Saldo and Tindall - [2014] FamCA 1036

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saldo and Tindall

Details

AGLC: Saldo and Tindall [2014] FamCA 1036
Case: [2014] FamCA 1036
Decision Date: 11 November 2014 Ex tempore

CaseChat Overview and Summary

In the matter of *Saldo and Tindall*, heard before Cleary J, the dispute concerned an application for an order for the sale of property. The applicants sought the sale of a property held in joint names, while the respondent sought to retain the property.

The central legal issue before the Court was whether an order for sale should be made pursuant to section 66G of the *Conveyancing Act 1919* (NSW). This required the Court to consider the principles governing the exercise of its discretion under that section, particularly in circumstances where one co-owner wished to retain the property and the other wished to sell.

Cleary J adjourned further consideration of the matter to allow for further submissions from the parties. This indicates that the Court had not yet reached a final determination on the application for sale, and that further arguments or evidence were required before a decision could be made.

Orders

Orders of the court

Further consideration of this matter is adjourned to 4.30 pm on 19 November 2014 for further submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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