- Jailed mother set free
- By Ian Munro
- The Age
- 16/09/2004 Make a Comment
- Contributed by: admin ( 100 articles in 2004 )
A Victorian woman jailed for repeatedly refusing to allow her former husband contact with their six-year-old daughter has had her sentence suspended in an appeal to the Family Court.
The mother, identified as C in court documents, had served 12 days of a 30-day jail sentence. She will serve the remaining 18 days if she again breaches contact orders.
This is despite the Family Court appeal judge being unable to find clear authority giving him power to suspend her sentence.
Justice Joseph Kay said it was not in the best interests of the girl that she be further separated from her mother "in the traumatic circumstances that accompany a period of incarceration".
Jailing is rare in family law, and most recently occurred in a case heard last year in Parramatta, NSW, Melbourne University senior law lecturer Helen Rhoades said.
"This would be the second or third case I have ever heard of in Australia," Ms Rhoades said. "Usually the person the action is taken against is the resident parent for failing to provide contact. That is what enforcement applications are about.
"It's rarely seen to be in the best interests of the child to have their resident parent locked away in jail."
While the mother's jailing is unusual, Justice Kay's appeal decision to suspend her sentence appears to be unprecedented. Justice Kay said he had found no previous examples to guide him, although the power to suspend a jail sentence in Family Court matters seemed to be implied in some full court judgements.
The mother was jailed by a federal magistrate after what Justice Kay described as "a significant and tortuous process through the court".
"The father had been endeavouring for several years to maintain contact with his daughter and, notwithstanding a series of orders that required the mother to provide contact, the mother resisted compliance with the court orders," Justice Kay said.
"The magistrate took the view that the proceedings had been running before the court for over two years but there was nothing to indicate that the mother was ever likely to change her mind on these issues."
The mother initially served seven days in jail in May, but won a stay of the sentence. She was re-arrested on June 16 after failing to attend a court hearing and served five more days before a second stay.
Hearing her appeal against the prison sentence, Justice Kay suspended the remaining 18 days of her term for 12 months.
In a ruling published on the Family Court website this week, he said the mother now indicated she would comply with court orders, which she refused to do in May.
"I am fairly confident that the power to imprison includes the power to impose a suspended sentence of imprisonment," he said.
A court spokeswoman said figures were not available for the number of people jailed in family law matters, although the incidence was "quite rare".
She said Justice Kay had expressed his findings tentatively because the relevant legislation said nothing about suspended sentences.
The mother, identified as C in court documents, had served 12 days of a 30-day jail sentence. She will serve the remaining 18 days if she again breaches contact orders.
This is despite the Family Court appeal judge being unable to find clear authority giving him power to suspend her sentence.
Justice Joseph Kay said it was not in the best interests of the girl that she be further separated from her mother "in the traumatic circumstances that accompany a period of incarceration".
Jailing is rare in family law, and most recently occurred in a case heard last year in Parramatta, NSW, Melbourne University senior law lecturer Helen Rhoades said.
"This would be the second or third case I have ever heard of in Australia," Ms Rhoades said. "Usually the person the action is taken against is the resident parent for failing to provide contact. That is what enforcement applications are about.
"It's rarely seen to be in the best interests of the child to have their resident parent locked away in jail."
While the mother's jailing is unusual, Justice Kay's appeal decision to suspend her sentence appears to be unprecedented. Justice Kay said he had found no previous examples to guide him, although the power to suspend a jail sentence in Family Court matters seemed to be implied in some full court judgements.
The mother was jailed by a federal magistrate after what Justice Kay described as "a significant and tortuous process through the court".
"The father had been endeavouring for several years to maintain contact with his daughter and, notwithstanding a series of orders that required the mother to provide contact, the mother resisted compliance with the court orders," Justice Kay said.
"The magistrate took the view that the proceedings had been running before the court for over two years but there was nothing to indicate that the mother was ever likely to change her mind on these issues."
The mother initially served seven days in jail in May, but won a stay of the sentence. She was re-arrested on June 16 after failing to attend a court hearing and served five more days before a second stay.
Hearing her appeal against the prison sentence, Justice Kay suspended the remaining 18 days of her term for 12 months.
In a ruling published on the Family Court website this week, he said the mother now indicated she would comply with court orders, which she refused to do in May.
"I am fairly confident that the power to imprison includes the power to impose a suspended sentence of imprisonment," he said.
A court spokeswoman said figures were not available for the number of people jailed in family law matters, although the incidence was "quite rare".
She said Justice Kay had expressed his findings tentatively because the relevant legislation said nothing about suspended sentences.
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