Tindall & Saldo 2015. FamCAFC 1

The case involved an appeal by the mother where she was found to have contravened an orders without reasonable excuse.  The mother’s treating psychiatrist gave evidence that the mother had been diagnosed with an anxiety disorder, with PTSD, and with major depression.

The father had been charged with numerous criminal offences in the Magistrate’s Court regarding both the mother and child during the time the couple lived together.   The mother gave evidence against the father during the criminal proceedings, and feared that the father would implement a threat he had made previously.  The father pleaded guilty to the criminal charges after the mother gave evidence about the matters, and was released on bail while awaiting sentencing.  The mother withheld the child from the father on about 18 occasions while the father was on bail.

The trial judge in the Family Court found that the mother did not have a reasonable excuse to withhold the child at the time, and required the mother to enter a financial bond requiring her to comply with the orders of the Family Court about access.  The mother appealed several aspects of the ruling by the trial judge.

The trial judge had found that the family dynamics had not changed sufficiently when the criminal trial commenced to provide reasonable grounds to contravene orders of the Family Court.  The Appeal Court found that the trial judge erred on this finding, finding instead that the father’s guilty plea did change the family dynamics.

The father had previously made a threat to the life of both mother and child, and the mother reported her fear that the father would carry out this threat after the mother gave evidence against him in the criminal trial.  While the trial judge acknowledged that the mother was subjectively fearful, the trial judge held that this fear was not reasonably held on objective grounds for several reasons including that the mother expressed the fear only after the father had pleaded guilty, and despite the fact that contact was to be supervised.  The Appeal Court noted that the mother wanted supervision by an agency to be provided whereas supervision was provided by a relative of the father.  The Appeal Court found merit in this ground for appeal.

The mother claimed that she had been bullied by her own solicitor to enter consent orders about providing access to the father, claiming that her solicitor became over-bearing and placed her under duress.  The trial judge did not accept these claims.   The judge considered that the mother had not been coerced as she had been accompanied by her father who provided support during proceedings.  The judge considered that the mother had initially accepted advice from her solicitor to compromise at the cusp of the hearing from a fear of receiving a worse outcome if the matter proceeded to a judicial determination, and that the mother had later regretted her decision to settle.  The trial judge found that the mother had not been bullied or coerced into entering a consent agreement.

The Appeal Court noted that a parent who withholds a child has the burden of proof that their concern is reasonable.  An excuse is reasonable if a parent believes on reasonable grounds that preventing a parent and child from spending time together is necessary to protect the health or safety of a person (including the child), and that the child is withheld for no longer than is necessary to protect the health or safety of the person.

The mother gave evidence that a named police officer had advised her that it might not be safe to pass on her contact details to the father because of her safety concerns.  No documentation of this advice was provided.

The Appeal Court found that the trial judge erred on the finding about the mother’s fear, and allowed the appeal in part.