Gorce v Miller [2003] TOSC 50; FA 43 2003 (28 November 2003)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

NO. FA.43/2003

IN THE MATTER OF: VINCENT BERNARD GORCE
Applicant

AND:

MANDY FRANCES MILLER
Respondent

BEFORE THE HON. MR JUSTICE FORD

Counsel: Mr Niu for the respondent and
Mr Fakahua for the applicant.

Date of Chambers Hearing: 28 November 2003.
Date of Ruling: 28 November 2003.

RULING

This Ruling is inevitably going to be brief. I was contacted by the Registrar at my home just before 8 p.m. last night and I agreed to hear the matter on an urgent basis at 8:30 a.m. this morning. Counsel are standing by for a decision. First, the respondent seeks a stay of execution of my judgment dated 18 November 2003. The application is declined on the grounds:

1. The respondent is presently in prison having been committed for contempt of court. A contemnor does not have a right to be heard -- see Halsbury, vol 9 para 106:

"The general rule is that the party in contempt, that is a party against whom an order for committal has been made, cannot be heard or take proceedings in the same cause until he had purged his contempt; nor while he is in contempt can he be heard to appeal from any order made in the cause; but this is subject to exceptions. Thus a party in contempt may apply to purge the contempt, he may appeal with a view to setting aside the order in which his contempt is founded, and in some cases he may be entitled to defend himself when some application is subsequently made against him.... Even in cases where the rule is prima facie applicable, the court appears to retain a discretion whether or not to hear the party in contempt..."

In the exercise of my discretion, I decline to hear the respondent's application for a stay.

2. Even if I am wrong on that point, the application is declined on the following additional grounds:

(a) The delay. The whole case has proceeded up until now with urgency. That is what the parties wanted and the court consented to that request. My judgment was issued on 18 November 2002. It was couched in mandatory terms. It required the respondent to leave the Kingdom with the child, Kayla, on the next direct flight to Sydney. That flight was expected to depart on 24 November. It did not actually depart until early morning on 25 November 2003. The respondent was not on the flight. She has had ample time since 18 November in which to appeal my judgment or seek a stay.

(b) The court was informed, in its wardship role, by Estelle Stauffer, First Secretary at the Australian High Commission, on the afternoon of 20 November, that the respondent had travelled from Vava'u earlier that day for an appointment with her Counsel Mr Tu'utafaiva, at 1 p.m.. She told Ms Stauffer that Mr Tu'utafaiva had apparently recommended against an appeal but she had seen Mr Niu and he was going to appeal and seek a stay of execution. That was eight days ago and no steps have been taken up until now despite the issuance of the Committal Order on 25 November. Mr Niu informed the court this morning that he did not receive instructions in the case until yesterday. While I accept that advice from counsel, it is clear from Ms Stauffer's earlier advice that the respondent had been fully aware of her rights a week ago. She should have instructed counsel at that point rather than leave matters until the very last minute.

(c) The applicant is apparently already in the Kingdom. He travelled over from Brisbane pursuant to my order of 25 November and is now in Vava'u expecting to depart with the child for Australia tomorrow. The applicant has acted at very short notice in good faith pursuant to an order of the court, no doubt at considerable personal inconvenience and expense. He should not be made to suffer any further because of the respondent's dilatoriness in making this application.

(d) As will be evident from my judgment, the child has already suffered untold mental trauma. Now her mother is in prison. I have no doubt that it is in Kayla's best interests for her to be returned to Australia, and to a stable environment, as quickly as possible. That situation will not be achieved by my granting a stay.

For those reasons, the application for a stay is declined.

The respondent also seeks a writ of habeas corpus on the basis that she was not heard prior to the making of the order on 25 November 2003 holding her in contempt of court and committing her to present for 14 days.

The whole history of this matter is set out in my judgment of 18 November. The respondent knew fully what contempt of court means. At a Chambers hearing in Vava'u on 21 October 2003 I had already found her in contempt of court in relation to her conduct on an earlier occasion. On the present occasion, the order she disobeyed is very specific. The steps she had to take to leave Tonga and return the child to Australia were all spelt out very clearly in my judgment of 18 November. Halsbury, vol 9 para 59, states:

"The power to order committal for civil contempt is a power to be exercised with great care. The court will only punish disobedience to an order of the court ... if satisfied that the terms of the order or undertaking are clear and unambiguous, that the defendant has proper notice of the terms and that a breach of the order or undertaking has been proved beyond reasonable doubt."

I am satisfied that the respondent knew precisely what was required of her in terms of the court order but she choose deliberately to disobey it, just as she had deliberately disobeyed the earlier court order.

Nevertheless, for reasons advanced by Mr Niu, and not least of all the fact that the child is now, hopefully, with her father in the process of being returned immediately to Australia, I have decided to allow the respondent's application on this ground and I order that she be released from custody at 10 a.m. this morning.

I make no order as the costs.

NUKU'ALOFA: 28 NOVEMBER 2003.

JUDGE