Tindall and Saldo - [2016] FamCA 134

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO

[2016] FamCA 134

FAMILY LAW – STAY APPLICATION – Where the mother sought a stay of the orders – Where the father opposed a stay but submitted there could be a partial stay – Where it could not be said that amongst the 65 grounds of appeal that there were none that were arguable – Where a balance is captured by staying certain orders and varying others so that fortnightly time in the contact centre progresses either for the six months as ordered or for such period as is taken for the appeal to be heard and determined, whichever event occurs later

Marsden & Winch (2009) 42 Fam LR 1
Sheldon & Weir(Stay Application) [2011] FamCAFC 5
Saldo & Tindall [2016] FamCA 22
Saldo & Tindall(No. 1) [2014] FamCA 1061
Saldo & Tindall [2014] FamCA 1036

APPLICANT:

Ms Tindall

RESPONDENT:

Mr Saldo

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

4 March 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

1 March 2016

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston

SOLICITOR FOR THE RESPONDENT:

Fielden & Associates

Orders

That the Orders of 27 January 2016 (“the January 2016 Orders”) are amended as follows:
1.1By the replacement of the words “G Children’s Contact Service” appearing in Order 1, with the words “Relationships Australia Central Coast Children’s Contact Service”, noting that amended Orders shall issue accordingly.
That Order 1(b) of the January 2016 Orders is varied to read as follows:

2.1Thereafter for a period of six months, or until the appeal of the mother filed 23 February 2016 has been heard and determined, whichever event occurs later in time, 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.

That the operation of Orders (1)(d) and (2) of the amended January 2016 Orders are stayed pending the hearing and determination of the appeal of the mother filed 23 February 2016.
Time for compliance by the mother with Order 6 of the amended January 2016 Orders is extended by a further period of 14 days from the date of these Orders.
That a copy of the amended January 2016 Orders and the Reasons for Judgment be provided to the Senior Family Consultant, Newcastle Registry.
That the Application in a Case of the mother filed 25 February 2016 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Tindall & Saldo is approved 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

Ms Tindall

Applicant

And

Mr Saldo

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the mother for a stay of the operation of Orders made by me on 27 January 2016.
There has been an appeal against those Orders, which was filed on 23 February 2016.

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 Tindall and Saldo

Details

AGLC: Tindall and Saldo [2016] FamCA 134
Case: [2016] FamCA 134
Decision Date: 4 March 2016

CaseChat Overview and Summary

Cleary J considered an application to amend existing orders made on 27 January 2016, in proceedings between Tindall and Saldo. The dispute concerned arrangements for children's contact with their mother, and the application sought to vary the existing orders in light of an appeal filed by the mother.

The court was required to determine whether to amend the existing orders to reflect a change in the name of a children's contact service, to vary the frequency and duration of contact for a specified period, and to stay the operation of certain amended orders pending the determination of the mother's appeal. The court also considered an application by the mother for an extension of time for compliance with another order and a further application by the mother.

Cleary J ordered that the name of the children's contact service be amended. The court also varied the existing orders to provide for contact on one day of each alternate weekend for a period of six months or until the mother's appeal was heard and determined, whichever was later, with a minimum duration of two hours. Crucially, the operation of specific amended orders was stayed pending the appeal. Time for the mother's compliance with another order was extended by 14 days. The mother's further application was otherwise dismissed.

Orders

Orders of the court

That the Orders of 27 January 2016 (“the January 2016 Orders”) are amended as follows:

1.1 By the replacement of the words “G Children’s Contact Service” appearing in Order 1, with the words “Relationships Australia Central Coast Children’s Contact Service”, noting that amended Orders shall issue accordingly.

That Order 1(b) of the January 2016 Orders is varied to read as follows:

2.1 Thereafter for a period of six months, or until the appeal of the mother filed 23 February 2016 has been heard and determined, whichever event occurs later in time, 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.

That the operation of Orders (1)(d) and (2) of the amended January 2016 Orders are stayed pending the hearing and determination of the appeal of the mother filed 23 February 2016.

Time for compliance by the mother with Order 6 of the amended January 2016 Orders is extended by a further period of 14 days from the date of these Orders.

That a copy of the amended January 2016 Orders and the Reasons for Judgment be provided to the Senior Family Consultant, Newcastle Registry.

That the Application in a Case of the mother filed 25 February 2016 is otherwise dismissed.

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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