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Property – Contempt – Systematic and continuing breaches of property orders warrant imprisonment for three years and ten months

In Campbell & Louis (Sentencing) [2021] FCWA 64 (15 April 2021) Moncrieff J considered the sentence to be imposed upon the respondent in a property case where he had been found to have committed 14 of 15 contraventions alleged by the applicant in earlier proceedings (Campbell and Louis (Contempt) [2021] FCWA 34) and where the Court found those contraventions constituted a flagrant challenge to the authority of the Court.

The proceedings between the parties commenced on 31 August 2009 following the end of their nine year de facto relationship which ended in January 2008 and produced two children. Final orders were made on 25 June 2018 and the respondent’s appeal from those orders was dismissed. During the proceedings, there were injunctive orders made restraining the respondent from dealing with superannuation and property interests and orders for the respondent to provide financial support for the applicant.

The Court said (from [11]):

“In Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259 , Palmer J identified criteria of potential relevance in making a determination as to the appropriate punishment for contempt of an order involving property or fiscal provisions. The criteria include:

i. the seriousness of the contempt proved;

ii. whether the contemnor was aware of the consequences to himself of what he proposed to do;

iii. the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;

iv. whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 166;

v. the reason or motive for the contempt;

vi. whether the contemnor has received, or sought to receive, a benefit or gain from the contempt;

vii. whether there has been any expression of genuine contrition by the         contemnor;

viii. the character and antecedents of the contemnor;

ix. what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court;

x. what punishment is required to express the Court’s denunciation of the contempt.

( … )

[15] The respondent has engaged in behaviour intended to conceal or obfuscate. His conduct has been systemic and repeated.

[16] The respondent’s regard for the orders of the Court has been limited only to his attempts at obfuscation by the use of descriptors for transactions that may on the face of the representation suggested that his actions were not undertaken in disobedience of the orders.

[17] In furtherance of his breaches he has engaged others. He has utilised the accounts of two of his now adult children. He has utilised the accounts of his sister and caused her embarrassment through her being unable to access funds …

[18] He has utilised for his own benefit funds from the superannuation fund.  He has utilised for his own benefit, what is, on his case, the property of his mother, by exercising, in breach of an injunction, a power of attorney held jointly with his sister and caused embarrassment to his mother in terms of the inability to access the provision of services required for her as she ages and has been at times consequentially dependent on the provision of necessities by others.

[19] His conduct has embarrassed a reputable firm of solicitors who he instructed to conduct an appeal from the orders of June 2018 and utilised funds found to have been taken in breach of relevant orders to fund the provision of those services.

[20] He has utilised his undoubted skill as an accountant and auditor and sought to enlist the aid of others, whether innocently or otherwise, with a seemingly complete disregard for the impact his actions may have upon them.

[21] He has shown no remorse and seeks to excuse his conduct … with the full knowledge that his conduct was in breach of the orders.

[22] … [T]he charges individually are not of significance but they form part of a collective pattern of behaviour, the focus of which can only have been to remove from the asset pool property, which is the subject of a claim by the applicant in the primary proceedings …”

The Court concluded (from [45]):

“The systematic and continuing breaches and the circumstances and manner in which they were undertaken and the involvement of others takes these breaches … towards the more extreme end of seriousness.

( … )

[54] These are serious prolonged and sustained breaches of orders and in those circumstances the sentence should reflect the seriousness with which the Court views such breaches. Whilst I agree that imprisonment should be viewed as a last resort, I hold the view that it is the only appropriate penalty in the circumstances …

[55] … I am satisfied that an immediate custodial sentence should be imposed …

[56] In other words a total served term of imprisonment of three years and 10 months, with such sentence to be calculated from 10 March 2021, being the date upon which I remanded the respondent into custody pending sentence.

[57] … [T]he key to an early release rests in the hands of the respondent who may apply to be released upon the purging of his contempt and upon demonstrating that he has complied with all previous orders made in these proceedings requiring the production of accounts or information, such that the valuation of the parties’ superannuation interests in the … Superannuation Fund and the pool of assets can be properly and adequately determined.  Further, that he disclose the location of funds withdrawn from all accounts or account for their expenditure in an objective and ascertainable way…”

The Court also ordered the respondent pay the applicant’s costs fixed at  $62,707.

 

Property – Grant of leave to proceed contained error as the Court failed to consider wife’s lack of explanation for the 7 year delay which followed the abandonment of her earlier application

Children – Interim orders sought by both parents would not improve the position of the child – Earlier consent interim order for equal time allowed to continue

Costs – Provision of a lawyer through the Family Violence and Cross-examination of Parties Scheme (and s 102NA of the Act) is not legal aid, such that the recipient is still exposed to the costs of an ICL

Children – Undefended proceedings due to mother’s withdrawal from case – Risks of the child continuing to live with mother warranted “radical” change to live with father despite the lack of recent paternal time

Property – Trust for sale sought by wife – Substantial risk that she would agree to any bid obtained at auction – Dismissal of wife’s application to restrain husband from making a vendor bid where it was permitted in auction contract

Child support – AAT decision overturned – Section 90UD financial agreement was not a binding child support agreement