Che & Don

[2021] FCCA 1314

FEDERAL CIRCUIT COURT OF AUSTRALIA

Che & Don [2021] FCCA 1314

File number(s):	CAC 600 of 2021
Judgment of:	JUDGE HUGHES
Date of judgment:	28 May 2021
Catchwords:	FAMILY LAW – Contempt – refusal by parents to comply with order for return of infant child to maternal grandmother in circumstances which amount to a flagrant challenge to the authority of the court – contempt charge proved against each parent – father to serve a three month term of imprisonment – mother’s culpability diminished by her intellectual disability and influence of the father – mother to serve seven days – each term of imprisonment to be immediately suspended upon the relevant party purging their contempt by providing sufficient information to the court or police to facilitate the recovery of the child.
Legislation:	Family Law Act 1975(Cth) s 112AP
Number of paragraphs:	78
Date of last submission/s:	28 May 2021
Date of hearing:	28 May 2021
Place:	Canberra
Solicitor for the Applicant:	Mr Banwell
Solicitor for the Independent Children's Lawyer:	Ms Morrison
Solicitor for the First Respondent:	Appeared in person
Solicitor for the Second Respondent:	Appeared in person

ORDERS

CAC 600 of 2021

BETWEEN:

MS CHE

Applicant

AND:

MR DON

First Respondent

MS TRACH

Second Respondent

ORDER MADE BY:	JUDGE HUGHES
DATE OF ORDER:	28 MAY 2021

THE COURT ORDERS THAT:

1.The applicant maternal grandmother has leave to amend the contempt applications filed on 24 May 2021 to delete paragraphs 2 and 4 so that the formal application precisely matches the oral application brought on 21 May 2021 and which was put to the respondent parents that day.

2.The first respondent father MR DON born in 1992 is found to be in contempt of Court by failing to comply with order 3 of 19 April 2021 in circumstances which amount to a flagrant challenge to the authority of the Court within the meaning of section 112AP(1)(b) of the Family Law Act 1975.

3.Pursuant to section 112AP(4) of the Family Law Act 1975 the respondent father is committed to an immediate term of imprisonment for a period of three months from 28 May 2021 to 28 August 2021, to be suspended immediately in the event the respondent father purges his contempt by providing sufficient information to the Court to facilitate the recovery of the child X born in 2020.

4.To give effect to order 3, a warrant of commitment shall issue forthwith.

5.The second respondent mother MS TRACH born in 2000 is found to be in contempt of Court by failing to comply with order 3 of 19 April 2021 in circumstances which amount to a flagrant challenge to the authority of the Court within the meaning of section 112AP(1)(b) of the Family Law Act 1975.

6.Pursuant to section 112AP(4) of the Family Law Act 1975 the respondent mother is committed to an immediate term of imprisonment for a period of seven days from 28 May 2021 to 4 June 2021, to be suspended immediately in the event the respondent mother purges her contempt by providing sufficient information to the Court to facilitate the recovery of the child X born in 2020.

7.To give effect to order 7, a warrant of commitment shall issue forthwith.

8.The substantive proceedings are transferred to the Family Court of Australia at Canberra and listed for mention and directions on a date to be advised.

IT IS NOTED THAT if the first respondent father remains in custody he may participate by telephone or video link.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Che & Don is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE HUGHES

INTRODUCTION

1. These are family law contempt proceedings brought under section 112AP of the Family Law Act 1975 (“the Act”).  They are brought by the applicant maternal grandmother against her daughter and her daughter’s partner who are the parents of her 11 month old grandson, the subject of the substantive parenting proceedings.

2. It is alleged the parents contravened two orders requiring them to return the child to the maternal grandmother and that their wilful failure to comply with the orders involves a flagrant challenge to the authority of the Court within the meaning of section 112AP(1)(b) of the Act.

3. Section 112AP(1)(b) is as follows:

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

   (a)… … …

   (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

   BACKGROUND

4. The applicant maternal grandmother is aged 54.  She lives in Canberra.  The respondent father is aged 28 and the mother 22.  They live in Sydney.  All three are of Vietnamese cultural heritage.  The maternal grandmother was born in Vietnam and migrated to Australia in the late 1980s.  She is now an Australian citizen.  The parents were both born in Australia. 

5. The child was born in 2020 and is now 11 months old. 

6. The parents commenced a relationship in early 2018 and began living together in 2018 in Sydney.  The parents separated for six months in August 2020.  The mother and child moved to Canberra to live with the maternal grandmother.  The parents reconciled their relationship in February 2021 when the mother returned to live with the father in Sydney, leaving the child with the maternal grandmother.

7. The father is on a disability pension, apparently due to having a medical condition.  The father described it as a mild medical condition.  The maternal grandmother said he regularly has seizures and that she has observed several such episodes.

8. It seems to be common ground that the mother has an intellectual disability.  The grandmother said that her daughter is autistic and has an IQ of about 56 of 57.  She said that, until her daughter was about 18, she had to select her clothes and remind her to shower, otherwise she would not do so for days.  She said that her daughter is easily manipulated because of her intellectual disability.  Her case is that her daughter is the victim of family violence perpetrated by the father and that she is very much under his adverse influence and coercive control. 

9. In proceedings commenced by the father during the parties’ six-month separation, the father gave similar evidence of the mother’s vulnerability.  He said that, when he was living with the mother, he had to shower her because on at least four occasions the mother fainted while having a shower on her own, apparently as a result of having the water too hot.[1]   In those same proceedings the mother deposed to having a learning difficulty, including difficulty with reading and writing. 

   [1] Affidavit of the father filed 28 October 2020 at paragraph 14.

10. The father’s case is that the mother was manipulated and controlled by the maternal grandmother throughout her life and that he, effectively, rescued her from a life in which she was exploited and made to have sexual relationships with older men for financial gain.  He alleged the maternal grandmother somehow manipulated the mother to separate from him in August 2020 and to return to Canberra.

11. The parties first met through their families in about mid-2017.   The mother lived with her mother, the maternal grandmother, until April 2018 when she suddenly left Canberra and moved to Sydney to begin living with the father.  The grandmother said that this was out of character for her daughter as she had never lived away from home.  The grandmother said she heard nothing from her daughter for about two years until about April 2020 when, during a FaceTime communication with the paternal grandmother, she saw her daughter in the background, who appeared to be pregnant.  When she asked the paternal grandmother whether her daughter was pregnant, she was told she was not.  She then asked the paternal grandmother to take the mother to the doctor for a check-up in any event.

12. Shortly after this, the maternal grandmother went to Sydney to visit her daughter and also saw the father.  She said that, about two weeks later, her daughter called her and she could hear the father yelling in the background “I don’t want you to talk to her!”

13. On about late 2020, when the child was about six weeks old, the maternal grandmother received a phone call from her daughter who said that she wanted to come home and did not want to stay in Sydney any longer.  The grandmother said that, as they were talking, she could hear the father in the background saying he did not want the grandmother to come to their home.  She said her daughter yelled back that she would just take the baby down to see her mother who was coming all the way from Canberra to see her and the baby.  The grandmother said the father threatened to call the police and child protection if the grandmother came to their home.  The grandmother said her daughter then asked her to call the police.

14. The grandmother reported that she called the police straight away, explained the argument she heard and asked the police to go to the parents’ home.  Records from NSW Police indicate that the police attended and, although the father initially said there was no-one else home, police eventually spoke to the mother who asked them to take her and the baby with them to the police station to wait for the maternal grandmother.

15. The mother and grandmother remained in Sydney for two days during which time they were assessed by the New South Wales child protection authority.  Notes from the NSW Department of Communities and Justice (“DoCJ”) indicate the mother seemed to be appropriately caring and affectionate towards the child. 

16. During the parents’ six-month separation from August 2020 to February 2021, the father made various informal attempts to contact and reconcile with the mother.  Those overtures were rebuffed by the mother. 

    PREVIOUS PROCEEDINGS IN PARRAMATTA

17. On 28 October 2020, about two months after the parents separated, the father commenced proceedings against the mother in the Federal Circuit Court at Parramatta.  He was represented by solicitors.  He sought orders for equal shared parental responsibility for the child, for the child to live with him and for the mother to have “reasonable communication with the child”. Although not stated explicitly, the orders sought implied the mother would spend some time with the child as he sought an order that each parent have sole responsibility for the day-to-day care, welfare and development of the child while in that parent’s care.  On an interim basis, he sought an order that the mother immediately return the child to him. 

18. In support of his application, the father filed a brief affidavit in which he said he believed the child was at risk while in the care of the respondent mother.  He deposed to the mother having a learning difficulty, ADHD, being unable to care for herself adequately and having history of self-harm.  He said that, during a verbal dispute between the couple in late July 2020 when the child was a month old, the mother took the child out onto the balcony and said to him “If you come here I will throw this kid off the balcony and kill myself”. He deposed to not reporting the incident to police at the time as he was afraid police would arrest the mother.  The father said that, in mid-July 2020, the mother also attempted to bathe the child in water that was too hot.  He said he asked the mother if she had tested the water and she said she had.  He said this led to his concern that the mother was unable to adequately care for the child.

19. In his affidavit, the father did not disclose that the child had been living in Canberra with the mother and maternal grandmother since August 2020.

20. In his notice of risk filed at the same time as his application and affidavit, the father made further allegations of risk to the child.  He alleged the mother had harmed herself and others, had grabbed the child with great force and had threatened to commit suicide.  He said this happened at least once a week during the time he and the mother lived together. 

21. The matter came before the Court in Parramatta on 9 November 2020.  Both parties were legally represented.  The proceedings were adjourned to 25 January 2021.

22. On 25 January 2021 orders were made for the appointment of an independent children’s lawyer and for the mother to file her responding documents within four weeks.  The proceedings were adjourned to 9 March 2021.

23. The mother filed a response on 20 February 2021 in which she sought sole parental responsibility, for the child to live with her and for the child to spend time with the father as agreed between the parties.  She sought various restraining orders for the safety of herself and the child.  On an interim basis, the mother sought orders for the father to spend time with the child at a supervised contact centre in Canberra.

24. The mother deposed that, during her relationship with the father, she and the father initially got along well but their arguments increased during her pregnancy.  She said she was the primary carer of the child.  She said she breastfed him, changed his nappies and bathed him.  She said she received no assistance from the father who was working at the time.  She said she encouraged the father to play with the child but he responded by saying that the child was too young to remember that.

25. The mother denied the father’s allegation that she had ever threatened to kill herself or the child, and said she had never bathed the child in hot water.  She alleged that, during arguments, the father would become verbally aggressive, swear at her, and call her offensive names.  She said that if she tried to leave to reduce the stress, he would follow her around the unit, slamming doors or follow her outside.  She said the father had on two occasions grabbed her phone and thrown it to the ground.  She said she was generally not able to have contact with her mother during the relationship because the father would not allow it and he would regularly go through her phone to see with whom she had been speaking.

26. The mother said that, during the relationship, the father told her that he had been arrested in 2016 for stabbing someone at the Suburb B train station.  She said he also told her that he had burnt a neighbour’s car but was ultimately found not guilty of that offence.  She said that in 2019 the paternal grandfather took out a family violence order against the father after he had damaged his property but she said did not know any details of that incident.

27. The mother separated from the father on 1 August 2020.  She said she applied for a family violence order against the father that day because she was scared the father would try to hurt her or the baby because she had left him.

28. The mother said that, after separation, she blocked the father’s phone number to try to stop him contacting her.  She said the father then called her from unidentified numbers including repeatedly in the early hours of the morning.  She said she does not know why he kept trying to contact her as he never asked any questions about the child.

29. The mother said that, about a month after separation, the father came to the maternal grandmother’s house in Canberra and she, the mother, called the police straight away.  She said the father told the police that she had asked him to come but she had not.

30. In February 2021, almost immediately after filing her documents in the Parramatta proceedings, the mother reconciled with the father.  She left the maternal grandmother’s home in Canberra and returned to Sydney to live with the father, leaving the child the care of the maternal grandmother. 

31. On 22 February 2021 the mother’s lawyers filed a notice of discontinuance in the Parramatta Registry.  On 9 March 2021 an order was made for the child to live with the father.  It appears the Court was not told that neither of the parents had the child in their care at that time. 

32. From February 2021 the parents made various attempts to have the child returned to them. 

33. The maternal grandmother deposed that, on 10 March 2021, police attended her home with the mother, the father and the paternal grandmother.  She said the police told her they had a court order to enforce and intended to return the child to the father.  The grandmother said she asked several times to see the order and it was eventually shown to her.  This was the order made in the Federal Circuit Court at Parramatta on 9 March 2021.  The police did not take the child that day as they did not have a recovery order.  The maternal grandmother said the police told her she could keep the child for the time being but, once the parents obtained a recovery order, the child would have to be given to them.  She said she did not hear anything further. 

    THE CURRENT PROCEEDINGS

34. On 23 March 2021 the maternal grandmother commenced the current proceedings by filing an application seeking urgent orders for the child to live with her and for her to have sole parental responsibility for him.  She sought the appointment of an independent children’s lawyer.  In her supporting affidavit she said she feared the father would come to her home and attempt to remove the child from her care.  She said she believed the father had been violent to her daughter and had prevented her from communicating with her. The maternal grandmother deposed that, since August 2020 she had been the child’s full-time carer.  She said she prepared his food, fed him, bathed him, changed his nappy and took him to have his immunisations.  If he woke up in the night, she got up to soothe him.  She said that she did all of these things even when the mother was also living with her.  She described the child as a happy and curious child who enjoys mixing with other children and adults. 

    THE INCIDENT ON 9 APRIL 2021

35. On 9 April 2021, before the first return date of the grandmother’s application, a dramatic incident occurred in which the parents physically took the child from her care.  The mother had received a text message reminder of a medical appointment for the child in Canberra that day.  The mother, father, paternal grandmother and two other people drove to Canberra, attended the doctor’s surgery and forcibly removed the child.

36. The maternal grandmother deposed that she and her mother, the maternal great grandmother, were waiting with the child to be seen by the doctor when the father, with two other adults, entered the waiting room.  She said the father grabbed the child from the arms of the great grandmother and ran out the door yelling “You can’t take my child” and “Fuck you! Fuck you!”  She said that, while running to the car, the father tripped over and fell to the ground while holding the child.  She said she and the great grandmother ran after them and the great grandmother stood in front of the car to prevent it driving away.  She said the father grabbed hold of the great grandmother, pulled her to the side and punched her in the face, knocking her to the ground.  She said he also grabbed her phone and threw it to the ground, damaging it.  The father then got into the back seat of the car with the child. 

37. The grandmother said there were five people in the car including her daughter who was in the back seat.  She said there were two people she did not recognise in the car which was being driven by the paternal grandmother, Ms C.

38. The maternal grandmother said she contacted ACT Child and Youth Protection Services (CYPS) and the NSW DoCJ because she was concerned about the safety of the child.

39. The father denied much of this evidence, and specifically denied assaulting the great grandmother.

    THE URGENT APPLICATION

1. On 12 April 2021 the maternal grandmother filed an urgent application in a case seeking ex-parte orders for the recovery of the child and various restraining orders to prevent the father coming within 100 metres of her, the child or the grandmother’s home.  She sought sole parental responsibility for the child, that the child live with her and spend no time with the parents until a proper risk assessment had occurred.  She sought the appointment of an independent children’s lawyer. 

2. The grandmother’s application in a case was listed later that day, 12 April 2021.  The maternal grandmother was legally represented.  Ms Morrison, who had been appointed as the independent children’s lawyer in the previous proceedings at Parramatta, appeared as amicus curiae by telephone to assist the Court.  Mr D from ACT Child and Youth Protection Services (CYPS) also appeared as amicus curiae.  The respondent father and respondent mother each appeared by telephone, unrepresented.  They had obviously had no time to obtain any legal advice.  The child could be heard, apparently content, in the background while the parents were participating that day.

3. The mother barely spoke on that occasion and did not contradict anything the father said.  The father raised a number of allegations about the maternal grandmother and denied the allegations she made about him.  He alleged the mother had been effectively kept prisoner by the maternal grandmother.  He alleged the extended maternal family were involved in illicit drug use and paedophilia.  I was sufficiently concerned about the matters raised by him to pause to gather more information before making any determination, even on an interim basis.  I ordered the appointment of an independent children’s lawyer, noting that Ms Morrison had previously been appointed.  I made further orders pursuant to section 69ZW and restrained the parents from changing the residence of the child from the address which they gave as their current address with the child in Sydney.  The proceedings were adjourned for five days to 19 April 2021 for mention or interim hearing by telephone.

   THE INTERIM HEARING ON 19 APRIL 2021

4. The parents appeared unrepresented at the interim hearing on 19 April 2021.  The maternal grandmother was legally represented, Ms Morrison appeared as the independent children’s lawyer and Mr D again appeared for CYPS as amicus curiae.  By then, a significant volume of material had been produced by New South Wales and ACT police and child protection authorities.  The parents had not filed any documents.  By the end of the proceedings that day, I was satisfied that, in the short term, the best interests of the child would be met by the child returning to live with the maternal grandmother where he had lived since August 2020.  I explained to the parents that this would provide a level of stability and security for the child and a continuity in his care arrangements until they obtained legal advice and prepared material.  I indicated that a better quality decision could be made with the benefit of further information, including their evidence, on a future date. 

5. I discharged the orders made in Parramatta on 9 March 2021 and ordered that, on an interim basis, the child live with his maternal grandmother in Canberra.  I ordered that the parents take all steps necessary to arrange for the child to be returned to the maternal grandmother at 12 noon on 20 April 2021 at the Town E Police Station.  This was because I was told by the father that the child had, in fact, been living with the paternal grandmother in Town E, NSW, since the day he was removed from the maternal grandmother on 9 April 2021.  The father gave different evidence today but that changed several times in the space of several minutes during his oral evidence.  I think that, in the end, he got to the point of saying that his mother had the child in Town E on 9 April 2021 but subsequently brought the child to him in Sydney.  I have no idea whether or not what I was told on either occasion is correct as the father was an unimpressive witness. 

6. On 19 April 2021 I issued a recovery order which was only to be executed in the event the child was not returned the following day, as ordered. 

7. The parents were each ordered to file responding material by 10 May 2021 and the grandmother was to file any material in reply by 17 May 2021. The proceedings were adjourned to 20 May 2021 for mention or interim hearing by telephone. Given the history, I made the restraining orders as sought by the grandmother pursuant to section 68B of the Family Law Act. I made a notation that a copy of the orders made that day would be emailed to each of the mother and the father who were also advised to register for the Commonwealth Courts Portal.

8. The child was not returned to the maternal grandmother on 20 April 2021 as ordered and the recovery order was sent to NSW Police for execution.  The recovery order has never been executed as the police have been unable to locate the child. 

   THE PUBLICATION ORDER

9. On 29 April 2021 I granted leave to the maternal grandmother to make an oral application for a publication order.  The independent children’s lawyer appeared that day.  The application proceeded in the absence of the parents in circumstances in which they had not complied with the order for the return of the child and both the grandmother and the independent children’s lawyer expressed concern that the parents may take further steps to avoid the child being located if they had advance knowledge of the publication order.  I made the order as sought.  I was satisfied on the, as yet, untested evidence that the child remained at an unacceptable risk of harm in the care of the parents.

10. The publication order was amended slightly on 30 April 2021.

    SUBSEQUENT HEARINGS

11. The proceedings next came before the Court on 20 May 2021.  By then both parents had filed documents and the maternal grandmother had filed an application seeking that each of the parents be dealt with for contravention of the order requiring them to return the child.

12. The father had filed a response on 11 May 2021 in which he sought that he and the mother have equal shared parental responsibility for the child, that the child live with them and spend time with the maternal grandmother as ordered by the Court, but supervised for the first three months.  He also sought a suspension of relevant interim orders made on 19 April 2021, the discharge of the recovery order, and a restraint on the maternal grandmother attempting to take possession of the child again. 

13. In his supporting affidavit, the father made a number of allegations, some of which he had previously made.  These included allegations that the maternal grandmother allowed the mother to be sexually abused by various men, that the grandmother was aware of drug use in her home by one of her sons, that she has a gambling addiction and that she has committed fraud on Centrelink and the National Disability Insurance Scheme.  The father also alleged the grandmother threatened to have her sons attack him and kill any child her daughter might have.  The maternal grandmother answered these allegations on 14 May 2021 in a manner which, in the constrained circumstances of this case, was compelling.  It may be that my impression changes when there is an opportunity to hear the evidence in a more considered manner rather than as a result of repeated, urgent applications.  Significant resources have been diverted to the recovery of the child and the focus has been on stabilising his arrangements.  This has not yet been achieved. 

14. The mother filed affidavits on 30 April 2021 and 10 May 2021.  In them she complained that her mother had interfered with her relationship with the father, that her parents forced her to be in a relationship with different men and that her parents are “…very poor and negligent parents”.  This is completely different to what she told police and child protection authorities on more than one occasion and different to the affidavit she filed in the Parramatta proceedings.  In today’s proceedings, the mother completely deferred to anything the father said and, when asked if she wanted to give evidence, she declined, saying her evidence is the same as that given by the father.  On 21 May 2021 the mother said she did not have her own phone and could only be contacted on the father’s phone.  These matters, combined with the police records indicating the mother had complained the father had destroyed her phone on more than one occasion, added weight to the maternal grandmother’s assertion that the mother is significantly under the influence and control of the father.

15. The paternal grandmother swore an affidavit on 10 May 2021 in support of her son.  She made similar allegations to those made by the father.  She confirmed that on 9 April 2021 the mother received a text message from the medical practice in Canberra confirming an appointment for the child at 11am that day.  She said that she and the parents immediately drove to Canberra and took the child.  It seems she felt emboldened to do so by the order made in Parramatta in favour of her son.  She said the child was now living with the parents with support from an aunt.  She said at paragraph 51 of her affidavit “I am also there for X when he needs me”. 

16. On 20 May 2021 the proceedings were conducted by telephone. The parents were legally represented for the first time.  Mr Shaw of counsel appeared for them on a direct brief basis.  The parents were with Mr Shaw in his chambers and, from time to time during the proceedings, spoke directly to the Court.  Mr Shaw told the Court that he had strongly advised the parents to return the child in accordance with the order of 19 April 2021 and that, if they failed to follow his advice, he would not continue to represent them.  This was sensible advice which the parents, unfortunately, failed to heed.

17. Nothing contained in the affidavit material of the parents or the paternal grandmother changed the assessment I made on 19 April 2021 that the child should be returned to live on an interim basis with the maternal grandmother.  I note this assessment was consistent with the submissions of the independent children’s lawyer that day. To address the drug issues raised by the father, I made an order, by consent and without admission, that the maternal grandmother ensure that no person consume illicit substances in her home while the child was living with her and that she take all steps necessary to ensure the child was not exposed to any illicit drug use in any other circumstance. 

18. During the proceedings on 20 May 2021, I asked who was caring for the child while the parents attended Court.  The father communicated, partly directly and partly through counsel, that the child was being cared for by a friend or an associate known only to the parents by the nickname, “Ms F”.

19. I asked Mr Shaw what his clients’ plans were for the return of the child to the grandmother in accordance with the orders.  The father spoke up and told the Court that the grandmother was under investigation for paedophilia and began to say, “Once that investigation is completed…”  I interrupted him before he finished his sentence, not wanting to enter into any form of negotiation.  I ordered that the parents deliver the child to the maternal grandmother at the Suburb G Police Station at 7.30pm that day.  I then adjourned the proceedings to 28 May 2021.

20. Shortly before the proceedings ended, the mother spoke up and said “I am not giving the child back to the grandmother”.  I asked her to repeat that statement, and she did. [2]  The father then began speaking.  He said that his partner was the biological mother of the child and that he could not control what she does.  He then began to argue vociferously about why the child should not be returned.[3]  He then said “If you can guarantee that, once, when this child gets drug effected or sexually assaulted, that you’re responsible, then, if you can put that in writing for me, then I will obey”.[4]  The father agreed in his oral evidence today that he intended to convey that his compliance with the order was conditional upon me personally giving him a written undertaking about those matters. It was quite apparent that the parents had no intention of returning the child.  I issued a warrant for their arrest.

    [2] Transcript 20 May 2021 at page 136

    [3] Transcript 20 May 2021 at page 136

    [4] Transcript 20 May 2021 at page 137

21. I noted at that time that the police now had two types of warrant: one to recover the child and one to arrest the parents and that I had to leave it to police to decide which to enforce first and how to manage the competing priorities.

22. The parents were arrested and taken into custody as soon as they left their barrister’s chambers.

    THE CONTEMPT CHARGE

23. On 21 May 2021, the respondent parents were brought before the Court by telephone link from the H Correctional Centre, having been arrested the previous day. They were each formally charged with contempt of Court pursuant to section 112AP(1)(b) of the Family Law Act 1975 by failing to comply with the orders of 19 April 2021 and 20 May 2021, each of which required them to return the child to the maternal grandmother and in circumstances which constituted a flagrant challenge to the authority of the Court.  Each of the parents denied the charge.  The contempt proceedings were then adjourned to allow the parents to obtain legal advice.  The parents were released from custody upon entering into a recognisance, self-surety, in the sum of $500 and conditional upon them attending the Federal Circuit Court in Canberra on 28 May 2021, reporting to the Suburb J Police Station daily, and complying with all family law orders. 

24. In the meantime, the parents were, once again, ordered to take all steps necessary to return the child to the maternal grandmother at the Suburb J Police Station on 22 May 2021.  They were also ordered to immediately provide to the Court and NSW Police as much information as they had about the name, address, description and likely whereabouts of the person with whom they left the child the previous day.

25. The independent children’s lawyer sought leave to make an oral application for a location order directed to each of the paternal grandparents.  I granted leave and made the orders sought in circumstances in which it was clear on the evidence that the paternal grandmother was involved in the removal of the child on 9 April 2021 and had been involved in his care since then.  The proceedings were otherwise adjourned to 28 May 2021.

26. The parents were strongly urged to obtain legal advice. Some assistance was sought from the employees of the ACT Legal Aid Commission (who were present in Court) to facilitate the parents obtaining advice from them or from the New South Wales Legal Aid Commission.

    THE CONTEMPT HEARING

27. Both parents attended Court today, in person but unrepresented.  Although the father said that he and the mother had been unable to obtain legal representation, he had filed an affidavit with some assistance of a family lawyer.  He also made reference during the proceedings to having been told by various lawyers that he needed to return to the child.  I gather, therefore, that he has received some legal advice.

28. The maternal grandmother was legally represented.  She gave in support of the contempt allegation.  She was cross-examined by the father.  The father gave evidence and was cross-examined by the maternal grandmother’s solicitor.  The mother did not give evidence and did not ask any questions in cross-examination.  She told the Court on several occasions that she relied on whatever the father said.

29. It is common ground that the child has not been returned to the grandmother in accordance with the orders.  The orders of 19 April 2021 and 20 May 2021 were made for the welfare of the child.  The child is now either in the care of someone known to the parents but the parents are unable or unwilling to say who that person is or, alternatively, the parents left the child with someone they do not know which means the 11 month old baby is at large in the community, extremely vulnerable, and possibly at significant risk of harm or even death.

30. I accept the submissions of Mr Banwell for the maternal grandmother that, to find the parents to be in contempt, the Court must be satisfied that they knew the terms of the orders breached; that their failure to comply with the orders was deliberate or wilful; and that the conduct was repeated, exceptional or striking in nature.  I must be satisfied of these matters to the criminal standard, being beyond reasonable doubt.[5]

    [5] Section 141 Evidence Act 1995 (Cth)

31. In this case there is no doubt that the respondents knew the terms of the orders made on 19 April 2021 and 20 May 2021.  The father conceded this in his evidence today and his evidence was adopted by the mother.  The fact that both parents stated in Court on 20 May 2021 that they would not comply with the orders was, itself, evidence of their knowledge of them.

32. I am also satisfied that the parents had the means to comply with the order of 19 April 2021 and that their failure to do so was deliberate.  The father said today that his mother had the child on 19 April 2021 and subsequently brought the child to him in Sydney.  He also agreed that, on 12 May 2021, he made a Facebook post containing photographs and a video of both parents and the child together on that day, along with a message to the effect that the child was not missing but, rather, was with his parents.  This displayed knowledge of the efforts by the Court and the police to find the missing child.

33. I am satisfied beyond reasonable doubt that the parents’ breach of the order of 19 April 2021 was a flagrant challenge to the authority of the Court and the contempt is proved.

34. In relation to the order made on 20 May 2021, I am not satisfied to the requisite standard that the parents are in contempt.  This is because the parents were arrested immediately after I made that order and, while they could have provided information to the police or the Court about where the child was, they did not personally have the means to deliver the child to the Suburb G Police Station that evening because they were in custody.  Accordingly, that charge is dismissed.

35. There is evidence before me that the mother has a significant intellectual disability and, for the purpose of today’s proceedings, I accept that.  I also have some concerns about the father’s capacity.  The way he gave evidence today, including his apparent inability to remember dates and the constant changing of his story, may be the result of him simply obfuscating and trying to make things difficult.  However, it may also be that he genuinely cannot manage these proceedings and cannot remember the things about which he was asked.  It may be that the Court and the parents would be assisted in the future by some sort of mental health assessment of each parent.

    PENALTY

36. Section 112AP(4) of the Family Law Act provides:

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

37. In the circumstances of this case, the primary purpose of the penalty is to enforce compliance with the order which was made for the safety and welfare of the child.  Both parents are in receipt of Centrelink payments and unlikely to have the capacity to pay a fine.  There is no reason to believe a fine would be effective in any event given the parties have been repeatedly warned their behaviour is likely to amount to contempt and that contempt is punishable by a term of imprisonment.  The parents were arrested on 20 May 2021 and held in custody overnight.  Despite this experience, they still failed to comply with the order.

38. Throughout the proceedings the father appeared to be confident of his own position and unwilling to take any steps which do not accord with his own view.  He directly addressed the Court on several occasions and, at least twice, indicated that he was prepared to cooperate.  Despite this, he has still not complied with the order to return the child.  Given the wilfulness of his disregard of the order, he will serve a term of imprisonment for three months, to be immediately suspended upon him providing sufficient information to the police and the Court to facilitate the recovery of the child.  This means that the keys to his liberty are in his own hands.  He need not serve more than a day in custody if he decides to comply with the orders.  If he does not provide sufficient information to facilitate the recovery of the child, he will remain in custody for the full three months, even if the child is recovered by other means.

1. In relation to the mother, I am satisfied on the evidence that her culpability is significantly diminished by virtue of her intellectual disability and her vulnerability to the father’s adverse influence.  Nevertheless, it was she who first volunteered on 20 May 2021 that she would not return the child and that behaviour cannot be ignored.  I am satisfied she should serve a term of imprisonment for seven days, to be immediately suspended upon her providing sufficient information to police and the Court to facilitate the recovery of the child.  This means the keys to her liberty are also in her own hands.  She need not serve more than a day in custody if she decides to comply with the orders.  If she does not provide sufficient information to result in the recovery of the child, she will remain in custody for the full week, even if the child is recovered by other means.

I certify that the preceding seventy-eight numbered paragraphs are a true copy of the Reasons for Judgment of Judge Hughes.

Associate:

Dated:       16 June 2021