Tindall & Saldo: Family violence and the court

A five-year-long custody dispute in the Family Court has not only been making headlines, but also testing how well the legal system is able to handle family violence.

The matter involves a couple that have been given the pseudonyms Ms Tindall and Mr Saldo; they have been fighting over their young daughter since their relationship ended in 2008.

The main issue is their dispute over Mr Saldo’s history of family violence. In 2007, at their home in Cambridge Park, Mr Saldo tied the child to a chair and swung a samurai sword at her. Mr Saldo also bashed Ms Tindall over the course of their relationship.

Mr Saldo was to go on trial for the behaviour in 2010; however, before the criminal trial could happen, the couple came before a court to determine parenting arrangments. Ms Tindall told the court that she was concerned that Mr Saldo would act on threats to kill her and her child. Mr Saldo responded, telling the court that Ms Tindall had a history of making up allegations, and that her fearful behaviour was an act.

Judge Stewart Austin ordered that Mr Saldo continue to see the child for two-hour weekly visits at a supervised contact centre. His Honour’s reasoning was that the incident had occurred many years earlier, and that the pending criminal proceedings did not constitute ”a change in the family dynamic”.

”The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship,” Justice Austin said. ”His pleas of guilty were only a vindication of the mother’s allegations of past domestic violence.”

Fearing for her daughter’s safety, Ms Tindall stopped dropping her child off at the weekly visits. She was then reprimanded by the judge and convicted of 20 breaches of parenting orders.

Ms Tindall is now appealing against her convictions in the Family Court of Australia. Dr R, a Family Court psychologist involved from the beginning of the dispute, has also told the court that he had originally agreed with Mr Saldo and described her as “calculated and brazen”.;

However, when Mr Saldo entered a guilty plea to his criminal trial and was convicted to five years in prison, Dr R admitted he had understated the degree of violence and had never been more wrong in his 20 years of preparing expert reports.

If Ms Tindall’s appeal is successful, it has the potential to change how family violence and domestic abuse is handed by the legal system.

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Roberts & Waters: Risk of harm to the child

On the 31st of January, 2014, the Family Court handed down the decision of Roberts & Waters [2014] FAMCA 34 (referred to as R & W); it involved the best interests of the child, and determined whether the father posed an unacceptable risk of harm to the child.

The Family Law Act 1975 (Cth) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated – unless, of course, it is contrary to the child’s best interests. That said, an important aspect of this objective is protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This very issue of family violence was a concern in R&W.

R&W involved a separated couple and their child from the relationship, a five-and-a-half-year-old boy. The couple met while the father was a prison inmate, serving time for a charge relating to attempted murder; he also had a lengthy criminal history, including two convictions for assault. Once he was released from prison in 2005, R & W were in a relationship for a few years, but separated in 2009.

The child continued to live with the mother after the separation, and at one point the mother sought an AVO against the father for her protection, which he was charged with contravening. Various interim orders were made for the father to spend time with the child; however, only one overnight visit with the father was permitted by the mother.

Ultimately, the mother and father did agree that once the child was of school age, overnight visits with his father were in his best interest; the mother had no concern that the father would ever harm his child. However in the meantime, “she did not believe that he had any understanding of the emotional and developmental needs of young children”.

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that while the child had developed a good relationship with his father, she had serious concerns about the father’s parenting capacity and – without a psychiatric assessment- could not make recommendations about the time that the child should spend with him.

Justice Kent considered the submission made by the Family Consultant, as well as the submission made by a consultant psychiatrist who carried out a psychiatric assessment on each of the parents.

His Honour said that he was “not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child”, and noted that the mother had ultimately consented to the child having overnight time with the father.

While Justice Kent still considered whether the father’s behaviour raised concerns about an unacceptable risk of harm to the child, he determined that he was not satisfied that the father’s time with the child should be restricted because of his behaviour.

As a result, it was ordered that the child was to live with the mother, while also spending regular weekends and time during the school holidays with the father.

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