YOUNG v JACKMAN; JUPP v YOUNG [1993] NSWCA 298

YOUNG v JACKMAN; JUPP v YOUNG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and Cripps JJA 13 and 14 April 1993, 2 June 1993

[1993] NSWCA 298

Contempt — taking child out of jurisdiction against a court order — assessment of the offence and penalty

Sentencing — contempt

The appellant took his son to the USA (and remained there six years) when a Supreme Court order granting "the respondent custody was operative and while an appeal against that order (which also challenged the appellant's right of access) was pending. The appellant was arrested upon his return to Australia in 1992.

The appellant justified his act upon the basis that (1) he was advised that upon filing the notice of appeal the order granting the respondent custody was stayed and (2) there was a real threat that the respondent would take the child to Lebanon and thus place the child in danger.

Held:

As to (1) (Per Cripps and Clarke JJA):

This incorrect advice played no part in the appellant's decision to remove the child from the jurisdiction of the court and even if it did it could only mean that a former order making the child a ward of the court was operative.

(Per Mahoney JA):

The appellant knew that if he did not appear at the appeal the strong probability was that the trial judge's order would be confirmed and would then be without doubt in operation.

As to (2) (Per Cripps and Clarke JJA):

The appellant's act was carried out for the dominant purpose of frustrating the judicial process and to ensure the respondent would not have custody and not because of a belief that the child was in danger. Even if there was a proposal to take the child to Lebanon the appellant's conduct was still contempt of court.

(Per Mahoney JA):

The appellant's conduct was in deliberate defiance of a court order and done for the purpose of defeating the order and not for the safety of the child. There was no acceptable justification for this act.