Tindall & Saldo

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.