Saldo and Tindall
[2014] FamCA 1036
•11 November 2014 Ex tempore
FAMILY COURT OF AUSTRALIA
| SALDO & TINDALL | [2014] FamCA 1036 |
| FAMILY LAW – CHILDREN – Interlocutory application – where final parenting orders were made in 2012 – where the father sought a variation of those parenting orders via a Rice & Asplund argument – where the opportunity should be afforded to the child to be spoken to about these matters and to invite her views before coming to any conclusion about re-visiting the order. |
| In the Marriage of Rice & Asplund (1979) FLC 90-725 Marsden & Winch (2010) 42 Fam LR 1 |
| APPLICANT: | Mr Saldo |
| RESPONDENT: | Ms Tindall |
| FILE NUMBER: | (P)NCC | 3176 | of | 2008 |
| DATE DELIVERED: | 11 November 2014 Ex tempore |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 7 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boyd |
| SOLICITOR FOR THE APPLICANT: | Fielden & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Kelly |
| SOLICITOR FOR THE RESPONDENT: | Derham Houston |
Orders
Further consideration of this matter is adjourned to 4.30 pm on 19 November 2014 for further submissions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saldo & Tindall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3176 of 2008
| Mr Saldo |
Applicant
And
| Ms Tindall |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father filed 4 April 2014 for variation of parenting orders made by me after a final hearing.
The orders were made on 6 September 2012 in relation to one child, a girl now aged eight and a half years. The orders provided for limited communication and no face to face contact between the father and the child. The child has not seen her father since about August 2010.
The application is strongly opposed by the mother, who filed her response on 13 May 2014. Her application was to have a preliminary hearing on the issue of whether there was a sufficient basis for re-visiting orders dealt with or dismissal.
Her application was successful in respect of a preliminary hearing. The first return came before me on 16 July 2014. It was adjourned over the opposition of the mother to enable the father to pursue an application for legal aid. There had been a misunderstanding in the Legal Aid Office and a mistaken belief that the father was seeking to be represented in related contravention proceedings being dealt with by the Full Court.
On 20 August 2014 the matter came back before me, the father having obtained a grant of legal aid. The Court was advised at that time that the father was or would be taking steps to have convictions for assaults on the mother quashed.
The father has now completed a period of incarceration in respect of those convictions. He was in jail at the time of the hearing in 2012.
Directions were made and a hearing date allocated for 3 October 2014. That date was vacated by the Court and a later date in November allocated.
The matter came before me on 7 November 2014 for submissions.
The evidence
The parties had filed material as follows:
The father:
a)Affidavit of the father filed 4 April 2014;
b)Affidavit of the father filed 8 September 2014;
c)Affidavit of Ms Y (father’s partner) filed 8 September 2014;
d)Affidavit of Mr C (father’s treating Psychologist) filed 26 September 2014;
The mother:
e)Affidavit of the mother filed 29 October 2014; and
f)Written submissions prepared on behalf of the mother.
The Issue and The Law
The change of circumstances relied on by the father was that:
a)he was no longer in jail and was in employment;
b)he maintained a relationship with his partner and she continues to be available to support him and the child in any contact;
c)he has begun a course of treatment with Mr C, Psychologist;
d)his assessment of risk of re-offending in jail was low and disqualified him from many offenders programs; and
e)there is now an opportunity to continue and develop the relationship between the father and the child.
There were statements from the Bar table by the father to the effect that he had complied with the order to communicate with the child three times a year and an indication that nothing he had sent had been returned. The mother said that she had received the material sent by the father and had handed it on to the child.
The law on the subject of an application to re-open is set out in a decision of the Full Court in Marsden & Winch (2010) 42 Fam LR 1. That decision has established mandatory considerations for a court to decide whether to embark upon another hearing concerning children and parents.
As has been the case since the decision in Rice & Asplund in 1979[1], a decision must be made on the facts of each particular case. The relevant considerations are:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based;
(2) Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing, and if there is such likelihood; and
(3) The nature of the likely changes which must be weighed against the potential detriment to the child caused by the litigation, noting that small changes to orders may not have sufficient benefit to compensate for the disruption of litigation.
[1]In the Marriage of Rice & Asplund (1979) FLC 90-725
There is a reminder in the decision that the rule in Rice & Asplund should:
…always remains a manifestation of the best interest principle.
And further:
That the rule should not be restricted to taking the applicant’s case at its highest or a full hearing as the only option … Depending upon the facts of each case, a broader range of processes should always be considered.
This is a relevant aspect for consideration in this particular set of facts. Although it is true that litigation has been ongoing for six years, the child’s views have not been sought.
The first consideration is past circumstances. There is a complex history for the parties themselves and for their litigation.
I now draw on the background information set out in the Reasons of his Honour Justice Austin in his decision in April 2012.
The child was born in 2006. The parents separated in November 2008 when she was almost 18 months old.
The first application to a Court was made in 2008. An interim hearing for early 2009 was averted by consent orders providing for periods of supervised and unsupervised time and telephone communication for the child and the father.
Later that year, the mother filed an amended Application and Notice of Child Abuse, asserting sexual abuse of the child by the father. She ceased making the child available. An Independent Children’s Lawyer was appointed. The then Director-General of the Department of Family and Community Services briefly intervened (‘the Intervener’).
In November 2009 the parties reached agreement again for time to take place between the child and the father and for it to be supervised.
The Intervener approved of the paternal grandmother as a supervisor and then withdrew from the proceedings. Around the same time, the father was charged with offences against the mother and child, said to have occurred between May 2002 and July 2007, during the parties’ cohabitation.
In May 2010 the mother filed an Application in a Case seeking orders for supervised time only. There was an interim hearing in that month. Periods of supervised time were ordered with supervision to be by the paternal grandmother.
By August 2010, the mother had ceased making the child available.
The criminal trial of the father commenced in August 2010. The mother gave evidence. The father changed his plea to some offences from not guilty to guilty. The trial was then adjourned for sentencing. The mother filed an application for time between father and child to cease.
On 10 December 2010 there was an interim hearing. The outcome was a variation of orders to provide for supervised time in a contact centre. The mother did not comply with the orders from their commencement.
On 3 April 2012 the mother was found to have contravened without reasonable excuse relevant Orders made in 2010.
The mother appealed against the findings in relation to Contravention and successfully applied for his Honour Justice Austin to recuse himself from further hearing of the matter, in particular, the final parenting applications. That hearing was listed before me in July 2012.
The hearing was conducted over three days. By then the father was in jail but attended in person for the hearing. The hearing was confined to the issues of what time and communication there should be between the father and the child. Parental responsibility and residence for the mother was agreed.
The outcome on 6 September 2012 was for sole parental responsibility to the mother, residence with the mother and mechanisms for communication in writing by the father, sending cards, letters and gifts three times per year. There was provision for the mother to return any inappropriate material and also for the child to write to the father if she wished.
On 5 December 2013 his Honour Justice Austin imposed penalties on the mother by way of multiple good behaviour bonds, most of which are due to expire in December 2014.
In January 2014 the father was released from prison, as had been anticipated during the trial in July 2012 before me.
The second consideration is the likelihood of orders being varied in a significant way as a result of any hearing.
The father seeks orders as follows in his fresh application. On an interim basis, for supervised time in a contact centre, two hours each alternate fortnight. On a final basis, graduating orders culminating in alternate weekends from 8.00 am Saturday to 5.00 pm Sunday and weekly telephone contact.
If he were to be entirely successful, that would be a huge change to present arrangements of communication three times per annum.
One factor which militates against such a change in arrangements being made is the contradictory stance of the father to his own offending.
During the course of his criminal trial, the father changed his pleas in respect of certain charges, as stated. Other charges, including a sexual assault on the mother, were then not pursued by the prosecution.
The father in the family law proceedings attributed his change of plea to pragmatism, not guilt. Apparently, in the criminal trial or at least in his sentencing in July 2011, the father expressed remorse and contrition for his offending. In the hearing before me, the father denied his assaults on the mother. The denial extended to all the agreed facts which the father had signed up to in the District Court.
I refer to my own Reasons[2] given in relation to the final orders made in 2012. Both parents have accused the other of manipulative conduct in courts and lying with deadly consequences. There is a risk of psychological harm to the child if time and/or communication commenced that one or both of the parents could attempt to persuade the child of the rightness of their own position and the wrongness of the position of the other parent. The unleashing of pent up emotions could cause terrible harm to this child. However, the evidence does support restraint by the mother during the course of the final hearing in being protective of the child in terms of her knowledge of where the father was and what would had caused him to be in jail.
[2] Reasons for Judgment dated 06/09/2012, pars 12-21
However the orders were made with the expressed intention to keep the relationship between the child and her father alive. This was to reassure her that nothing she had done had caused her father to lose interest in her and “one day, she may be able to see him again”.[3]
[3] Reasons for Judgment dated 06/09/2012, par 101
The difficulty I have in determining this preliminary application is that I do not know whether the child has enjoyed the communications from the father over the last two years, or even if she has retained a memory of him.
The mother in her affidavit refers to the stable life which she and the child are enjoying, both at school and at home. At eight and a half years old, the child is likely able to express a view, depending on her maturity, on those matters and whether she has any interest in meeting her father again and/or communicating with him at the same level, less or more.
I have come to the conclusion that the opportunity should be afforded to the child to be spoken to about these matters, to invite her views before coming to any conclusion about re-visiting the orders. I do so with the third consideration of Marsden & Winch in mind. That is, that rather than simply dismissing the application or allowing it with the inevitable full family report and affidavits, that the less intrusive option is for the child only to be seen by a person qualified to elicit her views. In the event that no changes or small changes are contemplated, the disruption is minimised.
For that reason, I propose to make orders which I will now distribute in draft. I am conscious that this proposal was not raised at the time of the hearing by me and I wish for the parties to have the opportunity to consider the draft orders which I propose before making them and to obtain instructions.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 November 2014.
Associate:
Date: 21 November 2014
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