Che & Don (No 3)
[2021] FedCFamC1F 304
•14 December 2021
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 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).
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 by this Court under the pseudonym Che & Don has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
These are contempt proceedings concerning Ms Trach’s (the mother) alleged disobedience of an order requiring her to provide to the Court information about the whereabouts of her child X, born in 2020 (the child).
The context of these proceedings is that there are currently orders that the child will live with his maternal grandmother. A recovery order has been issued in support of those orders, but the child has been missing since 19 May 2021.
The mother has already served one week imprisonment for contempt in relation to a previous failure to comply with an order of the Federal Circuit Court of Australia in these proceedings. Despite serving that time the child has not been located and has not been recovered to the maternal grandmother.
On 12 August 2021 Ms Trach filed an affidavit that she had previously affirmed on 5 August 2021 (Exhibit Marshal 2). Relevantly that affidavit contained the following four paragraphs
10. I am stuck in a predicament where I could not provide the much-needed care for my child and my worries for his welfare and safety grows with each passing day. He is currently at a delicate age of 1 where he will need a lot of attention, love and care from his parents which I could not provide due to fearing the authority would come to my doorstep and snatch my child from me.
11. My child is currently in the care of my friend. She is his godmother and is a good person. She is willing to help me look after my son when she found out about my situation. My child is currently well protected, and she will not let anything happen to my child nor let him be returned to my mother.
12. They are in a safe location. I did not want to find out their location since I fear that the authority will continue to track me to get to my son. I am willing to let her raise my child and not go looking for him for as long as my mother continue to pursue his custody.
13. I only want a safe, happy and clean environment for my son to grow up. That place is certainly not with my mother hence I had to make this decision. With the number of COVID19 cases increasing, my worries for my child increases and I could not rest easy knowing that he is not by my side. l plea to the court to please be fair to me; a young mother who misses her child dearly. Please return me the rights to look after my own flesh and blood.
Subsequent to that affidavit and its apparent suggestion that Ms Trach held information as to the whereabouts of the child, on 13 October 2021 I issued an order in the following terms:
1. Pursuant to section 67M of the Family Law Act 1975, the second respondent mother Ms Trach, born … 2000, shall provide to the Court, by way of correspondence from herself or her solicitors, as soon as practicable such information she holds about the location of the child X, born … 2020.
In response to that order Ms Trach caused her solicitor Ms Shavaiz to forward to the Court on 25 October 2021 correspondence purportedly complying with the order. That correspondence is set out in full as follows:
We write regarding the abovementioned matter and the Orders of Division 1 of the FCFCoA of 13 October 2021.
Pursuant to Order 1 of the Orders, I am instructed as follows with respect to all information now held by my client (the mother) with respect to the location of her son X born … 2020:
1. The child was given to Ms B on 19 May 2021 at a convenience store on C Street in Suburb D. The store is on a roundabout on a corner on C Street.
2. Prior to 19 May, the father and the mother had conversations with Ms B about wanting her to be the God Parent to X. It was agreed that she would be the God Parent however nothing formal had occurred, the child has not been baptised and the mother is yet to convert to Catholicism. The Father follows the Catholic Faith;
3. An amount of $200.00 cash was given to Ms B to care for X for one day and one night;
4. Ms B’s phone number is in the phone that was confiscated by the NSW Police when the mother was taken into custody on 20 May 2021. As far as the mother is aware, the phone number is saved under ‘Ms B’ in the contacts list of the mobile phone. The phone is a gold iPhone 10 Max with 512mg storage;
5. Ms Trach did not memorise Ms B’s number;
6. I met Ms B at a café in Suburb D near the C Street and E Street traffic lights.
7. The mother met Ms B at the Café about one year ago. She was at the café at the same time the mother was and they began talking. They then met regularly at this café and formed a strong friendship;
8. The mother is not aware that Ms B has any other job or is caring for any other children. The mother instructs that Ms B does not have children of her own;
9. The mother instructs that, as far as she is aware, Ms B is single and is also unemployed. She was born in Australia but is of Vietnamese background. Ms B only speaks English;
10. Ms Trach says that the description of Ms B’s home address location that was provided by Mr Don to the Court on 21 May 2021 [and appearing at Transcript P158 line 21 – P165 line 25] was accurate. She says that she provided that information to Mr Don to provide to the Court that day and he relayed it accurately;
11. She has nothing to add to that description;
12. The mother instructs that she has not heard from Ms B since 19 May 2021. The mother has not heard about Ms B since that date either. I am instructed that she has not been back to the Café in Suburb D since 19 May 2021 due to her arrest and the COVID lockdown; and
13. The mother instructs that Ms B is of slim build, aged 25-30 years, of Vietnamese appearance, long black hair and around 160cm tall with no other identifying features such as tattoos or scars.
I am instructed that this is all the information my client has with respect to the location of the child or of Ms B.
I confirm this satisfies my clients obligation pursuant to s67M of the FLA.
Following the provision of that correspondence to the Court on 9 November 2021, after hearing from Ms Trach as to whether or not she should be charged with contempt on the Court's own motion I charged Ms Trach in the following manner:
1. Ms Trach you are charged with contempt of this Court in that you contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involves a flagrant challenge to the authority of the Court, in that you have failed to provide to the Court such information as you hold about the whereabouts of X, born in 2020.
I further directed that the charge be prosecuted by the Marshal of this Court, which he has done through counsel.
The mother now defends that charge.
MATERIAL RELIED UPON
In prosecuting the charge the Marshal relied upon the following evidence:
(a)Affidavit of Mr G sworn on 16 November 2021 (First Mr G affidavit);
(b)Affidavit of Mr F sworn on 7 December 2021;
(c)Affidavit of Ms B sworn on 8 December 2021;
(d)Affidavit of Mr G sworn on 8 December 2021 (Second Mr G affidavit);
(e)Exhibit Marshal 1: Affidavit of Mr G filed 16 November 2021 – Annexure SW-5 – Audio Recording …;
(f)Exhibit Marshal 2: Affidavit of the mother affirmed 5 August 2021 (Annexure SW-2 of Affidavit of Mr G filed 16 November 2021);
(g)Exhibit Marshal 3: Affidavit of the mother affirmed 29 April 2021;
(h)Exhibit Marshal 4a: Affidavit of the mother affirmed 10 May 2021;
(i)Exhibit Marshal 4b: Affidavit of the mother affirmed 10 May 2021; and
(j)Exhibit Marshal 5: Transcript of proceedings before Judge Hughes on 20 May 2021 and 21 May 2021.
Following the hearing of the Marshal’s evidence and ruling that Ms Trach has a case to answer, Ms Trach relies upon:
(a)Affidavit of Ms H affirmed 23 November 2021;
(b)Exhibit D1: 3 AFP Case Summary Reports dated 3 September 2020, 24 February 2021 and 10 March 2021;
(c)Exhibit D2: DCJ File Notes from 2 August 2020;
(d)Exhibit D3: DCJ File Notes from 3 August 2020;
(e)Exhibit D4: Assessment document from DCJ on 28 July 2020; and
(f)Exhibit D5: Assessment document from DCJ on 2 August 2020 and an annexure.
THE RELEVANT LAW IN RELATION TO CONTEMPT
This prosecution is brought pursuant to s 112AP of the Family Law Act 1975 (Cth), which is relevantly in the following terms:
112AP Contempt
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
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.Subject to necessary modification flowing from the direction that the Marshal will conduct prosecution of the charge, the relevant rule governing the process for this contempt application is r 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The rules relevantly set out the general procedure for the conduct of such a trial at (6), (7) and (8), which are in the following terms:
(6) When the person attends before the court, the court must:
(a) tell the person of the allegation; and
(b)ask the person to state whether the person admits or denies the allegation; and
(c) hear any evidence in support of the allegation.
(7) After hearing evidence in support of the allegation, the court may:
(a)if the court decides there is no prima facie case—dismiss the application; or
(b) if the court decides there is a prima facie case:
(i)invite the person to state the person’s defence to the allegation; and
(ii) after hearing any defence, determine the charge.
Note: If a maintenance order is complied with before an Application—Contempt is heard by the court, the failure to comply with the order that led to the Application—Contempt being filed does not constitute a contempt of court (see subsection 112AP(1A) of the Family Law Act).
(8) If the court finds the charge proved, the court may make an order for the punishment of the person.
Note: Part XIIIB of the Family Law Act sets out the punishment the court may impose on a person found to be in contempt of court.
In terms of the elements to be proven the Marshal relied upon what was said by Aldridge J in Ganem & Ganem (No. 2) [2013] FamCA 257 (“Ganem”) where his Honour said, at [11]:
11. Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75,294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt (In the Marriage of English, above).
•The act must involve a flagrant challenge to the authority of the court. ...
The Marshal observed that the Full Court in Oakley & Millar [2019] FamCAFC 12 (“Oakley”) described Aldridge J’s formulation as having “aptly summarised” the determining of a contempt application.
However, in the same manner that the Full Court had in Oakley, the Marshal drew no distinction between the second and third of the elements identified by Aldridge J. Similarly, I am unable to discern a distinction between the second and third elements identified by Aldridge J, other than to respectfully observe that his honour appropriately identified the need for wilfulness, deliberacy, or intention in terms of a respondent engaging in the acts that are in breach without it being necessary that the respondent understand that the act is a breach of an order. I, however, also consider that such an understanding, being that the conduct is in breach of an order, is a matter that will go to the Court’s assessment of whether or not the breach is flagrant.
In terms of what may be understood to be a flagrant challenge I adopt the description made by Aldridge J in Ganem where he adopted the description given by the Full Court in Bande & Cade (2011) 45 Fam LR 376 at 393:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In In the Marriage of Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92-496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
The criminal nature of such proceedings, as identified generally in Witham v Holloway (1995) 183 CLR 525, and specifically in relation to this Court in Tate & Tate (2002) FLC 93-107 (“Tate & Tate”) means that the burden falls upon the Marshal as the prosecutor to prove each of the elements of the contempt beyond reasonable doubt. No burden falls upon Ms Trach who is entitled to the presumption of innocence.
As identified by the Marshal, and consistently with Tate & Tate, those component elements are required to be determined beyond reasonable doubt.
THIS CASE
Adapting the elements as identified by Aldridge J to this case, which involves an allegation that encompasses the failure to do an act rather than the doing of an act, those essential elements are:
(a)That Ms Trach knew the terms of the order that required her to provide to the court such information as she held about the whereabouts of the child;
(b)That Ms Trach deliberately and intentionally did not comply with the terms of the order by failing to provide in an accurate manner all the information that she held that went to the whereabouts of the child. Counsel for Ms Trach correctly identified the necessary matter to be proven as being that Ms Trach held information pertinent to identifying the whereabouts of the child, but failed to provide such;
(c)That in failing to comply with the terms of the order Ms Trach did so in a manner that constitutes a flagrant challenge to the authority of the Court.
The Marshal characterised the case as circumstantial. In accepting that each of the elements must be proven beyond a reasonable doubt the Marshal further submitted that this does not require that each fact alleged also be proven beyond a reasonable doubt. In Shepherd v The Queen (1990) 170 CLR 573 at 579-580 Dawson J said:
...the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.
It is necessary then to consider whether the circumstances in this case establish the elements beyond reasonable doubt.
THE CIRCUMSTANCES
The Marshal identified a suite of circumstances.
The first is comprised of the overarching circumstances of the case, many of which are not the subject of challenge, and a number of which are the assertions made by the mother.
They comprise, firstly, the circumstance that the child is the child of Ms Trach, but that pursuant to orders made by Judge Hughes the child was to no longer be in Ms Trach’s care but was to be in the care of the maternal grandmother, with Ms Trach being prohibited from approaching the child on an interim basis. This was a course that the mother was implacably opposed to.
Secondly, they comprise the assertion by the mother that the child was, on the cusp of a court hearing on 20 May 2021 following which the mother was arrested pursuant to an order of the Federal Circuit Court, delivered into the overnight care of an associate of the mother, Ms B, along with the sum of $200 for his care for that night.
Thirdly, that despite the mother’s release from custody the following day, and despite the mother’s subsequent imprisonment for one week commencing 28 May 2021, the child remains purportedly at large, with Ms B asserted to be uncontactable on Ms Trach’s loss of her telephone to the police.
This combination of asserted circumstances, in the submission of the Marshal, beggars belief. It might be considered that the Marshal’s submission is somewhat conservative.
The second circumstance the Marshal relied upon was that of Ms Trach’s expressed motive, wherein Ms Trach has asserted that she would prevent the restoration of the child to the maternal grandmother (see Exhibit Marshal 4a at [52] and Exhibit Marshal 4b at [11] and also at [11.8] of the report of Ms H). This material provided compelling evidence that Ms Trach did not, and does not want the child to be located in order for the child to be returned to the maternal grandmother.
The third circumstance is that which points to the mother’s understanding of the obligation cast upon her by the order, being evidenced by the letter provided to the Court of 25 October 2021, much of which is reproduced above. That circumstance establishes beyond reasonable doubt Ms Trach’s awareness of the obligation that was cast upon her.
The third circumstance is that Ms Trach knew where the child was as at 25 October 2021 (evidence in relation to which is set out further below).
The fourth circumstance is that the Ms B explanation given by Ms Trach is a fiction.
It is convenient to deal with this fourth circumstance firstly. In support of the proposition that the Ms B explanation is a fiction the Marshal relied on three aspects of the evidence.
Firstly, he relied on evidence that the police have conducted investigations to seek to identify a Ms B in the Suburb D area, as described by Ms Trach. Without describing the scope of his enquiries, the investigating officer identified three persons by the name of Ms B in the Suburb D area, one of whom was interviewed and gave evidence before the Court, the other two who were not interviewed but rather information was obtained from their family members denying that such a person held the care of the child.
The Ms B who gave evidence before the Court indicated that she knew the mother, but was not friends with her, they having shared an apartment complex. It may be observed that the witness did not meet the description that had been given by the mother of Ms B, being younger than described, and conceded that her evidence that she knew the mother was reliant upon her having been shown a picture of the mother, and identifying that as a person who had also occupied her apartment complex. She conceded that she may have been mistaken about it being Ms Trach that she shared that complex with.
The evidence seeking to exclude the explanation of Ms B on the basis of the identification of other persons by the name of Ms B in the Suburb D region is not capable of bearing weight. The scope of the enquiries by the NSW police as to persons bearing that name was not identified, and the steps taken to negative even those persons identified as potentially the mother’s ‘Ms B’ were inadequate.
The second aspect relied upon by the Marshal to demonstrate that the Ms B explanation is false related to investigations in respect of the phones of Ms Trach and her partner. When taken into custody on 20 May 2021 they had between them three telephones. The investigating officer gave evidence that two of those phones were lodged at Suburb J Police Station but that he was unable to say whether or not they had travelled with Ms Trach and her partner to the remand facility that they were held in that evening, or whether they were returned to the mother and her partner. The third telephone was lodged at the Suburb K Police Station. When Ms Trach and her partner were subsequently incarcerated for contempt by Judge Hughes three telephones were seized from them.
The police officer indicated that he had received the results of analysis of four telephones from a third-party provider. It was clear that one of the telephones could not be any of those that were seized from the parties at the time of their initial arrest and was at best a telephone that had been taken from them when they had been incarcerated for contempt at the L Correctional Centre (the L Centre) in the Australian Capital Territory. It was unclear which, if any, of the other three phones analysed had been obtained from the parties at either the L Centre or on their arrest, and therefore it was unclear whether all of the phones seized from Ms Trach and her partner on arrest had been analysed.
The enquiries made in respect of the four phones indicated that there was no trace of any contact details for a Ms B (or any derivative of such names) held in any of the telephones. Given the mother's explanation that Ms B’s details were held in her telephone such evidence could have been powerful in negativing such an explanation. However, the uncertainty as to which phones had been analysed and whether any of them were the phones identified by the mother as being with her at the time of the arrest and hence being the phone that was to have carried the details of Ms B was not apparent. Accordingly, no weight can be placed upon the evidence of the analysis of the phones.
It may be observed that this involved a sloppy investigative approach on the part of the police to the serious issue of a missing child.
The third aspect relied upon by the Marshal was the variable description given of Ms B. The variation may be seen in the description contained in the letter to the court, of Ms B being 25-30 years old with long black hair. This contrasts with the description given by the Ms Trach’s partner to Judge Hughes on 21 May 2021 where at pp.158-159 of the transcript (Exhibit Marshal 5) he describes her as “probably in her 50s and with dyed light brown hair”. The mother appears to adopt this description at p. 165 of the transcript where, when asked by Judge Hughes whether she was “able to offer any more information about who this person is, where she lives, or any of the mutual friends” she responded “no”. This appears to adopt a strongly conflicting description of Ms B. However, it must be borne in mind that the mother has functional limitations discussed later which undermine confidence in the scope of what it was that the mother was assenting to, given the lengthier discussion of where Ms B lives following the description given by her partner.
Accordingly, despite some doubt about the matter, the Marshal’s contention that Ms B is an invention on the part of the mother is not established to the extent that it may be relied upon as a circumstance.
Potentially, in the context of the overarching circumstances, the strongest piece of evidence supportive of the Marshal's case relates to the contention that the mother had greater awareness of where the child was as at 25 October 2021 than what she identified in her letter.
This involves the drawing of inferences from Ms Trach’s affidavit of 5 August 2021. The Marshal accepted that there should be some care taken in the drawing of inferences from that affidavit given the evidence presented by the mother from a psychologist, Ms H, as to the mother's capacity. The Marshal fairly conceded that the Court should not rely upon fine distinctions or phrasing or to parse the affidavit with a fine-tooth comb. However, the Marshal submitted that despite Ms H’s evidence as to limitations in the mother's capacity the unmistakable effect of the affidavit was that the mother was aware of matters concerning the whereabouts of the child that she did not disclose in her subsequent letter to the Court. This circumstance is both supported by and gains added cogency from the overarching circumstances of the case, and from the motive expressed by the mother.
To determine whether the affidavit supports the contention that Ms Trach was aware of further information, it is necessary to consider carefully the evidence of Ms H.
Three aspects of Ms H’s evidence were primarily relied upon for Ms Trach.
Firstly, at [11.2] it was identified that Ms Trach struggles to comprehend the motives of others. At [12.1] it was identified that the mother believes that others function as she does. It was submitted that this affects the mother’s capacity to conceptualise the motives of others, presumably giving some explanation for her apparent complacency as to the child’s purported extended stay with Ms B.
Secondly, at [11.9] Ms Trach gives an explanation of the 5 August 2021 affidavit as follows:
In regard to the affidavit filed on 12 August 2021, Ms Trach confirmed that she had asked her partner’s sister to “write what I said.” She agreed that she had written previous affidavits however “I didn’t know how to write it properly for Court.” Ms Trach agreed that she had read the affidavit prior to signing it however “I didn’t pick up on it [the apparent threat that she had arranged for her son to be hidden] until it was pointed out.” She denied knowledge of her son’s whereabouts or ability to contact her friend and could only explain the phrasing in the affidavit as “she must have thought that’s what I meant.” Ms Trach reiterated that she had intended to return home [and to her son] after attending Court on 20 May as “I thought that would be the end of it because we had the paperwork.”
Thirdly, Ms H assesses Ms Trach as having deficits in communication, particularly receptive communication, as presenting as more able than her intellectual abilities and comprehension would suggest, and as close to the thresholds that mean a person is likely to meet the criteria for intellectual disability. Ms H concludes:
Ms Trach’s cognitive capacities suggest that she would likely have difficulty recognising that the phrasing she uses effects the message she intends to deliver
The issue then becomes whether these matters identified in the report of Ms H leave reasonable doubt as to whether, in the overarching context, in the light of Ms Trach’s motive to keep the child from the maternal grandmother, the representations in her affidavit of 5 August 2021 evidence a greater knowledge than set out in her letter provided to the court as to the whereabouts of the child?
That reasonable doubt would lead to the conclusion that there was a reasonable hypothesis consistent with innocence, being that the information provided by Ms Trach in her letter to the Court was the totality of what she knew as to the whereabouts of the child.
However, the accumulation of the circumstances do not leave open a reasonable doubt about that matter, even in the light of the cautions identified by Ms H. The extraordinary overarching circumstances whereby the child, purportedly left for one night with Ms B has now been missing for in excess of six months under the explanation that Ms Trach has no means of making contact, coupled with the clearly articulated motive to not allow the whereabouts of the child to be identified whilst there is the prospect that the child will be placed with the maternal grandmother also colour the complexion to be placed upon the affidavit of 5 August 2021.
The meaning of that affidavit is not reliant upon fine abstractions or subtle nuance. The mother asserts that the child is currently protected and in a safe location, and that Ms B will not let him be taken by the maternal grandmother. Those are assertions apparently made following a one night arrangement for the child to stay with Ms B, but on the basis that with no other information it can be taken that he remains so six months later, protected and with the settled intention on the part of Ms B to keep him from the maternal grandmother. It may be asked how could any of those assertions be made on the circumstances as Ms Trach represents them?
Further, the assertion that she is willing for Ms B to raise the child cannot sit with the information as the mother has relayed it in her letter. That information provides no basis by which the mother could take it that the one night arrangement could be readily converted into raising the child.
Additionally the implication made by Ms Trach’s plea that her “rights” be returned to her regarding the child is that the current position is one able to be readily reversed. On the information given by Ms Trach there could be no such expectation.
Giving full weight to Ms H’s assessment, and taking on board that Ms Trach may not have perceived all of those implications, the picture painted by her in the broadest terms, and one which does not require assessment with a fine tooth comb is that Ms Trach is aware of factors relating to the whereabouts of the child that do not form a part of what she disclosed to the Court. Her affidavit, even if understood broadly, is reliant upon a state of affairs that is inconsistent with the letter bearing her full knowledge as to the child’s whereabouts.
That is also a matter that means that taking into account Ms Trach’s unsworn representation to Ms H as to her lack of understanding of her sworn affidavit again fails to displace the conclusion that Ms Trach, by her affidavit is implicitly asserting that she knows more than what she subsequently communicated in her letter to Court.
It is established beyond reasonable doubt that Ms Trach has not complied with the obligation cast upon her by the order to provide such information as she holds about the child.
What remains then is the question as to whether the failure to provide such information as she holds means that Ms Trach is in flagrant breach of the order. The subject matter, being the whereabouts of what is currently a missing child, in the context of orders designed to secure his care with the maternal grandmother itself speaks to the seriousness of the contravention. The deliberate withholding of the information, as revealed by Ms Trach’s stated intention, is designed to frustrate those orders of the Court. Similarly, the provision of only partial information in the letter provided to the Court must be taken to be a calculated attempt to conceal and deflect attention from the non-compliance behind the subterfuge that the information was complete. Additionally, the contravention was persistent and ongoing at the time of the laying of the charge.
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.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 14 December 2021
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