Proven Contravention - Evidentiary Standard related to Penalty
#2439 (In Topic #754)
In the following Judgement, the Full Court of the FCoA consider an appeal against a custodial sentence handed down for contravening parenting orders.<br /><br />Basicly, the court decides the Family Law Act as ammended requires a Judicial Officer to have considered the contavention to proved to a criminal justice "Beyond reasonable doubt" degree of certainty before they can impose a criminal penalty, these being Fines, Community Service Orders and Custodial sentences.</a /><br /><br /></a /><br /><u><strong>Dobbs & Brayson  FamCA 1261</strong></u><br /><br /><br /><span style="FONT-SIZE: 10pt; COLOR: #000000; FONT-FAMILY: Verdana"><strong>FAMILY LAW - APPEAL - FROM DECISION OF FEDERAL MAGISTRATE - CONTEMPT </strong>- Contravention of Court order - Appeal against four month sentence of imprisonment - Federal Magistrate found no reasonable excuse for contravention and found that it was a "more serious" contravention - Sections 70NFB and 70NFF Family Law Act 1975 (Cth) - Failure by Federal Magistrate to identify and apply standard of proof - Section 70NAF Family Law Act 1975 (Cth) - Discussion of civil and criminal authorities on standard of proof and punishment - Section 70NFG(2) - Failure by Federal Magistrate to give adequate reasons for imprisonment - Whether a denial of procedural fairness - Whether Federal Magistrate erred in fact in finding that the mother would refuse to comply with orders if he were to impose a "conditional sanction" - Whether no court would have been satisfied that all other sanctions other than imprisonment were inappropriate - Whether four months imprisonment was manifestly excessive </span><br /><br /><br /><br /><span style="FONT-SIZE: 10pt; COLOR: #000000; FONT-FAMILY: Verdana"><strong>FAMILY LAW - APPEAL - FROM DECISION OF FEDERAL MAGISTRATE - CHILDREN</strong> - With whom a child spends time - Orders - Contravention – Appeal against parenting order – With whom a child lives - Reversal of parenting orders by Federal Magistrate so that the children were to live with the father for an indefinite period and not for the period of sentence of the mother - Failure of the Federal Magistrate to properly address the requirements of Part VII of the Act before he made the parenting order - Best interests of the children s 60CC Family Law Act 1975 (Cth) - Rejection by Federal Magistrate of making orders for compensatory contact - Whether father was seeking a final order that the children live with him or an order that the children live with him while the mother imprisoned</span><br /><br />
Last edit: by oneadadc
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