Contempt of court: a serious charge

by Peter Magee on February 18, 2012

Peter Magee
There can be serious penalties imposed for a conviction of contempt, including imprisonment. In an appeal court case of Rossi & Commissioner of Police [2011], a mother was found to have knowingly contravened three parenting orders, after taking her child from school during the morning break and taking him to Adelaide. When police entered the premises, the boy was found hiding in a shower recess.
The mother had bleached his hair and her own which the Court found to be an attempt to avoid being detected. The Court found that the breaches were very serious and the mother was sentenced to imprisonment for six months. The Full Court found that the imprisonment sentence was not excessive having regard to the circumstances of the case and the need for general and specific deterrence.
If you want to file a charge of Contempt because a parenting order has been contravened, there are some important things to consider:
Contempt of court should only be alleged if the conduct complained of is serious enough. For example, if it is alleged that the contravention of an order involves a flagrant challenge to the Court’s authority or a serious disregard of the person’s obligations under an order.
In A Bank & Coleiro [2011] the Full Court stated that a fair hearing of the charge of contempt under s112AP requires the following ten steps to be taken by the Court:
1. First, set out the charge, which can be done orally or in writing. It is essential that the person understands the charge that is being laid.
2. Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned, so it can be heard before another judicial officer.
3. To afford the person the opportunity to consider the charge and to adjourn for that purpose, if necessary.
4. To give the person the opportunity to state whether he or she pleads guilty or not guilty to the charge.
5. To determine whether the charge requires the person to be held in custody and to hear submissions on the issue.
6. In the event the person pleads not guilty, to give him or her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.
7. Having heard the defence, to determine the charge beyond reasonable doubt and, if established, convict the person.
8. To make an order for punishment if convicted, or discharge if not.
9. If sentencing, to have regard to relevant sentencing principles.
10. To give reasons for the decision to convict and sentence.\
It is important that a person charged with contempt is aware of the above steps and makes the appropriate applications, pleas and submissions.
We recommend that anyone who is served with or is contemplating filing an application for contempt obtain legal advice from a family law specialist, such as our family lawyers at Armstrong Legal.

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