Burmester v Burmester
[2018] NZHC 2728
•19 October 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-000485
[2018] NZHC 2728
UNDER the Property (Relationships) Act 1976 BETWEEN
PETER BURMESTER
Appellant
AND
BEVERLEY JOY BURMESTER
First Respondent
ANNELIESE BURMESTER and SARAH BURMESTER
Second Respondents
Hearing: 19 October 2018 Counsel:
D A T Chambers QC for the first respondent Anneliese Burmester in person
N S Leader as counsel to assist the Court
Judgment:
19 October 2018
ORAL JUDGMENT OF KATZ J
(Contempt – Penalty)
Solicitors: Dyer Whitechurch, Auckland
Counsel:D Chambers QC, Bankside Chambers, Auckland N S Leader, Barrister, Whangarei
Copy to: Anneliese Burmester
BURMESTER v BURMESTER [2018] NZHC 2728 [19 October 2018]
Introduction
[1] On 7 September 2018, I found Anneliese Burmester in contempt of court1 (“Contempt Judgment”) for deliberately failing to comply with a court order (“the Partnership Order”) made in my judgment of 2 February 2018 (“Appeal Judgment”).2
[2] The purpose of today’s hearing is to determine an appropriate penalty. Ms Chambers QC, on behalf of the applicant, Mrs Beverley Burmester, seeks an order that Anneliese be committed to prison for a period of six weeks, subject to early termination if she complies with the Partnership Order.
Background
[3] The background is set out in both the Appeal Judgment and the Contempt Judgment. In summary, Mrs Burmester and her former husband, Peter Burmester, separated in 2011, following an almost 21-year marriage. Unfortunately, resolution of their relationship property issues proved to be both bitter and protracted, involving multiple (largely unsuccessful) appeals by Mr Burmester to this Court on interlocutory issues, as well as repeated adjournment applications. One of the couple’s two daughters (Sarah) aligned herself with her mother, while the other daughter (Anneliese) aligned herself with her father. Both daughters are now adults. Anneliese is aged 25.
[4] On 15 March 2017, Judge Burns delivered the Family Court’s substantive judgment in the relationship property proceedings. He decided in Mrs Burmester’s favour on most key issues.3 Mr Burmester appealed that decision to this Court. Mrs Burmester filed a cross-appeal. The cross-appeal sought orders broadly aimed at facilitating enforcement of the Family Court’s substantive orders, including, in particular, orders made in relation to the operation of a partnership between Mrs Burmester, Sarah and Anneliese, known as the ABS partnership.
1 Burmester v Burmester [2018] NZHC 2352 [Contempt judgment].
2 Burmester v Burmester [2018] NZHC 47, [2018] NZFLR 206 [Appeal judgment].
3 Burmester v Burmester [2017] NZFC 1817 [Family Court judgment].
[5] Anneliese and Sarah were parties to the proceedings in the Family Court, and were also joined as respondents to the appeal. They both elected, however, not to actively participate in the proceedings.
[6] The ABS Partnership is a German partnership established between Mrs Burmester, Sarah and Anneliese, when the family was living in Germany, for the purposes of managing the rental of a property in Germany. Mrs Burmester, Sarah and Anneliese each own one floor of the building. Mrs Burmester’s evidence in the Family Court was that Anneliese, at the apparent instigation of her father, had taken steps to prevent the business-like operation of the partnership. This had put the partners’ assets at risk. Mrs Burmester accordingly sought an order from the Family Court terminating the partnership, on the basis that it was completely dysfunctional.
[7] Judge Burns declined to dissolve the partnership, but instead made various orders in relation to its ongoing operation. He directed that the management of the partnership affairs be solely vested in and controlled by Mrs Burmester, subject to the requirement that she strictly adhere to various orders that were directed to the proper management of the partnership and the preservation of its assets.
[8] In her cross-appeal from the Family Court decision, Mrs Burmester sought more specific orders to the same general effect as those made by Judge Burns, on the basis that the orders made in the Family Court had been ineffective, given Anneliese’s intransigence and lack of co-operation (which Mrs Burmester believed was due to her being under the complete control of her father). In particular, operating the partnership bank account in Germany requires the signatures of all three partners. That bank account is used to pay partnership outgoings such as tax, rates and maintenance. Anneliese had refused to sign an authority to the bank that would allow Mrs Burmester to access the German bank account independently in order to pay the partnership outgoings. Nor would she co-operate in authorising the payment of the required outgoings.
[9] In the Appeal Judgment, I dismissed Mr Burmester’s appeal and allowed Mrs Burmester’s cross-appeal in part. I made the Partnership Order, which states that:4
I order that Anneliese Burmester and Sarah Burmester do all things necessary within 14 days of this judgment to appoint Mrs Burmester as the sole agent for the partnership, both in regard to the operation of the ABS Partnership bank account and in regard to dealing with all authorities in Germany.
[10] As stated in the Appeal Judgment, the purpose of the Partnership Order was to support and facilitate the enforcement of Judge Burns’ orders in relation to the affairs of the partnership.5 I noted that Anneliese was a party to the Family Court proceedings, and the High Court appeal, and was bound by Judge Burns’ order, as well as any further orders of this Court.6 I declined to make a pre-emptive order (as sought by Ms Chambers at the time) that Anneliese would be in contempt of court if she failed to comply with the Partnership Order. I noted, however, that “any failure by Anneliese to comply with the [Partnership Order and Judge Burns’ orders] will likely constitute contempt of court and could ultimately result in penalties (including fines or imprisonment) being imposed”.7
[11] Anneliese did not comply with the Partnership Order, despite repeated requests from Mrs Burmester’s solicitors to do so. Mrs Burmester subsequently applied, successfully, to have her held in contempt of court. At the contempt hearing I found that the necessary requirements for contempt of court based on breach of a court order had been established beyond reasonable doubt. In particular:
(a)the terms of the Partnership Order were clear and unambiguous;
(b)Anneliese had knowledge and proper notice of the terms of the order;
(c)Anneliese had acted in breach of the order; and
4 Appeal judgment, above n 2, at [143(b)].
5 At [128].
6 At [128].
7 At [129].
(d)Anneliese’s conduct was deliberate, in the sense that she deliberately and wilfully acted in a manner that breached the order.
[12] Anneliese elected not to attend the contempt hearing. She did, however, file documents opposing the application, in which she set out her arguments as to why she should not be held in contempt of court. Mr Burmester also filed documents in support of Anneliese’s position. In addition, I appointed Paul Dacre QC as counsel to assist the court, to provide advice and legal assistance to Anneliese, and to make any submissions that might be appropriate on her behalf. Unfortunately, Anneliese did not avail herself of the opportunity of speaking with Mr Dacre. Nevertheless, Mr Dacre provided helpful assistance to the Court at the contempt hearing.
[13] I found that none of the reasons advanced by Anneliese or her father as to why she had not complied with the Partnership Order provided a lawful excuse or justification for her behaviour. I noted that:8
If Anneliese fails to comply with the Partnership Order the partnership will continue in a state of limbo and its orderly winding up will be thwarted. Without Anneliese’s compliance, the partnership will continue to incur tax penalties and will be unable to attend properly to its liabilities.
[14] A subsequent hearing was scheduled to take place at 10.00 am on 12 October 2018 to consider the issue of penalty. I issued a warrant for the arrest of Anneliese, to lie in court until that date, in the hope that she would attend court voluntarily. She did not.
[15] When Anneliese did not appear on 12 October 2018, the penalty hearing was adjourned, and a warrant to arrest was issued, requiring that Anneliese be arrested and brought before me in the High Court at Whangārei at the first available opportunity. (I was scheduled to be sitting in Whangārei, where Anneliese resides with her father, on 15 and 16 October 2018). I appointed Mr Nick Leader, a Whangārei barrister, as further counsel to assist the court.
[16] Ultimately Anneliese handed herself in to court at 1.00 pm on 15 October 2018 and the arrest warrant was cancelled. Anneliese initially declined to speak to
8 Contempt judgment, above n 1, at [33].
Mr Leader, but subsequently spoke to him immediately prior to the penalty hearing (which had been scheduled to take place at 3.30 pm on 15 October 2018) for about 20 minutes.
[17] At the outset of the penalty hearing Mr Leader suggested that, rather than proceed to a final penalty hearing (at which Ms Chambers had indicated she would be seeking committal to prison for a period of six weeks), the final hearing be adjourned until later in the week and Anneliese be committed to prison on an interim basis until then. This would enable Anneliese to reflect further on her position and take further legal advice, if she wished, before a final decision on penalty was made. Mr Leader was hopeful that Anneliese may have changed her position by the end of the week. The proposed course was not opposed and I accordingly committed Anneliese to prison on an interim basis, until today. Her committal to prison was made on the basis that she could secure her own release at any time by agreeing to purge her contempt by signing the required documents.
[18] At the outset of today’s court hearing I asked Anneliese whether she was now willing to sign the required documents. She stated that she would not sign the documents.
What penalty should be imposed?
[19] Ms Chambers seeks an order that Anneliese be committed to prison for a period of six weeks, subject to early termination if she complies with the Partnership Order.
[20] Ms Chambers submitted that the breach of the Partnership Order has been deliberate and ongoing and has put Mrs Burmester to considerable expense. Mrs Burmester, she says, is merely seeking to have this Court’s order complied with so that she can wind up the partnership in an orderly fashion, obtain her relationship property entitlements and proceed with her life. Ms Chambers submitted that this is not a case of past disobedience, where a sentence of community service may be appropriate. There is a serious and continuing breach of a court order.
[21] Ms Chambers submitted that the continuing breach is not minor or technical in nature. In particular, in her written submissions she noted that:
(a)Mrs Burmester made a limited cross-appeal specifically on the issue of the operation of the partnership and sought amendments to the Family Court’s order to facilitate enforcement. The High Court allowed the cross-appeal, in part for this reason. The Partnership Order is a substantially significant court order.
(b)Mrs Burmester’s interest in the partnership is relationship property. Mrs Burmester needs Anneliese Burmester’s compliance in order for Mrs Burmester to obtain her relationship property entitlement. Mrs Burmester is entitled to her own assets.
(c)Anneliese Burmester’s disobedience prejudices not only Mrs Burmester but also Sarah Burmester, who is the third partner in the partnership.
(d)Anneliese Burmester has been given plenty of opportunities to comply with the Partnership Order. She is deliberately and knowingly breaching the Court’s orders.
[22] Ms Chambers submitted that the defiant nature of Anneliese Burmester’s disobedience, the continuing nature of the breach, the prejudice to Mrs Burmester, and the absence of other means by which Mrs Burmester can obtain the result intended by the Appeal Judgment, all support a term of imprisonment. Ms Chambers submitted that a term of six weeks’ imprisonment would be appropriate. She relied in particular on the decisions of Yang v Chen9 and Ferrier Hodgson v Siemer,10 which were both cases in which persons in contempt of court orders were committed to prison for terms of six weeks.
9 Yang v Chen [2012] NZHC 848, [2012] NZAR 541 at [31].
10 Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 13 July 2007.
[23] Anneliese was given the opportunity to speak this morning, but did not wish to do so. She stated that it was up to the Court to make the decision on penalty. In essence, she abided the decision of the Court.
[24] Mr Leader did, however, make submissions to assist the Court. He noted that a committal process for contempt of court proceeds on the same basis as a criminal sentencing. He referred to s 16 of the Sentencing Act 2002, which provides (amongst other things) that when considering the imposition of a sentence of imprisonment the court must have regard to the desirability of keeping offenders in the community. He also referred to s 8(g) of the Sentencing Act, which requires that the court must impose the least restrictive outcome that is appropriate in the circumstances.
[25] Mr Leader noted that all sentencing options are open, not only the option of committal to imprisonment. In respect of the various contempt of court (penalty) cases referred to by Ms Chambers, Mr Leader observed that many of them arose in a business or commercial context. In this case, he submitted, we have a young woman who is somewhat vulnerable, fragile and naïve. She has not experienced imprisonment before. She appears to be under the influence of her father and her behaviour must be seen in that context. Mr Leader referred me in particular to Qu v Zeng in which a sentence of community work was imposed in a respect of a number of breaches by Mr Zeng of a freezing order.11
Discussion
[26] The main purpose of punishment for contempt is upholding the rule of law. The court’s jurisdiction to punish for contempt in civil proceedings ensures compliance with court orders and serves the public interest in ensuring that the administration of justice is maintained.12
[27] Penalties for failure to comply with court orders, as Mr Leader noted, are assessed through the application of a methodology similar to sentencing a criminal offender. Deterrence is an importance consideration, as is the objective seriousness of
11 Qu v Zeng [2018] NZHC 1355.
12 Grant v Bhana [2016] NZHC 2755 at [3].
the relevant conduct, the personal culpability of the defendant, his or her means, and any personal aggravating or mitigating factors.13 The circumstances of the breach are critical in determining the nature of any penalty. The nature and gravity of any breach, the proportionality of the breach in relation to the prejudice to the applicant, the seriousness of any penalty and the demands on the court time are all relevant factors.14
[28] A penalty of imprisonment can be sought under r 17.85 of the High Court Rules. That rule provides that a person arrested and brought before the court may be committed to prison for a term that the court considers necessary, and which is allowed by law, unless they comply with the original court order.
[29] A range of terms of imprisonment have been imposed in previous contempt cases. I accept Ms Chambers’ submission that this case is not analogous to Mike Pero (New Zealand) Ltd v Krishna, which involved a contempt that was described by the Judge as a “technical and non-serious, indeed minor, breach of the Interim Orders”.15
[30] Ms Chambers further submitted that Qu v Zeng (in which a sentence of community work was imposed) is not analogous. She also referred to a written apology given by the defendant in that case. In this case, Anneliese’s contempt, Ms Chambers submitted, is blatant and ongoing. She is defiant and unremorseful.
[31] In Attorney-General v Pickering,16 Mr Pickering was sentenced to a term of imprisonment for one month for contempt of court. This was on the basis that he failed to obey injunctive orders to cease selling or using unlicensed animal remedies. Mr Pickering’s history of selling his remedies showed he had no respect for the law, and the Attorney General had no confidence he would observe it in the future. His conduct could not be remedied by allowing the writ of arrest to lie in court. A fine was considered, but it was held that because he was not in a position to pay, the fine would not have a coercive or punitive aspect.
13 Solicitor-General v Krieger [2014] NZHC 172 at [59]; Stuart v Lightning Cleaning Services Ltd
[2018] NZHC 862 at [25].
14 Mike Pero (New Zealand) Limited v Krishna [2018] NZHC 40.
15 At [58].
16 Attorney General v Pickering HC Hamilton CP24/98, 21 September 2001.
[32] In Isis Group Seminars Ltd v Hauwai,17 a writ of arrest was issued following a finding of contempt for breaching an interim injunction order restraining the defendant from advertising or promoting Stop Smoking seminars in the same form as the plaintiff’s. The defendant said he would abide by the injunction and pay a bond, but the Court considered that, because he had deliberately flouted the order, his deliberate contempt required a sharp penalty. He was sentenced to 21 days’ imprisonment.
[33] In Ferrier Hodgson v Siemer,18 Potter J described Mr Siemer’s conduct as being wilful, deliberate and calculated directly to challenge the Court’s authority. She said that “it is clear that Mr Siemer is intentionally acting in direct defiance of court orders, without reservation or compunction. His conduct is contumacious”.19 The breaches were progressive and of escalating gravity. Mr Siemer had given no indication his conduct would cease and he exhibited no remorse.20 Justice Potter imposed a term of imprisonment of six weeks, after stating that:21
In ensuring that judgments of the Court are obeyed the Court upholds the interests of justice and the interests of the public at large. Unless the Court insists and ensures due and proper observance of its orders, then indeed anarchy and chaos could be the outcome.
[34] Mr Siemer was later found to be in further breach of the same interim injunctions as those he had earlier been sentenced to six weeks’ imprisonment for.22 He was initially sentenced to six months’ imprisonment on the second occasion, but on appeal to the Supreme Court the sentence was reduced to three months’ imprisonment (which would come to an end if he ceased being in contempt and complied with the interim injunction).23 The Court held that anything less than three months would be an ineffective deterrent for someone who had previously been in prison for contempt.24
17 Isis Group Seminars Ltd v Hauwai HC Auckland CP1987/89, 6 March 1990.
18 Ferrier Hodgson v Siemer, above n 10.
19 At [36] of her earlier decision: Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007.
20 At [47].
21 Ferrier Hodgson v Siemer, above n 10, at [22].
22 Siemer v Solicitor-General HC Auckland CIV-2008-404-472, 8 July 2008.
23 Siemer v Solicitor-General [2010] NZSC 54, [2013] 3 NZLR 767.
24 At [70].
[35] In Yang v Chen, one of the cases relied on by Ms Chambers, Mr Chen was sentenced to six weeks’ imprisonment for multiple breaches of an interim freezing order. Mr Chen was in China, and appears to have had no intention of returning to New Zealand.
[36] That case, in my view, bears little similarity to this one. Mr Chen’s conduct was highly deceptive. Despite consenting to a freezing order and then later its variation, he deliberately acted contrary to its terms. Mr Chen had legal advice at all times. He understood the terms of the freezing orders and knew his disclosure obligations and had legal advice in relation to that. Despite this, he deliberately breached the orders. His actions were for his own personal benefit and there is no suggestion he acted under the control or influence of others, which is a material factor here. Mr Chen consented to court orders, in a commercial context, which he then went to great lengths to undermine. Mr Chen also had a history of failing to comply with court orders.25
[37] In my view, Anneliese’s contempt does not approach that in either Siemer or Yang. The six week term of imprisonment imposed in those cases would be excessive in this case. Anneliese’s contempt falls far short of Mr Siemer’s. Nor are her circumstances analagous to those of Mr Chen in Yang v Chen.
[38] There is no doubt that Anneliese’s breach of the Partnership Order is both deliberate and ongoing. I am concerned, however, that the practical reality may well be that Anneliese is being used as an instrument in the pursuit of her father’s agenda. As I have previously noted, the relationship property proceedings between Mr and Mrs Burmester were protracted and bitter. The history of those proceedings is set out in various decisions of the Family Court, and also, to some extent, in the Appeal Judgment. The behaviour of Mr Burmester, in particular, left much to be desired. At one stage, he was found in contempt of court by the Family Court for his repeated failure to comply with that Court’s orders. That finding was upheld by Moore J on appeal.26
25 Yang v Chen, above n 9, at [21].
26 PB v BJB [2014] NZHC 3165.
[39] Anneliese, I understand, lives with Mr Burmester. She has aligned herself closely with him and appears to largely speak with his voice and advance his interests. As I observed in the Contempt Judgment:27
It is of note that the grammar and vocabulary used in the documents filed by Anneliese closely mirrors the language used in documents filed by Mr Burmester in the substantive proceedings. Further, a number of the allegations made about Mrs Burmester mirror allegations that Mr Burmester has previously made in the relationship property proceedings. This strongly supports the inference that the relevant documents were actually drafted by Mr Burmester, not Anneliese. Anneliese has, however, sworn or signed the documents in her name. In addition, Mr Burmester has filed two memoranda in his own name in support of Anneliese’s opposition to the order sought.
[40] I also note that it is largely Mr Burmester, rather than Anneliese, who has communicated with the Court, either by email or by telephone, regarding the contempt proceedings.
[41] There was evidence in the substantive proceedings that Mr Burmester exhibited highly controlling behaviour within his marriage to Mrs Burmester. There is legitimate cause for concern, in my view, that Anneliese is now being subjected to similar behaviour. I have little doubt that she is at least to some extent acting under the direction and influence of her father. This may well explain Anneliese’s reluctance to speak in any detail to either of the counsel appointed by the Court to provide her with legal advice and assistance. Frankly, it is not in Mr Burmester’s interests for Anneliese to receive independent legal advice, which may well run counter to his own advice and his own agenda.
[42] Given this context, the case of Auckland City Council v Finau is particularly relevant.28 In that case, Mr Finau had displayed signs on his property in breach of Council bylaws, and refused to comply with a court order to remove them. The Council obtained an order that Mr Finau be committed to prison for contempt for a period of 21 days. The Council, however, subsequently sought to stay the committal order. The Council’s change of heart appears to have been a result of senior Council officials questioning the utility of committing Mr Finau to prison. Further, there appeared to be an element of “damage control,” in circumstances where Mr Finau and
27 Contempt judgment, above n 1, at [14].
28 Auckland City Council v Finau DC Auckland NP3350/01, 28 February 2003.
his supporters appeared to be using the prospect of his committal as an opportunity to cast Mr Finau as a martyr, rather than an individual who had displayed ongoing contempt for court orders.
[43] The Judge was initially unpersuaded by the Council’s reasons for seeking a stay, and would have been disinclined to grant the application given the continuing defiance of an extant court order. However, during the course of the stay hearing, it became clear that Mr Finau’s submissions were written by someone else. The Judge suspected that Mr Finau was “a pawn in a game being played out by others, using him for their own ends” and that this suspicion was “now translated into self-evident reality”. The Judge concluded, before ordering a permanent stay of the committal order, that:29
Mr Finau has been – and would so long as this proceeding remained on foot continue, I am sure, to be – used as the instrument of others in pursuit of their own agendas. In short, the persons truly responsible for his defiance of the Court’s order are not before the Court.
Just as it would have been wrong in principle, and pointless in fact, to have left Mr Mahoney languishing in the English gaol, so also would it be wrong in principle, and pointless in fact, to leave the committal order in this proceeding alive. For that would be to punish a mere pawn.
[44] This case is analagous in some respects, in that Anneliese appears to be under the influence of Mr Burmester to a significant degree. In my view, this is a materially mitigating factor. It is of deep concern that Mr Burmester, who is a retired German lawyer, appears to be encouraging and supporting his daughter to flout a New Zealand court order, in the full knowledge that such conduct could well result in her being committed to prison. The depth of Mr Burmester’s hostility towards his former wife appears to be such, however, that he is willing to see his daughter go to prison rather than comply with the Partnership Order.
[45] Nevertheless, having very carefully considered Mr Leader’s submission that a sentence of community service would be the appropriate outcome, I have not been persuaded that that is the case. Anneliese cannot be considered to be entirely without blame and simply a pawn in this matter. While she is clearly under the influence of
29 At [35]–[36].
her father to some degree, she is an adult woman, aged 25, who must take some responsibility for her own conduct. The Court has gone to considerable lengths to provide her with an opportunity to be heard and has appointed not one, but two, counsel to provide her with free legal advice and assistance. She has largely ignored or declined those opportunities. The Contempt Judgment engaged fully with all of the arguments put forward by Anneliese to date, and explained why they do not justify her ongoing failure to comply with the Partnership Order. Nevertheless, she continues to breach the order.
[46] When I committed Anneliese to prison earlier this week, on an interim basis, I was hopeful that once she was away from the direct day-to-day influence of her father, she would be able to consider her situation with a greater degree of independence and objectivity and decide to sign the required documents. Four nights in prison have not, however, resulted in a change of heart. Anneliese remains resolute in her commitment to not complying with the Partnership Order. Her continued and deliberate flouting of the order undermines the administration of justice.
[47] I have therefore concluded that a further short term of imprisonment is appropriate in the circumstances. In setting the length of the further term, however, I take into account, as a significantly mitigating factor, that Anneliese is, in my view, acting at least partly under the influence of her father. Sadly, he does not appear to have her best interests at heart and appears to be using her as an instrument in the pursuit of his own agenda.
Result
[48] In conclusion, I order that Anneliese Burmester be committed to prison for a further period of seven days. Anneliese is to be released from prison prior to the conclusion of that period if she purges her contempt by signing the required documents and providing them to Mrs Burmester’s solicitors. In the event that Anneliese does so, or advises in writing that she wishes to do so, she is to be brought back before the High Court forthwith. She will then be released if the Court is satisfied that her contempt has been purged. The length of time that Anneliese spends in custody is therefore entirely in her own hands.
[49] Mrs Burmester seeks costs of the contempt proceedings, on an indemnity basis. The claimed costs have not yet been quantified and I direct Mrs Burmester to file a further memorandum detailing the quantum of costs sought and providing any supporting materials, such as invoices, relied upon. That memorandum is to be filed by 4.00 pm on 2 November 2018. Any memorandum in response from Anneliese is to be filed by 4.00 pm on 16 November 2018. A decision on costs will then be made on the papers.
Katz J
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