Legal Research
Cases
Saldo & Tindall

Saldo & Tindall

Case [2013] FamCA 951 5 December 2013

Type to search within this case.

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL

[2013] FamCA 951

FAMILY LAW – CHILDREN – Contravention of orders without reasonable excuse – Subdivisions E and F of Division 13A of Part VII apply – serious disregard of obligations in all but one instance – sanctions imposed – good behaviour bonds

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
Evidence Act 1995 (NSW) s 4AA
Family Law Act 1975 (Cth) ss 69ZM, 69ZX, 70NAF, 70NEA, 70NEB, 70 NEC, 70NFA, 70NFB, 70NE, 70NFF, 70NFG, 70NECA, 94

Cachia v Hanes (1994) 179 CLR 403

Dobbs & Brayson (2007) FLC 93-346

Gravis v Major [2010] FamCAFC 239

Hay v Hay (1998) FLC 92-819
Langer & Griffin [2013] FamCAFC 170
Lindsey & Lindsey (1995) FLC 92-638
McClintockv Levier (2009) 41 Fam LR 245
Oscar v Traynor [2008] FamCAFC 158

Saldo & Tindall [2012] FamCA 194
Tindall & Saldo [2012] FamCA 1156
Yule v Junek (1978) 139 CLR 1

APPLICANT:

Mr Saldo

RESPONDENT:

Ms Tindall

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

5 December 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

4 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr B. Kelly

SOLICITOR FOR THE RESPONDENT:

Derham Houston Lawyers

Orders

For the contravention of Order 5 made on 10 May 2010 without reasonable excuse, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a) The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
(c)The bond shall be for a period of 6 months, commencing on the date the mother enters into the bond.
For each of the 18 contraventions of Orders 3 and 4(b) made on 10 May 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into separate good behaviour bonds upon the following conditions:
(a)The bonds shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bonds, which shall include compliance with all existing parenting orders; and
(c)The bonds shall be for periods of 12 months, commencing on the date the mother enters into the bonds.
For the contravention of Order 2.2 made on 10 December 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:
(a)The bond shall be without surety and without security;
(b)The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

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 [2013] FamCA 951
Case: [2013] FamCA 951
Decision Date: 5 December 2013

CaseChat Overview and Summary

This matter concerned an application before Justice Austin regarding alleged contraventions of parenting orders. The respondent mother was accused of breaching several orders made on 10 May 2010 and 10 December 2010.

The court was required to determine whether the respondent mother had contravened the specified orders without reasonable excuse, and if so, what penalty or order should be made pursuant to the relevant provisions of the *Family Law Act*.

Justice Austin found that the respondent mother had contravened Order 5 made on 10 May 2010, and Orders 3 and 4(b) made on the same date, without reasonable excuse. Furthermore, the court found a contravention of Order 2.2 made on 10 December 2010, also without reasonable excuse. In relation to these contraventions, the court ordered the respondent mother to enter into a series of good behaviour bonds. These bonds were to be without surety or security, for durations of six months and twelve months respectively, and required compliance with all existing parenting orders. The mother was also ordered to serve sealed copies of these bonds on the applicant father within 14 days.

Orders

Orders of the court

For the contravention of Order 5 made on 10 May 2010 without reasonable excuse, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:

(a) The bond shall be without surety and without security;

(b) The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

For each of the 18 contraventions of Orders 3 and 4(b) made on 10 May 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into separate good behaviour bonds upon the following conditions:

(a) The bonds shall be without surety and without security;

(b) The mother must be of good behaviour for the duration of the bonds, which shall include compliance with all existing parenting orders; and

For the contravention of Order 2.2 made on 10 December 2010 without reasonable excuse, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent mother shall within 7 days hereof enter into a good behaviour bond upon the following conditions:

(a) The bond shall be without surety and without security;

(b) The mother must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

(c) The bond shall be for a period of 12 months, commencing on the expiration date of the bonds entered into by the mother pursuant to Orders 1 and 2 hereof.

Within 14 days hereof the respondent mother shall serve upon the applicant father sealed copy of the bonds she enters pursuant to Orders 1-3 hereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Saldo & Tindall [2013] FamCA 951

Most Recent Citation

English & Eklund [2024] FedCFamC2F 578

Cases citing this decision · 5 of 5 shown

English & Eklund
[2024] FedCFamC2F 578 Para 12

…In the case of Saldo & Tindall [2013] FamCA 951, Austin J considered the approach to take to the imposition of penalty and sanctions. His Honour surveyed the authorities on the principles to apply, and at paragraphs [27]-[31] set out the approach to take. I propose to deal with this matter consistently with those p…
Royston & Royston (No. 2)
[2024] FedCFamC1F 114 Para 12

…gue that one single sanction might be applied to deal with all of the proven contraventions compendiously. However, as pointed out in Saldo & Tindall [2013] FamCA 951 at [21] (relying upon Gravis & Major [2010] FamCAFC 239 at [169] and McClintock & Levier (2009) 41 Fam LR 245 at [65]-[67], [166]-[172], [252]-[259])…
Mandal & Nayak (No 2)
[2023] FedCFamC1F 933 Para 22

…8] FamCA 1056, Reid & Secco [2017] FamCA 1140) and the application of criminal law sentencing principles when determining sanction: Saldo and Tindall [2013] FamCA 951 at [22], [28] and [29] referred to without adverse comment in Tindall & Saldo [2015] FamCAFC 1 at [58].…
Gottlieb & Ors and Bauman
[2019] FamCA 422 Para 32

…Division 13A, which may be “ quasi-criminal ”, and criminal proceedings for contempt of court or other offences. Austin J said in Saldo & Tindall [2013] FamCA 951 at [14]: “It is important to differentiate between conduct that amounts to contravention of a Court order and the more serious delinquent conduct that am…
Tindall & Saldo
[2015] FamCAFC 1 Para 2

…On 5 December 2013 his Honour ordered that the mother enter into good behaviour bonds in respect of each of those contraventions (see Saldo & Tindall [2013] FamCA 951).…

View all 5 citing cases →

Cases cited in this decision · 8 of 8 shown

Langer & Griffin
[2013] FamCAFC 170 Para 6

…oth specific and general deterrence, at least when imprisonment is being considered as the appropriate sanction (see Langer & Griffin [2013] FamCAFC 170 at [55]).…
Tindall & Saldo
[2012] FamCA 1156 Para 10

…ary J between the parties in respect of their child on 6 September 2012 and the reasons published by her Honour for those orders (see Tindall & Saldo [2012] FamCA 1156). The effect of the orders was to allocate sole parental responsibility for the child to the mother, require the child to live with the mother, and t…
Saldo & Tindall
[2012] FamCA 194 Para 2

…ere prosecuted were all found proven and, in respect of each of them, the mother failed to prove the existence of reasonable excuse ( Saldo & Tindall [2012] FamCA 194).…
Gravis & Major
[2010] FamCAFC 239 Para 5

…systematic violation of the same orders, individual contraventions should be the subject of separate and individual sanction (see Gravis v Major [2010] FamCAFC 239 at [169]; McClintock v Levier (2009) 41 Fam LR 245 at [65]-[67], [166]-[172], [252]-[259]).…
Oscar & Traynor
[2008] FamCAFC 158 Para 6

…me spent by an unqualified litigant, like the father, preparing and conducting his case (see Cachia v Hanes (1994) 179 CLR 403; Oscar v Traynor [2008] FamCAFC 158 (at [73]-[92]).…
Hay v Hay
[1996] NSWCA 243 Para 3

…not decrees. They were only steps in the litigious process and not themselves decisive of the parties’ rights (s 94; Yule v Junek (1978) 139 CLR 1; Hay v Hay (1998) FLC 92-819 at [22]-[28]). These proceedings were held in abeyance during the pendency of the appeal, but were revived once the absence of any appealabl…
Cachia v Hanes
[1994] HCA 14 Para 6

…and not include compensation for time spent by an unqualified litigant, like the father, preparing and conducting his case (see Cachia v Hanes (1994) 179 CLR 403; Oscar v Traynor [2008] FamCAFC 158 (at [73]-[92]).…
Yule v Junek
[1978] HCA 4 Para 3

…merely findings, not decrees. They were only steps in the litigious process and not themselves decisive of the parties’ rights (s 94; Yule v Junek (1978) 139 CLR 1; Hay v Hay (1998) FLC 92-819 at [22]-[28]). These proceedings were held in abeyance during the pendency of the appeal, but were revived once the absenc…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
69ZM, 69ZX, 70, 70NAF, 70NE, 70NEA, 70NE... 21 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW)
3A 2 mentions (from Para 9)
Evidence Act 1995 (Cth)
4AA 2 mentions (from Para 6)
Crimes Act 1914 (Cth)
1 mention (from Para 11)