Pearce v The Queen

1. On the respondent entering into an undertaking in terms set out below, and on giving security by an undertaking to pay the sum of $1,000 in support of such bond, the final two months of imprisonment is suspended.

I, [Mr Polak], undertake that for a period of 18 months:

1. I shall be of good behaviour,

2. I shall comply with further orders made by this court;

I acknowledge that by this undertaking two months of my term of imprisonment imposed upon [mid]-2025 is suspended;

I acknowledge that failure to comply with this undertaking may result in a requirement that I serve the suspended term of two months imprisonment;

In the event that I fail to comply with the requirements of this bond I undertake to pay to the court the sum of $1,000.

1. That Mr Polak did duly enter into the above undertaking before the court in mid-2025.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Polak & Polak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 14 March 2025, ten contempt convictions were recorded against the respondent husband following his plea of guilty to each of the counts. This judgment deals with the consequent sentencing of the respondent.

1. On 10 January 2025 the applicant wife filed an Amended Contempt Application, alleging that the respondent had breached three separate orders of this Court:

(a) Order 1 of Justice Gill made on 2 December 2024 ("count 1");

(b) Order 2 of Judge Hughes made on 21 November 2024 on 29 November 2024 ("count 2"); and

(c) Order 3 of Senior Judicial Registrar Evans made on 26 September 2024 on 30 September 2024 ("count 3"), 30 September 2024 ("count 4"), 2 October 2024 ("count 5"), 7 October 2024 ("count 6"), 8-9 October 2024 ("count 7"), 10 October 2024 ("count 8"), 11 October 2024 ("count 9"), 19 October 2024 ("count 10"), and 21 October 2024 ("count 11").

1. The substantive property proceedings were brought about by an Initiating Application of the wife filed 11 September 2024. She sought interim orders on an urgent basis.
2. The matter was listed for an urgent Interim Hearing before Senior Judicial Registrar Evans on 26 September 2024. On 26 September 2024 a number of orders were made by consent and the hearing was adjourned to 19 November 2024. These included orders for financial disclosure and the provision of various details and documents by the respondent, as well as restraining the respondent from dealing with the parties' marital assets without the applicant's consent. It was in relation to these orders that counts 3 through 11 of the contempt charges arose, specifically relating to various withdrawals and payments from the parties' Westpac account ending ...44. Further to the consent orders, the Court ordered that the respondent's then solicitors be restrained from continuing to act in the proceedings.
3. On 19 November 2024, the Interim Hearing was again adjourned to 21 November 2024 allowing for service of documents upon various third parties. On 21 November 2024, the Interim Hearing occurred before Judge Hughes. Orders were made directed to the provision of financial information regarding property within the control of the respondent, including that the respondent provide an affidavit concerning a range of communications, deeds of agreements, details of his businesses, details regarding equipment and a range of purchases that had been made, details of transactions and bank statements, as well as restraints upon the parties in relation to the dealing of their assets. Count 2 of the contempt charges relates to a failure to provide such an affidavit.
4. On 2 December 2024, orders were made requiring the respondent to deliver to the applicant Motor Vehicle 1, along with its keys. It was in respect of this order that count 1 of the Contempt Application was applied for and dismissed.
5. On 18 December 2024 the applicant filed an Amended Initiating Application, along with an Application to have the respondent dealt with for contempt. On 19 December 2024, the proceedings were adjourned to 28 January 2025.
6. On 28 January 2025, the respondent entered pleas of not guilty to each of counts 1 to 11 as set out in the applicant's Amended Contempt Application filed 10 January 2025. These counts were set down for hearing on 14 March 2025.
7. During the hearing on 14 March 2025, count 1, relating to Motor Vehicle 1, was dismissed. The respondent then amended his pleas from not guilty to guilty is respect of counts 2 through 11.
8. The respondent advised the Court that he would be able to purge his contempt in respect of count 2 by 4 pm on 28 March 2025. Such purging would have seen the respondent file an affidavit including the information required in Order 2 of Judge Hughes' orders dated 21 November 2025. The respondent filed an affidavit, purportedly to purge this aspect of his contempt, on 22 April 2025. The degree to which this did so was in issue.
9. The respondent was also permitted to file and serve further evidential material in respect of sentencing. He did so by his affidavit of 22 April 2025 and through the tendering of documents associated with that affidavit and further correspondence from his medical practitioner. The respondent was not cross-examined.

1. The charges to which the respondent pleaded guilty are set out below, along with, to the extent one was provided, his explanation of each.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 2 made by consent by her Honour Judge Hughes on 21 November 2024, failed, neglected or refused to supply or cause to be supplied to the Court and the applicant an affidavit pursuant to r 6.18(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

That, within seven (7) days from the date of these orders, the Husband provide pursuant to Rule 6.18(1), an affidavit deposing to and exhibiting documents concerning the following:

(a) All communications relating to any loans with alleged "Investors" of [B Pty Ltd] and/or [G Pty Ltd] from 1 January 2020 to date;

(b) All Deeds of Agreement and documents supporting asserted loans of or to [B Pty Ltd] and/or [G Pty Ltd] including the asserted date and account into which all or any of the funds were deposited;

(c) Details of the business undertaken by [B Pty Ltd] including all information regarding how profits were generated by [B Pty Ltd] to provide a return to the "investors" in accordance with the Deeds of Agreement;

(d) In the period from February 2024 to 21 November 2024, all details relating to the sale of plant and equipment including:

(i) the accounts into which funds from the sale were paid and the entities to whom the funds were paid;

(ii) the dates upon which payments were received;

(iii) if the funds received were spent, on what dates they were spent and to whom the funds were transferred.

(e) Details of the location of all plant and equipment including but not limited to:

(i) [Motor Vehicle]

(ii) [Equipment 1]

(iii) [Motor Vehicle 2] with [Equipment 2]

(iv) [Motor vehicles] including but not limited to [Motor Vehicle 3] and [Motor Vehicle 4] and [Motor vehicles 5 and 6]

(v) [Motor Vehicle 7]

(vi) [Equipment 3]

(vii) Shipping container

(viii) [Equipment 4]

(ix) [Equipment 5]

(x) [Equipment 2]

(xi) [Motor Vehicle 8]

(xii) [Equipment 7]

(f) Details as to:

(i) The date of purchase of any item of plant and equipment above the value of $10,000 and purchased after 1 February 2020;

(ii) The method of purchase and the account from which the funds used to purchase were withdrawn; and

(iii) The name of the title holder of the item and details of any relevant registration.

(g) A copy of all instructions provided to [H Lawyers] regarding the recission of the purchase of [J Street Region K] in the name of both the Applicant and Respondent;

(h) A copy of all instructions provided to [H Lawyers] regarding the purchase of [J Street Region K] in the name of [B Pty Ltd] and/or in the Husband's name.

(i) Details of any term deposits held by him or any of his entities, or those that have matured in the last 12 months, and into which bank accounts interest or capital was paid.

(j) Details of the whereabouts and current ownership of the $1,255,000 in [livestock] detailed in the application for finance with [L Financial Services] in February 2024, and if sold the date and sale price of each [animal] and into which account funds were received for sale.

1. The respondent relied upon his affidavit filed 22 April 2025 to, at least in part, fulfill this previously unmet obligation to provide by affidavit a response to the requirements set out by Judge Hughes.
2. The affidavit fell considerably short of discharging the obligation to provide information as required by the orders. In partial explanation of the limited information provided by the respondent, he explained that the liquidator now holds the relevant business records, and the access to the relevant bank statements, and that the respondent does not. He further explained that bank records were supplied to the applicant, either by him or through subpoena.
3. However, the orders provided for the respondent to do considerably more. For example, Order 2(a) required the respondent to depose to communications with investors. Aside from a general assertion that his dealings were mostly via telephone, not one particular of any communication was provided. By way of further example, Order 2(d) required all details of sale of plant and equipment. None were provided other than reference to the bank statements said to record the transactions. By way of further example, Order 2(e) required the respondent to depose as to the location of various plant and equipment. Aside from an assertion that some had been sold and the balance were in the control of the liquidator, the respondent provided no information, or even deposed, to a lack of knowledge as to their whereabouts.
4. One matter of contest that arose during the sentencing proceedings was the veracity of the respondent's claim that a particular item, Motor Vehicle 7, was in the possession of the financiers. The applicant tendered material to show that the financiers have registered a caveat over the parties' remaining real property in support of their claim of a charge against such for the vehicle. The applicant asserted this to be inconsistent with the respondent's claim. Perhaps it is. However, absent cross-examination of the respondent, I cannot determine that the respondent's assertions as to his belief was not genuine, or even that the vehicle is not in the possession of the financier, with the financier pursuing ancillary relief for any shortfall.
5. In summary, however, it cannot be concluded that the respondent has purged his contempt in relation to this count to a substantial degree. The affidavit by which he sought to do so provides limited mitigation of this count.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made a payment of $5,500 to Bevan and Co from Westpac #...44 on 30 September 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA #[...]97 and NAB #[...]19.

1. The respondent explained that this money was used to meet a tax invoice by H Lawyers who had acted for the applicant and respondent in relation to the anticipated purchase of property at Region K. He contended that this was a necessary expense that, whilst in breach of the orders, did not otherwise constitute an improper disposal of the matrimonial property.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made a series of payments by various transactions totalling $7,070 to M Company from Westpac ...44 on 30 September 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent contextualised this by the medical material relating to his mental health difficulties. These will be examined further below.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made payment of $7,150 to barrister Mr N from Westpac ...44 on 2 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent explained that he had used this sum to pay his legal counsel, and that he had not realised that the orders prevented him from doing so.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made a series of payments by various transactions totalling $8,200 to M Company from Westpac ...44 on 7 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent contextualised this by the medical material relating to his mental health difficulties. These will be examined further below.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made payment of $500 to O Lawyers from Westpac ...44 on 8 October 2024 and then made payment of $5,000 to O Lawyers from Westpac ...44 on 9 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent explained this to be a payment to lawyers engaged by him following objection being made by the applicant to the respondent being represented by H Lawyers who had previously acted for both the applicant and respondent.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made payment of $1,100 to P Pty Ltd from Westpac ...44 on 10 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent explained that this amount related to a flight to Country Q to meet with a financier to support the B Pty Ltd business. He asserted it to be a legitimate business expense. He was not challenged in relation to this explanation.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made payment of $3,300 to R Lawyers from Westpac ...44 on 11 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent explained that these were payments to lawyers in respect of criminal and corporate matters. He relied further upon a high degree of stress and offered an unsupported opinion that these legal issues were instigated by the applicant.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made a series of payments by various transactions totalling $2,000 to M Company from Westpac ...44 on 19 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent contextualised this by the medical material relating to his mental health difficulties. These will be examined further below.

1. The respondent in flagrant challenge to the authority of the Court and deliberate breach of Order 3 made by Senior Judicial Registrar Evans on 26 September 2024, made payment of $8,400 to himself from Westpac ...44 on 21 October 2024.

The Respondent is hereby restrained by injunction from transferring, selling, disposing of or otherwise transacting the parties' marital assets, whether held jointly or solely, without our client's prior written consent, including all bank accounts into which he has transferred funds from CBA [...]97 and NAB [...]19.

1. The respondent explained that he was struggling mentally and stressed at his situation and the loss of the corporate and personal interests that he had worked for. He referred to the medical material. He explained that he was worried that without taking this step he would have no or little money or possessions.

1. The authority of this Court to punish for contempt is contained in s 45 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Pt XIIIB of the Family Law Act 1975 (Cth) ("the Act"). Section 45(1) provides that:

The Federal Circuit and Family Court of Australia (Division 1) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

1. Part XIIIB of the Act provides:

(1) Subject to subsection (1A), this section applies to a contempt of a court that:

(a) does not constitute a contravention of an order under this Act; or constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

(5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

(6) The court may make an order for:

(b) suspension of punishment; or

(c) the giving of security for good behaviour.

(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.

(8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person's liability to make the payment.

(9) In this section:

order under this Act means a child‑related order or an order under this Act within the meaning of Part XIIIA.

1. In this case, each of the counts to which the respondent has pleaded guilty identifies the breach of an order in relation to property proceedings that constitutes a flagrant challenge to the authority of the Court, each involving a complete disregard for the obligations imposed by the Court.
2. In Witham v Holloway (1995) 183 CLR 525 the plurality observed that proceedings for contempt must be seen as criminal in nature, and that the purposes of sentencing for contempt are punitive - in support of the vindication of the authority of the Court, and remedial or coercive - to compel compliance with the Court's orders. The purposes involve both the private interests of those involved in the litigation and the public interest in maintaining the Court's authority, being purposes intertwined with each other.
3. Enforcement of the orders and vindication of the Court's authority are matters that are necessary in part so that the community, and in particular the vulnerable in the community, might know that they can obtain relief from the Court to effect justice.
4. The plurality further observed that the criminal nature of contempt proceedings means that proof beyond reasonable doubt is required.
5. Where, as here, the proceedings are the subject of guilty pleas, the principles identified by the plurality in Olbrich as to fact finding have application:

... it may be accepted that if the prosecution seeks to have a sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and again, if necessary, call evidence about it.[1]

1. On the issue of standard of proof, the plurality observed:

As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities".[2]

1. The Full Court in Tate & Tate [2002] FamCA 356; (2002) FLC 93-107 identified that sentencing for contempt is for an offence arising under Australian law rather than an offence against a law of the Commonwealth. Part of the significance of this distinction, as identified by the Full Court in Abduramanoski & Abduramanoska [2005] FamCA 88; (2005) FLC 93-215 ("Abduramanoski"), is that the statutory principles for sentencing offences against laws of a State, Territory or the Commonwealth do not apply. That conclusion was consistent with the Full Court's description that s 112AP of the Act constitutes a code in relation to contempt.
2. Observing the absence of restraints contained within that code, the Full Court observed that a common law principle for sentencing such as set out in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 ("Pearce") is recommended, even if it is not mandatory.
3. The plurality in Pearce stated that:

A Judge sentencing an offender for more than one offense must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.[3]

1. In Abduramanoski the Full Court observed that this approach is "likely to lead to a well- structured, transparent sentence".[4]
2. It may further be observed that in pursuit of the twin purposes of contempt proceedings, imprisonment is only available as a form of punishment for contempt when it is the only appropriate punishment. It is the punishment of final resort.
3. Whatever punishment is imposed, it is necessary that it bear proper proportion to the offending conduct, as seen in its context, including taking into account the personal characteristics and culpability of the respondent, and that such punishment be individually shaped to meet the twin purposes of vindication and enforcement as appropriate to the particular case. It is the synthesis of these matters that concludes in the appropriate sentence.

1. The respondent identified a number of matters that appeared directed to the assessment of his culpability. The primary aspects of this evidence were a series of medical reports and records. Exhibit H2 is a referral of the respondent from his general practitioner to a psychologist dated 3 April 2025, by reason of "depression and suicidal idea and anxiety". The records also showed that he is prescribed medication. No information was given as to the severity of the conditions, nor the degree to which they have impacted upon the respondent, nor as to their duration.
2. Exhibit H3 is a medical certificate from the respondent's general practitioner dated April 2025, describing the respondent as currently under the doctor's care for "anxiety, depression and associated sleep disturbance" that were described as having "a significant impact on their overall functioning and wellbeing". It recommended "flexibility and understanding in the workplace". Again, no description of intensity or duration of the impact was given.
3. From these it may be taken that the respondent currently suffers some symptoms of depression and anxiety. There is little reason to consider that these conditions provide much explanation of the offending behaviour, or the degree to which they were then present. Consistent with the respondent's description of count 11, it may be considered that the respondent was encountering a period challenging to his mental health, and engaged in at least some of the conduct in the circumstances of mental health vulnerabilities that have then manifested as described (in a most limited fashion) by the general practitioner. It may also be acknowledged that the conduct occurred during a period of significant personal difficulty marked by the loss of relationship, the loss of property and of the business.

The appropriate sentences in relation to each of the counts

1. In accordance with the principles contained in Pearce as identified above, and in order to facilitate transparency in the sentencing process, it is appropriate to consider for each of the counts the appropriate and proportional sentence, before moving to consider the appropriateness and proportionality of the totality of the sentences in the light of the totality of the conduct and circumstances.
2. In considering each it is important to recall that each was the subject of a guilty plea. Whilst the utilitarian value of the pleas was limited (such being made at the listed hearing), it forms a mitigating factor. Typically, a guilty plea may also be associated with some degree of remorse, also a mitigating factor. However, there was no overt indication by the respondent of remorse that enables the drawing of a conclusion that the pleas were reflective of such to an extent that attracts significant weight.
3. All but one of the counts arises from obligations imposed by Senior Judicial Registrar Evans on 26 September 2024. Those instances of contempt were complete by 21 October 2024, approximately one month prior to the obligation imposed by Judge Hughes that required the respondent to provide information as to the disposal and location of property by 28 November 2024.
4. Count 3 occurred on the same day as count 4. Together they form the first in time. Count 3 was a payment of $5,500 to the respondent's then lawyers four days after the orders restrained him from drawing upon the funds. As first in time such act occurs absent a background of previous conduct, attracting leniency. Even so, in its proximity to the order it constituted a serious challenge to the authority of the Court, and a disposal of significant funds in contravention of the order. Whilst the respondent asserted that he did not understand that the orders covered payment to his lawyers, the orders were absolute in character in a manner not productive of reasonable misunderstanding.
5. Even so, the purpose of the disposal of the funds carries with it an explanation of the genuine nature of the payment and the requirement to pay. This does not excuse the contempt. It explains the conduct. It does not warrant a term of imprisonment as the first in time, and the seriousness of it is adequately recognised by the finding that it was an act in contempt, and by a requirement that the respondent enter into a bond to be of good behaviour.
6. As noted above, count 4 also occurred four days after the order. It involved the payment of $7,070 to M Company, understood to be a gambling institution. It differs from the payment by the respondent to his lawyers. It does not carry with it circumstances of legitimate need to meet a debt properly incurred. It is not explained by an assertion that the respondent did not comprehend that such conduct was restrained. It is an example of complete disregard for the obligation cast by the order, absent any cogent explanation. Whilst it may be inferred that the respondent was struggling at the time, and may have also been dealing with psychological vulnerability, no direct connection was described between such and the offending conduct. Acting on the basis that the respondent was struggling and faced psychological vulnerability, the payment of this significant amount, without explanation, within days of the orders is a serious matter. However, even when seen in the context of count 3, this serious conduct is insufficient to warrant imprisonment and requires a bond.
7. Count 5 occurred shortly thereafter, and involved a payment to the respondent's barrister. Unlike count 4, the need for the payment is explained, in a manner that does not excuse the conduct, but gives explanation for the conduct grounded in the incurring of a necessary expense. The seriousness of this matter is again to be marked out with a bond.
8. Count 6 occurred less than two weeks after the orders of Senior Judicial Registrar Evans, and again involved in the payment to M Company, this time in the sum of $8,200. Similarly to count 4, it bears no justifying circumstance of any real explanation. It reflects a complete disregard for the authority of the Court. It occurs in a context of an ongoing and entrenched disregard as illustrated by the circumstance of the previous counts. That context deprives this count of the reason for leniency surrounding the earlier counts, and makes its disregard of court authority more stark. Despite the psychological vulnerability of the respondent, this count does not bear circumstances warranting leniency as may be found in the explained payments, nor leniency that may be attached to a first instances of such unexplained straying as seen in counts 3 and 4. Even considering the personal struggles then confronting the respondent, the level of seriousness calls for the imposition of a term of imprisonment as the only appropriate sentence. That term of imprisonment must be proportionate to the seriousness of the contempt and reflect appropriate punishment. Falling as it does in a context of multiple offending, the need for specific deterrence calls for additional weight. Often weight is applied to general deterrence, on the basis that the general community should understand the seriousness with which court orders are regarded, and the importance of compliance. Despite some hesitation as to the actual impact that sentencing of an individual has on the perception of the community at large, there is scope for limited weight to be placed upon general deterrence.
9. In determining the length of a term of imprisonment, it is important to consider that even a relatively short period, measured in a few months, is a heavy weight to be borne by the sentenced individual, and perhaps more so in the absence of any indication that prison is other than a foreign and unknown experience for the respondent.
10. Weighing those matters, a period of three months is appropriate.
11. Count 7 saw the payment of a sum to the next solicitor engaged by the respondent. Unlike the previous count it involves the identification of a legitimate expense. However, when seen in the context of the previous offending, it reflects, despite that application, a casual disregard for the authority of the Court. Without that context, the explanation would call for leniency. However, the now established context of disregard means that leniency should not be extended. In those circumstances it too calls for a term of imprisonment, albeit less than the previous count, of two months.
12. Count 8 occurred approximately two weeks after the making of the orders. It involved a payment of $1,100 to P Pty Ltd for claimed business travel. Accepting from the respondent's description a degree of desperation in relation to the loss of his business, and accepting his account that he was seeing a potential investor, this still constitutes, in the context of the respondent's complete disregard of the orders, a further instance of such. Despite the explanation, it forms an incident of seriousness, warranting a three month term of imprisonment.
13. Count 9 occurred three weeks after the orders, and involved the payment of $3,300 to lawyers. The respondent described a degree of desperation at his circumstances which he attributed to the applicant. As noted above, there is no reason to consider the applicant as the instigator of the problems faced by the respondent. Although the payment of criminal and corporate lawyers explains the payment, and warrants a degree of leniency, the occurrence of this count within the context of ongoing complete disregard of the authority of the Court denies significant leniency and warrants a three month term of imprisonment.
14. Count 10 occurred three weeks after the orders, and involved the payment of $2,000 to M Company. It is an instance that lacks an explanation that draws leniency. Its context of ongoing disregard for the orders renders this an instance of a high level of culpability and seriousness, and warrants four months imprisonment.
15. Count 11 occurred four weeks after the orders, and involved the payment of $8,400. It was explained that this was to ensure that he retained some funds. The circumstances again speak to a complete disregard for the authority of the Court, and given the magnitude, its occurrence in the context of ongoing disregard, and its absence of circumstances pointing to leniency, points to this as the most serious of the counts involving the use of funds, warranting a four month term of imprisonment.
16. This leaves count 2, which involved the ongoing failure to explain the location and disposal of assets. In a context where the respondent had disposed of funds contrary to orders, the withholding of adequate information as to his dealing with the matrimonial property in a broader sense evidences a serious disregard of the orders, and conduct of a nature to deny the applicant appropriate information and remedies to pursue her legitimate interests. Even accepting that the respondent now has limits on the information regarding the whereabouts of property, given the appointment of a liquidator, his failure to comply in a timely manner with his obligations compromised, or risked the compromise of the applicant's legitimate interests. Count 2 warrants a term of imprisonment of five months.
17. The issue that then arises is as to how these terms might sit together to reflect the totality of the conduct. The repeated and ongoing behaviour warrants some degree of cumulation of the terms, although in large part the terms should be concurrent. It is appropriate that counts 6 to 9, being instances close in time and of a lower degree of culpability than the later counts, be wholly concurrent, counts 10 and 11 be concurrent with each other but cumulative upon counts 6 to 9 by two months, and count 2 be partially cumulative upon counts 10 and 11 by a further month.
18. This leaves a total term of six months. A question arises as to the manner of service of such and whether a degree of suspension is warranted.
19. In the absence of a record and comprehending the significant impact a term of imprisonment will likely have on the respondent, it is appropriate to part suspend the term on condition of entry into a bond to be of good behaviour, allowing the suspension of the last two months. This means that the respondent will serve four months, with a further two months suspended for a period of eighteen months, provided the respondent complies with an obligation to be of good behaviour and to comply with further orders of the court.
20. Taking a step backwards, the part suspended term of six months globally reflects the seriousness of the offending conduct, and particularly in the light of the suspended aspect, supports compliance. The overall term is sufficient to provide vindication for the authority of the Court.

1. The respondent will be convicted of each count and sentenced as follows:

(a) Count 2 - imprisonment for a period of five months.

(b) Count 3- release upon entry into the bond.

(c) Count 4 - release upon entry into the bond.

(d) Count 5 - release upon entry into the bond.

(e) Count 6 - imprisonment for a period of three months.

(f) Count 7 - imprisonment for a period of two months.

(g) Count 8 - imprisonment for a period of three months.

(h) Count 9 - imprisonment for a period of three months.

(i) Count 10 - imprisonment for a period of four months.

(j) Count 11- imprisonment for a period of four months.

1. The terms will be served concurrently as to counts 6 to 9, concurrently as to counts 10 and 11, with 10 and 11 cumulative by two months upon counts 6 to 9, and count 2 cumulative as to one further months.
2. In aggregate this is a term of six months.
3. On the respondent entering into an undertaking in terms set out below, and on giving security by an undertaking to pay the sum of $1,000 in support of such bond, the final two months will be suspended.
4. Accordingly the terms of the imprisonment will be that the respondent is liable to serve full time custody for the period mid-2025 to be released in late 2025, unless he fails to enter the bond, in which case the release shall be two days later.

I, [Mr Polak], undertake that for a period of 18 months:

1. I shall be of good behaviour,

2. I shall comply with further orders made by this court;

I acknowledge that by this undertaking two months of my term of imprisonment imposed upon [mid]-2025 is suspended;

I acknowledge that failure to comply with this undertaking may result in a requirement that I serve the suspended term of two months imprisonment;

In the event that I fail to comply with the requirements of this bond I undertake to pay to the court the sum of $1,000.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] R v Olbrich (1999) 199 CLR 270 ("Olbrich") at 25.

[2] Olbrich at [27] (Emphasis in original).