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Father was incorrectly, unfairly jailed in family law matter

By February 21, 2019No Comments

A disturbing case of a “gross miscarriage of justice” has come to light after an appeals court recently overturned a ruling which had sent a father to jail for contempt of court for allegedly failing to disclose all his financial records.

The Sydney Morning Herald reports that the primary judge in the matter, Brisbane-based Salvatore Vasta, has been “blasted” by the appeal court judges for the original ruling, which was found to be extremely flawed and an “affront to justice”. The appeal judges, Justices Steven Strickland, Peter Murphy and Michael Kent, said there was “no factual foundation” for the jail sentence and that the judge in fact had no legal power to impose it.

Judge Vasta had imposed a sentence of 12 months for contempt of court, to be suspended after 5 months, in the property proceedings which involved two unrepresented litigants (with the court-ordered pseudonyms Stradford & Stradford). The dad of two spent six days in a maximum-security prison on suicide watch before being able to obtain a stay pending an appeal.

His wife supported his appeal. She had told the primary judge previously several times that she didn’t want her ex to be jailed: “I obviously don’t want him to go to jail when we’ve got kids to think about..This affects the kids for the rest of their lives”.

The appeal judges said it was “difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party” and identified numerous mistakes that Judge Vasta had made.

From the transcript, the appeal judges said, it was clear that the primary judge had oscillated between claiming that a fellow Federal Circuit Court judge involved in the proceedings had already found Mr Stradford in contempt, before switching to claiming that it was his (Vasta)’s job to determine whether Mr Stradford was in contempt.  The other Federal Circuit Court judge had not actually found Mr Stradford in contempt, but that was just one of the many errors Judge Vasta apparently made.

The appeal judges noted that even in cases where contempt is proven, jailing litigants is “a sanction of last resort” under the law. In this case however, Judge Vasta had also behaved as if the only punitive option available was a jail term.

There is a complicated procedure which needs to be followed in a contempt case and Judge Vasta “did not employ, by way of procedure, anything remotely resembling the procedures specified” under the law.  For instance, the judge didn’t provide the litigant any particulars whatsoever as to the alleged contempt and yet still found him guilty. Mr Stradford was unable to defend himself “because he did not know what charge he was facing”.

The judge had improperly acted as essentially both prosecutor and judge, which conflicted with fundamental principles of justice.

At one point in the proceedings, the primary judge had effectively told the two parties, “settle outside the courtroom now or one of you will go to gaol” – of which the appeal judges said: “Quite how it could be thought proper or appropriate behaviour for a judge to tell the parties [that] eludes us.”

In relation to the primary judge telling Mr Stradford, “I hope you brought your toothbrush”, the appeal judges said, “It is unclear to us what purpose the primary judge saw was being served in [this] pejorative statement…It is, however, another example of pre-judgment.”

Judge Vasta also made remarks like: “I have told you, I will put you in jail in contempt of this court if you talk over the top of me. Do you understand? I am not happy at all with you.”

But the appeal judges noted, “At no point did the husband speak or behave in a disrespectful manner.  Indeed, the transcript reveals the opposite – something that might be thought to be to his credit given the circumstances.”

Contempt of court proceedings are not frequent in family law proceedings Australia, but there were a few cases last year. In one, a woman was sentenced to 18 months jail for contempt of court having breached family court orders regarding sharing care of her children with their father and going on the run with the kids for three years. The maternal grandmother was also given a 6 month sentence for her role in  that case.

In another case, a father was jailed for six months for contravening family court orders to return a boy from the Middle East to his mother in Australia. In that case the penalty was employed as a coercive measure designed to compel the father to cause the return of the child, rather than a punitive one.

Source: Sydney Morning Herald

The judgment has not yet been published online, however Sydney Morning Herald journalist Michaela Whitbourn was kind enough to email us a copy of it for our interest. (And on reading the transcript of Judge Vasta’s proceedings, which the appeal judges included in full in their judgment, one really feels for the Stradfords because the way Judge Vasta handled the matter is certainly very confusing from start to finish!)

Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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