Saldo and Tindall (No 2) - [2014] FamCA 1061

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…

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 (No 2)

Details

AGLC: Saldo and Tindall (No 2) [2014] FamCA 1061
Case: [2014] FamCA 1061
Decision Date: 19 November 2014 Ex tempore

CaseChat Overview and Summary

In the matter of *Saldo and Tindall (No 2)*, Cleary J of the Family Court of Australia considered an application concerning a child, T, born in 2006. The dispute involved the father's desire to re-establish contact with the child, and the mother's compliance with previous court orders regarding communication.

The central legal issue before the court was to ascertain the child's maturity, intelligence, and her current views and wishes regarding her father and his partner, Ms Y. Specifically, the court needed to determine if the child had enjoyed receiving correspondence and gifts from the father, whether she retained any memory of him or Ms Y, and if she had any interest in meeting or communicating with her father.

Cleary J directed that the child attend an interview with a Senior Family Consultant to provide a report on these matters. The court ordered the mother to facilitate this interview, which was tentatively scheduled for the last week of November 2014. The court also noted that both parties claimed to have complied with previous orders made on 6 September 2012, and that the reasons for those earlier judgments and orders were to be made available to the Senior Family Consultant. The application and response were adjourned for mention on 10 December 2014.

Orders

Orders of the court

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:

1.1 An observation of the maturity for the age and intelligence of the child.

1.2 The views of the child, if any, as to whether she:

1.2.1 has enjoyed receiving letters, cards and gifts from the father on occasions over the past two years;

1.2.2 presently holds a memory of her father and/or her father’s partner Ms Y;

1.2.3 has an interest in meeting with her father (and also Ms Y) face to face;

1.2.4 wishes 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.

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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