COMMISSIONER, WESTERN AUSTRALIA POLICE andREDFORD

[2011] FCWA 80

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT : FAMILY LAW ACT 1975

LOCATION : PERTH

CITATION : COMMISSIONER, WESTERN AUSTRALIA POLICE and

REDFORD [2011] FCWA 80

CORAM : CRISFORD J

HEARD : 1 JUNE 2011

DELIVERED : 9 JUNE 2011 (Ex Tempore)

FILE NO/S : PTW 3417 of 2002

BETWEEN : KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE

Applicant

AND R

Respondent

Catchwords:

CONTEMPT OF COURT - sentence - mitigating and aggravating factors considered - the need to uphold the orders of the Court - terms of imprisonment imposed

Legislation:

Family Law Act 1975 (Cth) - s 112AP
Crimes Act 1973 (Cth)
Sentencing Act 1995 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms E Needham Respondent : Self Represented Litigant Independent Children's Lawyer : Ms J Johnston

Solicitors:

Applicant : Western Australia Police Respondent : Self Represented Litigant Independent Children's Lawyer : Calverley Johnston

Case(s) referred to in judgment(s):

Tate v Tate (3) (2003) FLC 93-138

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1Today I have found the mother guilty of three counts of contempt stemming from the complaint of the Commissioner of Police filed 19 July 2010. I am now called upon to impose a punishment for that breach of the Court orders.

2The facts of the matter are set out briefly in the judgment that I have published today. They are largely uncontested in relation to the counts themselves. The affidavit of [Amanda Taylor], which has been filed in the Court, does set out the basic facts of the matter.

3Very briefly, for sentencing purposes, on 9 November 2009 the mother went to the child’s school at morning recess. She approached the child. She took the child away from the school and she did not return the child. In doing so, she breached three Court orders.

4The mother dyed her hair and the removal of the child involved a degree of subterfuge. The child was taken out of the State. He was located on or about

23 September 2009 in [New South Wales]. At the time, the child himself had had his hair lightened. It is important to note that this is not the first time the mother had removed the child. After consent orders were made in August 2008 the mother very shortly thereafter failed to return the child to his school, in breach of those consent orders.

5On that occasion, she took the child to [Adelaide]. A recovery order was issued, and as a result the child was located and returned to the care of his father. On that occasion, the child was away for some four months. No charges were laid against the mother.

6Considering the law that must be applied in this case, s 112AP of the Family Law Act 1975 (Cth) (“the Act”) sets out what I am to apply. Although the orders breached were orders affecting the child, the mother has been convicted under a complaint lodged pursuant to s 112AP of the Act. No submissions were made as to the interrelationship, if any, in sentencing between Part VII Division 13A and s 112AP.

7In this case, I see there is little practical difference, as will become apparent in my remarks and in my ultimate disposition. It has been proved that the mother knowingly contravened the three Court orders, and in doing so showed a flagrant disregard for this Court and thus its orders. This is a very serious matter indeed.

8I need to impose a sentence that firstly is a punishment for the offence itself, and in that regard, as I have noted on a number of occasions already, it was not one order but three separate Court orders that have been breached. I also need to impose a sentence that preserves the position of this Court, and in saying that I mean a sentence that is coercive and ensures the Court’s orders are obeyed in future. I refer in particular to the case of Tate v Tate (3) (2003) FLC 93-138 at [57 and 61].

9I do not intend to repeat those paragraphs, but I incorporate them into my remarks today. In this exercise of punishment I am not bound by the sentencing principles of either the Crimes Act 1973 (Cth) or the Sentencing Act 1995 (WA). Subsection 3(3)(a) of the Sentencing Act 1995 (WA) states that the Act does not apply in respect of a person being punished by the Supreme Court or any other court for contempt of that court.

10 When considering what penalty to apply, there is a wide discretion to mould the sanction to the circumstances of the individual situation whilst keeping within the overall principles and philosophy of the Act. Firstly, I will consider any mitigating factors that have been put to me by the mother or any mitigating factors that I perceive from the factual situation itself.

11 The mother has told me today that she suffers from depression and that she has done so since 2008. She has not produced any evidence in this regard. She says she is attending a general practitioner and is on medication. I do not doubt that she does suffer from depression, and I do not doubt that she at least from time to time takes medication.

12 What does cause me some concern is that for the past year she has had legal advice and part of that legal advice was to attend a psychiatrist or a psychologist in order to provide the Court with some assistance in this matter. She failed to attend three appointments. I accept she says she was tired or had chronic fatigue, but the fact is I have nothing before me from a psychologist or psychiatrist.

13 However, as I have said, I do take note that from at least 2008 she has had depression. The fact is, there is probably no worse punishment for a mother or any parent, father or mother, but as a result of the first abduction the mother has not seen her son. That is perhaps the worst punishment of all. I accept that she has suffered from not seeing her son and not being able to play a meaningful part in his life.

14 Nothing I can impose upon her could be much worse than that. I also take into account that the three charges in this matter arise out of the same set of circumstances. I now turn to what could loosely be called aggravating factors, or factors that make this matter worse. Firstly, it is the second time it has happened. I have recounted the first occasion which took place very shortly after consent orders in 2008. I am certainly not punishing or imposing any sentence in relation to that first matter. That would be most inappropriate. On that occasion it was necessary for a recovery order to be executed. It is not as if the mother went into this matter with her eyes closed.

15 I have been provided with victim impact statements. Even without these statements I have no doubt that there was trauma caused to the family because the child, who was living within their household, had been taken and not returned to them.

16 I also accept that although the child was with his mother, it would have caused substantial disruption to his life and to his schooling. Again, there were three separate orders involved. Those orders were very clear. They were unequivocal in their terms. I am satisfied the mother knew of the existence of these orders. If there is any doubt about that, her own affidavit sworn on 3 March 2009, which she relied upon for the hearing, sets that out.

17 The mother knew what she was doing was wrong. She acted in a clandestine manner. I see her actions as providing a poor role model for her child, no matter what she justifies the reasons as being. To go to his school and remove him in the manner she did was a grave step for her to take. I see it was a deliberate flouting of the orders of this Court.

18 Although the mother put before me what she saw as a reasonable excuse, that did not persuade me that it was reasonable. Her evidence was inconsistent and I was satisfied that indeed it was a poor excuse.

19 Now, when I look at the seriousness of the contempt, as I have said, this was a kidnapping. It was an abduction of a child. It was not just removing the child from the school. The child was taken out of the State of Western Australia. Taking him from the school is, in my view, very serious. A school is seen as a neutral place, a place of calm for a child, especially a child who is living in a split household. In my view, it is not appropriate for parents to use the school in the manner it was used here.

20 As I have said, in terms of the seriousness, this was not the first time. I am also satisfied the mother was aware of the consequences. After the first removal in 2008, she had ongoing legal advice. She was aware that a recovery order was likely to be issued. There was a degree of subterfuge in the manner in which she went about it. It was clear that she was in hiding from the police.

21 When I look at a reason or motive for doing it, I have made comment that I do not accept that there was any reasonable excuse for her actions. I accept that she wanted to see her child. I have no doubt about that. She had not been able to see him and she did want to see him, but that does not provide an answer to what happened.

22 I look at whether the mother received any benefit or gain from her actions. She has not received anything at all. All she was able to do in a two week period was to see her son in circumstances where the quality of that time would have been compromised. I have to look at whether there is general contrition. The mother has said sorry this morning. She said at the time she believed her son was being abused and that she was acting as a mother.

23 I do take that into account, but as I have said, I did not think, on the evidence, that was a reasonable stance for her to take and there were other avenues she could have taken that may have been harder, but may have achieved a better result.

24 Although she said sorry today I have had the opportunity of observing her during the trial. I did not get the impression overall that there was a lot of contrition. I do accept that she is fearful of any punishment that I might impose.

25 The mother has told me in terms of her character and antecedence that she has been a victim of domestic violence. That is something that she has been consistent in saying throughout all the Court proceedings. However, I do not know anything about those matters. I have not been involved at an earlier stage, there has not been a trial, those allegations have not been tested and indeed the mother herself entered into consent orders in relation to the child.

26 Having looked at all those different factors, I now turn to what punishment is required. It is my view that the mother must be deterred from any temptation to reoffend. This is addressed to the mother personally, but it is also addressed to the community at large and people who may consider acting in this same manner. The orders of this Court are orders which affect children. They are orders that are made with the best interests of children in mind. The consent orders were changed after the mother removed the child on the first occasion.

27 There is no doubt that the orders made by the Court and which have been breached here were made on the basis that it was best for the child due to the circumstances of the earlier abduction that the child live with the father and that the mother not be presented with any other opportunity to remove the child. Those orders, as I have said, were made by this Court in the best interests of the child and that is something the community expects from this Court and it is something that this Court must uphold.

28 Now, I have various sentencing options. When I look at the Act and look at various parts of the Act, I can impose a community based option, I can impose a bond, I can impose a fine, and I have considered all of these individually very carefully. It is my view that none of these options are appropriate in these circumstances. The mother has said she could pay a fine and that her partner would help her. I do accept that she has the support of her partner, but I do note that other orders in relation to payment of money have not been complied with and that the evidence is perhaps too little too late in that regard.

29 The fact the mother has not attended the psychologist or psychiatrist arranged by her lawyers does not satisfy me that a community based option is appropriate. As I have said, this is the second time that this matter has come before the Court in terms of a recovery order.

30 It is my view that a term of imprisonment is the only appropriate option. I have to look at punishment. I have to look at deterrents, both personal and general. I see this as being a matter at the most serious end of the scale. The abduction or the taking of the child was out of the State. It was not simply to a suburb within the Perth metropolitan area for a short period of time. It was a complete removal of the child from his living and home environment.

31 As I have said, there was subterfuge. There were steps taken to avoid detection.

It seems to me there was a long-term plan involved. A term of imprisonment, in my view, will not affect the child insofar as he is not currently spending time with the mother. I do share the mother’s concern that it would be unfortunate if the child was aware that his mother was spending time in prison. It would seem to me to be something that this child should be shielded from, but that is out of my province.

32 Having decided that a term of imprisonment is appropriate, I do consider whether there are grounds to suspend such a term of imprisonment, and in that regard it is necessary for me to revisit all the considerations that I have outlined this morning, and I have done this. As I have said, these are orders affecting children. The community must know that orders made by this Court which are in the best interests of children are obeyed, and if they are not obeyed, that they are upheld.

33 There was a flagrant disregard by the mother of the orders of this Court. This Court cannot be seen to be the subject of such action. I do note that there were the consent orders in 2008 where there was a sharing of the care of the child. As a result of the first taking of the child, those orders were changed. In all these circumstances I see no grounds to suspend any term of imprisonment.

34 What I do intend to do is to take into account that the three separate charges arose out of the same set of circumstances and I intend to make the terms of imprisonment concurrent and I also intend that they be served immediately.

35 In relation to the first count, there will be a term of imprisonment of four months. In relation to the second count, a term of imprisonment of four months, and in relation to the last count, which is the live with order, there will be a term of imprisonment of six months. As I have said, they will run concurrently.

I certify that the preceding [35] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate