Judge Vasta, a former Crown prosecutor, proceeded to imprison the man on December 6 last year for a maximum of 12 months for contempt of court, with five months to be served in custody before the balance of the term was suspended. Loading The man, who has two children aged five and nine, spent six days in a maximum-security prison on suicide watch before he was released pending the outcome of an appeal. In a scathing judgment on Friday, the Full Court of the Family Court said Judge Vasta had no legal power to make the orders and it would be an "affront to justice" to leave them in place. Neither the man nor his former wife – given the pseudonyms Mr and Ms Stradford – had legal representation in the property dispute.

Ms Stradford told the judge at least twice she did not want her former husband imprisoned, saying: "I obviously don’t want him to go to jail when we’ve got kids to think about," and, "This affects the kids for the rest of their lives." She supported her former partner in his appeal to a three-judge bench of the Family Court. The Full Court of the Family Court overturned Judge Vasta's decision. Justices Steven Strickland, Peter Murphy and Michael Kent said they were "comfortably satisfied" that "what occurred here ... constituted a gross miscarriage of justice". There was "no factual foundation" for the order and the judge had no legal power to make it, the judges said. The court said Judge Vasta proceeded on the basis that a fellow Federal Circuit Court judge had already found the man was in contempt of the court's orders, although it was "patently obvious" this was not the case.

Even in cases of proven contempt – which was not the case here – imprisonment was "a sanction of last resort", the 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 the man was not given a chance to be heard. The decision comes before the Morrison government's planned merger of the specialist Family Court of Australia with the lower-level Federal Circuit Court, which handles less complex family law disputes alongside migration cases, to create a new mega-court called the Federal Circuit and Family Court. The Law Council of Australia, the peak body for the legal profession, has been a vocal opponent of the merger and says scrapping the Family Court as a standalone court will lead to a loss of expertise on the bench. Law Council of Australia president Arthur Moses, SC. Credit:Louise Kennerley

It is urging Parliament to oppose the "potentially catastrophic" bill giving effect to the merger, saying a report by the Senate's legal and constitutional affairs committee on Thursday exposed deep flaws in the plan. Law Council of Australia president Arthur Moses, SC, said the contempt case "reinforces the fact that not only the outcome of a case but the very way in which family law matters are handled by the courts has direct, life-altering and irreversible consequences for the children and families concerned". "Maintaining a specialist, properly resourced Family Court of Australia is therefore critical," he said. But Attorney-General Christian Porter said the government’s "proposed reforms will make no difference to the expertise available within the court, as the current Family Court of Australia will form Division One of the newly formed court". "Maintaining the existing structure does nothing to address the fundamental problem that is well-recognised, arising from the fact that Australia has two courts dealing with family law in Australia, with two sets of rules forms and procedures," Mr Porter said.