Tindall and Saldo - [2010] FamCA 626

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO

[2010] FamCA 626

FAMILY LAW - CHILDREN - Interim proceedings - Allegations of sexual abuse of the child by the father - Interim orders made for the child to live with the mother and spend time with the father for four hours each Saturday supervised by the paternal grandmother

Family Law Act 1975 (Cth)

Goode & Goode (2006) 36 Fam LR 422

APPLICANT:

Ms Tindall

RESPONDENT:

Mr Saldo

INDEPENDENT CHILDREN’S LAWYER:

Ms Carty, Mullane & Lindsay

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

10 May 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

3 May 2010 and 10 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Craney Family Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Burns

SOLICITOR FOR THE RESPONDENT:

O’Hearn & Bilinsky

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty, Mullane & Lindsay

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

All former parenting orders concerning the child T, born … May 2006, are discharged.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father, unless otherwise agreed, from 1:00 pm until 5:00 pm each Saturday, commencing on Saturday 15 May 2010, with such time to be supervised by the paternal grandmother.
For the purpose of implementing the preceding order:
a.The father shall cause the paternal grandmother to file and serve by Friday, 14 May 2010, a written undertaking to conduct herself as a supervisor of the time spent by the child with the father, pursuant to these orders, in the manner set out within paragraphs 21 and 22 of her affidavit filed on 6 May 2010.
b.The mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the child at the commencement of the time to be spent with the father at the KFC Restaurant at G, New South Wales, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the child at the conclusion of the time spent with the father at the same place.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of any other person denigrating the other.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Each party is restrained from commencing or proceeding with any application to the Australian Department of Foreign Affairs or any consulate or other appropriate authority for the issue of a passport for the child.
Any and all outstanding interim applications…

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 [2010] FamCA 626
Case: [2010] FamCA 626
Decision Date: 10 May 2010

CaseChat Overview and Summary

This matter concerned parenting orders for a child, T, born in May 2006, and came before Justice Austin. The specific dispute involved the arrangements for the child's residence and time spent with each parent, as well as ancillary orders concerning communication, conduct, and the child's welfare.

The court was required to determine the primary residence of the child, the nature and supervision of the child's time with the father, and to make orders restraining certain behaviours by the parents. These included prohibitions against denigration of a parent in the child's presence, the infliction of corporal punishment, and applications for the child's passport. The court also needed to address the particulars of the obligations created by the orders and the consequences of contravention, as well as the dismissal of outstanding interim applications.

Justice Austin, by consent of the parties, ordered that all former parenting orders be discharged. The child was to live with the mother. Time spent with the father was to be supervised by the paternal grandmother, with specific arrangements for delivery and collection of the child. The orders also included restraints on denigration, corporal punishment, and passport applications, and mandated the exchange of contact details. The matter was referred back to the Docket Registrar, not to be relisted until the parties were ready for a final hearing.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT

All former parenting orders concerning the child T, born … May 2006, are discharged.

The child shall live with the mother.

Each of the parties shall take all reasonable steps to ensure that the child spends time with the father, unless otherwise agreed, from 1:00 pm until 5:00 pm each Saturday, commencing on Saturday 15 May 2010, with such time to be supervised by the paternal grandmother.

For the purpose of implementing the preceding order:

a. The father shall cause the paternal grandmother to file and serve by Friday, 14 May 2010, a written undertaking to conduct herself as a supervisor of the time spent by the child with the father, pursuant to these orders, in the manner set out within paragraphs 21 and 22 of her affidavit filed on 6 May 2010.

b. The mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the child at the commencement of the time to be spent with the father at the KFC Restaurant at G, New South Wales, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the child at the conclusion of the time spent with the father at the same place.

Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of any other person denigrating the other.

Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

Each party is restrained from commencing or proceeding with any application to the Australian Department of Foreign Affairs or any consulate or other appropriate authority for the issue of a passport for the child.

Any and all outstanding interim applications are dismissed.

10.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

BY CONSENT, IT IS FURTHER ORDERED

11.

This matter is referred back to the Docket Registrar and is not to be relisted before a Judge until the parties are ready to proceed to final hearing in respect of parenting orders for the child.

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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