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. The defendant has appealed to this Court against his Honour's order. The only ground in the notice of appeal is that "the sentence imposed by Mr Justice Bryson was too severe". The facts are within a short compass and they are not in dispute. I shall cite them from his Honor's judgment: "On 12 May 1989 in summary proceedings before me initiated by the plaintiff, the defendant Maqsood Hussain Khan was convicted of contempt of court. The plaintiff is the mother and the defendant is the father of Kamass Hussain Khan, known as Corey, their ex-nuptial son, who was born on 24 November 1985. On 16 July 1987 the plaintiff commenced these proceedings by summons, claiming an order for custody of the child and related relief and after several interlocutory orders the court (Master Gressier) made consent orders dealing with custody on 7 August 1987. On that occasion each party was represented by counsel and written minutes of consent orders, signed by each party, and in each case witnessed by the party's counsel, were put before the court. Master Gressier 2 UNREPORTED JUDGMENTS made orders by consent in accordance with pars 1, 3 and 5 of the minutes of consent order. The defendant was present when this was done. Order 1 granted the plaintiff custody of the child, order 2 provided for the defendant to have liberal access, including week-end access from 10 am Saturday to 10 am Sunday and other access as might be agreed, and order 3 provided 'that the defendant shall not take the child out of Australia'. As I found at an earlier stage, the defendant received the child for access on a day about the middle of September 1987 and he did not return the child to the plaintiff on the following day, nor has he ever done so. At some time soon afterwards he took the child with him to Pakistan, and the child has never been returned from there." His Honour subsequently said: "Thereafter the child has remained in Pakistan, living in the household of the defendant's father, a retired advocate, of 45A Mozang Road, Lahore. There are a number of other persons in this household, apparently, including a number of the defendant's relatives, including his father, his sister, a younger brother and other persons. The defendant himself has not undertaken the upbringing of the child. He has been absent from the household for long periods, including six months which he spent at sea during 1988 and he returned to Australia about March 1989 and has been here since then. He says he is now resident in Australia. Plainly he has not himself assumed full parental responsibilities for the daily care and upbringing of the child. He has had opportunities extending over many months to change his course and restore the child to the custody of the plaintiff, and he has done nothing to that end. Although he did not articulate this attitude clearly, it seems to me from some small references at various times in his evidence that his conduct has been affected by a wish to influence the plaintiff's decisions as to where and with whom she will live. As far as I could understand him, he would have me believe that he was quite ready for the plaintiff to play a full parental role in relation to the child if she would leave Australia with her daughter and all her possessions and go to live with him as his domestic companion in Pakistan. Further, it seems to be his position that he now proposes to live in Australia for an indefinite period or permanently, and that he would take a somewhat similar attitude if she would return to him in Australia. He did not articulate this clearly but it appears to me that it has been an element in his decisions that he sees withholding custody of the child from the plaintiff as one of the means available to him to influence her decisions about her personal life. His conduct is contumacious in a high degree." It is to be emphasised that there has been no contest of any of the judge's findings. It has been formally conceded before this court that the defendant is in contempt and that he still requires some form of imprisonment. The only issue is, as I have said, whether the order made is too severe. The principles to be applied in this case have not been in issue. They have recently been considered by the High Court of Australia in Australasian Meat Industry Employees' union v Mudginberri Station Pty Ltd 60 ALJR 608 and by this Court in Perkes v Landon (1988) 15 NSWLR 408. It is proper that certain matters be reiterated and recorded. First, the parties, the father and mother of the child, were not married either civilly or in accordance with any religious ceremony. Therefore under the Australian law the defendant, Mr Khan, has little or no formal claim upon the child or in respect of its custody. Secondly, the defendant has furnished no acceptable reason for what he has done. His claim is that he did what he did with the plaintiff's consent but the learned judge has rejected this. Third, he has offered nothing to suggest that he will return URJ KHAN v KHAN (Kirby P) 3 the child or otherwise comply with the court's order. He has done nothing to suggest that he will act properly in relation to the matter. Fourth, he is not caring for the child himself, nor has he taken any essential part in the child's upbringing. Fifth, as far as the evidence extends, what has been done has not been done in the interests of the child or for religious reasons or for any other reason to which reference may be made in expiation of what has been done. The only reason which on the evidence is to be accepted is, I think, that which the learned judge accepted, namely that he did what he did in order to bring pressure on the plaintiff. Finally, it is in my opinion difficult to see anything in this case - nothing has been urged for the defendant - which makes it other than a cold and calculated disregard of the court's orders. And, insofar as it may be relevant, upon the findings of the learned judge - which, as I have said, have not been contested - the defendant has, in defence of what he has done, given evidence which the judge has not been able to accept as true. The judgment of the learned judge is a discretionary judgment in the sense that it has involved the taking into account of the discretionary factors to be weighed in arriving at the sentence to be imposed. In my opinion, the court should not interfere with a sentence of this kind except in the circumstances to which reference has been made in the authorities. In the circumstances of this case, it should not interfere unless there has been some error of principle or otherwise the discretion has miscarried. Nothing has been referred to which, in my opinion, should satisfy this Court that the learned judge was in error in what he did. Reference has been made to the learned judge's failure or refusal to fix a minimum period in accordance with the ordinary parole provisions applying to prisoners in the ordinary criminal system. I am not to be taken to accept that those parole provisions do apply directly in this case. That is not a matter that the court is required to decide in this case. Insofar as it is required that the judge consider parole and give reasons for his refusal to fix such a period, I am in agreement with the reasons which his Honour has given. I would not myself have seen this as an appropriate case for the consideration of parole. If this Court were itself to exercise the discretion involved in fixing the sentence, I would not order any period of imprisonment less than that which has been ordered. The period is in my opinion no more than is appropriate. The defendant has the right to seek reduction of it at any time by application and by, for example, intimating that he has appropriate contrition and the intention to comply with the orders of the court. An application of this kind may be made at any time and the learned judge has quite properly indicated that he will keep the matter under review. I do not think that in the circumstances this Court should interfere with the judgment of the learned judge. It is, in my opinion, a proper judgment. Before parting with the matter, I think it proper to say three things. First, on the evidence accepted by the learned judge and to which I have referred, the child is now living with the defendant's father in Lahore. The father is, as the court has been informed, a retired advocate of the court in Pakistan. The court has been informed by means of an affidavit filed in this matter and read to the court today that there is presently pending in the Court of Lahore before the Chairman, Mr Ch Faiz Talid Khan, an application by the defendant's father to be appointed guardian of the child; at least that is the application which appears from the evidence before this Court. The court has not been informed of the basis on which such an application is to be made. It may be made pursuant to a statutory 4 UNREPORTED JUDGMENTS provision under the Pakistan law. If and insofar as it is made under a law providing for the exercise by the court of, as I shall describe it, the parens patriae power to deal with persons who are infants and whose parents are not available to care for them, then no doubt the Honourable the Chairman of the Court of Lahore will take into account the circumstances of the present case. As I have indicated, so far as the Australian law is concerned the child is a child born out of wedlock and the defendant has no right to custody of it, either under the civil or under the religious law as it is understood in this country. Presumably the father of the defendant will have no greater claim. If this be so and the court is exercising the parens patriae power or a similar power, the court will direct its attention, no doubt, to what is best for the child and it may consider that the appropriate order to be made is that the child be returned to his only legal parent, namely the mother. In saying this, I recognise that, when the matter is before the Court in Lahore, that court will deal with the matter according to that country's law and I do not intend by what I have said any interference with the proper administration of the Pakistan law. But I desire to make clear that according to the law of this country, where the child was born and presumably where it is domiciled, the defendant had no right and therefore his father had no right in any form to custody or guardianship of the child. The second matter to which I refer is the defendant's position in this country. The court has no formal evidence as to, as I shall describe it, his immigration status, but it has been said from the Bar table that his position as a migrant to this country may or will be under review. It is sufficient for this Court to record, and it should in my opinion record, that this is a matter involving a defiance of the Australian law of considerable seriousness. If a person sees fit to take such an attitude to the law in this country then it must be a matter requiring very serious consideration whether he should be allowed to remain in this country. However, this is a matter to which the authorities will no doubt apply their minds appropriately. The third matter to which I would refer is this: as I have said, the orders which were made in this case were made by the Supreme Court of New South Wales. The orders were made by consent. The learned judge has set forth advisedly that on each occasion the defendant was represented by counsel, the orders were made in writing, they were signed by each of the parties and the signatures were witnessed by counsel. Therefore there was a complete submission by the defendant to the orders of the court. It is proper to record that "he submitted to the judge all that was in dispute between" himself and the plaintiff. In these circumstances it might have been expected that the defendant would "find it not in his heart to demur concerning that which the judge decided and would submit with all submission" to it. It is to be hoped that conscious of the obligation of this submission, the defendant will see where his obligations lie and will comply with the orders of the court. But in any event, in my opinion, this appeal should be dismissed with costs. Samuels JA I agree, for the reasons given by Mahoney JA, that the appeal against the sentence imposed by Bryson J must be dismissed. Counsel for the appellant acknowledged at the outset of the hearing of the appeal (properly in my view) that the appellant had been correctly convicted by his Honour of the contempt charge. Indeed, it was further acknowledged that, as a result of that conviction, a custodial sentence would necessarily follow in the circumstances of this case. Put simply, the arguments for the appellant, within the URJ KHAN v KHAN (Samuels JA) 5 grounds of appeal, were first, that the sentence was too severe and secondly, that his Honour had erred in failing to set a non-probation period in respect of the sentence. So far as the first ground is concerned, it is important to note that the sentence appropriate in a contempt of the kind charged here is at large. It is not fixed by any statute. There is therefore no statutory maximum. The trial judge therefore had a very broad discretion to exercise. Indeed, there are few offences known to the law, if any, in which there is a wider discretion. In order to secure an order setting aside the sentence imposed, it is therefore necessary for the appellant to demonstrate that the trial judge had erred in the way in which he exercised his wide sentencing discretion. It is not for this Court to substitute the order which it would have imposed in the circumstances. It is important that it should confine its attention to the attack on the exercise of the sentencing discretion by Bryson J. I am not unmindful of the factors of highly charged emotion which may lie behind the appellant's contempt. However, the fact remains that it was a very serious contempt. As Mahoney JA has demonstrated, the contempt proved occurred in defiance of an order of the court. Indeed, it was in defiance of an order to which the appellant had agreed, the terms of which were the result of a document which he had personally signed. In support of the suggestion of excessive severity, the Court was taken to a number of authorities of the Family Court of Australia. In particular, it was taken to what the then Chief Judge of that Court, Evatt CJ, said were the principles to be applied in that Court in the decision of the Full Court of the Family Court in In the Marriage of R C Cummings and Y M L Cummings (1976) FLC 90-101, at 75,456 at 75,462. In that decision the Court, in a joint judgment of Evatt CJ, Pawley SJ and Fogarty J said this: "In deciding whether to impose imprisonment, fine or other penalty there are a number of factors which the Court needs to consider; (a) the need to consider the parties' future relationships and the role of counselling; (b) the need to ensure compliance with a particular order in future; (c) the need to protect a party from violence or interference; (d) the need to impose a punishment appropriate to the breach; (e) the need to uphold the authority of the Court to make effective orders." Now, assuming that such principles are applicable in this Court, a matter which does not now need finally to be determined, it is important to note factor (e) to which the Full Court drew attention: the need to uphold the authority of the Court to make effective orders. This Court was taken to a number of additional decisions of the Full Court of the Family Court in application of the principles in Cummings and the later principles which have been adumbrated by that Court. It was said that because the Family Court is a specialist court, dealing more frequently than this Court does with the flouting of orders relating to the custody of children and in respect of child abduction cases, that we should follow, or at least be influenced by, the decisions of the Full Court of the Family Court on this point. The decisions to which we were referred included In the Marriage of "M" (1978) FLC 90-495, In the Marriage of U and U (1979) FLC 90-648 and In the Marriage of G and G (1981) FLC 91-042. However, when these cases are analysed, it is clear that in none of them was the need to uphold the authority of the court to make effective orders as pressing and as relevant as it is in this case. In all the cases mentioned, the Family Court 6 UNREPORTED JUDGMENTS had before it a case where the child who had been abducted had been returned to the custody of that parent to whom the law had assigned custody. Accordingly, the suggestion that a lighter "tariff" has been fixed in the Family Court for cases such as the present does not bear close analysis. That Court, in the cases to which we were referred, was dealing with a situation quite different from the situation before us now. Even if it is relevant to look to the sentences which have been imposed in the Family Court, two things can be said: first, Watson SJ, in G and G above at 76,370 said this: "T am of the opinion that in cases of child abduction, unless there is an exceptional element presently unperceived, a penalty of more than two years' imprisonment cannot be justified. Such a punishment publicly declared would be understood by the public as a meaningful and condign deterrent to disobedience of this court's orders. As to the specific deterrence of a particular contemnor, the punishment in each case should be tailored to ensure as far as possible that the contempt shall not be repeated. The use of a long-term bond buttressed by substantial sureties enables release of the contemnor at an earlier date, a more extended protection of spouse and child, and opportunity for renewed parent-child relationship in the appropriate case. In stating this policy, I am not to be taken as dealing with a recidivist. A contemnor who, after punishment, again flouts the court must expect dire punishment. If generally the maximum imprisonment for contempt arising out of child abduction is two years' imprisonment, is this case the worst that can be envisaged? I think not." It will be observed that his Honour considered that two years' imprisonment could be justified in the most serious cases of child abduction. That was said in the context where the child had been returned to the parent in whom the law reposed custody. Accordingly, even if the principles which have been applied by the Family Court were applicable in this Court, they would apply in this case, it seems to me, to justify the decision of Bryson J. No case in the Family Court could be drawn to our attention in which the situation now before this Court had occurred. Specifically, no case could be cited where, at the time of sentence, the order of the court granting custody had not been vindicated and the contemnor remained in defiance of that order. So far I have assumed that the principles laid down in the Family Court may be considered in this Court for assistance in arriving at the decision in the appeal which is now before us. But there are important points of distinction which must be kept in mind. The most important of these is that, as is referred to in some of the judgments of the Full Court of the Family Court, that Court is under particular statutory obligations which do not apply in the Supreme Court. It operates in the milieu of the Family Law Act where there are provisions relating to counselling and reconciliation which do not apply to and are not available in the Supreme Court. Such considerations were, therefore, not relevant to the consideration by Bryson J of the contempt alleged before him. Accordingly, some care must be shown in picking up and applying in this Court principles which have been developed in the somewhat different legal environment of the Family Court. Furthermore, some of the remarks in the Full Court of the Family Court were offered before the decisions of the High Court of Australia clarified the position in relation to criminal contempt, as it did in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 60 ALJR 608. This Court has added, I think, to that clarification in its decision in Peek v The Egg URJ KHAN v KHAN (Mahoney JA) 7 Marketing Board (1987) 10 NSWLR 72 and in the decision of Perkes and Anor v Landon and Ors (1988) 15 NSWLR 408. That leaves only the criticism of Bryson J's sentence on the basis that his Honour did not, for the reasons which he gave, fix a non-probation period. Like Mahoney JA, I will assume for the purposes of argument that the Probation and Parole Act 1983, s5 applies to an order made in punishment of contempt of the court. I make that assumption without so deciding the matter, which has not been fully argued before us and is not without difficulty. It does not seem to me that any of the reasons that Bryson J gave for declining to fix such a period caused his Honour's discretion to miscarry. On the contrary, they all appear to be perfectly sensible and relevant considerations. The fixing of the non-probation period, even under the Act, be it applicable, is not a right. It is in the discretion of the judge. Bryson J has given reasons for his decision to refuse to do so in this case. But he has also made it plain that he intends to keep the case under review. The Court was informed that his Honour has listed the matter for consideration again before him in October. At that time it will be for his Honour to decide what, if anything, is required by the situation which then obtains. For these reasons I see no error in the sentence imposed by Bryson J. On the contrary, though it is not legally relevant, I consider that the sentence is the proper one for the contempt which was proved. I would specifically align myself with what Mahoney JA has said relevant to the desirability (without in any way interfering in the administration of justice in Pakistan) of drawing the considerations which have been before us to the notice of the appropriate court in that country. So far as I am aware, the court of Pakistan are still heirs to the tradition to which we are also heirs. This is a tradition of respect for the rule of law. By defiance of orders which were binding on him to which he had agreed, the appellant has brought about a departure from observance of the rule of law in his case. The orders now made by us cannot cure that wrong. Only, it seems, the courts of Pakistan can do so by ordering the return of the child to New South Wales and to the custody of the mother as previously lawfully decided. The appeal is dismissed. I will reserve the question of costs. Mahoney JA I agree with the other members of the Court and have nothing to add. KIRBY P: Do you ask for costs, Mr Enright? ENRIGHT: I see no point in asking for them because an order would be nugatory because both parties are on legal aid. KIRBY P: Are we empowered to make any special orders as to costs under the Supreme Court Rules? I am not sure whether the rule applies to legal aid cases and whether it can be made on a common fund basis? SAMUELS JA: That was the order Bryson J made. KIRBY P: You see no point in the Court's making any special order, Mr Enright? ENRIGHT: I really cannot. The order of the Court is appeal dismissed with costs. The contemnor, who has attended these proceedings, will necessarily be taken back into custody as a result of the dismissal of his appeal. Counsel for Appellant: Mr P Boulten Solicitors for Appellant: WJ Robinson, Legal Aid Commission Counsel for Respondent: Mr A Enright 8 UNREPORTED JUDGMENTS Solicitors for Respondent: Mark Brown and Associates, Liverpool