Tindall and Saldo (No 2) - [2010] FamCA 1174

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO (NO. 2)

[2010] FamCA 1174

FAMILY LAW – CHILDREN – Interim proceedings – application for adjournment of the interim hearing – father’s admission of family violence does not affect the outcome of the interim hearing – allegations of sexual abuse of the child by the father is yet to be determined – evidence does not suggest the father will contravene parenting orders – adjournment application dismissed – single expert to prepare an update report

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 65AA, 65D

APPLICANT:

Ms Tindall

RESPONDENT:

Mr Saldo

INDEPENDENT CHILDREN’S LAWYER:

Ms Carty, Mullane & Lindsay

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

10 December 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

10 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

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

The Application in a Case filed by the respondent mother on 2 September 2010 is dismissed.
In accordance with the Response to an Application in a Case filed by the father on 3 December 2010, the following orders are made:
2.1The Father shall spend time with the child each alternate weekend for a period of not less than two (2) hours, such time to be supervised by G Children’s Contact Service (“Contact Centre”).
2.2 Each party must:
(a)contact the G Children’s Contact Service within 2 business days of the date of this Order and arrange an appointment for assessment for suitability for supervision of the time the child is to spend with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centre for supervised time;
(d)comply with all reasonable rules of the Contact Centre;
(e)comply with all reasonable requests or directions of the staff of the Contact Centre.
2.3The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
2.4The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity immediately when the time with the child is to end.
2.5The Mother and the Father must each pay one half of any reasonable fees for the supervision on each occasion of supervision.
2.6That the Father have telephone communication with the child on every Tuesday between 5pm and 5:30pm and for that purpose:
(a)the Mother is to forthwith notify the Father of the child’s mobile telephone number;
(b)the Father is to call the nominated telephone number; and
(c)the Mother is to assist the child to answer the call and make the child available to speak with the Father.
Pursuant to s 65DA(2) and s 62B…

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 (No 2)

Details

AGLC: Tindall and Saldo (No 2) [2010] FamCA 1174
Case: [2010] FamCA 1174
Decision Date: 10 December 2010

CaseChat Overview and Summary

In *Tindall and Saldo (No 2)*, Justice Austin of the Family Court of Australia considered applications by both the respondent mother and the father concerning parenting orders for their child. The mother's application filed on 2 September 2010 was dismissed, while the father's response filed on 3 December 2010 led to specific orders regarding his time with the child.

The court was required to determine the terms of supervised contact between the father and the child, including the arrangements for contact, the responsibilities of each parent in facilitating this contact, and the communication protocols. Additionally, the court needed to address the costs associated with an interim hearing and the instructions to be given to a single expert witness for an updated report.

Justice Austin reasoned that supervised contact was necessary, ordering that the father spend time with the child each alternate weekend for a minimum of two hours, under the supervision of a designated contact service. Both parents were directed to cooperate with the contact service's assessment and comply with its rules and directions. Specific provisions were made for the handover of the child and for the father's attendance at the contact centre. The father was also granted telephone communication with the child weekly. The court further ordered that the father and the Independent Children’s Lawyer's costs from the interim hearing be reserved for the final trial. Crucially, the parties and the Independent Children’s Lawyer were instructed to engage a single expert to prepare an updated report addressing the child's risk of harm from the father, the parents' capacities, their attitudes towards parenting, and the impact of the father's past offences on the mother's parenting. The cost of this expert report was to be in accordance with the Legal Aid Commission of New South Wales' scale for psychiatrists in children's representative matters, with the Independent Children’s Lawyer initially responsible for these costs, subject to final trial orders.

Orders

Orders of the court

The Application in a Case filed by the respondent mother on 2 September 2010 is dismissed.

In accordance with the Response to an Application in a Case filed by the father on 3 December 2010, the following orders are made:

2.1 The Father shall spend time with the child each alternate weekend for a period of not less than two (2) hours, such time to be supervised by G Children’s Contact Service (“Contact Centre”).

2.2 Each party must:

(a) contact the G Children’s Contact Service within 2 business days of the date of this Order and arrange an appointment for assessment for suitability for supervision of the time the child is to spend with the Father;

(b) attend the assessment;

(d) comply with all reasonable rules of the Contact Centre;

(e) comply with all reasonable requests or directions of the staff of the Contact Centre.

2.3 The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

2.4 The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity immediately when the time with the child is to end.

2.5 The Mother and the Father must each pay one half of any reasonable fees for the supervision on each occasion of supervision.

2.6 That the Father have telephone communication with the child on every Tuesday between 5pm and 5:30pm and for that purpose:

(a) the Mother is to forthwith notify the Father of the child’s mobile telephone number;

(b) the Father is to call the nominated telephone number; and

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.

The costs of the father and the Independent Children’s Lawyer incidental to the interim hearing today are reserved to the final trial.

The parties and the Independent Children’s Lawyer shall within 14 days instruct the single expert to prepare an update report dealing with the following issues:

a. Whether the child is at an unacceptable risk of harm from the father;

b. The capacity of each of the parties to provide for the needs of the child, including emotional and intellectual needs;

c. The current attitude to the child and to the responsibilities of parenthood demonstrated by each of the parties;

d. The impact on the mother of the offences committed by the father and any consequent effects on her parenting capacity, including her ability to facilitate a relationship between the child and the father;

e. Any other matter the single expert witness considers relevant.

For the purposes of implementing the preceding order:

a. The parties and the Independent Children’s Lawyer shall furnish to the single expert:

i. The Reasons for Judgment delivered on 10 May 2010;

ii. The Reasons for Judgment delivered today; and

iii. The mother’s affidavit filed on 2 September 2010.

b. Leave is granted to the Independent Children’s Lawyer to photocopy and furnish to the single expert documents produced on subpoena.

c. Each party must attend upon the single expert witness for such interviews and observation sessions as the expert requires at any reasonable time nominated by the single expert witness.

d. Each party must ensure the attendance of the child at such interviews and obsessions sessions, and at such times and places as the single expert witness reasonably requires.

The cost of the single expert witness for preparing the update report and attending the Court are to be in accordance with the Legal Aid Commission of New South Wales’ current scale of psychiatrists in children’s representative matters.

The Independent Children’s Lawyer is at first instance to be responsible for the single expert’s costs in preparing the update report, subject to any costs orders made by the Court at the final trial.

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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