Wolkowicz and Wolkowicz (No. 4)

[2008] FamCA 1128

FAMILY COURT OF AUSTRALIA

WOLKOWICZ & WOLKOWICZ (NO. 4) [2008] FamCA 1128

FAMILY LAW – PROPERTY – Imprisonment of wife - thwarting sale of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Wolkowicz

RESPONDENT: Ms Wolkowicz

FILE NUMBER: MLC 2507 of 2008

DATE DELIVERED: 18 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 18 December 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. That paragraph 3 of the orders made on 4 July 2008 are suspended until 4 July 2009 subject to the conditions set out in the following paragraphs.

2. That the wife not be released until she signs a bond in the terms attached to this order.

3. That the wife by executing the bond agree not to deliberately take any step to thwart the settlement of the sale of the real property at P nor to do any act or thing to thwart the husband’s sale of the D properties referred to in paragraph 4, 9 and 11 of the orders of Brown J of 5 November 2007.

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 12 months imprisonment for a flagrant contempt of court in that she breached orders that effectively were thwarting the sale and division of a house.

2. The orders to which I have referred were made under s 112AP of the Family Law Act 1975 (Cth) (“the Act”).

3. Section 112AP(7) of the Act sets out that where a person is committed to prison for a specific term, the Court may order the person’s discharge before the expiry of that term.

4. Section 112AB(6) says that the Court may make an order for punishment on terms and the suspension of punishment.

5. When read together, the Court has the power to imprison a person but then order the release of that person on conditions.  The word “discharge” is not referring to an order but to the requirement for the person to be held in custody.

6. In this case, the wife was sentenced to the term of imprisonment for reasons I set out at the time however the underlying philosophy was that there was no other way that the orders of the Court could otherwise be implemented. 

7. I have now been informed by counsel for the husband and not disputed by the wife that the intention of the original orders is about to be carried out in that the settlement of the sale of the main home will settle in a few weeks time.  Once that occurs, there would seem to be no reason to continue to retain the wife in custody subject to her complying with orders of the Court.

8. I became concerned that as the wife was not represented by lawyers, the Court had some responsibility to ensure that its philosophical intention to which I have referred was being carried out.  For that reason, I raised the question of the progress of the settlement and as a consequence of that, brought the wife into the court in custody.

9. The husband’s position was that the wife should not be released until after the settlement of the sale but he had no objections to her discharge at that time. He conceded that there was no useful purpose in punishing her further as the implementation of the orders had been effected. His argument however was that the wife had not purged her contempt because she had not been cooperative subsequent to the imprisonment in July in relation to the implementation of the orders of Brown J and also rejected an attempt by her children to sort the problem out which may have enabled her to be released from custody. It was conceded by Mr Marchetti on behalf of the husband however, that the contract of sale had been signed pursuant to the provisions of s 106A of the Act by the Registrar and that the wife had not been approached with a request to sign anything. It was also apparent from hearing the parties and not in evidence that the wife had rejected assistance offered to her. That however could not be seen as a refusal to purge her contempt or being further obstructive towards the implementation of the Court’s orders.

10. There can be no doubt in this case that the wife feels aggrieved not by the court orders but rather some conduct between she and the husband or activities that she says he has engaged in.  She made clear that she proposes to pursue justice against the husband as she sees it once released.  That in itself has nothing to do with the contempt other than for me to say that her actions may have been a misguided way of endeavouring to obtain justice as she saw it. 

11. The wife told me that she had been well treated by the prison authorities, that she had learned her lesson and that she wanted to be released.  She told me that I would not need to treat her as a risk of taking any action which would thwart the implementation of the Court’s orders notwithstanding there is still some weeks to go before the settlement takes place.  She said to me she was not interested in the money or material issues but that her freedom was something important.

12. When I inquired of the wife how she would accommodate herself bearing in mind that there is no money available for her immediately (notwithstanding that I was told she was offered financial support by the husband), she said that she would have friends within the Polish community including a priest who would provide assistance to her including accommodation.

13. My observations of the wife in July were that she was single minded and not interested in participating in a process to give effect to the implementation of the Court’s orders. I was concerned at that time sufficiently about her behaviour to recommend a psychiatric assessment by the prison authorities but was told by Mr Marchetti that the wife had refused to cooperate.  In appearing before me on 18 December 2008, it became apparent that the wife was much calmer, more articulate and able to focus on the issues of concern to me. 

14. I indicated to the wife that I would contemplate releasing her but was worried about the risk that she might return to the property or take steps to thwart the orders and she assured me that there was no prospect of that occurring because she would be conscious of the likelihood that she would be returned to prison. 

15. It is on this latter concept that I propose to agree to discharge the wife forthwith. I do so however on the basis that I propose to exercise the powers in s 112AP(6)(b) and suspend the punishment upon her refraining from being at or within the immediate vicinity of the property at P or in any way endeavouring to thwart the completion of the sale of that property. I propose to suspend the order for imprisonment upon the wife providing to the solicitors for the husband in written form, a confirmation by a person who can provide accommodation and financial support until the wife is able to obtain access to her entitlement from the proceeds of the sale of P property.

16. It is important that these orders have a time limit.  In July 2008, I sentenced the wife to a period of 12 months imprisonment.  I propose to suspend the balance of the sentence until 4 July 2009.  If the wife deliberately does any act or thing deliberately which has the effect of thwarting the sale, upon application by the husband and after hearing from the wife, I would have little hesitation in removing the suspension and requiring the wife to complete the unexpired term of her sentence.

17. The procedural side of this process is complicated by the fact that the wife is in prison and is unrepresented.  I do however require her to enter into a bond to be of good behaviour without a stipulated sum with the general condition to which I have referred.  I shall have the Court send that document to the prison and upon the officer responsible for the wife’s custody being satisfied that it is executed, the wife may be formally released.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  24 December 2008