FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dalton & Nikolaou [2025] FedCFamC1F 151
File number: SYC 3964 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 10 March 2025 Catchwords: FAMILY LAW – PROCESS AND PROCEDURE – ADJOURNMENT – Where the mother seeks that the final hearing be adjourned – Where the mother blames her former solicitors for failing to prepare her evidentiary material – Where the mother claims she did not know the proceedings were listed for trial and seeks an adjournment to obtain legal advice – Where the mother was present at the directions hearing when the matter was listed for trial – Where the mother has had ample time to prepare her evidentiary material and engage further legal representation – Consideration of the best interests of the child – Where the mother did not act with alacrity in informing the other parties or the Court of the circumstances leading to her adjournment application – Consideration of the overarching purpose – Litigants entitled to expect that their case will be heard on the scheduled date which it has been listed – Waste of Court resources if adjournments are granted without cogent reasons – Oral application for adjournment dismissed.
FAMILY LAW – PARENTING – Where final orders were made in March 2023 – Where the mother has filed a fresh application – Where the paternal aunt has been heavily involved in raising the child – Where the father is incarcerated – Where the paternal aunt proposes orders ceasing all time and communication between the child and both parents – Where the father and Independent Children’s Lawyer support the orders proposed by the paternal aunt – Unacceptable risk – Intergenerational impact of family violence – Consideration of s 60CC of the Family Law Act 1975 (Cth) – Where the mother does not have a stable residence – Joint decision-making deemed inappropriate – Where the child does not want to see or speak to the mother – Orders for the child to continue residing with the paternal aunt and to cease time and communication with both parents.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC, 65DAAA, 95, 102QAC Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Charr & Dalton (No 3) [2023] FedCFamC1F 259
Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65
Division: Division 1 First Instance Number of paragraphs: 65 Date of hearing: 10 March 2025 Place: Sydney (via video link) The Applicant: Litigant in person Counsel for the First Respondent: Mr Hogg Solicitor for the First Respondent: Central West Legal Pty Ltd The Second Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Ms Higgins, Joplin Lawyers ORDERS
SYC 3964 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DALTON
Applicant
AND: MS NIKOLAOU
First Respondent
MR CHARR
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
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- Dalton & Nikolaou [2025] FedCFamC1F 151
- Case
- [2025] FedCFamC1F 151
- Decision Date
CaseChat Overview and Summary
The Court found that the mother's application for an adjournment was not supported by cogent reasons. The mother had ample time to prepare her case and had been present at the directions hearing when the matter was listed for trial. The Court emphasised the importance of the overarching purpose of the Family Law Act, which includes the efficient use of Court resources and the timely resolution of disputes. The Court noted that the mother had not acted with alacrity in informing the Court of her reasons for seeking an adjournment. The Court also considered the best interests of the child, who should not be subjected to unnecessary delays. Consequently, the application for an adjournment was dismissed.
The Court examined the evidence and submissions to determine the best interests of the child. The paternal aunt had been heavily involved in raising the child, and there was evidence of significant risk associated with contact between the child and either parent. The child had expressed a clear desire not to see or speak to the mother, and the Court was satisfied that the father, who was incarcerated, should also not have contact with the child. The Court was particularly concerned about the risk of family violence and the potential for intergenerational harm. The Court concluded that it was not in the child's best interests to spend time with either parent. The Court made orders for the child to continue residing with the paternal aunt and to cease all contact with both parents.
The Court made several orders, including discharging all previous orders, granting sole decision-making responsibility to the paternal aunt, and prohibiting the mother and father from contacting the child or attending places where the child may be. The Court also granted the paternal aunt the sole right to apply for a passport for the child and to travel internationally with the child without the consent of the parents. The form of the order is subject to review for any minor errors or to record a variation to the order.
Orders
Orders of the court
SYC 3964 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS DALTON
Applicant
AND:
MS NIKOLAOU
First Respondent
MR CHARR
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
10 MARCH 2025
THE COURT ORDERS THAT:
1. The Mother’s application for an adjournment is dismissed.
THE COURT FURTHER ORDERS THAT:
Procedural
2. All previous orders are discharged.
Decision Making
3. Ms Nikolaou (“the Paternal Aunt”), shall have sole decision-making responsibility for the child, X, born 2019 (“X”).
Live With
4. X shall live with the Paternal Aunt.
Spend Time – Mother
5. X shall spend no time and have no communication with Ms Dalton (“the Mother”).
Spend Time – Father
6. X shall spend no time and have no communication with Mr Charr (“the Father”).
Restraints
7. Pursuant to section 68B of the Family Law Act 1975 (Cth) for the personal protection of X, the Mother and Father are restrained and an injunction is granted them from:
(a) Approaching within 200 metres of X;
(b) Attending or loitering within 200 metres of X's place of residence or any other place where X may reside.
(c) Attending or loitering within 200 metres of X's place of education.
(d) Contacting, communicating or attempting to contact or communicate with X in person, through another person, or through any electronic communication or devices including by telephone, text message, gaming, social media, written mail and electronic mail or other communication.
(e) Removing X from the Paternal Aunt's care or from the care of any other person.
8. Mother and Father are restrained from contacting any educational facility that X attends from time to time.
9. The Mother and Father are restrained from requesting welfare checks on X at any such time that X is in the care of the Paternal Aunt.
10. The Paternal Aunt is restrained from allowing X to attend any paternal family event where the Father is present.
11. The Father is restrained from attending any paternal event where X will be present.
Sole Passport/International Travel
12. Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) the Paternal Aunt is permitted to apply for a passport for X (born 2019) without the consent of the Mother and Father.
13. Pursuant to section 65Y(l)(c)(ii) of the Family Law Act 1975 (Cth), the Paternal Aunt is permitted to travel to a place outside Australia with X whether or not the Mother /Father have consented to such travel.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
There are a number of reports that raise the mother’s mental health struggles.[17] The Court is mindful, and appropriately, was invited to note that the mother has had an extremely difficult life and has had mental health struggles including at least on one occasion, threatening suicide. The Court has empathy for the circumstances that have confronted the mother but has an obligation to make orders that are in the best interests of the child. [17] Family Report of Ms AB dated 16 August 2024, paragraphs 142–143.Whether the Child Should Spend Time with Either Parent – Consideration of Section 60CC factors The relevant legislative provisions that I am required to consider are set out in Pt VII of the Act, which deals with the making of parenting orders. Section 60CA of the Act provides that the Court must regard the best interests of the child as a paramount consideration in making parenting orders. Section 60CC(2), (2A) and (3) of the Act, set out a list of matters to be considered in determining what is in the child’s best interests. It is not an exhaustive list, but the matters identified provide a useful guidance. In light of the issues I have considered to be relevant, I respectfully adopt the submissions of both the ICL and also the paternal aunt. I will not detail those submissions in this judgment, save to formally note that I have had regard to them, I accept the merit of those submissions, and I adopt them. In terms of s 60CC(2A) of the Act, I am required have to have regard to what arrangements would promote the safety, including the safety of the child from being subjected to or exposed to family violence, abuse, neglect or harm. In respect to that matter, I respectfully agree with and adopt the reasons of Smith J that the child should continue to live with the paternal aunt. The relevant question in this case focuses on whether the child should spend any time with her mother and/or her father. I am satisfied that the issues of risk are such that the child should spend no time with either parent. In addition to the issues of risk that I have identified by reference to the paternal aunt’s affidavit and the affidavit of the grandmother, I note the significant risk of the mother continuing to engage in – what is, in my view – a form of systems abuse by vexatiously notifying child protection and policing agencies of welfare concerns while the child is living with and in the care of the paternal aunt. Those expressions of concern and requests for welfare checks have been unnecessary, unreasonable and disruptive of the paternal aunt’s household and I am satisfied that they are unsettling for the child. That fact, together with the other risk factors which I have earlier referred, leads me to the unfortunate conclusion that it is not in the child’s best interests to spend time with the mother. The father accepts that, in circumstances where he is facing serious criminal charges, that the child should not spend time with him, and to his credit, consents to orders to that effect.