Tindall & Saldo

Case [2016] FamCAFC 146

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO [2016] FamCAFC 146

FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – Where final parenting orders were made in 2012 providing that there was no face to face contact between the child and the father – Where the father sought a variation of those orders through a Rice and Asplund (1979) FLC 90-725 argument – Where the trial judge indicated she would conduct a threshold hearing separate to a final hearing – Where the trial judge subsequently determined the threshold matter and final hearing together – Where the mother had only filed an affidavit relating to the threshold issues – Where the mother was not given leave to rely on the entirety of an affidavit from the 2012 proceedings – Where the trial judge failed to afford the mother procedural fairness in not permitting her to put relevant evidence before the court – Appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – Whether the trial judge properly considered the principles in Rice and Asplund (1979) FLC 90-725 – Where the trial judge failed to consider any change in circumstance against the rationale that the identified change must justify a reconsideration of the issues – Appealable error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – Where it was contended that the trial judge erred in the weight she attributed to various s 60CC factors of the Family Law Act 1975 (Cth) – Where the father had pleaded guilty and been convicted on charges of violence against the mother – Where the trial judge found she could not come to a definite conclusion about an assault involving the child – Where such a conclusion was unsupported by the evidence and was not open to the trial judge – Where the trial judge failed to give sufficient weight to the evidence of family violence in her consideration of s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where the child expressed a desire to see the father – Where the trial judge elevated the child’s views over the primary consideration of protecting the child from harm – Where the mother indicated concerns about the child’s safety and the father finding out where she lived if the child were to have contact with him – Where the trial judge gave insufficient weight to the mother’s fears without proper consideration of the evidence of violence – Appealable error demonstrated.

FAMILY LAW – APPEAL – COSTS – COSTS  CERTIFICATES –  Where neither party sought costs orders but both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) should the appeal be allowed – Where the appeal was allowed on an error of law – Orders for costs certificates made.

Family Law Act 1975 (Cth) s 60CC(2)(a), 60CC(2)(b)
Federal Proceedings (Costs) Act 1981 (Cth)
Hunter v Chief Constable of West Midlands Police [1982] AC 529
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319

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Details
AGLC
Tindall & Saldo [2016] FamCAFC 146
Case
[2016] FamCAFC 146
Decision Date

CaseChat Overview and Summary

In the matter of Tindall & Saldo, the parties were engaged in a dispute regarding the variation of parenting orders concerning their child. The Family Court of Australia was tasked with determining whether the trial judge had properly exercised her discretion in varying the existing orders that prohibited face-to-face contact between the child and the father. The father sought a variation based on a Rice and Asplund argument, asserting that there had been a significant change in circumstances since the original orders were made in 2012. The mother contested the application, arguing that the father's past violence against her and the child's expressed desire to see the father were critical factors in the determination.

The legal issues before the court included whether the trial judge had properly applied the principles in Rice and Asplund, whether the trial judge had adequately considered changes in circumstances, and whether the trial judge had appropriately weighed the factors under s 60CC of the Family Law Act 1975 (Cth). The court needed to assess whether the trial judge had erred in not giving sufficient weight to evidence of family violence and in not providing the mother with procedural fairness by allowing her to present relevant evidence. Additionally, the court had to determine whether the trial judge had appropriately balanced the child's views against the other evidence and factors relevant to the child's best interests.

The court found that the trial judge had made several errors. Firstly, the trial judge had failed to properly consider the change in circumstances, particularly the father's history of violence, and did not adequately weigh this evidence against the child's best interests. The court found that the trial judge's conclusion that the mother was avoiding contact for reasons unrelated to the child was unsupported by the evidence. The court also determined that the trial judge had not given sufficient weight to the mother's concerns about the child's safety and had elevated the child's views over the primary consideration of protecting the child from harm. Furthermore, the trial judge did not afford the mother procedural fairness by not permitting her to rely on the entirety of an affidavit from the 2012 proceedings. These errors constituted appealable errors.

The appeal was allowed, and the orders made by the trial judge were set aside. The matter was remitted for a new hearing before a different judge in the Family Court of Australia. The court also granted costs certificates to both parties, allowing them to seek costs from the Attorney-General under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the rehearing ordered.

Orders

Orders of the court

1.

The appeal against the orders of Cleary J made on 27 January 2016 is allowed and her Honour’s orders are set aside.

2.

The matter be remitted for hearing by a judge in the Family Court of Australia other than Cleary J.

3.

The appeal against the refusal of Cleary J to stay the operation of the orders of 27 January 2016 is dismissed.

4.

There is no order as to costs as between the parties.

5.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.

6.

The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

7.

The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, it was argued that her Honour’s conclusion at [161] (emphasis added):The evidence is that there has been not a hint of misconduct by the father in gaol, or since his release. There has been complete compliance with the current parenting orders. He has made no attempt to contact the mother. There is no particular evidence of the mother’s assertion that hers and the child’s health and safety are at risk if there is direct face-to-face contact. I consider that the mother is avoiding time between the child and the father for her own reasons, which do not relate entirely to the child. supports the submission that her Honour failed to give proper consideration to the evidence of the father’s conviction for serious physical violence against the mother and, of itself, points to error. We agree with the submission made on behalf of the mother that her Honour failed to give sufficient weight to the evidence of family violence in her consideration of s 60CC(2)(b) and thus erred. It was argued that her Honour failed to properly assess the views of the child and failed to balance those expressed views against the other evidence. Dr R, in his evidence before her Honour during the 2012 hearing, spoke about his observations of the child and the father. Her Honour noted at [80] of those reasons that the strong and warm bond between the child and the father was consistent with the reports of the supervisors at the contact centre who had supervised the child’s time with the father between 17 October 2009 and 20 February 2010. Her Honour accepted the expert’s opinion that the child was too young at five “to form a clear view about what is in her best interests” (at [88]). In her 2012 decision, in coming to the conclusion that some contact between the child and the father was in the child’s best interests, her Honour said:99. In this case, provided [the child] is safe, the benefit of keeping the relationship between her and her father, although at some emotional cost to the mother, outweighs the possibility that she might feel abandoned if the relationship is lost. The contact ordered by her Honour consisted of the sending of gifts and cards three times a year. It was argued before her Honour, and formed the basis of the challenge to her Honour’s conclusions about the child’s views, that there was no basis for finding that there had been a change in the child’s views which would justify a reopening of the parenting issues, and further, that her Honour failed properly to evaluate that evidence. In her 2016 reasons for judgment, her Honour referred to the report of the family consultant about the child’s views and said:71. Most significantly, the child has expressed a strongly held, even passionate view, that she wishes to meet with the father and to spend time with him, despite the fact that she understands two things:a) That the father hurt the mother and went to gaol as a consequence; andb) That the mother dislikes everything about the father, but the child herself does not.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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