A mother has successfully appealed against orders of a federal magistrate sentencing her to a period of four months imprisonment and reversing a parenting order.
The reversal of the parenting order provided that the children were to live with the father indefinitely and not just for the period of the wife's imprisonment. The children were aged six and eight years and had primarily lived with the mother.
The federal magistrate found that, without reasonable excuse, the mother had contravened an order for time to be spent between the children and the father.
On appeal, the Full Court concluded that the federal magistrate failed to identify and apply the proper standard of proof and to adequately set out his reasons for imposing the term of imprisonment. Their Honours were also satisfied that the federal magistrate's consideration of the matters pertinent to the order relating with whom the children were to live fell well short of that required under the Act.
In the course of their reasons, their Honours considered a number of sections found in Pt VII Div 13A of the Family Law Act 1975 (Cth) and set out the effect of certain of those sections.
The judgment of Dobbs and Brayson (2007) FLC 346 is located in judgements of interest in the forums.