CASE SUMMARY – Kerrigan & Raiffe (No 2) [2013] FCCA 2240

What happens if you don’t obey a Court order? In the case of Kerrigan & Raiffe (No 2) [2013] FCCA 2240, Justice Cassidy considered the law regarding contempt of Court under section 112AP of the Family Law Act 1975 (Cth).

Introduction

In this case, a father of a then 10 year old child was charged with two counts of contempt of Court under the Family Law Act, both charges resulting from his failure to return the child to Australia from India.
In relation to these two charges, the father was sentenced to

  1. a term of imprisonment of one month; and
  2. a term of imprisonment to expire once the child was returned to Australia.

The Court considered the applicable law in detail, and discussed the need for ensuring compliance with Court orders by way of retribution, if required.

Facts

Although both the mother and the father in this case were present in Australia, the child was still in India. India is not a Hague Convention country. This means that the Court had no alternative way to enforce the child’s return to Australia, other than by punishing the father for his failure to comply with its orders.
Orders had been made on 16 August and 2 October 2013, requiring the father to return the child to Australia immediately, and then to return the child to Australia by 6am on 29 November 2013 (directly before a hearing regarding the child’s future arrangements).
The father failed to comply with both orders and was charged with two counts of contempt of Court.
In coming to its decision, the Court recognised that

  • the father had been given many opportunities to comply with orders which had been made;
  • the father was definitely aware of the orders;
  • he clearly understood the effect of the orders which he subsequently failed to obey; and
  • the mother had given an undertaking to pay all costs associated with the child’s return to Australia.

The mother gave the undertaking because the father was almost destitute due to large debts in Australia.
The Judge noted in his decision that the father would not be released from prison until the child returned to Australia and was produced to the Court.

The Law

The Family Law Act provides that contempt of Court will not arise where there has only been the contravention of an order. Contempt of Court “constitutes a contravention of an order… and involves a flagrant challenge to the authority of the Court”. In other words, contempt of Court involves cases where the Court’s orders are not obeyed and the Court’s authority is specifically challenged.
The Family Law Act gives the Family Court the power to punish a person for contempt of Court. The Court can impose a term of imprisonment, issue a fine, or both.
This power to deal with issues of contempt is extensive, and is exercised at the Court’s discretion (i.e. as it sees fit) having regard to the facts of the particular case, without any specific legislative or common law guidelines. There is also no limit imposed on the Court regarding the length of the sentence of imprisonment which it may impose.
As a result of this power being almost limitless, the Court has taken the view that its discretion to impose a penalty for contravention must be exercised very carefully.

The concept of retribution or punishment

The usual purpose of contempt of Court proceedings is to persuade a disobedient party to comply with whatever order(s) they have breached. However, it is recognised that sometimes punishment is required to ensure that the Court system is honoured. If Court orders were simply not complied with on a regular basis, Justice Cassidy said “…the whole system of dispute resolution in Australia runs the risk of falling down because parties rely on Court orders to resolve matters. Once orders are not complied with, the Court is left in a situation where, in serious contravention cases, it has no option but to punish.”.
The purpose of punishment is to protect the administration of justice by demonstrating that the Court’s orders will be enforced.

Conclusion

In the case of Kerrigan, the Court considered the objective seriousness of the father’s conduct (i.e. his failure to comply with the orders to return the child to Australia), the need for general deterrence of non-compliance, the need for specific deterrence in the case at hand, as well as any circumstances that would mitigate the need for punishment.
It was decided that the need to deter similar disobedience in future, and the fact that the father had failed to comply with the Court’s orders on two occasions (despite having been given many opportunities) warranted the serious punishment which was imposed on him.
Further, although the Court did consider only imposing a fine on the father, Justice Cassidy did not consider that it would achieve what ultimately had to occur – that is, having the child returned to Australia, so that the Court could ascertain the best interests of the child.

What this case means to you

Although not many contravention cases escalate to the point of contempt of Court and subsequent imprisonment, this case is a timely reminder that the Family Court takes the contravention of its orders very seriously.

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