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Children – serious contempt warrants six-month imprisonment…

…liberty to purge contempt by disclosing child’s whereabouts

In The Marshal of the Federal Circuit and Family Court of Australia & Trach [2022] FedCFamC1F 22 (25 January 2022), Gill J sentenced a mother for contempt, where she failed to provide information about the whereabouts of her son after she handed him to a friend.

In breach of a recovery order, the mother said that she could not locate him.

Gill J said (from [8]):

“In sentencing [the mother] I accept that to find facts … that are adverse to her I must find facts beyond reasonable doubt. I accept further that where there are matters that are … positive for [her] then they need only be found on the balance of probabilities She has demonstrated that she suffers from some cognitive difficulties … [S]he is vulnerable to being used by others … [I]t has not been shown that the offending conduct is connected to … that vulnerability …

[9] … [T]here are a number of … matters that I am to take into account, which include … personal characteristics … 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 … [O]f particular importance is the enforcement of orders, punishment, … deterrence and the vindication of the Court’s authority …

(…)

[15] … [T]he seriousness of the contempt calls for a custodial disposition … I consider that [the mother] ought to be given the option to purge her contempt and if she provides … the information that she has about X’s whereabouts then she may be released … It is not adequate to suspend the term … Suspension is typically … on terms that a person enter into security or an agreement … to be of good behaviour. Where [the mother] has not disclosed the information that she holds about X … she is not of good behaviour …

(…)

[17] 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 [the mother] to relist the matter … to disclose the information about X’s whereabouts …”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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