A WA magistrate has just slammed a husband and father in the Family Court of WA with a sentence of 18 months imprisonment for contempt of court in MOLLOY and FOUST [2020] FCWAM 66 (17 July 2020).

What is Contempt of Court?

Generally, you are only at risk of imprisonment when you break a criminal law (legislation that allows a Court to impose a punishment for certain actions). However, each Court also has it’s own inherent power to fine or imprison someone for ‘contempt of court’.

Your can be in contempt of Court when you fail to obey the directions of the Court. This can happen within the Courtroom itself (for example, showing extreme disrespect to the judge during a hearing) or outside of Court when you deliberately breach an order of the Court. 

How can someone be found guilty of Contempt of Court?

Like any other offence, the Court needs  to be satisfied that the behaviour constituting the contempt actually happened. This will be done by way of a hearing, and the evidence can take into account not just whether the Court was disobeyed, but also other factors like: 

• The motivation of the person for breaching the order;
• the effect of the breach on the proceedings;
• any expressions of remorse apologies by the person who breached;
• whether the person can and has fixed the breach (complied with the order or taken action to repair any damage done by the breach)
• whether the person benefited from their breach.

The Court will then decide whether imprisonment is the right punishment, and will also look at the need to stop this person and other people from breaching orders in the future. 

What did the husband in this case do? 

In this case, the husband actually did a lot of things over a long period of time that both breached a court order and prevented a court order from being able to be enforced. 

Firstly, there was an injunction that prevented the husband from selling a particular property. 

He sold it anyway, and lied to the Court about his intention to sell it during a hearing. 

After he sold it, the wife was granted an order requiring him to put all the proceeds of sale in her solicitors trust account. He didn’t do this by the due date. 

Instead, over the course of a few weeks, he withdrew nearly all of the funds in cash, and used another chunk of the funds to buy diamonds. 

This means there is not enough money left for the wife to get the settlement she is entitled to. 

It also meant that the trial that was supposed to happen in this case couldn’t take place, so the case has been delayed. 

The Magistrate decided that this was a deliberate and ongoing breach of the orders, at a time when the husband was aware of the orders and the possible consequences of the breach. 

What was his excuse?

The husband gave evidence that over the  last 6-8 months he had fallen in with an “underground gambling syndicate” and owed them a lot of money. He needed the money from the sale of the house to pay them back and avoid reprisals on him and his children. 

The Magistrate did not believe him. He behaved in ways that were not consistent with him owing a lot of money and being in fear for his safety. 

What happens next?

This person has been sentenced to 18 months in prison. The Magistrate has indicated that if he is able to make good the breach (eg: pay back the money that he withdrew) his sentence may be reduced. 

Otherwise, this father of 2 is facing quite a while in a WA prison. We will keep an eye out for whether this decision is appealed.