Saldo & Tindall - [2012] FamCA 194

FAMILY COURT OF AUSTRALIA

SALDO & TINDALL

[2012] FamCA 194

FAMILY LAW – ORDERS – contravention of orders affecting children – orders made for child to spend supervised time with father and for the mother to provide her contact details to the father – where father was charged with a number of serious offences in late 2009 relating to his assaults of the mother and child between 2002 and 2007 - where the mother admits to contravening the parenting orders – where mother asserts she had a reasonable excuse for contravention – application of s 70NAE(5) – onus on mother to establish the existence of reasonable excuse – where mother alleges that her failure to comply with orders was necessary to protect her and the child’s safety and her health – mother failed to prove the existence of any reasonable excuse for contraventions to the requisite standard of proof – orders that contraventions proven

Family Law Act 1975 (Cth) ss 70NDA, 70NAE, 70NAF
Family Law Rules 2004 (Cth) r 21.08

Tindall & Saldo [2010] FamCA 626
Tindall & Saldo (No.2) [2010] FamCA 1174

APPLICANT:

Mr Saldo

RESPONDENT:

Ms Tindall

INDEPENDENT CHILDREN’S LAWYER:

Boyd Olsen Lawyers

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

3 April 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

2 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brian Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Not applicable

SOLICITOR FOR THE RESPONDENT:

Not applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not applicable

Orders

The respondent mother contravened Orders 3 and 4(b) made on 10 May 2010, without reasonable excuse, at 1.00 pm on each of the following dates:
(a)       7 August 2010;
(b)       14 August 2010;
(c)       21 August 2010;
(d)       28 August 2010;
(e)       4 September 2010;
(f)       11 September 2010;
(g)       18 September 2010;
(h)       25 September 2010;
(i)        2 October 2010;
(j)        9 October 2010;
(k)       16 October 2010;
(l)        23 October 2010
(m)      30 October 2010;
(n)       6 November 2010;
(o)       13 November 2010;
(p)       20 November 2010;
(q)       27 November 2010; and
(r)       4 December 2010.
The respondent mother contravened Order 5 made on 10 May 2010, without reasonable excuse, on 11 May 2010 and continuing.
The mother contravened Order 2.2 made on 10 December 2010, without reasonable excuse, on 15 December 2010 and continuing.

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

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 18 January 2011 the father filed an Application–Contravention alleging successive contraventions by the mother of interim parenting orders made on 10 May 2010 and 10 December 2010.
The mother formally admitted the contraventions alleged…

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 [2012] FamCA 194
Case: [2012] FamCA 194
Decision Date: 3 April 2012

CaseChat Overview and Summary

In the matter of *Saldo & Tindall*, Austin J considered allegations that the respondent mother had contravened specific orders made on 10 May 2010 and 10 December 2010. The proceedings concerned the alleged breaches of these parenting orders by the respondent mother.

The primary legal issue before the court was whether the respondent mother had contravened the aforementioned orders, and if so, whether she had done so without reasonable excuse. The court was required to determine the factual circumstances surrounding the alleged contraventions and assess the validity of any purported excuses offered by the respondent.

Austin J found that the respondent mother had contravened Orders 3 and 4(b) of the 10 May 2010 orders on multiple specified dates between August and December 2010. Furthermore, the court determined that the respondent mother had contravened Order 5 of the 10 May 2010 orders from 11 May 2010 onwards, and Order 2.2 of the 10 December 2010 orders from 15 December 2010 onwards. In each instance, the court found these contraventions were without reasonable excuse.

Orders

Orders of the court

The respondent mother contravened Orders 3 and 4(b) made on 10 May 2010, without reasonable excuse, at 1.00 pm on each of the following dates:

(a) 7 August 2010;

(b) 14 August 2010;

(d) 28 August 2010;

(e) 4 September 2010;

(f) 11 September 2010;

(g) 18 September 2010;

(h) 25 September 2010;

(i) 2 October 2010;

(j) 9 October 2010;

(k) 16 October 2010;

(l) 23 October 2010

(m) 30 October 2010;

(n) 6 November 2010;

(o) 13 November 2010;

(p) 20 November 2010;

(q) 27 November 2010; and

(r) 4 December 2010.

The respondent mother contravened Order 5 made on 10 May 2010, without reasonable excuse, on 11 May 2010 and continuing.

The mother contravened Order 2.2 made on 10 December 2010, without reasonable excuse, on 15 December 2010 and continuing.

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.