KHAN v KHAN [1989] NSWCA 123

KHAN v KHAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 13 September 1989

[1989] NSWCA 123

CONTEMPT — appeal — father, a Pakistan national, absconds with natural child in breach of order of the Supreme Court granting custody to the mother with liberal access to father — child taken to Pakistan — proceedings commenced in courts of Pakistan claiming custody of child for father's family father returns to Australia — charged with contempt — trial judge (Bryson J) finds contempt proved — orders contemnor to be imprisoned for two years — appeal against severity and against alleged failure of Bryson J to fix a non-probation period in connection with the sentence — Held (dismissing appeal) (1) No error had been shown in the exercise by the trial judge of his sentencing discretion;

INTERNATIONAL LAW — Pakistan — abduction of child to in defiance of orders of the Supreme Court of New South Wales observations on the desirability of drawing to the notice of the courts of Pakistan the breach by the contemnor of the orders of the Supreme Court of New South Wales. PROBATION AND PAROLE ACT 1983, s5.

In the Marriage of RC Cummings and YML Cummings [1976] FLC 90-101, at 75,456 considered; In the Marriage of "M" [1978] FLC 90-495, at 77,564; In the Marriage of U and U [1979] FLC 90-648, at 78,414; and In the Marriage of G and G [1981] FLC 91-042, at 76,352 considered and distinguished;

(2) No error had been shown in the failure or refusal of the trial judge to fix a non-probation period.

Kirby P On 7 August 1987 the Supreme Court of New South Wales, with the consent of Mr Khan, the defendant, made orders for the custody of the child here in question. In September 1987 the defendant, Mr Khan, acted in defiance of those orders. On 18 May 1989 Bryson J, a judge of the Supreme Court, ordered that the defendant be imprisoned for two years for contempt of court, constituted by the breach of those orders.