Dalton & Nikolaou
[2025] FedCFamC1F 151
•10 March 2025
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
Gabrielle v Abood (No 2) [2023] NSWCA 28
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
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dalton & Nikolaou has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
THE MOTHER’S APPLICATION TO ADJOURN THE PROCEEDINGS
This matter was listed for hearing today for five days by orders I made on 7 August 2024. At the directions hearing on 7 August 2024, the parties – other than the second respondent, Mr Charr (“the father”) – were represented, with Ms YY appearing on a duty basis on behalf of the applicant, Ms Dalton (“the mother”), who was also in attendance. On that day, the hearing was set down and the parties were directed to file their evidentiary material by 3 February 2025 (Order 2). I also indicated, by way of Order 4, that any party wishing to do so, could present the consolidated trial affidavit relied upon in previous proceedings before Smith J,[1] supplemented by events occurring after 13 February 2023. In other words, I endeavoured to minimise the additional work that the parties would be required to undertake to prepare their case for hearing.
[1] Charr & Dalton (No 3) [2023] FedCFamC1F 259 (delivered on 10 March 2023).
Since that time, there was an application by the first respondent, Ms Nikolaou (“the paternal aunt”), who is the paternal aunt of the child subject of these proceedings, seeking that the final hearing proceed on an undefended basis. That application was heard on 20 February 2025, at which time I made orders that the hearing would proceed as scheduled, and on the basis of the evidentiary material filed by the parties as at that date. The mother informed the Court that she was unaware of the fixture on 20 February 2025. Even accepting that to be the case, the mother, by her attendance on 7 August 2024, was aware of the timetable for filing her evidentiary material by 3 February 2025. In circumstances where no other party other than the paternal aunt had filed any evidentiary material, in accordance with the trial directions I ordered, the case will proceed on the basis of the evidence filed by the paternal aunt.
To summarise her argument in seeking an adjournment, the mother indicates that her solicitor failed to do the work that he was instructed to undertake, including preparing her evidentiary material. To that effect, the mother indicates that she expected the lawyer to prepare the evidentiary material over the January period, at which time she provided him with her updated contact details. The mother asserts that she received no communication from the lawyer and stumbled on the final hearing listing date on the Commonwealth Courts Portal last Friday.
With the greatest of respect to the mother, there is an uncomfortable coincidence between her reviewing the Commonwealth Courts Portal last Friday, in circumstances where she was notified, on 7 August 2024, that the matter would proceed to a five day hearing commencing on today’s date. Her ability to log into the Commonwealth Court Portal last Friday, begs the question as to why she did not do so earlier.
The mother has indicated that she seeks an adjournment for the purpose of obtaining legal advice, including making an application to Legal Aid. There has, however, been no explanation as to why that has not been done earlier.
The circumstances are that the mother was well aware as at 7 August 2024 that the matter had been set down for hearing and she has had ample time to prepare a supplementary affidavit. She has also had ample time to seek further representation, even if her solicitors failed to make contact with her, as she contends, in January 2025. She had an obligation, with respect, at that point in time to act with alacrity in informing the other parties and the Court of the circumstances which she says she confronted.
The Law – Adjournments
The relevant authorities about adjournment applications are well known. In Aon Risk Services Australia Ltd v Australian National University,[2] the High Court confirmed that the Court may consider not only the impact on litigants, but also they must consider the orderly and efficient business of the Court. Those principles are essentially set out in the overarching purpose: s 95 of the Family Law Act 1975 (Cth) (“the Act”). That section relevantly provides:
[2] (2009) 239 CLR 175.
Overarching purpose of the family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b)in relation to proceedings under this Act in which the best interests of a child are the paramount consideration--in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.
The case of Dahdah v Platinum Distributors Australia Pty Ltd,[3] indicates that the obligation of parties and their advisors to comply with the overarching purpose are relevant considerations in determining an adjournment application.
[3] [2023] FCAFC 65 at [166].
Significantly, as noted in s 95(1)(b) of the Act, the Court is required to have regard to the best interests of the child subject of the proceedings. Both counsel for the paternal aunt and the Independent Children’s lawyer (“the ICL”) contend that in circumstances where the child has confronted challenges that have unquestionably impacted upon her, it would be contrary to her best interests for these proceedings to be further adjourned.
Finally, I also refer to the decision of Gabrielle v Abood (No 2),[4] which confirms that ordinarily parties to legal proceedings are entitled to expect that their case will be heard on the scheduled date which it has been listed. The Court of Appeal noted that there would be an inefficient waste of Court resources if adjournments were granted without cogent reasons.
[4] [2023] NSWCA 28 at [6] (Bell CJ, Kirk JA agreeing at [8], Adamson JA agreeing at [9]).
Final Remarks
In this case, not only would there be an inefficient waste of Court resources, but there would also be adverse implications for the child. The task I must consider is whether the mother has cogent reasons for her adjournment application. With the greatest of respect, in my judgment, she does not – and that is because she has been aware of the fixture of this matter since 7 August 2024, such that even in circumstances where she indicated that she had poor communication from her lawyers in January 2024, she has failed to act with alacrity in notifying the Court of what she contends to be her circumstances and applying for an adjournment.
Accordingly, I dismiss the mother’s application for an adjournment.
THE SUBSTANTIVE HEARING
These proceedings concern, X (“the child”), who was born 2019. Her mother is Ms Dalton and her father is Mr Charr. Her aunt, who is the first respondent in these proceedings, is Ms Nikolaou.
The proceedings were previously heard by Smith J who made orders on 10 March 2023. Those orders provided for the child to live with the paternal aunt and to spend some time with her parents. The mother filed a fresh application seeking to revisit the orders, including the live-with orders. The paternal aunt, in response, has sought orders for the child to continue living with her and to spend no time with either parent. The ICL and father support the orders proposed by the paternal aunt.
The mother is 38 years old. The Court is unaware of her current location although the Court was advised of her current email address. The father is 46 years old and is currently incarcerated at the ZZ Correctional Centre. The paternal aunt is 52 years old and she resides at Town C with her husband, the child, and another woman who is currently on a study visa.[5] The paternal aunt is in stable employment as a public servant.
[5] Paternal aunt’s affidavit filed 3 February 2025, paragraph 15.
The mother and father commenced their relationship in early 2018 and separated on a final basis in June 2021. This case is tragic in many ways insofar as it is an example of the intergenerational impact of family violence.
The mother moved to Australia from New Zealand with her mother and siblings when she was around 14 years old.[6] She was taken into care shortly after arriving and has no contact with her family members. She reported being sexually assaulted multiple times, starting from her early childhood. She mentioned that no charges were ever placed on the men who she accused.
[6] Family Report of Ms AB dated 16 August 2024, paragraph 21.
The mother has also indicated that she was in a toxic relationship with Mr BB, the father of her three elder children, from the age of 15.[7] The abuse involved significant domestic abuse and coercion, including inducing the mother to engage in the misuse of illicit substances. She also reported significant emotional, sexual and psychological abuse in her relationship with the father from 2018 to 2021.[8] The mother and Mr BB were illicit substance users. According to the father, the mother has a history of drug use.[9]
[7] Family Report of Ms AB dated 16 August 2024, paragraph 7.
[8] Family Report of Ms AB dated 16 August 2024, paragraph 7.
[9] Family Report of Ms AB dated 16 August 2024, paragraph 71.
The mother, in her conversation with the Family Report Writer, reported no fixed residential address and indicated she was effectively couch surfing with friends.[10] She has been diagnosed with post-traumatic stress disorder due to being sexually assaulted and also had significant health issues, including requiring surgery for a medical condition, which was discussed in the judgment of Smith J: Charr & Dalton (No 3).[11]
[10] Family Report of Ms AB dated 16 August 2024, paragraph 64.
[11] [2023] FedCFamC1F 259 at [96].
As a result of her unfortunate life experience, the mother has faced difficulties in providing stable care for her children. She has been accused by child welfare authorities of neglect, exposing the children to abuse, and having no capacity to provide for them in the long term. As such, her three elder children – Mr CC who is 18, DD who is 15, and EE who is 13 – live with Mr BB’s mother (“the grandmother”).
In that respect, these proceedings involving X were originally consolidated with a case involving the grandmother of the three elder children. Orders were made by consent, on 7 August 2024, for the three elder children to live with the grandmother and to spend time with the mother in accordance with their wishes. X remains in contact with her elder siblings as facilitated by the aunt and the elder children’s paternal grandmother.
I have had regard to the documents referred to in the paternal aunt’s Written Submissions filed 9 March 2025 and the ICL’s Written Submissions filed 28 February 2025. I have also had regard to the Family Report of Ms AB dated 16 August 2024, to which I have earlier referred. I have had regard to the judgment of Smith J and the tender bundle produced by the ICL, from page four onwards, being documents which are copies of subpoenaed materials.
For reasons which I have explained (at [2] of these Reasons), the case proceeded on the basis of the affidavits relied upon by the paternal aunt, the subpoenaed documents of the ICL and the Family Report. In circumstances where the evidence is unchallenged, I give substantial weight to her evidence. That evidence includes evidence establishing that the mother has missed changeovers and communication and was often late, causing disruption to the child’s routine and emotional distress to the child.
I also accept the evidence that the mother has exhibited inappropriate behaviour and neglect towards the child. This includes allowing the child to be in the care of unauthorised individuals, exposing her to unsafe environments and failing to provide proper care and supervision. I accept the evidence that the child often expressed confusion, distress and anger towards her mother and that she exhibited fear and reluctance to spend time with the mother. That evidence is consistent with that of the Family Report Writer who indicated that the child wanted to continue living with the paternal aunt.
I also accept the paternal aunt’s evidence that the child was exposed to potentially unsafe individuals in the mother’s case. For instance, the child mentioning that “Uncle […] sleeps in [the mother’s] bed”. [12] The paternal aunt states that she is not aware of who that person is.
[12] Paternal aunt’s affidavit filed 3 February 2024, paragraph 172.
The paternal aunt also expresses concerns that the mother is continuing to engage in the abuse of illicit substances and alcohol misuse, reporting in particular – albeit, by way of lay opinion – that the mother appeared to be under the influence of substances during phone calls with the child.[13] I also accept the paternal aunt’s evidence that the mother has sent inappropriate and broken toys to the child as gifts on occasions,[14] and that during conversations, the mother, at times, does not engage with the child as “she is late, or she is under the influence of something”.[15]
[13] Paternal aunt’s affidavit filed 3 February 2024, paragraph 122.
[14] Paternal aunt’s affidavit filed 3 February 2024, paragraph 157.
[15] Paternal aunt’s affidavit filed 3 February 2024, paragraph 161.
I also note the concerns of the paternal aunt that the mother engaged in discussions that cause distress to the child, such as, for instance, promising to take her to New Zealand or buy her a pony if she returned to live with the mother.[16]
[16] Paternal aunt’s affidavit filed 3 February 2024, paragraph 120.
Additionally, I note the evidence of the grandmother regarding the mother’s inability to properly care for her three elder children and the issues of abuse and neglect that the grandmother has documented in her affidavit filed on 14 February 2025.
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.
In considering the views of the child (s 60CC(2)(b) of the Act), the Family Report Writer outlines that the child expressed a desire to continue living with the paternal aunt and not to live with the mother.[18]
[18] Family Report of Ms AB dated 16 August 2024, paragraph 126.
In terms of the “development, psychological, emotional and cultural needs of the child” (s 60CC(2)(c) of the Act), I accept the evidence that the child is doing well at school, has a circle of friends, and that she is involved in extracurricular activity. I have considered that she is civil and polite, including – in the words of the ICL – being a delightful child who welcomed the ICL at school and indeed invited the ICL into her classroom to witness her participation and engagement. I have before me, in contrast, the evidence in respect to the child’s prior life – that is, prior to the decision of Smith J – being appropriately described by counsel for the paternal aunt as being one that was chaos-filled, and which clearly was detrimental to the child’s developmental, psychological and emotional needs.
In terms of s 60CC(2)(d) of the Act, being the capacity of each person who has or is proposed to have parental responsibility for the child, for reasons I have set out, the paternal aunt has demonstrated that capacity. I note and respectfully agree with the submission of counsel that the paternal aunt has not been, at any stage, an agitator for disrupting the child’s life with the mother, but rather has joined the proceedings in circumstances where the evidence was such that unfortunately, as a result of life challenges, neither the mother, nor the father had the capacity to properly care for the child’s needs.
For reasons which I have set out, the paternal aunt has clearly and admirably demonstrated her capacity to provide a caring, loving and supportive environment for the child. Regrettably and without judgement, the Court notes that as a result of their life circumstances, and the challenges they have confronted, the child’s parents have suffered the intergenerational effect of family violence and dislocated family lives which has adversely impacted their parental capacity.
For reasons that I have set out, I find that it would present an unacceptable risk for the child to live with the mother or the father and, for reasons which I have said out, to either spend time with or communicate with either parent.
I have also considered s 60CC(2)(e) of the Act: “the benefit of the child being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so”. Clearly, the child has a passion to continue her relationship with her three elder siblings and her grandmother, and I note that, to their great credit, the paternal aunt and grandmother are committed to promoting that relationship.[19]
[19] Family Report of Ms AB dated 16 August 2024, paragraph 102.
It is a significant matter for any judge to make an order that a child spend no time with their parents and the Court will only do so in exceptional circumstances.
For the reasons which I have set out, I am satisfied that there are such exceptional circumstances in this case and that the child should not spend time with either parent, nor should she communicate with either parent. For completeness, I should indicate that I have considered but rejected the possibility of the child benefiting from that time or communication, even if it were to be supervised.
In relation to s 60CC(2)(f) of the Act, there are no such additional circumstances other than those to which I have referred.
Parenting Orders
The orders sought by the ICL are supported by the paternal aunt and indeed supported, to his credit, by the father.
The first order I make is that all previous orders are to be discharged. This specifically includes the discharge of orders for the child to spend time with her parents and to communicate with them.
The second order I make is that the paternal aunt will have sole parental decision-making responsibility for the child.
I accept that the difficulty in communication between the paternal aunt and the mother has been such that communication in the child’s interests is not possible. That is exemplified by the fact that the mother has made numerous unfounded allegations of the child’s maltreatment in the care of the paternal aunt, and there have been mutual allegations of violence as a result of at least one encounter between the paternal aunt and the mother. Accordingly, I am satisfied that the paternal aunt and the mother are incapable of engaging in joint decision-making that would be in the interests of the child and, on that basis, I make an order for the paternal aunt to have sole decision-making.
For reasons I have set out, I make orders for the child to live with the paternal aunt and that the child shall spend no time and have no communication with the mother or the father.
In the circumstances to which I have referred, I am satisfied that the restraints sought by the ICL in proposed orders 6(a)–(e), are appropriate.
I also make proposed order 7 restraining the mother and father from contacting the child’s school.
I make order 8 restraining the mother and father from requesting welfare checks in respect to the child, but I will add, ‘at any such time that the child is in the care of the paternal aunt’.
The next order sought, which I deem appropriate, proposes that the child not be allowed to attend a family event where the father is present. Similarly, the father consents to an order that he be restrained from attending such an event.
I do not make orders 11 and 12 as sought by the ICL and supported by the paternal aunt on the basis that I am not satisfied that the mother has been given an adequate opportunity, in terms of s 102QAC(5) of the Act, to respond to an application that would prohibit the mother from recommencing proceedings without leave of the Court. I will return to that issue shortly.
Finally, I make orders 13 and 14 permitting the paternal aunt to obtain the passport for the child and to engage in overseas travel. I respectfully agree that such an order is appropriate insofar as it will minimise the prospect of any further litigation which would not be in the child’s interest.
Returning to the final issue, while I do not make a harmful proceeding order under s 102QAC of the Act, I specifically do not rule on the merit of such an order being made. I have refrained from considering that application purely and solely as a result of my concern that the mother has not had an adequate opportunity to respond to such an application.
It would of course be inappropriate for me to attempt to bind or even attempt to guide any judicial officer in the event that there are further proceedings involving parenting arrangements for the child. I do note, however, that the child has had a disrupted life as a result of the circumstances she has confronted when living with the mother; and she has had a reprieve from that disrupted life during the two year period that she has lived with the paternal aunt. However, even during that two year period, she has experienced disruption as a result of a number of welfare checks that the mother had requested in respect to the child in the care of the paternal aunt, which in my view, have been unmeritorious and have themselves amounted to systems abuse.
Any future application by the mother and/or the father to commence proceedings and to address the well-known threshold requirements of s 65DAAA of the Act, would be considered in the context of all circumstances that would be before the judicial officer at the time. I have outlined the circumstances that I have found to exist as at the date of this judgment: that the mother has engaged in conduct which in itself has amounted to systems abuse and has been disruptive of the harmonious household of the paternal aunt and her ability to properly care for the child and to provide for her physical, emotional, intellectual and educational needs.
Accordingly, for all these reasons, I make the orders as sought by the ICL and supported by the paternal aunt and the father save, insofar as in the circumstances that I have outlined, I do not make orders 11 or 12.
COSTS
I note that the ICL has sought an application for her costs in circumstances where she is understandably obliged to make such an application.
I have considered the financial means of the parties. In that respect, according to the Court’s knowledge, the mother is currently of no fixed address and has had significant challenges in her life.
The father is currently incarcerated. I note that the paternal aunt has incurred expense in respect to these proceedings and has the ongoing responsibility of caring for the child and is not in receipt of child support payments.
In those circumstances, while noting with appreciation the assistance provided by the ICL in this case, I decline the formal application by the ICL for an order for costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 17 March 2025
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