Che & Don (No 3) - [2021] FedCFamC1F 304

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Che & Don (No 3) [2021] FedCFamC1F 304

File number(s): CAC 600 of 2021

Judgment of: GILL J

Date of judgment: 14 December 2021

Catchwords: FAMILY LAW – CONTEMPT – circumstantial case – whereabouts of child is unknown – orders made for the mother to provide information to the Court about the child’s location – where the mother has provided information to the Court – where the child is purportedly living with an associate of the mother – police investigation of the mother’s associate – sloppy police investigation – whether the mother’s associate is a fiction – investigation of mobile phones owned by the parents –whether the mother is guilty of contempt of this Court – whether the mother has flagrantly breached orders to provide information to the Court about the child’s whereabouts – mother’s deliberate intention to frustrate court orders – mother guilty beyond reasonable doubt of contempt of this Court

Legislation:
Family Law Act 1975 (Cth) s 112AP

Family Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.71

Cases cited:
Bande & Cade (2011) 45 Fam LR 376

Ganem & Ganem (No. 2) [2013] FamCA 257

Oakley & Millar [2019] FamCAFC 12

Shepherd v The Queen (1990) 170 CLR 573

Tate & Tate (2002) FLC 93-107

Witham v Holloway (1995) 183 CLR 525

Division: Division 1 First Instance

Number of paragraphs: 61

Date of hearing: 13 December 2021

Place: Canberra

Solicitor for the First Respondent: Mazengarb Family Lawyers

Counsel for the Applicant: Mr Howard

Solicitor for the Applicant: Legal Aid ACT

Counsel for the Second Respondent: Ms Davis

Solicitor for the Second Respondent: Infinity Legal

Solicitor for the Third Respondent: AKN & Associates

Counsel for the Intervener: Mr Berger QC

Solicitor for the Intervener: Australian Government Solicitor

Counsel for the Independent Children's Lawyer: Ms Druitt

Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers
ORDERS

CAC 600 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CHE

Applicant

AND:
MR DON

First Respondent

MS TRACH

Second Respondent

MS HUYNH

Third Respondent

MARSHAL OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

Intervener

INDEPENDENT CHILDREN'S LAWYER

order made by:

GILL J

DATE OF ORDER:

14 December 2021

THE COURT ORDERS THAT:
1.On the charge laid against Ms Trach on 9 November 2021 being:
That [Ms Trach] is in contempt of this Court in that she contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involved a flagrant challenge to the authority of the Court in that she failed to provide to the Court such information as she held about the whereabouts of the child [X] born […] 2020.
I find Ms Trach guilty.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Che & Don (No 3)

Details

AGLC: Che & Don (No 3) [2021] FedCFamC1F 304
Case: [2021] FedCFamC1F 304
Decision Date: 14 December 2021

CaseChat Overview and Summary

Che & Don (No 3) involved a contentious family law dispute concerning the whereabouts of a child, X, born in 2020. The matter was heard by the Family Court of Australia, where the mother, Ms Trach, faced allegations of contempt for failing to comply with court orders to disclose the child's location. The father, Mr Che, sought to enforce the court's authority by holding Ms Trach in contempt for her non-compliance. The central issue for the court was whether Ms Trach's failure to provide information about the child's whereabouts amounted to a flagrant breach of the court's orders and, consequently, whether she was guilty of contempt.

The court had to determine whether Ms Trach's actions constituted a flagrant challenge to the court's authority, warranting a finding of contempt. The analysis involved examining the adequacy of the police investigation into Ms Trach's associate, the reliability of the information provided by the mother, and the extent to which Ms Trach deliberately intended to frustrate the court's orders. The court concluded that Ms Trach's failure to provide information was indeed flagrant, as she had deliberately withheld critical details despite being ordered to do otherwise. The court found that the police investigation was insufficient and did not effectively address whether the purported location of the child was genuine.

After considering the evidence, the court found Ms Trach guilty of contempt beyond reasonable doubt. The exceptional nature of the breach, along with Ms Trach's deliberate intention to thwart the court's orders, justified the conclusion that she flagrantly challenged the court's authority. Consequently, the court issued orders finding Ms Trach guilty of the contempt charge and emphasized the gravity of her actions. This decision underscores the court's commitment to enforcing its orders and ensuring the welfare of children in family law disputes.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. On the charge laid against Ms Trach on 9 November 2021 being:

That [Ms Trach] is in contempt of this Court in that she contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involved a flagrant challenge to the authority of the Court in that she failed to provide to the Court such information as she held about the whereabouts of the child [X] born […] 2020.

I find Ms Trach guilty.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The breach of the order is exceptional and striking. I am satisfied beyond reasonable doubt that it meets the description of flagrant.CONCLUSION I find beyond reasonable doubt that Ms Trach is guilty of contempt of this Court in that she contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involved a flagrant challenge to the authority of the Court in that she failed to provide to the Court such information as she held about the whereabouts of the child X born in 2020.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CAC 600 of 2021
Judgment of:	GILL J
Date of judgment:	14 December 2021
Catchwords:	FAMILY LAW – CONTEMPT – circumstantial case – whereabouts of child is unknown – orders made for the mother to provide information to the Court about the child’s location – where the mother has provided information to the Court – where the child is purportedly living with an associate of the mother – police investigation of the mother’s associate – sloppy police investigation – whether the mother’s associate is a fiction – investigation of mobile phones owned by the parents –whether the mother is guilty of contempt of this Court – whether the mother has flagrantly breached orders to provide information to the Court about the child’s whereabouts – mother’s deliberate intention to frustrate court orders – mother guilty beyond reasonable doubt of contempt of this Court
Legislation:	Family Law Act 1975 (Cth) s 112AP Family Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.71
Cases cited:	Bande & Cade (2011) 45 Fam LR 376 Ganem & Ganem (No. 2) [2013] FamCA 257 Oakley & Millar [2019] FamCAFC 12 Shepherd v The Queen (1990) 170 CLR 573 Tate & Tate (2002) FLC 93-107 Witham v Holloway (1995) 183 CLR 525
Division:	Division 1 First Instance
Number of paragraphs:	61
Date of hearing:	13 December 2021
Place:	Canberra
Solicitor for the First Respondent:	Mazengarb Family Lawyers
Counsel for the Applicant:	Mr Howard
Solicitor for the Applicant:	Legal Aid ACT
Counsel for the Second Respondent:	Ms Davis
Solicitor for the Second Respondent:	Infinity Legal
Solicitor for the Third Respondent:	AKN & Associates
Counsel for the Intervener:	Mr Berger QC
Solicitor for the Intervener:	Australian Government Solicitor
Counsel for the Independent Children's Lawyer:	Ms Druitt
Solicitor for the Independent Children's Lawyer:	Mahony Family Lawyers

CAC 600 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CHE Applicant
AND:	MR DON First Respondent MS TRACH Second Respondent MS HUYNH Third Respondent
MARSHAL OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA Intervener INDEPENDENT CHILDREN'S LAWYER

order made by:	GILL J
DATE OF ORDER:	14 December 2021