Family Law

Emma Nash and Sarah Basso, of the International Family Law Group, discuss how in Senna & Aldenberg & Anor [2018] FCCA 2711, a mother of two and her own mother (the grandmother) were imprisoned following their failure to comply with Orders of a Family Law Court in Australia, and whether a similar approach could be taken by an English Family Court. If so, for failure to comply with comparable orders, the decision serves as a reminder of the importance of complying with court orders and the likely response of the court if an order is seriously breached.  

Background of Senna & Aldenberg 

In October 2014, a parenting order was made by agreement between the mother and father. Simply, the Order provided for the two children to live with the mother and spend time with the father. Shortly after the Order, the mother left with the children from the city where she, the father and the children had been living. The mother took them out of school and continued their education at home. She changed their identities and moved around often every three to four months for a period of almost three years, before the children were found. The mother raised allegations of domestic violence against her former husband as the reason for her removing the children. The allegations were found to be unsubstantiated.

During this time, the father did not see the children and was unable to communicate with them. He obtained a further Order, described as a ‘location order’, to assist with locating the children. The location Order, in part, directed the grandmother to reveal the location of the children to the Court. The children were at a property owned by their grandmother. It then came to light that the children had been living there with the grandmother and their mother for a period of six months prior being found. This had not been disclosed to the Court by the grandmother as required.

Sentence of imprisonment 

The father brought applications against the mother and the grandmother for their breaches of the respective Orders; for the mother in breaching the parenting Order and the grandmother in breaching the location Order. Both the mother and grandmother plead guilty to contempt of court (that is, guilty to failing to comply with the relevant Order). The mother was sentenced to 18 months imprisonment and the grandmother to six months but was required to serve three because of her age (74) and her poor health.

Imprisonment was found to be appropriate for the mother given ‘the significance of her conduct and to underscore the importance of compliance with orders of a court exercising jurisdiction under the Family Law Act’. The Judge also commented on the deterrent effect of a sentence for imprisonment – that is, the Judge imposed a sentence to deter other people from breaching orders whether the orders were made by consent or otherwise. The mother here was found to have ‘deliberately ignored’ the Order. A fine was found to be insufficient for the grandmother ‘because of the seriousness of the conduct in the circumstances’.

A period of imprisonment, albeit a significantly shorter one, was made against the maternal grandparents (Mr and Mrs D) and maternal aunt (Mrs W) by the Family Court in Brown v Davies [2013] EWHC 3523 (and see also Re Davies [2013] EWHC 3294]). The father had not seen the child since 18 December 2011, despite an Order made in June 2011 requiring regular contact between the father and the daughter. It eventuated that the mother had left Cardiff and gone to Russia with the child.

Like in Senna & Aldenberg, location orders were made against Mrs D and Mrs W requiring them to provide the court with information about the location of the child who was then five years of age. Consequently, Mrs D, Mr D and Mrs W each attended and gave evidence on oath about their ability to contact the mother and the location of the child. The Judge was ‘in no doubt whatsoever that all three of them are lying …’ to the Court. For example, Mrs D had said, under oath, that she had no way of contacting her daughter (the mother of the missing child) and then sent text messages to her daughter which she subsequently deleted.

When sentencing each of them to twelve days imprisonment (half to be served), His Honour Mr Justice Keehan said:

‘If in the future the need ever arises to find your daughter and/or …[the child] I will expect you to cooperate with orders of this court and, whether out of a misguided sense of loyalty or otherwise, not to treat this court with contempt and cause yourselves, each of the three of you, to have to go through such distressing times and distressing periods in prison.  You have all brought this on yourselves.  I trust it will never be repeated again.’

Takeaway points 

Some important points to take away from these cases are:

1. Do not agree to an order if you do not intend to comply with it. In this matter, the mother breached the order which was made by consent within a matter of months.

2. Obtain legal advice when you are going through a separation, so you fully understand your obligations and your rights.

3. It is imperative to comply with an order of a court, whether the order relates to parenting or financial matters. Breaching a court order has serious consequences including fines and, in some circumstances, if the breach is severe enough, imprisonment. This is also the case in England.

4.  In the context of parenting orders particularly, failure to comply with an interim (short-term) order (or orders) can have a detrimental impact to the final order the court makes in your case.

For example, Re C (A Child), the Court made an Order that the then six-year-old girl should move to live with her father ‘because the mother had consistently failed to support the relationship between her and her father’. The mother continually breached court orders which required her to facilitate the relationship. This decision was appealed by the mother, who had prior to the Order had primary care of the child. The mother was unsuccessful. For more information on this decision, see partner Emma Nash’s recent article on ‘Change of Residence for Child whose Mother would not Comply with Court Orders’.

A sentence of imprisonment can occur more readily in England through the use of penal notices which can apply to various orders. A penal notice provides a warning that if you fail to comply with the order to which it relates, you may be subject to a fine, imprisonment or your assets seized.

Whilst this article considers the consequences of breaching a Family Court order in the context of parenting proceedings, the consequences of breaching an order in financial proceedings are just as serious. For more information, see our article: ‘Non-disclosure and breach of Court Orders: How an 83 year old millionaire of ‘good character’ ended up in prison’.

Emma Nash is a Partner at IFLG. She provides clients with advice and support in relation to a comprehensive range of family law issues including child maintenance, financial provision on divorce, and financial claims by cohabiting couples.

Sarah Basso is a Senior Paralegal and qualified Australian Solicitor (QLD) at iFLG. Through her practice in Australia as part of top tier family law team, Sarah has experience assisting in a wide range of family law matters from complex financial disputes for high net wealth individuals with a cross-jurisdictional element to international relocation. 

Emma.Nash@iflg.uk.com; Sarah.Basso@iflg.uk.com