The Marshal of the Federal Circuit and Family Court of Australia & Trach
[2022] FedCFamC1F 22
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22
File number(s): CAC 600 of 2021 Judgment of: GILL J Date of judgment: 25 January 2022 Catchwords: FAMILY LAW – CONTEMPT – Sentencing – Mother guilty of contempt for failing to provide information about the whereabouts of missing child – Seriousness of the contempt – Lack of remorse – Personal characteristics and vulnerabilities of the mother – Pregnancy – Consideration of appropriate sentence – Mother imprisoned for six months – Mother at liberty to relist to purge her contempt. Legislation: Family Law Act 1975 (Cth) s 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 45
Cases cited: Abduramanoski and Abduramanoska (2005) FLC 93-215
H v B [2002] FMCAfam 326
In the Marriage of G and G (1981) FLC 91-042
In the Marriage of Ibbotson and Wincen (1994) 18 FamLR 164
In the Marriage of Sahari and Sahari (1976) FLC 90-086
In the Marriage of Schwarzkopff (1992) 106 FLR 274
Kendling and Anor & Kendling (2008) FLC 93-384
R v Olbrich (1999) 199 CLR 270
Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866
Che & Don [2021] FCCA 1314
Che & Don (No 2) [2021] FedCFamC1F 304
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 25 January 2021 Place: Canberra Counsel for the Applicant: Mr Berger, QC Solicitor for the Applicant: Australian Government Solicitor Counsel for the First Respondent: Mr Howard Solicitor for the First Respondent: Legal Aid, ACT Solicitor for the Second Respondent: Mazengarb Family Lawyers Counsel for the Third Respondent: Ms Davis Solicitor for the Third Respondent: Infinity Legal Solicitor for the Fourth Respondent: Akn & Associates 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: MARSHAL OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
Applicant
AND: MS CHE
First Respondent
MR DON
Second Respondent
MS TRACH (and another named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 JANUARY 2022
THE COURT ORDERS THAT:
1.Ms Trach, born … 2000, is sentenced to six months imprisonment commencing immediately.
2.Ms Trach is at liberty to seek to relist the matter before the Court at short notice to purge her contempt by the provision of the information she holds regarding the whereabouts of X, born … 2020, at which time, should the Court be satisfied that the contempt has been purged then Ms Trach shall be released from further service of this sentence.
3.Pursuant to s 121(9)(d) of the Family Law Act (Cth) 1975, I direct that reports giving a true account of these proceedings may be published by any means including in identifying parties, a person related to or associated with a party, or alleged to be in any other way concerned in the matter to which the proceedings relate or to identify a witness in the proceedings.
4.I direct that the affidavit and annexures filed by Ms Trach on 20 January 2022 be provided by the Registrar to the person in charge of the L Correctional Centre.
5.I direct that this judgment and reasons be provided to Child and Youth Protection Services and the Department of Communities and Justice of New South Wales so that they may consider appropriate steps to be taken.
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 Trach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Ms Trach is to be sentenced for her deliberate breach of an order requiring her to disclose information that she holds as to the whereabouts of her child X, born … 2020. The breach of that order is of such seriousness that it has been characterised as a flagrant challenge to the authority of the Court. It constitutes contempt. The circumstances and why it was characterised in that manner are contained in the previous judgment that I have delivered.[1]
[1] Che & Don (No 2) [2021] FedCFamC1F 304.
The withholding of that information is a matter of grave seriousness. The context is that X, now 19 months old, has been missing unrecovered despite a Court order directed to the police to recover him since 19 May 2021. It is unclear what steps the police have taken in pursuit of that Recovery Order.
He has been missing and out of the care of his maternal grandmother, the person determined by the Court as being the person that X’s best interests required care for him for some eight months.
The mother, Ms Trach, asserts that she handed him over to Ms B with $200 for one night and now cannot locate him, further asserting that it is preferable that he is out of the reach of the Court. This is the context in which she declines to provide the information that she holds that may disclose his whereabouts.
It is a situation that is further emphasised by the affidavit she relies upon in her sentencing, which discloses that she contacted two persons asserted to be associated with herself and with Ms B. What she did not disclose in that affidavit was the identity of the persons that she has contacted. She has now told the Court their names when subjected to questioning by the Marshal. She has not disclosed their contact details. She has not disclosed the nature of their association either with herself or with Ms B.
While the police investigation has been at times sloppy and it is unclear what enthusiasm they have mustered for the task, that is the type of information that may assist them to enforce the Recovery Order that has been made by the Court.
I note that the offence of contempt was complete on the delivery of the judgment, which was prior to the filing of the affidavit by Ms Trach, but what the affidavit does is demonstrate a lack of remorse. Although it may be seen that she has taken steps to make some enquiries, more than anything else this reflects only fragments of information being provided to the Court and is indicative of a lack of remorse.
In sentencing Ms Trach I accept that to find facts or to use facts that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are supportive of, or positive for Ms Trach, then they need only be found on the balance of probabilities.[2] She has established of course that she is still a young woman. She has shown that she is pregnant and she has shown some requirement, to a degree not demonstrated, for particular care in her pregnancy due to a Streptococcus infection. She has demonstrated that she suffers from some cognitive difficulties, including in terms of her capacity to understand people, not only in what they say but in why they act in the way that they do. I accept that she is a vulnerable person. The evidence has shown that she is vulnerable to being used by others. That can be seen through the examples of her interactions with the police and the report of Ms H and the social media engaged in by her partner and herself. While I accept that she is a vulnerable person it has not been shown that the offending conduct is connected to or the product of that vulnerability and so it is not a matter of significance in reducing her culpability for the contempt.
[2] R v Olbrich (1999) 199 CLR 270, [27]; Kendling and Anor & Kendling (2008) FLC 93-384, [412].
I accept that s 112AP of the Family Law Act 1975 (Cth) provides a code for the exercise of the contempt jurisdiction, as has been identified in s 45 of the Federal Circuit and Family Court of Australia Act (Cth).[3] I accept that statutory schemes that provide sentencing principles are inapplicable despite the criminal nature of the contempt that I am dealing with.[4] I accept that there are a number of different sorts of matters that I am to take into account, which include Ms Trach’s personal characteristics that I have touched upon, her level of remorse, the seriousness of the contempt, whether she has purged the contempt, the effects of the contempt, issues involving retribution, personal deterrence and general deterrence.[5] I accept that there are varying purposes of sentencing for contempt and of particular importance is the enforcement of orders, punishment, including to effect specific and general deterrence and the vindication of the Court’s authority.[6]
[3] Rutherford v Marshal of the Family Court of Australia (1999) FLC 92-866, [81].
[4] In the Marriage of Schwarzkopff (1992) 106 FLR 274, 279–283.
[5] See, eg, Kendling and Anor & Kendling (2008) FLC 93-384, [421]–[430]; In the Marriage of Ibbotson and Wincen (1994) 18 FamLR 164, 176–179; In the Marriage of G and G (1981) FLC 91-042, 76,368–76,369; H v B [2002] FMCAfam 326, [44].
[6] Abduramanoski and Abduramanoska (2005) FLC 93-215, [60]–[62].
Enforcement of the orders and vindication of the Court’s authority are matters that are necessary in part so that the community, and in particular the vulnerable in the community, might know that they can obtain relief from the Court to effect justice and that relief will be complied with.[7] Here, the relief relates to those orders that are protective of X.
[7] In the Marriage of G and G (1981) FLC 91-042, 76,361 (Evatt CJ).
I also accept that emphasis in a case such as this lies on the need to enforce the orders.[8]
[8] Abduramanoski and Abduramanoska (2005) FLC 93-215, [62], citing In the Marriage of G and G (1981) FLC 91-042, 76,361 (Evatt CJ).
I further identify that it is necessary that the sentence imposed should be proportional to those three purposes and also to the nature of the contempt, and that not all contempts are equal in seriousness.
I note that although Ms Trach has no criminal record she has already received a custodial term of one week from Judge Hughes due to her non-compliance with orders regarding X[9] and that that has not been sufficient to motivate Ms Trach to comply with the Court orders, nor sufficient to enforce those Court orders, nor sufficient in terms of specific deterrence.
[9] Che & Don [2021] FCCA 1314.
I observe that the Court has only limited options available to it in dealing with Ms Trach, being prison or fine including punishment, on terms suspension of punishments or release on good behaviour for security. I accept that of those ways of dealing with Ms Trach gaol is the option of last resort and it is an option only to be imposed where it is both warranted and where the purposes of sentencing are unable to be met in a non-custodial option.[10] I further accept that Ms Trach will struggle with prison. She will struggle with the sleep there, she will struggle with food and in particular she will struggle with being pregnant and giving birth there and the pregnancy and birth in gaol would pose a particularly heavy burden upon her. I note that both the ACT and New South Wales prisons have mechanisms to deal with pregnancy and birth in custody.
[10] In the Marriage of Sahari and Sahari (1976) FLC 90-086, cited in H v B [2002] FMCAfam 326, [30].
Yet the seriousness of the contempt calls for a custodial disposition, such an approach sitting consistently with the approach in gauging seriousness in the cases that have been identified by the Marshal in the Marshal’s submissions.[11] Given the nature of the contempt and the heavy weight to be given to the enforcement aspect of penalty, as with a number of those cases I consider that Ms Trach ought to be given the option to purge her contempt and if she provides to the Court the information that she has about X’s whereabouts then she may be released prior to the completion of the custodial term that I will impose. Considering together the seriousness of the contempt, being the failure to disclose information of X’s whereabouts which defeats deliberately the orders made in his best interests, and that it occurs in the context of a previous term of imprisonment, that it is marked by a lack of remorse, yet acknowledging the personal circumstances that Ms Trach has disclosed in her cognitive limitations and the heavy impact of gaol, no other resolution than an immediate unsuspended term is sufficient to acknowledge the seriousness, pursue compliance with the orders, emphasise the authority of the Court in such matters, and mark out specific, and to the extent that it may do so, general deterrence. It is not adequate to suspend the term or part of the term. Suspension is typically characterised as occurring on terms that a person enter into security or an agreement with the Court to be of good behaviour. Where Ms Trach has not disclosed the information that she holds about X and has not purged her contempt, it may be taken that she is not of good behaviour and an attempt to release her on the basis of good behaviour under those circumstances would be somewhat farcical.
[11] Submissions of the Marshal re Punishment filed 24 January 2022.
It is necessary that the term be of a significant period of months. In imposing the term it should be recognised that the hardship that accompanies it may be eased in that Ms Trach may be released from custody should she comply with the orders and give the information she holds that may identify the whereabouts of X. It is within Ms Trach’s hands to secure her own release. Still, the hardship of imprisonment is a matter that is to be weighed in assessing its duration.
The circumstances of this case and the purposes of sentencing for contempt will be sufficiently met by a term of six months, on terms that permit Ms Trach to relist the matter before the Court at any point to disclose the information about X’s whereabouts and secure his release.
Ms Trach, please stand up.
The path that you have chosen does not do X any good. If you want to challenge who he is to live with then this is the place to make that challenge, not by hiding him away out of reach of the Court. What you are doing does not help show that you are the person with whom your little boy should live. What you are doing is likely to result in the welfare authorities taking steps to remove your next child. Make it right and make it right soon, Ms Trach. While X remains missing this matter is not ended. It does not end at you having served six months imprisonment. This is a matter that will continue while ever he remains missing.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 January 2022
SCHEDULE OF PARTIES
CAC 600 of 2021 Respondents
Fourth Respondent:
MS HUYNH
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