albeit with criticism as to delay, occurred; and
d)payment of instalment payments by Mr Weirs to Ms Weirs to seek to recoup the funds which were retained and expended by him. Those payments were to have been $325 per week.
On that basis and in accordance with exhibit ‘W1’, the spreadsheet prepared by Ms Weirs, payments totalling some $19,500 should have occurred to date. It is common ground between the parties that what has, in fact, been paid is the sum of $6300. That represents slightly less than one-third of the total amount to be paid.
Explanation is provided and cogently so of difficulty in meeting those payments as a consequence of Mr Weirs being out of work and having other expenses such as accommodation and the support of [X] to meet from such funds as he has received by way of Centrelink or otherwise. The difficulty, however, is that they are the events and attempts to purge or rectify the contempt which have occurred since the proceedings have been on foot.
The focus of s.112AP is for me to determine, as it were, on the date of the action which is alleged to constitute a contravention of the order, (i.e., 19 October 2009), whether such actions represented a flagrant challenge to the authority of the Court and whether, on a continuing basis thereafter, such action continued. I am so satisfied, and accordingly and in due course will record a conviction in that regard with respect to the charge as formulated and put to Mr Weirs and to which a plea of guilty was entered.
For me to find that the breach was other than flagrant in circumstances whereby I am satisfied that Mr Weirs was fully aware of the orders, fully aware of what was required of him, was mentally competent, (and the material before me, including the medico legal report, does not suggest nor do submissions urge me to accept that Mr Weirs was mentally ill or sufficiently mentally disordered at the time as to not be aware of or accountable for his actions) would fly in the face of commonsense.
Mr Weirs was aware of the order. He had been provided with it and the timing of his action in cashing a cheque which had been in existence for nearly 10 months prior thereto, and then, and only then, after being fully aware of both a restraining order and an order which rendered the funds the property of Ms Weirs to choose to engage in that course of conduct may be explicable by reference to that which is described in the medico legal report but is in no way excusable.
To have acted flagrantly by reference to any common English definition of that term would require that Mr Weirs has acted with a full knowledge of the order and with a disregard for the consequence. Indeed, in that regard, the disregard for the consequences flow through to the present. The funds have been spent, and there is little, if anything, that can be done to recoup them in any realistic fashion in any foreseeable timeframe.
The attempts that have been made by the parties and by Henderson FM to put orders into place that would allow the repatriation of funds, valiant as they are, have failed. That is not to suggest that this has been a wilful disregard of those orders, and in fact there is no application before the Court by any person alleging same nor any suggestion that it has been a wilful disregard, but the reality remains that such attempts have failed.
In relation to sentencing, I have had regard to the authorities to which I have been referred by each of the parties, as well as further authorities of the Full Court in single instance decisions as referred to therein. In written submissions put on the part of Ms Weirs, I have been referred to decisions of English & English (1986) FLC 91-729 and Abduramanoski & Abduramanoski (2005) FLC 93-215.
The decision of English provided some degree of assistance, albeit in a differently framed provision of the legislation, then being section 108, of the meaning of flagrant challenge to the authority of the Court. It referred to action that was intentionally disobedient and wilful. It was suggested that such an interpretation was also relevant to sentencing. It is suggested by those submissions that one would find that Mr Weirs’ actions are intentionally disobedient and wilful, and to the extent of the finding of flagrancy, I am so satisfied.
I am drawn by way of comparison or analogy to Abduramanoski. It is a case in which injunctive relief had been granted, and the injunction was breached with consequent financial loss. As an end result, a custodial sentence of 18 months was imposed. The subsequent appeal against that decision was dismissed, and the Full Court remarked that one of the relevant factors in dealing with the contempt pursuant to s. 112AP was that in imposing penalty some reference to relevant principles might be considered a useful framework, but ultimately the penalty should be structured having regard to the individual facts of the case. I propose to do so.
It was observed by the trial judge, whose decision was upheld by the Full Court, that the respondent in that case had conducted:
“A positive course of conduct designed to ensure the orders made by the Court would have no effect.”
It is unclear and I cannot so find that the husband had engaged in a course of conduct that was designed solely to ensure that the orders could have no effect. That is an inference that would be available but I need not so find. I am satisfied that whether the conduct was wilful or simply completely blind or disregarding of the consequence, that Mr Weirs must have known that the consequence would be that his actions would impoverish Ms Weirs and would completely obviate the operation of the order. That much is established to my satisfaction.
It is submitted on the part of Mr Weirs that I would have regard to decisions such as Rand & Rand [2010] FamCAFC 167 and which sets out a helpful and lengthy discussion of a determination of Rowlands J, as he then was, which had been challenged on appeal. The substantial issues that arose in that case related, again, to orders that were made with the intention of accounting for moneys which were otherwise suggested to have been expended. The difficulty and the distinction between that authority and the present circumstance is that the order which was complained of as the basis for a finding of contempt was somewhat uncleared, and the Full Court expressed their views that:
a)the order as framed could not possibly be the subject of a finding on the criminal standard of proof of beyond reasonable doubt, which is required with respect to such a finding of contempt; and,
b)the manner in which his Honour had expressed various orders both as to accounting and sentence were unclear and accordingly the appeal must be allowed.
I have also been referred in Mr Weirs’ case to a decision of Milford & Milford (No 2) [2008] FMCAfam 1239, in which a party had failed to comply with a number of orders, but no penalty was imposed in the circumstances of that case, and particularly as the husband had expressed contrition and remorse, had made substantial efforts to answer the charges brought against him, has appeared on each occasion, and had done everything within his power to remedy the alleged contempt. The amount the subject of the alleged contempt was small and modest and in the order of $5,000.
It is suggested in this case that Mr Weirs has done everything within his power (and having regard to circumstances arising from the financial difficulties that he has faced through unemployment and the like) to comply both with the substantive order and with the orders subsequently made by Henderson FM during the time that this application has been before the Court. However, that submission, whilst cogent and appropriate and put with some force, represents something of a two-edged sword, as clearly Mr Weirs is unable in his present circumstances to provide any real recompense with respect to that which has occurred and arisen from his own conscious actions.
It is also germane to note that a number of other authorities have commented upon attempts to purge contempt and the like, and I will turn to those now.
I have particularly had reference to the Full Court’s decision in LGM & CAM. In that appeal, a full bench of most eminently qualified jurists, comprising Bryant CJ and Finn and Warnick JJ, addressed a number of questions arising from the imposition of a custodial sentences by Cohen J in relation to a number of findings of contempt. In that case, property had been dealt and funds expended by the wife, notwithstanding injunctive relief restraining her from doing so. One issue substantially different to the circumstances of this case is that it was impossible to ascertain the extent to which the actual pool of property to be divided between the parties had been impacted, if impacted at all, by the failure of the wife to comply with the orders and restraints which were imposed upon her. A number of comments were made by his Honour regarding attempts by the wife to purge her contempt, and his lack of acceptance that such attempts as were described were genuine or abundant.
I am satisfied that the husband in this case has made some attempt to purge his contempt as conceded and so found by me. However, whether plagued through difficulties or otherwise (and I am inclined to accept the husband’s evidence that his financial circumstances have been more of an influence upon his ability to comply with the order for instalment payments made by Henderson FM than wilfulness) there has been a shortcoming in his capacity to meet the order that the Court has made. That shortcoming, on one view, has arisen, as is submitted, from the husband’s present financial circumstances. But that is to ignore the reality that the circumstance which gives rise to the need for the husband to repatriate funds arises from his own flagrant challenge to the Court’s authority and disregard of the order. Put bluntly, if he had complied with the order and done that which would have been the appropriate course on 19 October, of either having provided the cheque to Ms Weirs or her attorneys or having cashed the cheque then transferred the funds or drawn a cheque in favour of Ms Weirs or her attorneys, this application would not be extant.
It is on that basis, as I have previously referred, that I am not satisfied that I can or should place undue weight upon the difficulties outside of his own control that have caused difficulty for Mr Weirs in complying with the instalment orders made by Henderson FM. After all, they are not the orders as to which the application for contempt relates. They are the order which restrained Mr Weirs in August of 2009, some nearly three years ago, and the orders of October 2009, which rendered these funds the property of the wife. In full knowledge of those orders Mr Weirs chose to embark upon a course of spending those funds as though they were his own.
The Full Court in LGM & CAM had referred to Cohen J’s reasons commencing at paragraph 84 of his first instance decision. He had indicated as follows:
“A critical aspect of the wife’s case is that before 31 March 2005, [being the date of her alleged contempt], she already realised that her legal obligations override her concept of her moral obligations and unreservedly apologises for her acts of contempt. I do not regard this as having been established by the wife. Her evidence in the contempt hearing was in many instances patently untrue.”
I pause to add that I do not suggest that Mr Weirs’ evidence has, in significant aspects, other than that identified regarding his evidence in relation to the non-receipt of the cheque which was subsequently cashed by him, to be untrue. It continues:
“She gave the strong impression that she did not care whether she was telling the truth on oath or not.”
Again, I pause to add that I do not accept that this is a valid criticism of Mr Weirs other than as indicated.
His Honour continued on and, particularly in dealing with the issue of reparation, which in this case has come about largely through orders made by Henderson FM, rather than voluntary action, to state the following:
“It is important to stress that it is not reversal of the act of contempt which is at the heart of reparation. It is compensation for the harm done. The degree of harm which the wife has done to the husband by her actions in disregarding the injunction cannot at this stage be assessed.”
Again, I pause to note that in this case the loss can clearly be assessed. It is common ground between these parties that an amount of $98,237.44 remains outstanding, although it would appear from the spreadsheet, exhibit ‘W1’, that this amount needs to be further reduced by the receipt by Ms Weirs of the sum of $2,397.73 received from the account maintained in the name of Mr Weirs’ sister, Ms G. However, this is not an enforcement application and nothing turns upon that.
I am not seized by s.112AP with jurisdiction to make specific orders for enforcement, nor am I invited to do so. Indeed, enforcement of the order, as it still stands unchanged and unaltered, is not affected at all by this determination. That much is made clear by section 112AP sub-s(8), which provides:
“To avoid doubt, the serving by a person of a period of imprisonment as a result of contempt of the Court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.”
Similarly, this is a specific application which does not in any way vary or wipe the debt which will remain, irrespective of what I do.
His Honour was very clear, and I accept his Honour’s comments which were also accepted and endorsed by the Full Court, that reparation does not purge contempt. It simply is a means of seeking to address damage.
Similarly, his Honour was satisfied in that case that it was inappropriate to level any financial punishment against the wife as the contemptor. She had no assets which could be tied to satisfaction of that order. That is clearly the circumstance in this case, and by reference to the penalties that are available to the Court, being either fine or imprisonment, neither party has submitted that a fine would be appropriate. Clearly there are no funds to satisfy it, and it would defeat the purpose of the orders made by the Court on 8 October 2009 to direct any funds as might become available to consolidated revenue rather than into the wife’s hands.
I have also had regard to the Full Court’s decision in DAI & DAA [2005] FamCA 88. In that case, an equally competent and esteemed full bench of the Full Court comprising Kay, Holden and Boland JJ dealt with an appeal from a first instance determination and sentencing for contempt. The appeal had proceeded both as to the finding of contempt and sentence. In that case, it was observed, and I wholeheartedly accept and adopt with respect, that the provisions of the Crimes Act (Commonwealth) 1900 and the New South Wales Sentencing Act 1989 were not applicable.
The Full Court referred to the earlier decision of Schwarzkopff & Schwarzkopff (1992) FLC 92-303 and adopted broadly the matters set out therein, notwithstanding that it had dealt with an earlier formulation of the power of contempt. The Full Court also referred to Rutherford & Marshal of the Family Court of Australia (1999) FLC 92-866, in which, again, the Full Court affirmed the decision in Schwarzkopff, noting that contempt under the Act does not constitute an offence under any laws of the Commonwealth. It accepted that contempt must, and as is made clear by s. 112AP, be proved beyond a reasonable doubt, and I am so satisfied, both on the basis of accepting the plea of guilty and the evidence to which I have referred.
The Full Court then also extensively reviewed the earlier Full Court decision in Tate & Tate (No.3) (2003) FLC 93-138. The comments commencing at paragraph 57 of that decision are germane to this case, being:
“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.”
Indeed, that much is clear from sub-s (4) of s.112AP, which provides:
“Where a natural person [as opposed to a corporate entity] is in contempt, the Court may punish the contempt by committal to prison or fine or both.”
The wording and terminology is focused upon punishment, not rehabilitation, restoration, reparation or any other purpose, although, clearly, as the case law has developed, albeit with a relative scarcity of determinations under section 112AP, a purpose of seeking to coerce compliance with the original substantive order is apparent.
Their Honours also refer to Australasian Meat Industry Employees Union & Mudginberri Station Pty Ltd (1986) 161 CLR 98 a decision of the High Court, which indicated the purpose for civil contempt was 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.”
In this case, it is not possible for any order to be made using the contempt power or otherwise that will assist in furtherance of, preservation of, or compliance with the injunction which has been breached.
The Full Court in DAI & DAA continued in paragraph 65 as follows:
“In imposing punishment under section 112AP, the trial Judge clearly distinguished each of the breaches of the orders found proved.”
I pause at that regard to note that I have framed the charge put to Mr Weirs in this case as one charge with five separate dates when it is alleged he has failed to comply. I considered that this was the most convenient manner of presenting the charges in this case. If it had been presented as five separate charges on the same basis, I am satisfied a plea of guilty would have been entered with respect to each. I am also satisfied, as was referred to in the above Full Court decision that any penalty or punishment that is applied in this case should apply to the totality of the breaches, which, after all, represent a continuing context of one breach, rather than, as might be viewed, five separate instance of breach.
The Full Court continued:
“Her Honour found it would be artificial to look at the breaches in isolation but rather that they should be looked at in the context in which they occurred. That context was set out in the contempt judgment, namely that the Court orders were designed to track the money down, keep it in Australia and have it placed in a joint account of the parties in order that it may be dealt with according to law and that the husband’s actions were designed to put the proceeds of sale outside of the jurisdiction of the Court.”
Clearly, Mr Weirs did not move funds outside of the jurisdiction or at least it is not suggested so. However, the same end result has occurred being that funds that were intended to be the property of the wife have become, for all intents and purposes, the property of the husband and had been expended by him in disregard of the order.
The Full Court also stated, commencing at paragraph 68:
“Section 112AP does not refer to the imposition of a sentence, but punishment. It is clear that whilst a punishment imposed may be a term of imprisonment to be served in a State prison, that general legislation, whether State or Federal, relating to the sentencing of offenders can have no application. These matters, prima facie, indicate that general sentencing principles do not apply under section 112AP. This reasoning is consistent with the view taken by the Full Court under the former section 108, namely that the purpose of separate allegations or counts has its genesis in the tenets of natural justice so a party is, given the serious consequences of a breach if found, fully aware of the particulars of the allegation.”
I am so satisfied in this case that Mr Weirs is aware of the nature of all allegations raised against him. Their Honours quoted a number of other decisions, both of the Full Court and single instance decisions, but most helpfully referred to an unreported decision of Coleman J in N & N (unreported, Coleman J, 7 May 1993). Their Honours quote Coleman J, commencing at paragraph 92, as follows:
“In N & N Coleman J, in dealing with an application for contravention under section 112AD, imposed a custodial sentence of 9 months. The husband was found to be in breach of an order that he pay the wife a sum of money. The husband had, at the time of making consent orders, an entitlement of $82,000. His evidence was that he spent the majority of this sum paying for services provided by a massage parlour. The husband’s evidence was confirmed by an independent witness.
The trial Judge found the husband was a man of good character, that the matter bringing him before the Court was completely out of character, and that he had no prior criminal record. In fixing the sentence, Coleman J noted in mitigation that the husband had pleaded guilty to the charge which was indicative of contrition”
I note that whilst these proceedings have been on foot for some significant time, there has never been any sham held out by the husband that he has done other than fail to comply with the order and, accordingly, he will have the benefit of his plea at an early stage, albeit that the matter is dealt with at anything but an early stage:
Justice Coleman is otherwise quoted as follows:
“He further noted, but for those factors, he would have sentenced the husband to the maximum period permitted under the Act of 12 months.”
It is to be noted that under s.112AP as presently drafted that there is no maximum sentence. It is a matter for the Court’s discretion.
Coleman J was otherwise noted in paragraph 22 of his first instance judgment as making the following statement, which is sage and germane to these proceedings:
“The object of sentencing is twofold. Firstly, to endeavour if notwithstanding all the opportunities he has had to date he can attempt and do something to make good his breach to bring about compliance with the order. I accept that his imprisonment serves little useful purpose. The second aspect of his imprisonment is, of course, to leave him and others in no doubt that the orders of the Court will be obeyed and that those who choose not to will suffer the consequences.”
A number of UK cases affirming similar sentiments were also reviewed both by Coleman J and again by the Full Court in DAI & DAA.
I am urged to accept that the husband has, through no fault of his own, failed to comply with the Instalment Order, but has done everything within in power to do so. I am also urged to accept the husband’s evidence that he has some hope of obtaining well-remunerated employment, which would allow him more quickly to make reparation for the loss that he has occasioned through his flagrant actions. However, it is conceded that those are only opportunities, and they may never eventuate.
It is submitted with some force that if the husband is incarcerated, clearly, those opportunities will not arise. Whether they can or will arise upon discharge, if a period of imprisonment were imposed, is yet to be seen. However, what is clear is that in the period of time since October 2009 to the present, a period well in excess of two years, not a great deal has happened towards reparation. I have no great confidence that if I were to afford such an opportunity, either through a suspended sentence or otherwise, that this would do anything more than to have the matter return to the Court in similar circumstances to those that have transpired in the last 12 months, whereby Mr Weirs, whilst having a perfectly cogent and acceptable reason for not having been in a position to comply with a Reparation Order, has not complied. That in my mind does no great service to either party or the finality of proceedings which have been on foot now for five years.
It is still also open to Ms Weirs, should she so desire, to bring a further enforcement proceedings. That may well be something that is not particularly useful to her, unless she can point to a capital sum. It has been suggested by Ms Weirs that if a period of imprisonment is ordered, that this may well bring financially better-off relatives of Mr Weirs out of the woodwork to assist in paying moneys to her to secure his release. I do not accept that this is, can, or should be a consideration as to whether a custodial sentence is imposed. The laws of ransom and hostage, one would hope, had been left behind with the crusades, and I do not propose to put such a burden or to even assume such a burden upon the relatives of Mr Weirs.
It is otherwise submitted that Mr Weirs’ actions should be seen in the context that at the relevant time of his breach, he was “at a low point in his life and behaved very badly”. I accept that wholeheartedly as to both propositions. He was at a low point in his life, but so was Ms Weirs. She did not have the opportunity nor the control of assets that enabled her to simply, as it were, help herself to the cookies in the cookie jar let alone to do so whilst restrained from doing so and fully aware of such restraint.
What is even worse in that regard is that not only has Mr Weirs behaved badly morally, but he has behaved badly in complete and flagrant disregard of two Orders of this Court. There is very little, if anything (as is demonstrated by the period of time since these proceedings have been on foot and their first return date in July of 2010, and the series of orders that have been made) that will repatriate these funds or compensate Ms Weirs appropriately or fully to the extent that a sum of approaching $100,000 remains outstanding to Ms Weirs. There would seem nothing that can be done, at this time, that will achieve that purpose.
Accordingly, the first purpose of sentencing addressed by Coleman J and the Full Court, being an attempt to coerce compliance, I am not satisfied cannot occur through any of the mechanisms available to me. The powers I have are set out in s. 112AP(4), being, in essence, a fine which all agree would be counter-productive and a nonsense, or the imposition of a period of imprisonment, whether suspended, conditional or otherwise.
In those circumstances, I am left, regrettably, and in the most unfortunate circumstances of this case, to make orders which will meet the second purpose, and to provide that which is expressed by subparagraph (4), being to punish to contemptor. It is regrettable and unfortunate that there is no alternative available but a period of custodial sentence.
I am satisfied that the circumstances of this case bear some real relationship to that which was the subject of the appeal from Penny J in DAI & DAA. However, in that case, a period of 18 months imprisonment was ordered by her Honour. I am satisfied that there must be some discount to that to take into account:
a)The potential circumstances as alleged by Mr Weirs to have impacted upon his actions. It is suggested in the history reported to the psychiatrist by Mr Weirs that he found some great comfort, emotionally if not otherwise, through expending funds on gambling and prostitutes. However, the reality remains he expended the best part of $100,000 in those endeavours. It is somewhat disingenuous of him to have sought to suggest that the funds have primarily or substantially been used for his support or that of his son [X]. I do not accept that he intended it to be disingenuous, but the two cannot stand together. Some discount on the basis that clearly the emotional impact upon Mr Weirs and his prior good character should obviate against such a lengthy sentence.
b)I am satisfied that Mr Weirs has done what he can in the circumstances available to him to provide reparation, but, simply, it has not and will not occur.
c)Importantly and by reference to State jurisdictions, Mr Weirs is entitled to the benefit of his plea at an early stage, and it would appear quite clearly from that which is before me, and I accept the submissions of counsel for Mr Weirs, that he has, from the very first attendance, made no issue that he has failed to comply with the two relevant orders, if not indeed the undertaking, which I am satisfied I need not and should not take into account, for present purposes, having regard to the irregularities relating to its acceptance and offering.
Accordingly, I am satisfied that the sentence preferred to by Penny J should be discounted by 50 per cent and should in fact be consistent with the analogous circumstances and sentence imposed by Coleman J in N & N.
Accordingly and regrettably, there being no other alternate form of punishment that could serve any purpose, although the purpose which is served would appear to transpire purely as one of punishment, I make the following orders:
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 19 March 2012
4
5