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GARCON and GARCON

GARCON and GARCON

Case [2022] FCWA 240 10 November 2022

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading GARCON and GARCON

Details

AGLC: GARCON and GARCON [2022] FCWA 240
Case: [2022] FCWA 240
Decision Date: 10 NOVEMBER 2022

CaseChat Overview and Summary

In the case of GARCON and GARCON, the matter was before the Family Court of Australia, where the primary issue was the sentencing of the father, who had admitted to three counts of contempt by failing to comply with certain orders of the Court. The dispute centred around the non-compliance with visitation orders and the communication of derogatory remarks about the mother to the children. The mother sought enforcement of the Court’s orders and appropriate sentencing for the contempt committed by the father.

The legal issues before the court involved determining the appropriate penalty for the father's admitted contempt of court. This included weighing various mitigating factors, such as the father's personal circumstances and any efforts to comply with the orders, against the aggravating factors, primarily the seriousness of the breaches and their impact on the children. The court was also required to consider the necessity of upholding the authority of the Court and ensuring the protection of the children.

The court found that while there were some mitigating factors, the primary consideration was the need to enforce the orders of the Court and to protect the welfare of the children. The breaches were significant, impacting the children’s relationship with their mother and undermining the Court’s authority. After considering all the circumstances, the court determined that a term of imprisonment was necessary to adequately address the contempt and to reinforce the importance of complying with the Court's orders. The court imposed a sentence of imprisonment, reflecting the seriousness of the breaches and the need to uphold the Court’s authority.

The court’s final orders included the imposition of a specified term of imprisonment for the father, along with directives for future compliance with the visitation orders. The court emphasised the importance of adherence to the Court’s orders in the best interests of the children and the necessity of maintaining the integrity of the judicial process.

Orders