RE H (A CHILD) (2016)

ADMINISTRATION OF JUSTICE – FAMILY LAW – SENTENCING

CHILDREN’S WELFARE : CIVIL CONTEMPT : COMMITTAL FOR CONTEMPT : NON-COMPLIANCE : PROHIBITED STEPS ORDERS : SUSPENDED SENTENCES

A 12-month custodial sentence for contempt of court, suspended for 12 months, was not excessive for a mother who had repeatedly breached a prohibited steps order. She had been unable to comply with court orders or to engage in contact that was in her child’s best interests, and the judge at the committal hearing had applied the proper test and made appropriate findings.

A mother appealed against a sentence of 12 months’ imprisonment, suspended for 12 months, imposed for contempt of court following her repeated breaches of a prohibited steps order. 

The child, born in 2002, had resided with the father under a residence order. The mother abducted him for four months in 2006; upon their return she was made subject to an order limiting her ability to exercise parental responsibility. Another order provided for her to have supervised contact at a contact centre several times a year. Her application for shared care was refused. In 2012 she was convicted of perverting the course of justice after she forged a psychiatric report. In 2013 a prohibited steps order was made, continuing to restrict the mother to supervised contact with the child at a contact centre and preventing her from approaching him at school without the father’s prior consent. She ceased attending the contact centre, and several times in 2014 and 2015 she approached the child at school. The father applied for her to be committed for contempt; after the application was issued she continued to approach the child without the father’s consent. At the committal hearing, the judge found that the mother had been aware of the restrictions on contact but had chosen deliberately to flout the court’s order, which had put the child in a difficult position and had an adverse effect on him. He found that the father was willing to let contact continue in accordance with the court order, but that the mother had stopped attending the contact centre, even though that was where the child wished to meet with her. 

HELD: The judge’s findings regarding the mother’s motivation were critical to the consideration of whether the sentence imposed was excessive. The mother had no cause to complain about the sentence. Even after the application to commit had been lodged, she had made clear that she intended to continue breaching the court order. The case history was sad, and the child had been placed at the centre of the conflict almost since his birth. The mother had been unable to comply with court orders or to engage in contact that was in the child’s best interests. The judge had applied the proper test, and the court would not go behind his findings, which had been his to make after hearing from both parents. The sentence was not excessive. 

Appeal dismissed.

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