· 2022-03-30T09:29:31+0000 · 677 posts

Mother Charged with Contempt for Failure to Locate Missing Child

The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January 2022)

The mother was found guilty of contempt for failing to provide information about the whereabouts of her missing child. The Court, in determining the appropriate sentencing, assessed the seriousness of the contempt, the mother's lack of remorse and her personal characteristics and vulnerabilities.

Facts:

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 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.

The affidavit she relies upon in her sentencing, discloses that she contacted two persons asserted to be associated with herself and with Ms B. She did not disclose in that affidavit the identity of the persons that she has contacted. She has not disclosed their contact details. She has not disclosed the nature of their association either with herself or with Ms B.

Ms Trach has already received a custodial term of one week from Judge Hughes due to her non-compliance with orders regarding X and 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. Ms Trach has not disclosed the information that she holds about X and has not purged her contempt.

Issue:

Whether or not six months imprisonment is an appropriate sentence for the mother.

Applicable law:

Family Law Act 1975 (Cth) s 112AP - 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).

Abduramanoski and Abduramanoska [2005] FamCA 88; (2005) FLC 93-215 - provides 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.

In the Marriage of Ibbotson and Wincen [1994] FamCA 103; (1994) 18 FamLR 164 - relied upon by the Court in accepting that there are a number of different sorts of matters that I am to take into account, which include Ms Trach’s personal characteristics, 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.

In the Marriage of Sahari and Sahari [1976] FamCA 59; (1976) FLC 90-086 - relied upon by the Court in accepting 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.

In the Marriage of Schwarzkopff (1992) 106 FLR 274 - relied upon by the Court in accepting that statutory schemes that provide sentencing principles are inapplicable despite the criminal nature of the contempt that it is dealing with.

Kendling and Anor & Kendling (2008) FLC 93-384 - relied upon by the Court in accepting 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.

R v Olbrich (1999) 199 CLR 270 - relied upon by the Court in accepting 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.

Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299; (1999) FLC 92-866 - relied upon by the Court in accepting 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).

Analysis:

The breach of an order requiring her to disclose information that she holds as to the whereabouts of her child X is of such seriousness that it has been characterised as a flagrant challenge to the authority of the Court. It constitutes contempt. 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.

Ms Trach 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. Still, 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.

Conclusion:

Ms Trach is sentenced to six months imprisonment commencing immediately. 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.

Should the Court be satisfied that the contempt has been purged then Ms Trach shall be released from further service of this sentence. 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. The affidavit and annexures filed by Ms Trach on 20 January 2022 should be provided by the Registrar to the person in charge of the L Correctional Centre.

#Contempt

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