From the Family Court to Behind Bars

In Western Australia, Family Court Judges can, and do, send litigants to prison but it is far rarer than you might think. In court room dramas, it looks like any little lie made under oath can put you in prison for perjury. However, in the Family Court, you need to persistently and severely thumb your nose at the Court.  

Garcon and Garcon [2022] FCWA 240

In child custody case of Garson, the father, Mr. Garcon, was found in contempt of court for repeatedly violating court orders regarding his contact with his three children, born in 2005, 2007, and 2013. The parents, Ms. Garcon and Mr. Garcon, were involved in a long-standing and difficult custody dispute following their separation in 2015 or early 2016. The family had prior involvement with the Department of Communities due to domestic violence incidents and the children's behavioural issues.

The court had issued orders in November 2017, granting the mother sole parental responsibility and allowing the father supervised visits with the children through a professional agency. These orders were put in place due to concerns about family violence, with the mother alleging emotional and verbal abuse, and the father's obsessive and manipulative behaviour towards her. The court found that the father had difficulty accepting the mother's role in the children's lives and any court decisions that differed from his own views.

However, multiple agencies terminated their services due to the father's refusal to comply with their directions and rules. In October 2020, further orders were made, specifically prohibiting the father from contacting one of the children, approaching the children within 50 meters, or using third parties to communicate with them. These orders were deemed necessary due to the father's ongoing denigration of the mother and the risk of psychological harm to the children. A single expert witness, assessed the situation and recommended that the children live with the mother, citing concerns about the father's behaviour and its potential negative impact on the children.

Despite these orders, the father repeatedly breached them by approaching his children at a train station and sitting next to one of them on the train. He pleaded guilty to three charges of contempt in mid-2022. The father's repeated violations of the court orders were particularly concerning given the history of family violence and the negative impact his behaviour had on the children. The children had expressed a desire to live with the mother and limit contact with the father due to his denigration of the mother.

The court considered the father's personal circumstances, including his employment and lack of criminal history, as well as the nature and circumstances of his contempt. The father claimed that he only approached his daughter because she was uncomfortable traveling alone, but the court found this explanation insufficient, especially considering the potential emotional harm his actions could cause the children.

The court emphasized the father's lack of remorse and his persistent belief that he was the victim in the situation. He continued to criticize the mother, the court, and various professionals involved in the case, demonstrating a lack of insight into the impact of his behaviour on his children. Despite multiple warnings about the potential consequences of his actions, including imprisonment, the father persisted in violating the court orders, showing a blatant disregard for the court's authority and the well-being of his children.

Justice Tyson concluded that a sentence of imprisonment was necessary to uphold the court's authority and protect the children from further interference. The father's actions were seen as a flagrant disregard for the court's orders and a direct challenge to its authority. The court also considered the need to deter others from similar behaviour and to protect the integrity of the legal process.

The father was sentenced to 14 days of immediate imprisonment, with the sentences for the first two charges served cumulatively and the sentence for the third charge served concurrently.

Molloy and Foust [2020] FCWAM 66

The case involved a couple, Ms. Molloy and Mr. Foust, who were navigating the complexities of property settlement following the dissolution of their marriage.

The heart of the matter was the couple's jointly owned property. The court had explicitly ordered Mr. Foust not to sell this property, a directive he blatantly defied. Not only did he proceed with the sale, but he also failed to deposit the proceeds, a sum of $625,727.65, into a trust account as the court had instructed. This act of defiance was a calculated move that aimed to financially disadvantage Ms. Molloy, demonstrating a disregard for both the court's authority and his ex-wife's rights. The sale of the property and his refusal to account for the proceeds significantly impacted Ms. Molloy's potential share of the marital assets, essentially undermining her claim in the property settlement.

In a court appearance on March 20, 2020, he misled the court by claiming that the property was not for sale and even insinuated that Ms. Molloy or her lawyers were somehow responsible for the inquiries from real estate agents. He audaciously declared, "I've got no intentions of selling my house. My daughter was born in the house." This web of lies was an attempt to divert attention from his own wrongdoing and manipulate the court's perception of the situation. He further claimed that he had been contacted by numerous real estate agents but had not initiated any contact himself, attempting to paint a picture of innocence.

His dishonesty extended beyond the courtroom. He withdrew a substantial amount of the sale proceeds, approximately $425,000, in cash, setting up multiple bank accounts to circumvent withdrawal limits. He then used $200,000 to purchase diamonds, further obscuring the trail of the funds. These actions were a deliberate effort to conceal the assets and make it difficult for the court to trace the money, showing a calculated plan to defy the court's orders.

When questioned about the missing funds, Mr. Foust concocted an elaborate story about owing money to an underground gambling syndicate. He claimed to have gambled away a large sum of money and was under pressure to repay the debt. He even went so far as to claim that he feared for his and his children's safety if he didn't repay the debt. However, his story was riddled with inconsistencies and lacked credibility. The court rejected his explanation, finding it to be a fabricated tale designed to justify his actions and avoid accountability. For instance, he could not provide details about the syndicate, the amount of debt, or any evidence to corroborate his claims.

The court's decision to imprison Mr. Foust for 18-months was not taken lightly. Imprisonment for contempt of court is generally considered a last resort, but in this case, it was deemed necessary due to the severity of Mr. Foust's actions and his persistent dishonesty. The court emphasized that such blatant disregard for court orders and the administration of justice could not be tolerated. Mr. Foust's actions were not a mere oversight or misunderstanding; they were a deliberate and sustained effort to undermine the legal process and deprive Ms. Molloy of her rightful share of the marital assets.

Mr. Foust's case serves as a stark reminder of the consequences of disobeying court orders and engaging in deceitful behaviour. His actions not only harmed Ms. Molloy financially but also undermined the integrity of the legal process. The court's decision to impose a custodial sentence sends a strong message that such conduct will not be tolerated, and individuals who attempt to manipulate the system will be held accountable. The 18-month sentence handed down to Mr. Foust reflects the gravity of his offenses and the court's determination to uphold the rule of law.

Conclusion

In the case of Garcon, Judge Tyson commented that: “Enforcement of court orders, and vindication of the court's authority, are necessary so the community and public are aware they can obtain relief from the court to effect justice, and that relief will be complied with. Unless courts are seen to respond "firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, 'serious and lasting damage to the fabric of the law may result'"

The imposition of terms of imprisonment by the Family Court for contempt of court underscores the delicate balance between compassion and the upholding of the rule of law within the family court system. While the court must approach cases with empathy and understanding, particularly given the emotional and complex nature of family disputes, it also carries the responsibility of maintaining its authority and ensuring that its orders are respected and followed.