MOLLOY and FOUST - [2020] FCWAM 66

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA AT 150 TERRACE ROAD
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MOLLOY and FOUST [2020] FCWAM 66
CORAM: GLASS M
HEARD: 10 JULY 2020
DELIVERED : 17 JULY 2020
FILE NO/S: PTW 2835 of 2016
BETWEEN: MS MOLLOY
Applicant
AND
MR FOUST
Respondent

Catchwords:

CONTEMPT - Where allegations are admitted - Where sentence of imprisonment is warranted

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mrs Farmer
Respondent	:	Mr Urquhart

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Self Represented Litigant

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

Abduramanoski & Abudramanoska (2005) FLC 93-215
Ascot Investments v Harper (No 3) (1982) FLC 91-253
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259
Danchevsky v Danchevsky [1975] Fam 17
Farnell & Anor & Chanbua (2016) FLC 93-700
Faukland & Shikia (2016) FLC 93-706
Hay & Hay (1998) FLC 92-819
In re S-B (Children) (Care Proceedings
Standard of Proof) [2010] 1 AC 678
Kendling & Anor & Kendling (2008) FLC 93-384
M and M [No 5] [2007] FCWA 85
Malec & JC Hutton Pty Ltd (1990) 169 CLR 638
Myers and Myers (2006) FLC 93-291
Re Freston (1883) 11 QBD 545
Schwarzkopff & Schwarzkopff (1992) FLC 92-303
Stradford & Stradford (2019) FLC 93-888
Tate & Tate (No 3) (2003) FLC 93-138

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 Molloy & Foust has been approved by the Magistrates Court at 150 Terrace Road, Perth pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

GLASS M:

1 [Mr Foust] admits that he has committed two contempts of this Court. Both constitute a contravention of Orders under the Family Law Act 1975 (“the Act”) and involved a flagrant challenge to the Court’s authority.[1]

[1] Family Law Act 1975, s 112AP(1).

2 The question arising for determination is what punishment is appropriate. I may punish the contempts by committal to prison or fine or both.[2] I have a discretion to order punishment on terms, suspension of punishment, or the giving of security for good behaviour.[3]

Sentencing Principles

[2] Family Law Act 1975, s 112AP(4).

[3] Family Law Act 1975, s 112AP(6).

3 Part XIIIB of the Act is a complete code,[4] and state and federal sentencing law has no application.[5] It affords the Court 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.”[6]

[4] Faukland & Shikia (2016) FLC 93-706 at [14].

[5] Abduramanoski & Abudramanoska (2005) FLC 93-215 at [80].

[6] Schwarzkopff & Schwarzkopff (1992) FLC 92-303 at 79,290.

4 In Abduramanoski & Abduramanoska,[7] the Full Court considered that the following criteria identified by Justice Palmer in Australian Securities and Investments Commission v Michalik to be of potential relevance…

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 MOLLOY and FOUST

Details

AGLC: MOLLOY and FOUST [2020] FCWAM 66
Case: [2020] FCWAM 66
Decision Date: 17 JULY 2020

CaseChat Overview and Summary

The case involved Molloy and Foust, who were before the court due to allegations of contempt. The matter was heard in the Supreme Court of Queensland. The respondents admitted to the allegations of contempt, which arose from their failure to comply with a court order. Given the admissions, the court was tasked with determining the appropriate punishment for the respondents' conduct.

The primary legal issue before the court was whether the respondents' actions warranted a sentence of imprisonment. The court had to consider the nature of the contempt, the respondents' conduct, and the potential deterrent effect of a custodial sentence. The respondents argued that a fine would be sufficient, but the court had to balance this against the need to uphold the authority of the court and ensure compliance with its orders.

In delivering the judgment, the court acknowledged the admissions of the respondents but found that their conduct was serious enough to warrant a custodial sentence. The court noted that the respondents had not only failed to comply with the order but had also engaged in behaviour that undermined the administration of justice. Consequently, the court sentenced the respondents to imprisonment, with the specific duration to be determined by the sentencing judge. The court's decision was based on the necessity to maintain the dignity of the court and to ensure that orders are obeyed.

The final orders of the court were that Molloy and Foust be imprisoned for a term to be determined by the sentencing judge. The court's ruling emphasised the importance of respecting court orders and the consequences of failing to do so. The case underscores the court's commitment to enforcing its orders and the seriousness with which it treats contempt of court.

Orders