Tindall and Saldo (No 2)
[2010] FamCA 1174
•10 December 2010
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 | of | 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 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.
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
And
| INDEPENDENT CHILDREN’S LAWYER |
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
The parties in this case have again petitioned the Court to review and amend interim parenting orders relating to their only child who is now four years of age.
The mother wishes to terminate all interaction between the child and the father.
The father resists the mother’s application, advocating for preservation of a parenting regime where the child spends supervised time with him. Although the father sought in his Response preservation of the last interim parenting orders made on 10 May 2010, with alternate orders as a fall back position, his learned solicitor informs the Court that the fall back position set out within his Response is now the primary position adumbrated by the father. In any event, the orders proposed by the father still provide for the child to spend time with him under supervised conditions.
The Independent Children’s Lawyer supports the alternate parenting orders now proposed by the father. In addition, the Independent Children’s Lawyer proposes procedural orders requiring the preparation of an update report by the single expert. The father agrees but the mother does not.
Competing proposals and evidence
The mother presses for orders contained within her Application in a Case filed on 2 September 2010, in support of which she reads her affidavit filed on 2 September 2010.
The father presses for the alternate parenting orders contained within his Response to an Application in a Case filed on 3 December 2010, in support of which he reads his affidavit filed on 3 December 2010.
The Independent Children’s Lawyer supports the parenting orders now proposed by the father, which slightly restructures the regime implemented by the last orders made on 10 May 2010. The Independent Children’s Lawyer relies upon the report of the single expert prepared in January 2010, which is erroneously dated 20 January 2009.
Background facts
The following history is derived from the last interim hearing conducted between the parties on 10 May 2010:
2.The parties separated in late 2008 and have regrettably been fighting about the child ever since.
3.The parties reached interim consent orders on 21 January 2009, which required the child to live with the mother and spend time with the father, some but not all of which time was supervised. Allegations of domestic violence against the father, refuted by him, lay behind the agreement for interim supervision.
4.The complexion of the case changed on or about 4 September 2009 when the mother filed a Form 4 Notice of Child Abuse alleging the father’s sexual abuse of the child. Those allegations, also refuted by the father, led to a cessation of the child spending time with him for a period of months.
5.In November 2009, the parties and the Independent Children’s Lawyer, who had been appointed in April 2009, and the Intervenor, being the Director-General of the NSW Department of Human Services, who had intervened in August 2009, agreed upon a further interim regime of parenting orders. For reasons which are entirely unclear, that agreement was not ratified by the Court and so no orders exist. Nevertheless, the agreement provided for the child to live with the mother and spend time with the father at the discretion of the Intervenor. Pursuant to that agreement, the Intervenor paid a delegate to supervise the time spent by the child with the father for a period of hours each fortnight.
6.On 19 March 2010, the Intervenor was granted leave to withdraw from the proceedings. As a consequence, the Intervenor declined to continue arranging and funding the supervised time spent by the child with the father pursuant to the agreement reached in November 2009. Consequently, the parties and the Independent Children’s Lawyer are now in dispute about the interim parenting regime that needs to be implemented pending the final hearing.
7.By his Application in a Case filed on 8 April 2010, the father wants the child to spend much more time with him on an unsupervised basis, although during the course of the interim hearing the father changed position and indicated reliance upon fresh minutes of orders, set out within Exhibit F1, providing for the child to continue spending supervised time with him for several hours each week supervised by the paternal grandmother.
8.By her Application in a Case filed on 3 May 2010, the mother wants the child to continue spending time with the father for only two hours per fortnight supervised at a contact centre.
9.It also needs to be observed that this interim hearing is necessitated by reason of each party resisting the matter being listed for final hearing before the Court as soon as possible.
10.A police investigation was launched into the mother’s allegations against the father, as a consequence of which the father was charged with various offences against both the mother and the child. The father has entered pleas of not guilty to all charges. He was recently arraigned before the District Court of New South Wales and he expects to be tried on those charges towards the end of 2010 or early 2011.
19.The mother says that in about March 2009 she observed the child to be acting in a sexualised way and to make a comment which tended to causally connect the father to the child’s sexualised behaviour. The mother told the Family Consultant that she reported the incident to the Department of Human Services but that no investigation ensued. There were no further disclosures and no more sexualised behaviour exhibited by the child up until the time of the interviews with the Family Consultant in May 2009 (see Family Report, paragraphs 29-30).
20.The mother says that in September 2009 she observed the child to be acting in an identical sexualised way. In response to a leading question from the mother, the child said that the father had touched her in that way (see Expert Report, pages 4, 8). The maternal grandmother corroborates the child acting in a sexualised way (see Expert Report, pages 4, 12) and also attributes to the child suspicious statements about the father (see Expert Report, page 13).
21. The mother filed her Form 4 Notice of Child Abuse on 4 September 2009, which detailed the child’s complaint to her and the maternal grandmother that the father had touched her vulval area and that she was feeling discomfort in that area of her body.
22. The criminal charges pending against the father, according to the submissions made to this Court, have nothing to do with the allegations of child sexual abuse disclosed in the Form 4, or as discussed with the Family Consultant or single expert. The criminal charges relate to allegations of physical and sexual assault of the mother, and a single charge of physical assault in respect of the child.
The hearing on 10 May 2010 resulted in interim orders being made that provided for the child to live with the mother and spend time with the father for four hours each Saturday afternoon under the supervision of the paternal grandmother, with changeovers to be effected at the KFC Restaurant at G. The parties were also required to keep each other informed of their respective contact details.
Those orders were only implemented for a short period of time. The mother unilaterally terminated arrangements for the child to spend time with the father at the end of July 2010 (Father’s affidavit, par 2). The mother also terminated communication between the child and the father at that time (Father’s affidavit, par 3). The father was dissatisfied and instructed his lawyers to write to the mother’s lawyers about it (Mother’s affidavit, annexure B).
The father entered pleas of guilty before the District Court of New South Wales at Gosford in August 2010 to a series of charges arising out of an incident between the parties on 1 July 2007. Although the mother relied upon those circumstances to unilaterally contravene the parenting orders made on 10 May 2010, her contravention preceded the father’s pleas of guilty. The father pleaded guilty to the following offences (Mother’s affidavit, annexure A):
1.That on or about 1 July 2007, the father did assault the mother thereby occasioning actual bodily harm to her.
2.That on or about 1 July 2007, the father detained the mother without her consent with the intent of obtaining an advantage, namely, to inflict physical punishment upon her, and at the time of the detaining occasioned actual bodily harm to the mother.
3.That on or about 1 July 2007, the father did detain the mother without her consent and with the intent of obtaining an advantage, namely, to ensure the presence of the mother upon his return from his visit to a third person.
The father also admitted the following two offences, which he asked the District Court to take into account at the time of his sentence hearing upon the three offences just mentioned (Mother’s affidavit, annexure A):
1.That on 12 May 2002, the father assaulted the mother thereby occasioning actual bodily harm to her.
2.That on or about 1 July 2007, the father did assault the child.
It will be observed that:
(a)All offences, bar one, arise out of circumstances occurring on 1 July 2007. The only exception was an offence which occurred over five years before on 12 May 2002.
(b)All but one of the offences relate to the mother, and all of those offences manifest “family violence”, as defined by s 4(1) of the Family Law Act 1975 (Cth) (“the Act”).
(c)The other offence pertains to the child, and that admitted assault of the child must necessarily amount to “abuse” of the child, as defined by s 4(1) of the Act.
The mother’s solicitors wrote to the father’s solicitors on 24 August 2010, advising them that the mother considered the developments before the District Court on 9 August 2010 changed the circumstances significantly with respect to parenting orders (Mother’s affidavit, annexure B). The mother then filed her Application in a Case on 2 September 2010. The child has still not seen the father since July 2010, even though the orders made in May 2010 continue to prevail.
Application for an adjournment
At the commencement of the interim hearing, the mother’s learned counsel made an application for an adjournment of the hearing. The adjournment was posited on two bases – firstly, that it was necessary for the Court to have before it evidence of the facts underpinning the offences upon which the father was due to be sentenced, and secondly, that the mother needed to adduce evidence from a treating psychiatrist or psychologist about the adverse effect upon her parenting capacity of the father’s admission of those offences before the District Court in August 2010. The adjournment application was dismissed with reasons to follow. These are those reasons.
In relation to the first reason for the adjournment application, there is no necessity, in determining the issues at hand, for the Court to have before it evidence of the facts underpinning the offences upon which the father is due to be sentenced. Of themselves, the elements of those charges manifest a serious incident on 1 July 2007, and before that on 12 May 2002. The seriousness of the assaults perpetrated by the father upon the mother and the child do not affect the outcome of the interim hearing, since the Court proceeds on the basis that the incidents were serious per se.
As to the second reason posited by the mother, the fact is that the mother filed her Application over three months ago on 2 September 2010. She filed her affidavit in support of her Application simultaneously. The mother’s legal representatives would be aware of the requirements under the Family Law Rules in respect of the affidavit material which must be filed in support of interim applications. In the three months that have elapsed since then the mother has done nothing about adducing any evidence relating to what is now alleged to be an adverse effect upon her parenting capacity flowing simply from the father’s belated admissions as to his commission of family violence more than three years ago.
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Act. The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
Those principles will be familiar to the parties because they were quoted in the former Judgment determining their interim dispute on 10 May 2010.
Evaluation of evidence and conclusions
The evaluation of evidence and the conclusion reached about the child’s best interests on 10 May 2010 remain efficacious.
The only changed circumstance since then is the father’s admissions of various offences which occurred long ago on 1 July 2007. It is instructive to remember that after that time:
(a)The parties reconciled and lived together with the child until late 2008; and
(b)The mother always maintained her allegations of abuse at the hands of the father in 2007 once these proceedings were commenced in December 2008. She reported those allegations to the single expert, which allegations are addressed in the single expert’s report, and the mother was cognisant of those allegations when she reached consent interim parenting orders with the father on 21 January 2009.
The father’s abuse of the mother and child on 1 July 2007 did not therefore convince the mother that the child should be kept from the father but, on the contrary, she thought it appropriate that they all still live together, and that after separation it was permissible for the child to spend time with the father. The fact that the father may now have made a public admission about his appalling behaviour on 1 July 2007 changes nothing. The mother always held her own beliefs about what occurred on that day. The father’s admissions now only serve to vindicate the mother’s version of events that day.
The circumstances that caused the complexion of this case to change occurred on 4 September 2009, not 1 July 2007. On 4 September 2009, as I have already recited, the mother alleged the father had sexually abused the child. That untested allegation was the reason for the introduction of a parenting regime in November 2009, which required the time spent by the child with the father to be fully supervised. That arrangement was modified and confirmed by the orders of 10 May 2010. The mother now seeks the Court’s imprimatur for her decision to terminate interaction between the child and the father, but the Court declines to endorse her views. If the events of 1 July 2007 made no difference to the mother before, they logically make no difference now.
The predominant issue in this case is the allegation of sexual assault of the child by the father. The father was not prosecuted in relation to that allegation. It remains to be determined in this Court on the evidence properly adduced and tested by the parties and the Independent Children’s Lawyer.
The mother alleges fears of abduction of the child by the father (Mother’s affidavit, par 4) but the father refutes that evidence (Father’s affidavit, par 4). There is no suggestion in the evidence that the father has not complied with the Court’s orders in the past. I infer that he will continue to do so. The mother seems not to appreciate the irony of her failure to comply with the orders made on 10 May 2010.
Turning to the issue of the update expert report proposed by the Independent Children’s Lawyer, I note that the single expert reported in January 2010 that:
(a)The single expert was specifically addressing the allegations of abuse (page 2.9).
(b)The father denied any incidents of physical violence (page 3.6), but then recanted and only denied any serious violence (page 11.3).
(c)The single expert was unable to adjudicate the veracity of the parties’ conflicting versions about domestic violence (pages 7.8, 20.7).
(d)The father denied that he would ever be abusive or violent towards the child (page 16.4).
(e)The child acted very positively with the father (pages 4.1, 15.2, 18.2, 18.9).
At face value, some of the comments made by the father to the single expert contradict his recent pleas of guilty to offences relating to the incident on 1 July 2007 involving both the mother and the child.
Similarly, at face value, the incident of abuse between the father and the child on 1 July 2007 does not appear to have caused deterioration in the relationship between the child and the father.
I am persuaded that the recent developments before the District Court ought to be drawn to the single expert’s attention and an update report prepared in which an opinion may be expressed about whether those developments change the views or recommendations of the single expert. The single expert may then explain himself as to why or why not.
The orders proposed by the Independent Children’s Lawyer about the breadth of the update report are in my view unnecessarily wide. There is no need to effectively ask the single expert to start the process afresh. I intend to curtail the ambit of the update report sought from the single expert.
For those reasons, I make the following orders.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 December 2010.
Associate:
Date: 10 December 2010
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