Saldo and Tindall (No 2)

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL (NO. 2)

[2014] FamCA 1061

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 previous orders stated that the child should be afforded the opportunity to be spoken to about these matters and to invite her views before coming to any conclusion about re-visiting the order – where such an order is now made for the child to consult with a Senior Family Consultant

Marsden & Winch (2009) 42 Fam LR 1

APPLICANT:

Mr Saldo

RESPONDENT:

Ms Tindall

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

19 November 2014
Ex tempore

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

19 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 Lawyers

Orders

That the child T born … 2006 (‘the child’) shall attend on the Senior Family Consultant in the Family Court Counselling Section for an interview and short report on the following matters:
1.1An observation of the maturity for the age and intelligence of the child.
1.2The views of the child, if any, as to whether she:
1.2.1has enjoyed receiving letters, cards and gifts from the father on occasions over the past two years;
1.2.2presently holds a memory of her father and/or her father’s partner Ms Y;
1.2.3has an interest in meeting with her father (and also Ms Y) face to face;
1.2.4wishes to communicate with her father in any way; irrespective of whether she would like to meet with him.
That the mother shall take all necessary steps to arrange for the child to attend upon the family Consultant NOTING that the date is foreshadowed to be in the last week of November 2014 with the Senior Family Consultant to advise the date and time directly to the mother.
That the Application and Response are adjourned for mention at 9.30 am on

10 December 2014.

THE COURT NOTES:

(A)The father says that he has complied with the Orders made 6 September 2012 and the mother says she has complied with the Orders and delivered what has been sent to the child.
(B)The Reasons for Judgment and Orders delivered 6 September 2012 are to be made available to the Senior Family Consultant.

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

I have had the benefit of some submissions on behalf of the father, generally favourable to the child being interviewed, and some further written submissions on behalf of the mother, which are entirely opposed to the child being interviewed. I have been assisted by the further submissions.
The concern of the mother has unfailingly been that herself and the child would be disrupted by any change to the current arrangement which sees no face to face time or direct communication between the child and the father pursuant to orders that were made in 2012. The matters uppermost in my mind are in considering the question whether or not the application to re-open, which is made by the father, should be granted.
I have to consider three things. The past circumstances, including the reasons for the decision and the evidence upon which it was based. I heard this case and made the current orders with a view to the child being reassured that the father continued to be interested in her and to love her and for there to be some tokens of that interest passed through defined orders about communication.
The circumstances which gave rise to such limited communication were convictions of the father for very serious assaults and domestic violence against the mother. The especially unusual circumstance of this case is that during the course of that trial, the father gave evidence that he had not committed the offences, did not consider himself to be guilty and had made a decision on a pragmatic basis, based on legal advice, to plead guilty and to sign up to a statement of facts which he would now say were not correct. He was sentenced and was in jail at the time of that hearing when he was giving that evidence.
The matter proceeded on the basis that he was bound by the facts he had signed up to, and the conviction that followed, and it was for that reason that orders of this extremely limited and unusual kind were made.
The next consideration is whether there is a likelihood of orders being varied in a significant way as a result of a new hearing. As I have previously said, the father’s application would certainly lead to significant changes because it proposes face to face time on a regular basis with the child, leading to weekends and holidays and so on.
The next consideration is, if there is such a likelihood, then the nature of the likely changes must be weighed against the potential detriment to the child caused by litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation. I am conscious of the disruption that even this application has caused to the mother, who is a sole parent for the child, now aged eight and a half. However, I am obliged to consider the independent interests of the child.
The state of the evidence is that the child has believed that the father is away in Queensland and the communications allow her to maintain contact with him. It is undisputed she enjoyed a warm and affectionate relationship with the father.
As I said in the Reasons for Judgment in 2012, the mother has protected her from the knowledge of the violence which gave rise to the father going to jail, that violence being directed both at her and the child. So that leaves the child knowing that the father is in Queensland, and perhaps beginning to understand that that is just another place in Australia. She may or may not be wondering whether he is going to come to visit her. She may or may not remember him. If she does remember him, it may be with fondness or it may not be. She might enjoy receiving the communications as she has done over the last two years or she might find them unpleasant, awkward and embarrassing. She might be delighted by it. I simply do not know.
The Full Court in Marsden & Winch said this[1]:
Given that the application of the rule in Rice [& Asplund] should always remain a manifestation of the best interests principle, the principle can not be given its full weight by restricting the application of the rule into two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing. Depending on the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but it may also be because of the need to provide procedural fairness in the manner in which the court determines how the law will be applied.
[1] (2009) 42 Fam LR 1
Those factors have been weighed in the way this matter has proceeded and I had wanted to give the parties the opportunity to consider the child being interviewed by the senior family consultant purely on matters from her own knowledge and her own feeling.
Counsel has raised, on behalf of the father, a fear that the child would be told of the past violence, of the Court proceedings or somehow be put into the frame of knowledge of what has gone on in the mother’s life and her own life as an infant. That is absolutely not what is intended.
What is intended is an assessment of the child’s maturity for her age of eight and a half years and her intelligence. Once that assessment is done, then the inquiry is into her own thoughts and feelings and memories. There is no reason why that has to involve any information at all being provided to the child. It is a way of eliciting her views. To do this is to avoid the possibility of reopening with the obvious and immediate need for a full family report or simply, taking the case on its highest, and dismissing the application. That is very much what the mother submits; the dismissal of the application and the orders to continue, preferably until the child is 18. But I am left in a position of not knowing the independent views of a child at an age when she is likely able to articulate them.
It seems to me to be the least disruptive course for the child to have a conversation with the Senior Family Consultant, which will lead to a report, after which either party may vary their application. The possibility exists, and I accept this submission on behalf of the father, that he may withdraw his application or vary it.
I accept that after the release of such a report, the mother may continue to press for dismissal or may take a different view, but I do consider that given that the best interests principle applies and given that the report can take place in entirely safe circumstances, that I should hear from the child in this way, which is even less disruptive than by the appointment of an Independent Children’s Lawyer who, with all due respect to the legal profession, does not have the skills to speak to a child in delicate circumstances such as this.
For that reason I do propose to make the order which was circulated in draft, being orders 1, 2 and 3 of that draft. I will adjourn the matter for mention at 9.30 am on 10 December 2014. In the event that there is no report by that time, which is a possibility, I will have my associate contact all parties and let them know a more realistic date.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 19 November 2014.

Associate:

Date: 28 November 2014

[2014] FamCA 1061

19 November 2014 Ex tempore