Wolkowicz and Wolkowicz (No. 3)

[2008] FamCA 667

FAMILY COURT OF AUSTRALIA

WOLKOWICZ & WOLKOWICZ (NO. 3) [2008] FamCA 667

FAMILY LAW – CONTEMPT OF COURT – Flagrant breach – Defiance to orders – Wife’s refusal to leave home and give vacant possession to enable sale – Imprisonment: last resort.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wolkowicz

RESPONDENT: Ms Wolkowicz

FILE NUMBER: MLC 2507 of 2008

DATE DELIVERED: 7 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 4 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR MARCHETTI

SOLICITOR FOR THE APPLICANT: MOORES LEGAL

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. Being satisfied that it is appropriate to hear and determine pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) AND UPON each of the three allegations being put to the wife orally, the requirement of Rule 21.02(1) be dispensed with.

2. The Court finds that each of the three allegations is proved and the respondent wife is guilty of each contravention of an order made under the Family Law Act and such conduct involves a flagrant challenge to the court.

3. The wife is sentenced to be imprisoned for a period of Twelve (12) months from this date.

IT IS ORDERED:

1. That upon the settlement of the sale of the property at P and upon any purchaser taking possession thereof, the wife may make an application to be released on the basis of a desire to purge the contempt so found.

IT IS REQUESTED

1. That the appropriate authorities in charge of the prison to which the wife is committed undertake an urgent psychiatric evaluation of her.

2. That all outstanding applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2507  of 2008

MR WOLKOWICZ

Applicant

And

MS WOLKOWICZ

Respondent

REASONS FOR JUDGMENT

1. On 4 July 2008, I sentenced the wife to a term of imprisonment for twelve months for contempt of court.

2. At the time I sentenced the wife I explained my reasons for so doing but indicated that I would give comprehensive reasons later.  These are those reasons.

3. Mr Wolkowicz and Ms Wolkowicz are the parties to proceedings that give rise to the orders that I made.  Notwithstanding the parties are divorced, I shall for convenience sake, refer to them as the husband and the wife.

4. The parties married in 1972 and separated 29 years later.  They have two adult children.

5. I do not need to nor is it appropriate to go back over the history of the marriage or more importantly, the financial circumstances.

6. The starting point for these reasons is an order made on 5 November 2007 by Brown J.

7. The first thing to be noted is that when her Honour made the final property orders, there was no appearance by or on behalf of the wife. 

8. Her Honour noted:

   The wife was served with the original application on 18 September 2006.  A case assessment conference was fixed for 17 October.  The wife attended that conference but filed no responding material.  At that time, the registrar ordered that the wife file a response and statement of her financial circumstances by 17 November and made orders for the valuation of property.  The registrar noted the wife's inability or refusal to negotiate and participate in the proceedings and directed that if she failed to file the material, the husband have leave to apply for orders on an undefended basis.  Also noted on those orders was advice from the husband's lawyers that he would be seeking costs if she failed to comply with the orders.

9. Brown J then referred to the conciliation conference at which the wife did attend.  Orders were made on that day requiring the wife to file documentation.

10. By the time that the conciliation conference was ended therefore, the wife’s position of refusing to participate was obvious.  Her attitude however became more clear when as her Honour said:

    On 9 July 2007, the valuer appointed by the husband pursuant to that order attended the former matrimonial home.  The wife refused entry.

11. A directions hearing was held on 2 April 2007.  The wife did not attend and the husband was granted leave to bring an application for an undefended hearing.

12. Notwithstanding those orders to which I have just referred, a further opportunity was given to the wife because orders were made on 23 August 2007 by Mushin J.  This time the wife appeared.  She was ordered to file and serve documents by 20 September.  She was again ordered to allow access to the home for valuation purposes.  Again, the wife refused access to the valuer. 

13. As part of the pre-trial process, a hearing was conducted on 3 October 2007.  The wife did not attend.  Again, an opportunity was given to the wife to file material by 26 October 2007.  Nothing happened.

14. I join, with great respect, in agreeing with the words of Brown J:

    It is hard to imagine a more blatant failure to engage with the litigation.  This is a court of private law.  It determines disputes between parties according to law;  in this case, according to the provisions of the Family Law Act 1975 which relate to the division of property after the breakdown of a marriage.

15. Brown J went on to say that a court could not compel a respondent to engage with litigation.  Whilst that is right, there comes a point in time where the Court makes orders and at that point, the non-responsive litigant can be compelled if not to participate, certainly to comply. 

16. On 5 November 2007 therefore, Brown J made orders that the property at P be sold.  Various procedural orders were also made.  Orders were then made in relation to a farming property at D in the State of New South Wales.

17. Brown J’s orders provided for the wife to have an opportunity to keep the D property but she had to take a certain course of action.  That action was clearly not undertaken.

18. Brown J then ordered that by 23 November 2007, the wife deliver the duplicate certificates of title to both the P property and the D properties and otherwise, to provide a statutory declaration setting out her knowledge of the whereabouts of those titles.

19. I was informed that the wife has not only not provided the D property titles but she has not provided the statutory declaration ordered by Brown J.  The same applies in respect of the P property but the problem has been overcome by the husband by taking steps under the Transfer of Land Act 1958 (Vic) to obtain a duplicate title.

20. Importantly for my purposes, Brown J made an order that on 7 January 2008, the wife deliver to the husband vacant possession of the P property and thereafter, the husband have the sole right to occupy the property.

21. On 19 March 2008, the husband filed an application in a case seeking that the wife comply with the orders of Brown J in particular, the delivery of the titles and importantly, vacant possession of the P property.  On 16 April 2008, the matter came on before Dessau J.  There was no appearance of the wife.  Her Honour made orders adjourning the application for the best part of a month and directed that the wife personally attend on the adjourned hearing date.  The order provided that if the wife did not attend, the husband have liberty to seek a warrant for the arrest of the wife for attendance. 

22. On the return date, 7 May 2008, the case came before Carter J.  The wife did not attend.  Consistent with the warning that had been made no doubt brought to the attention of the wife to her Honour’s satisfaction, Carter J ordered a warrant issue for the arrest of the wife. 

23. It took some time for the matter to come back before the Court upon the executed warrant.  On 3 June 2008, the wife appeared under arrest pursuant to the warrant issued on 7 May 2008.  I am told that there was some dialogue between the wife and Dessau J as a result of which, the wife was remanded into custody over night.

24. On 4 June 2008, the wife was brought back before Dessau J.  Orders were made by the Court that the wife vacate the property at P by no later than 5.00pm on 20 June 2008 and the wife thereafter was restrained from entering upon or attending or attempting to enter or attend the P property after that date.  The wife on the basis of that order was released from custody.

25. Her Honour noted on those orders that the Registrar-General of New South Wales was advised that the wife had failed to comply with the November 2007 orders and the Register-General was then requested to cancel three certificates of title and create new ones.  It seems from what I was told, that the request has fallen on deaf ears thus far.

26. Perhaps not surprisingly, 5.00pm on 20 June 2008 ticked by and the wife had not vacated.  The wife had also not provided any details about the relevant titles.  The wife clearly remained in occupation.

27. On 27 June 2008, the husband filed a further application in a case seeking “a writ of possession” which was to have the effect of providing possession to the husband and making the wife vacate.

28. The first problem with this application was that the wife was not going to be co-operative in respect of service.  A process server was engaged but he was unsuccessful in endeavouring to contact the wife.  He made an arrangement with the husband who attended and the documents were to my satisfaction, brought to the attention of the wife.

29. I heard the case on 2 July 2008.  The wife was called and there was no appearance.

30. I was not prepared to make the writ of possession order in the absence of the wife but was quite satisfied that she had notice that the application was going to be made.  The thought of a writ of possession seemed pointless having regard to the fact that each time the wife had been taken into custody, she simply returned and retook possession.  Accordingly, I ordered that the proceedings be adjourned to 4 July 2008 and that a warrant issue for the arrest of the wife to have her brought before the Court for the matter to be appropriately determined.

31. On 4 July 2008, the wife appeared before me in custody.

32. As I have indicated, the application formally before me was for a writ of possession.  However, it should also be noted that Dessau J on 4 June 2008 dismissed the husband’s application filed 19 March 2008 save that he had the liberty to reinstate that application if the wife did not comply with the orders.  That application sought that the orders be given affect to.

33. At the outset of the hearing on 4 July 2008, Mr Marchetti of counsel for the husband told me that in reality, whilst a writ of possession was normally the process one would take, I could have no confidence that the wife would simply reassert her position and take up possession again. He asked me therefore to deal with the wife pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”) on the basis that this was a flagrant contravention of the orders of the Court.

34. Initially I was troubled about the fact that an application of such a serious nature was not in writing.  However, I am quite satisfied that the process that I thereafter undertook enabled the wife to understand exactly what was happening and that she would not have benefited from having the matter adjourned particularly having regard to her attitude that she intended to resume possession of the house.

35. I explained to the wife that if what was asserted by the husband was true, she was in significant trouble.  I asked her whether she wished to seek some legal advice from a duty solicitor.  She told me that she had endeavoured to seek legal advice but that no-one would act for her.  She made a remark about the fact that that was the plight of the oppressed.  She told me that she had spoken to a lawyer but he was unable to assist her at that time.

36. Having regard to the history to which I have referred, it did not seem appropriate to me to suggest that the matter be further adjourned particularly having regard to the fact that the wife’s conduct all of the way through since the application was issued, indicated very clearly that she was not going to participate in the proceedings.  Furthermore, she was now indicating very clearly she was not going to comply with the orders.  The subsequent evidence indicated to me that the sort of legal advice that she was talking about would not have assisted her for reasons which I shall endeavour to explain.

37. I arranged for the wife to see the Victoria Legal Aid duty lawyer who very kindly attended and told me that she had received instructions from the wife.  She said that the wife understood that she could be gaoled.  She said she could not vacate the property because it would not be safe to do so.  She said she was prepared to suffer for the truth.

38. The Legal Aid solicitor then indicated that she could not assist further and I gave her permission to withdraw.

39. Mr Marchetti of counsel said that he wanted me to charge the wife with three breaches of orders.  They were:

    (a)That the wife had failed to vacate the P property by 5.00pm on 20 June 2008 as she was ordered to do so by Dessau J on 24 June 2008;

    (b)That the wife had failed to deliver up or failed to advise the whereabouts by statutory declaration of the duplicate certificates of title to the two New South Wales properties at D; and

    (c)That the wife continued to reside at or attend at the P property after 5.00pm on 20 June 2008.

40. I began the proceedings by advising the wife as a litigant in person of the course of action I intended to take.  I indicated to her that I wanted to be satisfied that she understood why she was present.  She told me that she understood that she was before the Court for failing to vacate, failing to provide the certificates of title and continuing to reside in the property after 20 June. 

41. I then put to the wife each of the three allegations.  I was satisfied that as each allegation was put to her by me, notwithstanding the allegation was not in writing, she understood exactly what the allegation was.  In respect of the first allegation of failing to vacate by 20 June, she admitted that that was true. 

42. As each of the second and third allegations were put, she said she intended to remain silent.

43. I then explained to her that as she was not prepared to admit those allegations, I would treat them as denied and that Mr Marchetti’s client would have to prove the particular allegations.

44. Mr Marchetti then called his client.  I explained to the wife that she would have an opportunity to cross-examine the husband about matters that were relevant to the issues before me.

45. The husband’s evidence was to rely on three affidavits filed 19 March 2008, 27 June 2008 and 2 July 2008 respectively.  He confirmed that they were all true and correct.  The last affidavit referred to the service attempts.

46. He said that he spoke to the wife on several occasions by telephone and personally on a few occasions but could not remember the exact sequence.  He said that on 29 June 2008, he arranged to meet with the process server to deliver the court documents to the wife.  He said that he rang the wife to say that the process server was there to give her the documents if she was willing to open the door and she said that she would not and simply hung up.  Importantly, the husband said that the number that he called and spoke to the wife upon, was the home number.  He said he could not enter the property notwithstanding he had a front door key because the fly door was locked.

47. The husband also said that he had not received the duplicate certificates of title for the New South Wales properties nor any statutory declaration from the wife. 

48. As for the third allegation, notwithstanding the denial of the allegation by the wife, the evidence of the wife herself indicates that she had been living in the home until she was arrested.

49. In relation to the duplicate certificates of title, the husband said that he had spoken to the wife some time ago after the orders in November were made and that she said that the titles were in a safe place and that different people would not let her touch them.  She did not elaborate.

50. The husband also said that the two adult children were apparently overseas. 

51. I then reminded the wife about her opportunity to cross-examine the husband and advised her to keep her questions relevant to the issues in dispute.

52. Most of the questions that the wife asked the husband related to old issues long before separation.  These included suggestions that the husband had promised to destroy her and threatened her with the police.  There was also a suggestion that the husband had promised to attend a meeting to discuss the outcome of the matter and the husband conceded that that was probably right.  However, I was left with a very clear impression that these were matters that preceded the November decision of Brown J.

53. The wife also put to the husband that he had conspired with others to kill her and to shoot a cow.  Notwithstanding I gave a warning to the husband that he did not have to answer the question, he simply responded that it was untrue.

54. There was a significant number of questions by the wife asserting that the husband was pursuing “squatter’s rights” whilst she was away in the “desert”.  By the desert, she was referring to the D property. 

55. None of these matters seemed to give rise to any issue about which I could say there was some relevance to the allegations of the breaches of the orders.

56. As a precaution however, I suggested to the wife that she might want to cross-examine about the assertion put by the Legal Aid lawyer that she could not leave the property because of fear for her own safety.  I reminded her that if she did not challenge the evidence of the husband about the matters to which I have just referred, I would be entitled to conclude that they were true.

57. The wife then asked the husband about whether or not the conversation that had occurred on the telephone on last Sunday was entirely accurate.  What she put to the husband was remarkably similar to what he had said in evidence.  Nothing turns on that point.

58. Virtually all of the cross-examination was directed to a criticism of the husband in relation to the personal relationship between he and the wife.  One assertion of some concern was that the husband had endeavoured to manipulate the children against her.  However, having regard to the fact that they are adults, and are overseas, it is not a matter that seems to me to have any significance in these proceedings.

59. I then advised the wife that she had the opportunity to give evidence about the matters so alleged.  Her evidence was remarkably frank.  She said she had respect for the court but she could not bury the truth because it was something that would have a great impact upon future generations.  She said it was not the house that she was concerned about, it was truth and honesty.  She then said that she was ready to leave the house but only if it was possible for her to tell her story.  I indicated that I was not prepared to bargain with her.

60. She said she was worried about the wellbeing of her son and daughter.  Not much can be said about that having regard to their respective ages.

61. In a rather sad plea, she said that she was a bankrupt mother and laughing stock on the basis that all of the things that she had strived for had ended her up in gaol.  She said it was the children’s legacy.

62. I brought the wife back to the question of the safety issue.  She then said that the husband was a psychopath.

63. Much of what the wife then said related to political comment or philosophical views none of which in my view would justify her defiance of the court order.  This is particularly so having regard to the fact that not only did she not participate in the proceedings but did not appeal against the orders of Brown J and had the opportunity before Dessau J to do something and has failed to do so.

64. She did indicate however that she wanted the matter delayed until she could testify but she had nowhere else to go.  She said her friends would be cautious to help because they would be under “harassment”.  She said she could go to a shelter but that is not the way in which she would want to live. 

1. None of these matters in any way go to the fact that the wife could justifiably say she has a fear of leaving the home.

2. The wife was cross-examined.  It was pointed out to her that she was asked by Justice Dessau whether she intended to comply and that she had told Dessau J that she would not.

3. She then said that she would leave if she had an opportunity to have a lawyer.  This was not an application for an adjournment by the wife but rather consistent with the statement that she earlier made about the desire to tell her story.  Even if it was possible to see how natural justice had been denied to her in respect of previous proceedings, she conceded that she had spoken to lawyers and none of them wanted to take her case.  She made reference to one barrister who she said was currently overseas.  None of those statements gave me any confidence that she was doing anything more than delaying the inevitable.

4. I asked the wife whether she had any other witnesses and she said she had lots of neighbours, people from the church and from New South Wales but none of them were available to give evidence for her.  Again, I do not see that any of those persons could have said any more than the wife said herself particularly having regard to the fact that I had given her ample opportunity to explain what she meant by her own safety concerns in leaving the home.

5. I asked the wife whether she had anything further to add and she indicated that she did not.

6. On the evidence therefore, I found each of the three allegations proved.

7. Section 112AP of the Act sets out that conduct which contravenes an order and which involves a flagrant challenge to the authority of the court amounts to a contempt. In this case, the wife had not only contravened the order but indicated clearly that she would not comply. The flagrant challenge to the authority of the court comes from the fact that the wife had had the opportunity to comply on two previous occasions and had been given extraordinary latitude and lenience by this Court. She had thumbed her nose at the Court. I am quite satisfied that even had I endeavoured to work out a way of implementing the court orders of Brown J, the wife would not have cooperated and would have done everything within her power to thwart the implantation of those orders. In my view, that is a flagrant challenge to the authority of the court to carry out its orders.

8. It is important to point out what the High Court said in Australasian Meat Industry Employees Union v Mudginberry Station Pty Ltd (1986) 161 CLR 98 at 107 (per Gibbs CJ, Mason, Wilson and Deane JJ) in the context of a civil contempt:

   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.

9. The Full Court of this Court in Tate and Tate (No 3) (2002) FLC 93-107 said:

   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 (sic) 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 for 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.

10. Having found the wife guilty of each of the three allegations, I then gave her a final opportunity to indicate whether she would purge her contempt by offering some explanation or proffer some suggestion as to how the orders could be implemented.  She had nothing to add.

11. I then heard Mr Marchetti on the issue of penalty.  I asked the wife whether she had anything to say in relation to penalty and she said that she did not. 

12. In this case, I regard the breaches of the orders by the wife to be most serious.  The orders of Brown J have been determined to be just and equitable and they ironically enough include the entitlements of the wife.  Having regard to the number of attempts that have been made to try and sensibly resolve the matter without resorting to punishment, the Court has to impose a very serious sanction for the purposes of achieving the very compliance with the orders of Brown J. 

13. Having regard to the fact that the property has to be sold and I have no confidence that the wife will not thwart the sale, it seems to me that the appropriate punishment is that a period of imprisonment of twelve months should be imposed to give the due process of the orders of Brown J to take effect.  The absence of the wife in custody should make that transition much smoother.  I was told that the provisions are sufficiently clear in the orders of Brown J to require little or no assistance from the wife.

14. To make it abundantly clear for the purposes of anyone reading these reasons, I am satisfied beyond reasonable doubt that the wife has breached the orders and more importantly, that there is no option other than imprisonment and that the wife’s actions be treated as a serious contravention.

15. I have however indicated that if the wife chose to purge her contempt after the house has been sold and settled before the twelve months has expired, I would be prepared to hear the wife’s application for discharge.  My attitude in relation to that at that time may very well be affected by her approach to the duplicate certificates of title issue.

16. The penalty provisions do not set out the way in which sentences are to be structured.  Whilst each breach of the orders is a contravention in itself, the aggregation of the behaviour is the contempt of the court.

17. It is my intention not to distinguish between breaches.  The sentence therefore is a single sentence.  If I am wrong about that then I would still sentence the wife to twelve months on each contravention and make all sentences concurrent.

18. I have also requested that the relevant prison authorities examine the wife because of her mental state.  There is nothing in her demeanour or what she said that would give rise to the suggestion that she was other than fully in control of her mental health.  In her cross-examination of the husband, the wife put to the husband that he was going around asserting that she was mentally ill.  The husband denied that.  The wife at times talked in strange ways that in some view could be seen as unintelligible.  They could also give rise to a suggestion that she has a persecution complex.  However, I am satisfied on what I saw and heard from the wife that she was not mentally ill. 

19. Finally, I say that in respect of the penalty that I have imposed, I found no contrition at all for the flagrant contempt of the court nor is there any suggestion by the wife that she has any alternative proposal that would give rise to the implementation of the orders of Brown J. 

20. Sending any person to prison is a very serious step.  It is a matter of last resort in the criminal law and it is even more so in a family law case.

21. It is tragic to see an elderly woman bereft of family and friends who stubbornly defies the law.  In this case, the wife’s doggedness does not seem to be associated with any sentimental attachment to the relevant property.  It does not seem to be an issue of paucity of money as there is property to share.  There is clearly a view held by the wife about the husband’s conduct towards her.  In the context of the defiance of court orders as flagrant as those here, the view about the husband’s conduct is irrelevant.

22. Society is entitled to demand that its courts ensure that orders made are effected.  That is my intention here.  However, I am mindful of the fact that the orders of Brown J might be implemented and effected quickly as society would also expect.  If that occurs, I would give consideration to the release of the wife on the basis that the sentence has served its purpose.  Punishment beyond that point becomes punishment for punishment’s sake rather than the enforcement of the Court’s orders.

23. Imprisonment as a sentence is intended to both provide general deterrence to the community and specific deterrence for the individual.  In this case, I intend both.  The message to society is that this Court will not tolerate breaches of its orders. Severe sanctions will follow. Individually, any sentence of imprisonment on the wife will have severe consequences.  Her age, language skills and absence of familiar friends will be very hard.  I have taken those into account in determining that this is the only course open to the Court.

24. Accordingly in the circumstances, I have made the orders.

I certify that the preceding Eighty Eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 July 2008