Circumstances changed – vocal child, committed father

Circumstances changed – vocal child, committed father

Saldo & Tindall [2016] FamCA 22 (27 January 2016)

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/22.html

SHOULD THERE BE A RECONSIDERATION OF THE SEPTEMBER 2012 PARENTING ORDERS?

60. It was submitted on behalf of the mother that there has been no change of circumstance to justify reconsideration of the September 2012 Orders.
61. In support of that submission, the following matters are raised.

A. Compliance with the September 2012 Orders

62. The mother has complied with the September 2012 Orders; in fact both parties have complied with those Orders.
63. The new information is that the child was “very happy to receive gifts and cards from the father” and described a number of them.^[22] She was looking forward to the next present for Christmas.
64. I note that the mother was strongly opposed to any order for communication by letter, card and gift during the course of the 2012 final hearing and such order was made over that opposition. The mother put arrangements in place for third parties to assist her in the process of the child accessing those items. The child clearly enjoys the connection that they represent.
65. On behalf of the mother it was submitted that there is no evidence before the Court that the child’s well-being is adversely affected by the level of contact with the father which she has enjoyed since September 2012.^[23] That is clearly the case. But the fact that the child has actively benefited from, and enjoyed that contact, is fresh evidence.

B. The father’s release from prison

66. It is submitted that at the time when the September 2012 Orders were made it was known to the Court that the father would be out of gaol in due course and that accordingly, the fact that he is out of gaol does not represent a change of circumstances.
67. It is true that the Court knew that the father was in gaol and would be released. However, he was sentenced to a term of four years and nine months, commencing 19 October 2011, and expiring 18 July 2016. The evidence is that the father was released after the non-parole period of two years and three months, on 18 January 2014; the earliest day he could be released.
68. There is no evidence before me of any breach of his parole conditions, which were annexed to his affidavit.^[24]
69. There is no evidence of breach of the AVO.
70. The father studied in gaol and his certificates of qualification in proficiency were annexed to his affidavit.^[25] Further, on release from gaol, the father reunited with his partner, who has remained loyal to him and to his relationship with the child. He has maintained his own commitment to the child and to the possibility of including her in events which involve his extended family, who live in Sydney.

C. Views of the Child[26]

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:
    1. That the father hurt the mother and went to gaol as a consequence; and
    2. That the mother dislikes everything about the father, but the child herself does not.
72. On 10 December 2014, when the Family Report had just been released, I commented that in my impression, the mother must have been very careful and protective of the child for her to be so freely expressing a positive reaction about the father. I endorse that comment in these Reasons and note that the child is confident that the mother understands her wishes in the matter, despite their very different opinions about the father.
73. It is a reflection of a very high level of parenting capacity for the mother to have shielded the child to the extent that she has from her feelings and allowed the child to freely express her own views.
74. A submission was made that because the Single Expert, in his Expert Report for the proceedings in 2012, identified a strength and warmth in the bond between the child and the father, that nothing has changed because the child continues to feel that way.^[27] I reject that submission. It is a matter of great significance that the child, who has not actually seen the father since she was four years old, has maintained a bond with him, in her own thinking, and has a very strongly held wish to see him and spend time with him.
75. Further, I reject the submission that “whatever the child’s views are they should be over-ruled”. In this context, a preliminary consideration of revisiting parenting orders, it would be contra to authority to ignore fresh evidence of this kind.^[28]

Conclusion

76. The change of circumstances I identify and take into account are:
    1. Positive conduct by the father, stability and lawfulness in the father during his imprisonment and since his release; and
    2. Fresh evidence, namely the views of a child assessed as having the maturity to express them.^[29] Those views being a strongly held wish to spend time with the father.
77. For these reasons, and those expressed in two prior ex tempore reasons delivered in November 2014, I consider that there is evidence sufficient to justify a reconsideration of parenting issues.