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FCA judges rescue non-contact mother

The Daily Telegraph
30 October 2007

Judges critical of mum jailing
By Janet Fife-Yeomans

A mother who could not afford the petrol to drive her children to a court-ordered contact visit with their father should never have been jailed, the Full Bench of the Family Court has ruled.

In an extraordinary judgment, the court said not only did Federal Court magistrate Michael Jarrett get it wrong, his considerations fell "far short" of what was required by the Family Law Act.

With no money to put petrol in her car and without a lawyer, she had represented herself before Mr Jarrett, who earns $239,430.

She was jailed for four months in March but released on appeal on the order of the Full Bench after eight weeks and reunited with her daughter, 6, and son, 8.

The Full Bench of the Family Court reserved its reasons which were published yesterday.

Justice Mary Finn, Justice Bernard Warnick and Justice Jennifer Boland said prison should only be invoked as a last resort.

"For this mother, with primary care of two young children, the more so," the judges said.

They said they expected Mr Jarrett would have "cogent and thorough" reasons for such a serious decision however his reasons were "deficient in detail and lacked clarity".

The parents split up when their son was 14 months and the mother was pregnant with their daughter. The children have always lived with their mother, who has since remarried.

The three judges said Mr Jarrett was also wrong in sending the children to live with their father indefinitely when he jailed their mother.

Just three months earlier, a Family Court judge had granted the mother custody, saying she was an outstanding parent doing an outstanding job and living with their father would expose them to "too much prospect of harm".

Dobbs & Brayson [2007] FamCA 1261 25/10/20077

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE CONTEMPT 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

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE CHILDREN 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

Download the judgement in PDF (220kb)

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