Tindall and Saldo
[2016] FamCA 134
•4 March 2016
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 | of | 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.
The Application for a Stay was filed on 25 February 2016, was granted short service, and listed before me on 1 March 2016.
The application was supported by an affidavit of the solicitor representing the mother, also filed 25 February 2016.
The application was opposed by the father.
There is, rightly in my view, no challenge to the bona fides of the appeal.
The onus is on the party seeking the stay. There are no criteria in the rules; it is a discretionary matter.
There are considerations arising out of the case law as follows.
The Merits of the Appeal
There are 65 grounds of appeal. Counsel submitted, and I accept, that these are likely to be reduced and refined prior to the appeal being heard.
They fall into the following categories.
Procedural fairness
The mother asserts that the matter should not have proceeded to a final hearing of the application for additional time and communication. That there had been no proper determination of the threshold question of change of circumstance and that she did not have the opportunity to meet the case.
That issue was discussed in the Reasons for Judgment. The determination progressed in stages through various court events.
No sufficient change of circumstances to justify revisiting parenting orders
The mother asserts that the child’s views of very much wanting to see the father did not amount to a sufficient change of circumstances, nor did the events since the release of the father from gaol.
The mother’s fear for her safety and that of the child
On behalf of the mother it is submitted that the mother had “an objectively reasonable fear” for her own safety when she refused to comply with parenting Orders after 2010. This refers back to Orders made by this Court for the mother to be dealt with for contravention, which were subsequently overturned by successful appeal to the Full Court.
That decision in the Full Court was paced into evidence before me in the most recent proceedings. It related to a period earlier in time and it is difficult to see how it could be determinative of this subsequent application.
However there only has to be an arguable case for the Court to be satisfied of an appeal being genuine and with some prospects of success.
That there was no full Family Report taking into account the possible impact on the mother of physical contact between father and child
On behalf of the father the Court was reminded that the mother had opposed the preparation of a full Family Report.
In the ex tempore reasons for judgments delivered in November 2014, that matter was addressed with particular reference to the principles enunciated in Marsden & Winch (2009) 42 Fam LR 1 and was explicitly done “to avoid the possibility of reopening with the obvious and immediate need for a full Family Report or simply, taking the case on its highest and dismissing the application”. The Family Report limited to the child’s views was chosen as the least disruptive course.[1]
That the Court had not properly taken into account the risk to the child arising from a past assault where it was said that the father had held a sword to the child’s chest, when the child in the mother’s arms in 2007
[1] Saldo & Tindall(No. 1) [2014] FamCA 1061, pars 10-15 and Saldo & Tindall [2014] FamCA 1036, pars 41-44
This was an issue fully canvassed in the final 2015 hearing and referred to in the Reasons for Judgment of 27 January 2016 at paragraphs 167 and 168.
Again, such grounds do not appear to have real merit, but overall it could not be said that amongst the 65 grounds that there were none that were arguable.
The Entitlement of a Party to the Benefits of a Judgment
In this case the father filed his application for a variation of 2012 final parenting orders on 4 April 2014. This was shortly after his release from prison.
Proceedings were delayed for a variety of reasons relating to difficulties with a grant of Legal Aid for the father, then an extended period of time when the father was held in immigration detention, followed by an appeal against the cancellation of his visa to live in Australia.
Almost two years have passed since the Initiating Application was filed.
The child was interview for a Limited Issues Family Report in December 2014. She expressed her views, as set out in the Reasons for Judgment[2], which were entirely positive about making contact with the father and spending face-to-face time with him. More than a year has passed since that report was released.
[2]Saldo & Tindall [2016] FamCA 22
The child is now almost 10 years old.
There is no certainty about when the appeal of the mother will be heard and determined. It is very early days. There has been no application by the mother for expedition; although an undertaking to make such an application was offered during submissions. There is undoubtedly a period of at least months before the appeal is likely to be heard.
The father has Orders which enable him to make contact with the child and he is entitled to press for those Orders to begin.
There is in my view hardship for the father and for the child if there is a further long period of time when there is no contact between father and child, especially in circumstances when the child has made her wishes clear on that topic.
The matters raised on behalf of the mother in relation to hardship are those ongoing matters raised in the final parenting hearing in 2012 and again in the proceedings in 2015 for variation.
The mother is implacably opposed to face-to-face contact between the father and the child and that has been her position since at least 2010. She is opposed to the orders commencing but there is no new hardship beyond what has been asserted in the past.
Would Refusing the Stay Render the Appeal Nugatory
On behalf of the mother it was said that the appeal would be rendered nugatory if a stay was refused. I do not accept that this is so. Limited supervised contact provided for in the January 2016 Orders could simply cease in the event of an entirely successful appeal.
There is no change of country, residence or school in this matter.
The point was made on behalf of the mother that stopping time after a period of the child seeing the father could be harmful for the child. The submission was that time should not commence to avoid this risk.
The child has not spent time with the father for more than five years. I accept that there is a risk for the child of disappointment and possibly distress if contact commences only to be terminated in the event of a successful appeal by the mother.
I also accept the submission made on behalf of the father that there is equally an ongoing risk for the child of gradually losing her positive memory of the father through continuing to be denied any face-to-face contact.
The point was also well made on behalf of the father that even if there was to be a period of supervised time which ceased, the Court is not in a position to know whether that would be detrimental or beneficial in the sense of some circumscribed time perhaps being better than none at all for the child, now aged almost 10 years.
Minimising change of circumstances
I was taken to the authority of Sheldon & Weir(Stay Application) [2011] FamCAFC 5 with the statement of principles governing the granting of a stay in child related proceedings, with a particular reference to the desirability of limiting the frequency of any change in the child’s living arrangements as a matter of some weight.
The change of arrangements in this case are the commencement of supervised time for six months, monthly for two hours in a Contact Centre, followed by a further six months of supervised time in Contact Centre, fortnightly (and for whatever longer period the Contact Centre can offer in a session), and thereafter progressing to supervised time away from a Contact Centre facilitated by a Supervision Service.
There is some substance in this submission about limiting change of arrangements.
On behalf of the father, as an alternative to simply dismissing the stay application, the possibility was raised that there could be a partial stay, that is to say, a stay of the Orders which progressed time from supervision in a contact centre to supervision outside a centre with a supervision service.
There is, in my view, real substance to this proposition which enables a balancing of hardship for the child and the father in the Orders not proceeding, against the hardship submitted that the mother will experience related to her fears for the safety and health of herself and the child in a somewhat more liberal setting of supervision in the community.
I am particularly conscious of the child’s age and that there is a turning point when children resist time with a parent, even with a very well loved parent, in a supervised setting.
If time in the Contact Centre proceeds as ordered, that method is established whilst the child, at almost 10, is still young enough to accept it. In the event the appeal did not succeed, in another 12 months or more, there is a risk that the child will be too old or too much time having passed since she expressed her views, for time in a Contact Centre to be successfully implemented.
For that reason, to keep disruption to a minimum, provision should be made for the Orders not to progress to time outside a Contact Centre until the appeal has been determined. It would be difficult to come back to supervised time in a Contact Centre and even more difficult to cease contact entirely once time outside a Contact Centre (albeit supervised) had commenced.
Accordingly, this balance is captured by staying Order 1(d) and (2) and varying Order 1(b) 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.
In the event that the appeal is unsuccessful, the supervised time would progress pursuant to Order 1(d) and 2. If the appeal was successful, and certainly in the event that it was sent back for re-trial, the contact in a Contact Centre could continue, unless otherwise determined by the Full Court, until the matter could be reheard.
Orders will be made accordingly.
Amendment of the Orders of 27 January 2016
The January 2016 Orders refer to a particular Contact Centre, G Children’s Contact Service.
On 12 February 2016 the Court received a request by letter on behalf of the father relating to a change to the Orders pursuant to the slip-rule.
The change related to the name of the Contact Centre nominated in the Orders.
The nominated centre was “G Children’s Contact Service”, drawn from the Initiating Application of the father.[3]
[3] Initiating Application filed 04/04/2014, Part 3, Order 2
The Court was advised that the G Children’s Contact Service was “the old name for the children’s contact service provided for by Relationships Australia on the Central Coast” and that “the service is no longer at G and has relocated to I Town. The Order should refer to “Relationships Australia Central Coast Children’s Contact Service.” [4]
[4] Letter from the father’s solicitor dated 09/02/2016 to the Registrar, Newcastle Registry and solicitors for the mother
This was not a slip. The centre nominated was no longer operating. The organisation conducting the service at the centre, Relationships Australia, had closed that centre and opened an equivalent centre nearby.
There was no consent by the mother to the change and the Court indicated that the slip-rule was not the appropriate course.
Accordingly, the Court declined to make that change under the slip-rule.
On 1 March 2016 the matter was before me for this application by the mother for a stay of the January 2016 Orders. I raised the issue of the defective Order with counsel for the mother who advised that he did not have instructions to consent to the change proposed. Quite properly, he also said that if the solicitor for the father advised that the replacement centre was as described, he did not doubt that statement.
On that basis, Orders have been amended to reflect the name of the Contact Centre which is now operating.
Explanation of the Orders to the Child
Certain contact Orders have been stayed. Accordingly, the provision will also be made for an extension of time for the mother to comply with the Order[5] to bring the child in to have the Orders explained to her.
[5] Orders dated 27 January 2016, Order 6
There was no particular reference in submissions to the mother having failed to bring the child in within the 28 days allowed, but in the circumstances of the stay application having been made in a timely way, I accept that the mother was hopeful that her stay application would be granted such that the explanation process would not take place.
The Senior Family Consultant need only explain the operative Orders to the child without reference to the Orders which have been stayed.
An Order is made for the amended Orders and these reasons to be provided to the Family Consultant for that reason.
A partial stay having been granted and consequential Orders made, the application is otherwise dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 March 2016.
Associate:
Date: 3 March 2016
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