GARCON and GARCON

[2022] FCWA 240

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GARCON and GARCON [2022] FCWA 240

CORAM: TYSON J

HEARD: 19 MAY, 7 and 20 SEPTEMBER 2022

DELIVERED : 10 NOVEMBER 2022

FILE NO/S: [Redacted]

BETWEEN: MS GARCON

Applicant

AND

MR GARCON

Respondent

Catchwords:

FAMILY LAW – CONTEMPT – Where three counts of contempt are admitted – Sentencing – Mitigating and aggravating factors considered – The need to uphold orders of the Court – Term of imprisonment imposed – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)
Sentencing Act 1995 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms B
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm B

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

Abduramanoski and Abduramanoska (2005) FLC 93-215

Australian Securities and Investments Commission v Michalik & Ors [2004] NSWSC 1259

Barbaro v The Queen (2014) 253 CLR 58

Cotterhill & Cotterhill [2007] FamCA 510

Faukland & Shikia (2016) FLC 93-706

G and G (1981) FLC 91-042

Garcon and Garcon [2017] FCWAM 278

Garcon and Garcon [2020] FCWA 192

Garcon and Garcon [2020] FCWA 193

H v B [2002] FMCAfam 326

Ibbotson and Wincen (1994) FLC 92-496

Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384

Molloy and Foust [2020] FCWAM 66

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

R v Olbrich (1999) 199 CLR 270

R v T [2022] WASCA 34

Roffey v The State of Western Australia [2007] WASCA 246

Rossi & Commissioner of Police [2011] FamCAFC 162

Sahari and Sahari (1976) FLC 90-086

Schwarzkopff and Schwarzkopff (1992) FLC 92-303

Senna & Aldenberg & Anor [2018] FCCA 2711

The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garcon and Garcon has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

TYSON J:

1 The applicant mother, [Ms Garcon] ("the mother"), and the respondent father, [Mr Garcon] ("the father") are the parents of [Child A], born [in] 2005, [Child B], born [in] 2007, and [Child C], born [in] 2013 (collectively "the children").

2 Pursuant to interim orders made in November 2017 ("the November 2017 orders"), (1) the children live with the mother, and she has sole parental responsibility, (2) the children are to spend supervised time with the father, through a professional agency, and have electronic communication with the father each Wednesday and Saturday, by way of speaker phone, and (3) injunctions restrain the father from attending any educational or child care facility attended by the children, removing or attempting to remove the children from such facilities, or from the mother's care, from denigrating the mother, and the mother's friends or family, to the children, discussing the children's wishes with them, insofar as it relates to their living arrangements or school attendance, and discussing the proceedings with the children.

3 Subsequent to the November 2017 orders, three professional agencies supervised the father's time with the children. Each terminated provision of their services, because the father refused to comply with their directions and rules. A fourth proposed supervision agency declined to be involved, following advice about the history of previous supervised visits.

4 On 12 October 2020, further interim parenting orders were made, including order 15 in the following terms:

The [father] be restrained by injunction and an injunction granted restraining him from:

(a)texting, emailing or contacting the child, [CHILD B], born [in] 20017 (sic), via any social media platform;

(b)approaching or being within 50 metres of the children, [Child B] and [CHILD C], born [in] 2013; and

(c)requesting any third parties, including but not limited to, persons from [Business A], to communicate or attempt to communicate with the children by whatever means, on his behalf.

5 In June 2021, the mother filed an application for the father to be dealt with for contempt pursuant to s 112AP of the Family Law Act 1975 ("the Act"). Based on that application, it was put to the father he was guilty of contempt as follows:

(a)[In early 2021], the father approached [Child B] at [Train Station A], and sat next to [Child B] on the train between [Train Station A] and [Train Station B], in breach of the injunction contained in paragraph 15(b) of the orders made on 12 October 2020.

(b)[In mid] 2021, the father sat next to [Child B] at [Train Station A] on her way to school, in breach of the injunction contained in paragraph 15(b) of the orders made on 12 October 2020.

(c)On or around 28 May 2021, the father was waiting for [Child B] at [Train Station A] and approached her, on her way to school, in breach of the injunction contained in paragraph 15(b) of the orders made on 12 October 2020.

6 [In mid] 2022, the father pleaded guilty to all three charges. The discrete issue for determination, is the question of what penalty should be imposed.

BACKGROUND FACTS

7 Before considering the question of penalty, it is helpful to provide a brief summary of the background circumstances. The parents were both born in [Country A]. They commenced living together in either 2004 or 2005 and subsequently married in 2008. In 2009, the parties migrated to Australia, and they separated in either late 2015, or early 2016.

8 Since separation, the parties have been embroiled in long-standing and difficult litigation, the details of which do not require repetition.

9 Child A is now 17 years old, Child B is 15 years old, and Child C is eight years old.

10 The Department of Communities (as it is now known) ("the Department") have had multiple interactions with the family between 2009 and [mid] 2017, including two domestic violence incident reports from the police.

11 Child A has displayed a number of challenging and difficult behaviours. Following separation, Child A's behaviours escalated, with her electing which parent to live with, depending on what best suited her at the time. She commenced truanting from school and was assessed to be at educational risk. Child A began drinking alcohol, using [an illicit substance], and displaying defiant behaviours, resulting in interactions with the police. She made threats of self-harm, which resulted in the police taking her to hospital, for a mental health assessment.

12 She was placed under a community based order, and was required to engage with [Agency A]. Child A failed to comply with the conditions imposed, leading to ongoing interactions with the juvenile justice system.

13 Following an interim hearing in August 2017, Reasons were delivered in November 2017,[1] in support of the November 2017 orders, to which I have referred. The presiding Magistrate observed the mother alleged the father had been verbally and emotionally abusive during the relationship, and since separation, he had continued to behave in an obsessive manner towards her. The mother alleged the father was dominating, controlling, and mentally manipulative.[2]

[1] Garcon and Garcon [2017] FCWAM 278.

[2] Garcon and Garcon (supra) at [40].

14 The presiding Magistrate found there were reasonable grounds to believe there had been family violence between the parents,[3] and described the father as "consumed by all aspects of the conflict" between the parties,[4] the father had steadfastly refused to accept the mother had any role to play in the children's health and happiness,[5] and the father found it hard to accept any decision of the Court, which varied from his own views.[6] His Honour described the father's evidence as consistent with some of the allegations made by the mother.[7]

[3] Garcon and Garcon (supra) at [66].

[4] Garcon and Garcon (supra) at [42].

[5] Garcon and Garcon (supra) at [43].

[6] Garcon and Garcon (supra) at [44].

[7] Garcon and Garcon (supra) at [60].

15 [In late] 2017, the mother obtained a Family Violence Restraining Order ("FVRO") for her protection against the father, which was subsequently made final. In support of the FVRO, the mother deposed to the father attending her work, frequently following her, and attending train stations, bus stops, and other public places where she was present, in addition to making repeated derogatory remarks. That FVRO has since expired. [In early] 2018, the mother obtained a FVRO for the protection of Child A against the father. In support of the mother's application, she asserted the father had continued to ignore the November 2017 orders, and was regularly meeting Child A outside of school, and inappropriately involved Child A in adult discussions, amongst other matters.

16 In [mid] 2019, the father arranged for Child A to be delivered to [Court A], by a person from "Business A", at a time when Child A was protected by a FVRO, and orders of this Court. The father was convicted of breaching the FVRO for Child A's protection. The FVRO for Child A's protection was cancelled by the mother [in mid] 2019.

17 [Mr A] was appointed as the Single Expert Witness pursuant to orders made on 28 October 2019. He produced a report, which was filed on 7 October 2020. Mr A assessed the mother was providing for the children's needs, notwithstanding the difficult circumstances caused by the father's behaviour. He recommended the children live with the mother, describing the children as having a secure, stable, and consistent relationship with her. He assessed the mother was the children's primary carer and attachment figure, and considered the children were safe in her care.

18 Mr A concluded the father lacked the capacity to provide for the children's psychological and emotional needs because of his ongoing and continual denigration of the mother, to the children. He considered the children were at risk of neglect and psychological harm or abuse from the father. He opined the father's conduct, including ongoing denigrations of the mother, may have negatively impacted upon Child A, by modelling disrespect of the mother, which may have contributed towards Child A's disrespect, or lack of fear of authority, in the form of police and school, and her defiance. Mr A assessed the father was not encouraging the children's relationship with the mother, he lacked insight into his own conduct, and he continued to blame others, including the mother, the mother's lawyer, the Independent Children's Lawyer ("ICL"), and the Court, for his present circumstances.

19 Mr A observed the father's ongoing denigration of the mother in his interactions with the father, as well as during a joint session, when the father verbally abused the mother, resulting in the father being asked to leave. Mr A noted his observations of the father's continual denigration of the mother, was consistent with the reports of the mother, Child A, and Child B, coupled with the supervision agencies, and was reflected in the father's affidavits.

20 Child A told Mr A she wished to live with the mother and not spend any time with the father. Child B indicated she wanted to live with the mother, but acknowledged she had told the father she wanted to live with him to avoid arguments, prevent her father becoming angry, and avoid upsetting him. Child B reported feeling anxious and sad when the father denigrated the mother. Child C indicated he wanted to see the father. Mr A concluded the father's behaviour had likely influenced the children's desire to live with the mother, and their expressed views in terms of their contact with the father.

21 Mr A considered if orders were made to change the children's residence, as sought by the father, the children would be at risk. He recommended the father access counselling, and attend programs to address anger management and parenting.

22 Mr A's evidence is untested, and is disputed by the father.

23 The proceedings were listed for trial in October 2020. Upon the application of the father, the trial was vacated, for Reasons delivered by the Court on an ex-tempore basis.[8] On that date, the Court heard and determined the application of the mother, supported by the ICL, to vary the November 2017 orders.[9] At that time, the children were not spending any supervised time with the father. It was common ground that despite the November 2017 orders, the father had continued to contact the children including (1) attending the train station to meet Child C and Child B before and after school,[10] and (2) electronic communication, outside what was permitted in the orders.

[8] Garcon and Garcon [2020] FCWA 192.

[9] Garcon and Garcon [2020] FCWA 193.

[10] See Garcon and Garcon [2020] FCWA 193 at [20].

24 In the Reasons, I noted at [32] the father accepted he had been communicating with the children on a regular basis, and acknowledged having unsupervised contact with the children, contrary to the November 2017 orders.

25 In 2021, Child A (then 15 years old) became pregnant. The Department commenced two [investigations], in relation to Child A's safety (following allegations of sexual and physical violence perpetrated by the father of her unborn child), and the safety of Child A's unborn child.

26 [In early] 2022, Child A gave birth to [X]. In consultation with the Department, X has been placed into the mother's care, due to Child A's difficulties caring for X.

CONTEMPT APPLICATION

27 The contempt application has had a protracted history, as a consequence of the Court affording the father significant indulgences. While the father asserts he has been denied procedural fairness, that is not supported by a review of the contempt proceedings.

28 When the contempt application came before the Court for directions on 9 August 2021, I reminded the father that pursuant to the provisions of s 102NA of the Act, neither parent was permitted to cross‑examine the other personally, and cross-examination could only be conducted by a legal practitioner acting on behalf of the other party. I explained those provisions applied to the contempt proceedings and urged the father to seek legal advice. I attempted to provide the father with a copy of the relevant sections of both the Act, and the Family Law Rules 2004 (which then applied), which he refused to accept. The father left Court, before the conclusion of the hearing.

29 Orders were made requesting the Principal Registrar provide the relevant legislation and rules to the father by way of post, which occurred. Orders were made to list the contempt hearing for trial, a transcript of the hearing was provided to the parties, and to [Law Firm A], with a request for the appointment of a solicitor for the father, pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme").

30 The trial was listed on 17 February 2022, with a directions hearing on 12 January 2022. The Principal Registrar wrote to the parties, advising of the listings, and confirmed Law Firm A's advice that the father's funding pursuant to the Scheme had been terminated. The father was recommended to obtain independent legal advice, "noting the potential serious consequences in the event he is found to be in contempt, which include potentially imposing a sentence of imprisonment, a fine, or both".

31 The father failed to attend the directions hearing, which was then adjourned to 19 January 2022, at which time the father attended. Various procedural orders were made.

32 The trial listed for 17 February 2022 was vacated, following the making of an order that the requirements of s 102NA(2) of the Act applied.[11]

[11] Which was made on the oral application of the mother, supported by the ICL, and neither opposed nor consented to by the father, who was then legally represented.

33 The trial was then listed on 19 May 2022. At that time, the father was legally represented, as were the mother and the ICL. The three charges were read out to the father, who pleaded guilty to each charge.

34 Orders were then made to permit the mother to file and serve written submissions with respect to penalty by 1 August 2022, and for the father to file and serve an affidavit, and any written submissions he sought to rely upon by 19 August 2022. Permission was given to the ICL to also file written submissions if she sought to do so, with the mother having permission to file and serve responsive submissions by 26 August 2022. The proceedings were adjourned to 7 September 2022 for oral submissions as to penalty.

35 On 12 August 2022, the father's solicitor filed a Notice of Ceasing to Act.

36 On 24 August 2022, the Principal Registrar wrote to the parties, observing the father had been repeatedly contacting the Court, and reminded the father that proceedings were not conducted by correspondence. The correspondence noted since the matter was last before the Court, the mother had filed submissions, while the father had failed to do so. The Principal Registrar referred to the order made in February 2022 pursuant to s 102NA(2) of the Act, and directed the correspondence be provided to Law Firm A, to assist the father. The correspondence confirmed the proceedings were adjourned to 7 September 2022, for oral submissions with respect to penalty.

37 On 24 August 2022, Law Firm A advised the father's funding pursuant to the Scheme had, again, been terminated, following the father's failure to follow instructions and reasonable advice from his appointed legal representative.

38 On 7 September 2022, the parties attended Court. Another copy of the mother's written submissions were provided to the father. Orders were made extending the time in which the father was to file and serve an affidavit and any written submissions in relation to penalty until 16 September 2022, and the proceedings were adjourned for oral submissions with respect to penalty to 20 September 2022.

39 The father failed to comply with the orders. When the proceedings returned to Court on 20 September 2022, over the objection of the mother and ICL, I gave the father leave to rely on his affidavit. I also accepted the father's letter, which I treated as his submissions.

40 After standing the matter down, to afford the mother and the ICL an opportunity to consider the father's evidence and submissions, and in the absence of any request for an adjournment, I heard oral submissions as to sentencing, and then reserved my decision.

41 I was satisfied it was appropriate to proceed, given the delays, and the many indulgences afforded to the father, including extensions of time in which to obtain legal advice, and lead evidence with respect to sentencing. I was satisfied the father had been afforded procedural fairness. In doing so, I took into account the fact the father had been repeatedly warned the Court had limited sentencing options, which included a custodial sentence.

THE LEGISLATION

42 Section 112AP of the Act provides as follows, in relation to punishment for contempt:

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

(a)does not constitute a contravention of an order under this Act; or

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

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

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

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

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

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

(6)The court may make an order for:

(a)punishment on terms;

(b)suspension of punishment; or

(c)the giving of security for good behaviour.

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

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

(9)In this section:

"order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.

43 The provisions of the Sentencing Act1995 (WA) do not apply to, or in respect of a person being punished by a court for contempt of court.[12]

SENTENCING

[12] Sentencing Act 1995 (WA) s 3(3)(a).

44 The approach to sentencing for contempt under the Act is well settled.[13]

[13] Abduramanoski and Abduramanoska (2005) FLC 93-215; Faukland & Shikia (2016) FLC 93-706.

45 Part XIIIB of the Act provides a complete code for dealing with contempt and sentencing under the Act.[14]

[14] Abduramanoski and Abduramanoska (2005) FLC 93-215.

46 Sentencing a person for contempt is a discretionary decision, in which the Court has the "widest possible discretion to mould the sanction to the circumstances of the individual situation within the overall principles and philosophy of the Family Law Act".[15] The discretion is to be exercised transparently and in light of the individual facts and circumstances of the case.[16]

[15] Schwarzkopff and Schwarzkopff (1992) FLC 92-303.

[16] Australian Securities and Investments Commission v Michalik & Ors [2004] NSWSC 1259 as cited in Myers and Myers [2006] FamCA 1182.

47 The statutory schemes which provide sentencing principles are inapplicable, notwithstanding the criminal nature of the contempt.[17]

[17] Schwarzkopff and Schwarzkopff (1992) FLC 92-303.

48 In sentencing, I am mindful that I may not take facts into account which are adverse to the father, unless the facts are established beyond reasonable doubt. If there are matters that are supportive, or positive of the father, they need only be found on the balance of probabilities.[18]

[18] R v Olbrich (1999) 199 CLR 270 at [27]; Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384 at [412].

49 I am required to take into account the father's personal characteristics, his level of remorse, the seriousness of the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence.[19]

[19] See Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384 at [421]–[430]; Ibbotson and Wincen (1994) FLC 92-496; G and G (1981) FLC 91-042 at 76,368–76,369; H v B [2002] FMCAfam 326 at [44].

50 There are varying purposes of sentencing for contempt, and of particular importance are the enforcement of orders, and punishment, including to effect specific and general deterrence and the vindication of the Courts authority.[20]

[20] Abduramanoski and Abduramanoska (2005) FLC 93-215 at [61]–[63].

51 The Court of Appeal in R v T [2022] WASCA 34, in considering sentencing for contempt, said:

Sentencing for contempt of court constituted by breach of orders

70Sentencing for a contempt of court constituted by a breach of the court's orders may serve two distinct purposes. These purposes may be described as coercive and punitive. A sentence for contempt may provide a coercive means by which court orders can be enforced and future compliance with the orders secured for the benefit of a party to the proceedings can be ensured. However, a sentence for contempt may also punish wilful disobedience of a court's order so as to vindicate judicial authority and maintain the integrity of the courts process in the public interest. These different purposes mark the distinction between civil and criminal contempt. Although the significance of that distinction has been reduced almost to the point of obliteration in Australia, the dual purpose of sentencing for contempt of court remains and imposition of a single sentence may serve both purposes.

Coercive elements of sentencing

71Under the general law, the courts have power to impose an indefinite sentence that will be discharged when the contemnor complies with the relevant order. In the past, an indefinite sentence has been seen as preferable where the purpose of the sentence is coercive …

…

Punitive elements of sentencing

77It is also clear that punishment of past intentional disobedience of court orders is a significant consideration in sentencing for contempt of court. As the Full Court of the Family Court of Australia recognised in [Tate and Tate (No 3) (2003) FLC 93‑138]:

Normally, the purpose of contempt proceedings against a person for breach of such an order is to coerce them to comply with it. However, it is quite clear that another purpose of bringing proceedings for contempt against a person who has breached a non-monetary order of the court may be that of punishment. The purposes of imposing punishment would appear to reflect the need for individual and general deterrence and retribution for the party's failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed. If they are defied or ignored, the whole system of dispute resolution by litigation breaks down. While there are other means of dispute resolution available, in the final analysis a citizen has the right to approach a court to determine a dispute and the court has a duty to do so.

52 Enforcement of court orders, and vindication of the court's authority, are necessary so the community and public are aware they can obtain relief from the court to effect justice, and that relief will be complied with.[21] Unless courts are seen to respond "firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, 'serious and lasting damage to the fabric of the law may result'".[22]

DISCUSSIONS

[21] G and G (1981) FLC 91-042 at 76,361 (Evatt CJ).

[22] Pelechowski v Registrar, Court of Appeal(NSW) (1999) 198 CLR 435 at [149] (Kirby J).

53 When considering what penalty to apply, there is a wide discretion, to mould the sanction to the circumstances, while keeping within the overall principles and philosophy of the Act.

54 Having regard to the authorities, and the facts of this case, the relevant matters which require consideration are the father's personal circumstances, the nature and circumstances of his contempt, the effects of the contempt upon the administration of justice, the culpability of the father, the need to deter the father from repeating his contempt, the need to deter others from repeating the contempt, the absence, or presence, of any prior convictions for contempt, and the father's contrition, if any.

55 The father has admitted to knowingly contravening orders, and in doing so, demonstrated a flagrant, deliberate disregard of the orders of this Court. Despite the father's submissions suggesting otherwise, he pleaded guilty to each of the three charges.

56 I have carefully read and considered the father's affidavit, and submissions. The affidavit provides relatively little admissible evidence. I have taken into account the father's guilty plea, albeit made at a late stage. I acknowledge the plea was made, with the benefit of legal representation.

57 The father is 55 years of age. He deposes to being employed as a [redacted], and has also been a [redacted]. There is no evidence with respect to the father's income, expenses, assets, or liabilities. The father submits he provides financial assistance directly to the children, through the purchase of clothes, food, pocket money, and payment of medical expenses. On the basis the father is employed, and his evidence as to the payments he makes for the children, I infer he is in receipt of an income.

58 The father presents as an articulate and forthright individual. He does not depose to having any criminal record. This is the first contempt charge, for which he is to be sentenced.

59 With respect to the three contempts, the father asserts Child B was uncomfortable and afraid travelling alone on public transport, so he attended, to provide her with reassurance and comfort. He asserts Child B regularly initiates contact with him, which is "just as well because of the neglect of the mother leaving her by herself in the house". The father submits he has also driven Child B to school, before she suffered [a medical episode], with the mother's knowledge.

60 The father submits he has transported Child A, he has assisted Child B to access [Service A], and asserts he is continuing to spend unsupervised time with the children, in accordance with their wishes. The father submits he poses no risk of harm.

61 The father strongly feels the existing orders are not in the children's best interests. Despite the ongoing contempt proceedings, and the father being reminded on multiple occasions of the potential punishment for contempt, he continues to ignore the orders, which he justifies on the basis of his own views.

62 While the father has proffered an explanation for his conduct, I am not satisfied that amounts to any reasonable excuse for his actions. I accept the father wanted to see Child B. I accept the father is frustrated with the existing arrangements, which prevent him having unsupervised time with the children. Those arrangements were imposed by the Court, as being arrangements which were in the best interests of the children. The father has deliberately flouted the orders.

63 While Child B may have initiated contact with the father on occasions, the orders are plain in terms of the obligations. The orders are not subject to the children's wishes, or views. The comments of Mr A with respect to Child B's statements of telling the father what he wants to hear, do not require repetition. In any event, the three contempts which the father pleaded guilty to, related to his actions, not actions of Child B.

64 I accept that separation, the subsequent events, together with the current litigation, has likely been stressful and difficult for the father. The father has struggled being separated from the children. He does not accept the orders which the Court have determined, are in the children's best interests. There are other options open to the father, than the course of conduct he has embarked upon.

65 The father emphasised his view the children are at risk of harm and neglect in the mother's care. He alleges the mother has made false allegations against him. The father asserts the children want to speak with him, and live with both parents on an equal shared care basis, which is being ignored by the Court. While these may be his genuinely held views, they do not offer any satisfactory excuse or explanation, for his conduct and admitted contempts.

66 The father has not displayed any remorse. He has not apologised for his behaviour, nor has he expressed any contrition for his conduct. The father's evidence, and submissions, reflect not only an absence of any remorse, but a persistent view that he is the victim. The father has continued to criticise and make complaints against the mother, her legal representatives, the ICL, the Court, the Single Expert Witness, the supervision agencies, Law Firm A, his previous legal representatives, and the Department, amongst others, for the present circumstances.

67 In his submissions, the father refers to experiencing stress which resulted in him entering "[a cardiovascular condition] and it flared up my [immune disease]". There is no evidence from any treating medical practitioners with respect to the father's health. The father submits he has attended courses and counselling since separation, the details of which are not before the Court. The evidence does not demonstrate the father's health provides any level of mitigation, with respect to his behaviour.

68 On the further facts the Court was asked to take into account, the mother deposed to the birth of X, who has been placed in her care. She also deposed on three recent occasions, the father allegedly contravened the orders, driving to the mother's home [in March] 2022, [April] 2022, and [May] 2022. On the last occasion, the father gave a [gift] to Child B for [a special occasion].

69 The father did not deny attending the mother's home on those occasions. On the father's own evidence, he admits to continuing to spend time with the children, in contravention of the orders. The father submits the children need him "more than ever", and he has "only been following my duty of care as a compassionate father".

70 Concerningly, the father's evidence establishes he is persisting in his behaviours, and continues to fail to adhere to the orders. I acknowledge these are not matters for which the father has pleaded guilty, nor are they matters for which he is to be sentenced. However, they are relevant insofar as they reflect the father's lack of remorse, and indicate an ongoing lack of insight into the need to comply with orders of the Court.

71 Individually, the father's contempts may not appear serious. Viewed in totality, where the orders were made for the children's protection, safety, and well-being, the father's actions demonstrate a blatant disregard for the authority of the Court. The father conceded his knowledge of the orders, which were made when he was present in Court, and legally represented. The father's contempt has been deliberate. The father's evidence indicates he has no intention of complying with the orders.

72 There is a need to protect the children from ongoing interference from the father, and the need to uphold the orders. The impact of the father's conduct is a material consideration. The mother deposes to concerns for her safety and well-being, as well as that of the children. The mother, and the children, are entitled to have the protection afforded by the orders.

73 Personal deterrence is a sentencing factor of significance in the present case. As identified, the primary parenting proceedings are ongoing. The sentence imposed should, in the words of the Court of Appeal "bring home"[23] to the father the seriousness with which the Court regards his open defiance of the orders, and the consequence of deliberate breaches of orders of this Court. The father should be aware, and under no misapprehension, that further deliberate contraventions, will result in sanctions, to hopefully deter future flagrant breaches of the orders of this Court.

[23] R v T [2022] WASCA 34 at [113].

74 Punishment is required not only to deter the father, but others who may consider similar disobedience of the Court's orders. It must also express the Court's denunciation of the contempt.

CONCLUSIONS

75 It is necessary that any sentence imposed by the Court, should be proportional to the various purposes of sentencing, as identified, and the nature of the contempt.

76 I may punish the father's contempts by committal to prison, or fine, or both. I have discretion to order punishment on terms, suspension of punishment, or the giving of security for good behaviour. The mother, supported by the ICL, seek an order of imprisonment.

77 A sentence of imprisonment is the option of last resort, and is only to be imposed where it is both warranted, and where the purposes of sentencing are unable to be met by a non-custodial option.[24]

[24] Sahari and Sahari (1976) FLC 90-086.

78 The father has engaged in a course of conduct, in persistent defiance of orders, which constitute a flagrant challenge to the Court's authority. He has been made aware, at multiple Court appearances and in correspondence, of the possibility of imprisonment. Those warnings have not resulted in the father modifying his behaviour. On his own evidence, the father continues to not comply with orders, noting he is not being sentenced for these matters.

79 In light of the father's conduct and palpable disregard for the Court's authority, I do not consider a fine, nor a suspended term of imprisonment, appropriately reflects the objects of coercion and punishment. In any event, there is no reason to believe a fine would be effective.

80 In Molloy and Foust [2020] FCWAM 66, Magistrate Glass said at [40], as follows:

In Borrie and Lowe The Law of Contempt (3^rd Ed at 629), the following principle is stated:

Blatant and aggravated contempts particularly when repeated by a person who has clearly been warned as to the possible consequences of defying an order, will quite properly attract an immediate custodial sentence as a mark of both the gravity of the contempt and the court's disapproval and to deter contemnors and others who might be tempted to breach such an order.

(footnotes omitted).

81 I respectfully agree and endorse those remarks, which are apt in the present case.

82 The father has displayed a lack of remorse or attrition. He has not demonstrated any insight into the impact of his actions on Child B. The father is fixated upon his case, and his views, as to the arrangements which are best for the children. It is important the father is deterred from any temptation to reoffend.

83 While imprisonment is a sanction of last resort, I consider there to be no alternative but to sentence the father to a period of immediate imprisonment.

84 A custodial sentence will uphold the Court's authority, and fulfil the mother's expectations that Court orders will be obeyed and sanctions imposed, if disobeyed. A custodial sentence reflects the need to appropriately punish the father, sending a clear and unequivocal message to the father, of the need to comply with the Court's orders, and the consequences for failing to do so. A custodial sentence appropriately marks the significance of the father's conduct, and will underscore the importance of compliance with orders made by this Court, under the Act. There is also an aspect of general deterrence involved in the sanction to be imposed. Likeminded contemnors need to be dissuaded from blatant and flagrant breaches of orders of this Court. Such an outcome has the potential, and likelihood, of adversely affecting the children who are the subject of such actions. Further, as acknowledged in many authorities, there is a real risk the administration of justice will be brought down, if parties do not abide by court orders.

85 I have taken into account the father's age, and personal circumstances. I have no doubt a custodial sentence will be difficult for the father. While the father has referred to his health, prisons in Western Australia have facilities to manage the health of prisoners.

86 Having decided a term of imprisonment is appropriate, I have considered whether there are grounds to suspend such a term. I have taken into account the relevant considerations, set out earlier in these Reasons. The relevant orders are orders affecting children. The community must know that orders made by the Court, which are in the best interests of children, are to be obeyed, and if they are not obeyed, the orders will be upheld. The orders were deliberately contravened by the father. Those orders were imposed by the Court, as being in the best interests of the children. I consider that underscores the seriousness of the father's conduct. I am not persuaded there is any basis upon which to suspend any term of imprisonment.

87 In imposing a term, the hardship of imprisonment is a matter which is to be weighed, in assessing its duration. The mother, supported by the ICL, proposed the Court impose a 12 month period of imprisonment. I do not attach any weight to those submissions as it would be inappropriate to do so.[25]

[25] Barbaro v The Queen (2014) 253 CLR 58 cited in R v T [2022] WASC 34 at [105].

88 While a review of punishment in other cases is of limited assistance, given each case depends on its individual circumstances,[26] a comparison of sentences imposed in comparable cases provides a "yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing".[27]

[26] Australian Securities and Investments Commission v Michalik & Ors [2004] NSWSC 1259 at [49].

[27] R v T [2022] WASCA 34 at [88].

89 In The Marshal of the Federal Circuit and Family Court of Australia & Trach,[28] the mother was found to be in contempt of Court for failing to provide information about the whereabouts of the missing child. The Court found the mother lacked remorse, and considered the mother's circumstances, noting she was young, pregnant, and vulnerable. The Court noted the mother had previously received a custodial term of one week (due to her non‑compliance with orders regarding the child) which had been insufficient to motivate her to comply with the orders. The mother was sentenced to six months imprisonment commencing immediately, with provision for the mother to be released if she purged her contempt to a degree that satisfied the Court.

[28] The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22.

90 In Senna & Aldenberg,[29] the mother was in contempt for failing to comply with parenting orders, and the maternal grandmother was in contempt for failing to comply with orders designed to obtain information about where the children might be. Shortly before the children were to move to a week‑about arrangement, pursuant to the final consent orders, the mother absconded with the children, who then had no contact with the father from December 2014 until late 2017, when the children were found and recovered. The Court sentenced the mother to a term of imprisonment for a period of 18 months, and the maternal grandmother was sentenced to a term of imprisonment for six months, with such imprisonment to be fully suspended after three months had been served.

[29] Senna & Aldenberg & Anor [2018] FCCA 2711.

91 In Cotterhill & Cotterhill,[30] the father pleaded guilty to six charges of contempt, which can be summarised as (1) failing to return the child to the mother's care, (2) deliberately evading police after a Recovery Order had been issued, (3) failing to have his mother supervise the time he spent with the child, (4) failing to return the child to the mother's care, (5) depriving the child of the right to live with her mother pursuant to orders that were then in place, and (6) deliberately evading police.

[30] Cotterhill & Cotterhill [2007] FamCA 510.

92 The sentencing judge considered, amongst other matters, the circumstances of the two abductions, the fact the father had no previous convictions, the father's guilty plea (noting the lateness of it), the father's remorse, which the sentencing judge noted had "swung around almost a hundred and eighty degrees" following an adjournment, the support the father provided to his elderly mother and sister, the fact the father had spent two weeks on remand, and the father's financial circumstances. The sentencing judge imposed six separate sentences for the six charges of contempt but made the sentences concurrent. In total, the father was sentenced to 12 months' imprisonment.

93 In Rossi & Commissioner of Police,[31] the mother was found guilty of three counts of contempt for (1) removing the child from school, (2) approaching the child and the child's school without the father's consent or a court order, and (3) travelling with the child interstate, contrary to court orders. Regarding mitigating factors, the sentencing judge considered the mother suffered from depression and took medication, the impact on the mother of not being able to see the child, and that all three charges arose from the same circumstances. Regarding factors that aggravate the seriousness of the offence, the sentencing judge considered this was not the first occasion the mother had removed the child in breach of the orders, and the removal of the child caused disruption to the child's life and schooling. The sentencing judge found the mother was not wholly contrite, and the offences for which the mother had been found guilty were "of the most serious end of the scale". The mother was sentenced to a term of four months for the first charge, a term of four months for the second charge, and a term of six months for the third charge, with the sentences to be served concurrently and operate immediately. The Full Court of the Family Court of Australia upheld the sentence.

[31] Rossi & Commissioner of Police [2011] FamCAFC 162.

94 Having carefully reflected on the circumstances, I am satisfied a sentence of immediate imprisonment is warranted. I consider a sentence of seven days for each contempt is appropriate.

95 I am required to consider the application of the totality principle, in determining the appropriate total effective sentence to be served.[32] I am mindful that the court cannot simply accumulate the individual sentences.

[32] R v T [2022] WASCA 34 at [85]–[86], noting the Court of Appeal stated the court's approach in Lescosky & Durante [2020] FamCAFC 179 should not be applied to sentences of imprisonment for contempt.

96 The sentence imposed, must "bear a proper relationship to the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally", it should "not impose a 'crushing' sentence", and the "practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences".[33]

[33] Roffey v The State of Western Australia [2007] WASCA 246, [23]–[26] (McLure JA (with the agreement of Steytler P and Miller JA)), cited with approval in R v T (supra) at [83].

97 Having regard to all of the circumstances of the case, including the father's personal circumstances, and noting the father is to be sentenced for three separate, individual offences, which did not arise out of the same factual matrix or incident, I have concluded the total sentence which bears a proper relationship to the offending conduct, considered as a whole, is a period of 14 days immediate imprisonment. To achieve that outcome, I intend to order the sentences for counts 1 and 2 be served cumulatively, and the sentence for count 3 be served concurrently with the sentences for counts 1 and 2.

ORDERS

1.The Respondent, [MR GARCON], born [redacted], is hereby sentenced to a term of imprisonment for a period of 14 days, to commence from the date of this order, and to give effect to this order a Warrant of Commitment forthwith issue in the usual form.

2An anonymised copy of the reasons for decision delivered this day be made available for publication.

3The Form 19 contempt application filed by the Applicant, [MS GARCON], [in mid 2021] otherwise be and is hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

10 NOVEMBER 2022