SALDO & TINDALL - [2016] FamCA 22

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL

[2016] FamCA 22

FAMILY LAW – PRACTICE & PROCEDURE – Where final parenting orders were made in September 2012, which provided for there to be communication but no face-to-face contact between the child and the father following the father pleading guilty to assaults on the mother – Where the father filed an application to re-open the parenting issues – Where the mother is opposed to such application – Where there is fresh evidence sufficient to justify a reconsideration of parenting issues

FAMILY LAW – CHILDREN – Where the current orders in relation to parental responsibility and residence are unchallenged – Where the father’s application is for time and communication only – Best Interests – Where there is a benefit to the child in having a meaningful relationship with the father – Where there is no particular evidence of the mother’s assertion that hers and the child’s health and safety are at risk if there is direct face-to-face contact between the child and the father – Where considerable weight is given to the views of the child that she would like to see the father – Where the effect on the child of an order for her to spend time with the father is likely to be a positive one – Where the father has maintained his commitment to the child – Where the child has not seen the father since August 2010 and she holds some concerns about time with the father – Where in those circumstances, supervised time with the father in short periods for the first six months will allow a slow start to face-to-face time together – Child to spend supervised time with the father at a contact centre for a period of 12 months on a graduating basis, and thereafter on a regular supervised basis outside a contact centre – Where there is a continuing need for supervision until the parties are able to agree or a further application is made

Family Law Act 1975 (Cth), ss 60CC, 64B

Marsden & Winch (2009) 42 Fam LR 1
Morton & Berry (2014) FLC93-613
Tindall & Saldo [2012] FamCA 1156
Tindall & Saldo [2014] FamCA 1036
Tindall & Saldo [2014] FamCA 1061
Tindall & Saldo [2015] FamCA 1029

APPLICANT:

Ms Saldo

RESPONDENT:

Mr Tindall

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

27 January 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

26-27 November 2015

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

That further to the Orders of 6 September 2012, the child shall spend time with the father, supervised [and failing agreement otherwise supervised at G Children’s Contact Service (“the Contact Centre”)] as follows:
(a)For a period of six months, on one occasion each calendar month for a period of two hours, commencing March 2016;
(b)Thereafter, for a period of six months, on one day…

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 & TINDALL

Details

AGLC: SALDO & TINDALL [2016] FamCA 22
Case: [2016] FamCA 22
Decision Date: 27 January 2016

CaseChat Overview and Summary

In this matter before Cleary J, the father sought to re-open final parenting orders made in September 2012, which had restricted his contact with the child to communication only, following his guilty plea to assaults on the mother. The mother opposed this application. The court was presented with fresh evidence that it considered sufficient to justify a reconsideration of the parenting issues.

The central legal issues before the court were whether the child's best interests warranted a change to the existing parenting orders, specifically concerning the father's time and communication with the child, given that the orders regarding parental responsibility and residence remained unchallenged. The court was required to assess the potential benefit to the child of a meaningful relationship with the father, the mother's assertions regarding health and safety risks, and the child's own expressed wishes.

Cleary J reasoned that there was a benefit to the child in having a meaningful relationship with her father, and gave considerable weight to the child's expressed desire to see him. The court found no specific evidence to support the mother's assertion that her and the child's health and safety would be at risk from direct face-to-face contact. The court concluded that the effect of an order for the child to spend time with the father was likely to be positive, noting the father's continued commitment and the significant period the child had not seen him. Consequently, the court ordered supervised time with the father, commencing in short periods and gradually increasing, to allow for a slow reintroduction of face-to-face contact. The father was to be responsible for the costs of supervision, and the mother was to arrange for the child to have the orders explained by a Senior Family Consultant.

Orders

Orders of the court

That further to the Orders of 6 September 2012, the child shall spend time with the father, supervised [and failing agreement otherwise supervised at G Children’s Contact Service (“the Contact Centre”)] as follows:

(a) For a period of six months, on one occasion each calendar month for a period of two hours, commencing March 2016;

(b) Thereafter, for a period of six months, on one day of each alternate weekend, for the maximum period available in the Contact Centre, and in any event, for not less than two hours;

(d) Thereafter:

i) Each alternate weekend on Sunday, unless otherwise agreed, supervised by a supervisor from a service which facilitates time away from a Contact Centre [and failing agreement otherwise, D Service (“the Supervision Service”)], from 9:00 am to 5:00 pm on each occasion;

ii) On Father’s Day each year from 9:00 am to 5:00 pm; and

iii) On Boxing Day commencing in 2017 and each year thereafter, from 9:00 am to 5:00 pm.

That for the purpose of Order 1(d) herein the father may have one or more family member(s) accompany him, subject to the advice of the Supervision Service for each occasion.

That each party shall forthwith do all that is required to access use of the Contact Centre and Supervision Service, including but not limited to, completing intake documents.

That the father shall be responsible for the cost of supervision.

That in addition to letters, cards and gifts, the father may send to the child photographs of himself and members of his extended family, including his partner.

That the mother arrange for the child to attend, within 28 days of the date of these Orders, at a mutually convenient time, on the Senior Family Consultant, in order for the child to have these Orders explained to her.

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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