Dione & Massoud (No 2)
[2022] FedCFamC1F 813
Federal Circuit and Family Court of Australia
(DIVISION 1)
Dione & Massoud (No 2) [2022] FedCFamC1F 813
File number(s): SYC 9655 of 2021 Judgment of: SCHONELL J Date of judgment: 21 October 2022 Catchwords: FAMILY LAW – PARENTING – Where the father sought for supervised time with the child to occur at his home – Where the maternal grandmother opposed the application and contended that the father may improperly influence the child – Where the child has not returned to the home since his mother passed away – Where it is not known if spending time in the home may cause the child distress – Father’s oral application dismissed. Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 21 October 2022 Place: Sydney Counsel for the Applicant: Mr Watkins Solicitor for the Applicant: Solari & Stock Lawyers Solicitor for the Respondent: One Group Legal Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
SYC 9655 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DIONE
Applicant
AND: MR MASSOUD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
21 OCTOBER 2022
THE COURT ORDERS THAT:
1.The father’s oral application is dismissed.
the court notes that:
A.The costs of today’s hearing are reserved and will be a matter for the final hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Dione & Massoud has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
This is an application where the father seeks orders that time between himself and Y, who is born 2015, occur at what is said to be the father’s residence, namely K Street, Suburb L.
The father’s application comes on urgently and is supported by an affidavit sworn by the father on 20 October 2022. The father’s application is opposed by the child’s primary carer, the maternal grandmother, and she relies upon an affidavit sworn 19 October 2022.
Mr Samuel, the Independent Children’s Lawyer, appeared today and he indicated to the Court that in the absence of some expert evidence, the Court should not make the orders as sought by the father.
Central to the father’s application is that the home at K Street, Suburb L is the home where he resides and implicit in the submissions that his solicitor makes on his behalf is that it provides a venue that is significantly more comfortable and suitable for supervised time to take place than the various locations that have been identified as agreeable to the maternal grandmother and as set out in her affidavit, namely places like a park, a skate park or a shopping centre. In addition, the solicitor for the father identifies that the conditions of the supervision agreement conducted by B Service identify that places like homes are appropriate venues for supervised time to take place.
The maternal grandmother through her counsel indicates to the Court that she is opposed to the father’s application. She identifies matters of history, particularly in relation to the child X, identifying that X previously lived with her but now no longer lives with her and it is her view that X was improperly influenced by the father to not to return to her care. The maternal grandmother identifies that the father may also improperly influence Y such that he no longer continues to live with the maternal grandmother.
These are clearly interim proceedings. I am unable to resolve disputed allegations of fact. I am less concerned about the maternal grandmother’s assertions that the father may improperly influence Y in circumstances where the time is taking place by the provisions of orders that require that it be supervised. Ordinarily, I would find some attraction to the father’s application that the time take place in the home that is occupied by the father. I say that, however, in the context that ordinarily that would be the situation. These, however, are not ordinary circumstances.
Y’s mother unfortunately died last year.
At the time of her death, she was living in the Suburb L property as was Y. It appears not to be in dispute that Y has not returned to the home since his mother’s death. In the maternal grandmother’s affidavit, she says the following:
6.I am concerned about the upset that may be caused to [Y] attending at the [Suburb L] property. I am worried that this can cause [Y] more trauma as his mum is not in the house as he remembers it. It is only […] months since his mother passed away and he has recently started saying every day that “I miss mummy” and “I want mummy”. …
Attached to the maternal grandmother’s affidavit is a document prepared by the M Centre dated 7 October 2022. That document identifies that Y has been attending upon that Centre on a number of occasions this year to assist in the obvious grief that he must be suffering following the death of his mother.
In a letter dated 7 October (Annexure F), it records the following:
The death of [Y’s] mother was unexpected and the family were unprepared for her death. [Y’s] entire world has been turned upside down since his mother died. His family are determined to maintain all his regular routines and access to people that care for him (family, community, school). … [Y] needs consistency and stability in his life. …
In the second last paragraph, it contends:
Given all the changes that [Y] has experienced over the last 12 months, any opportunity for family members to resume contact with him should be done in a slow and gradual manner. [Y] will need time, and a safe and nurturing environment in which to reconnect and rebuild relationships with family members that have not been a regular part of his life up until now. Contact should be resumed in small doses and hopefully in neutral locations that do not exacerbate his grief and trauma in any way. …
The solicitor for the father quite properly identifies that the reference to neutral locations in that letter does not in and of itself mean that the property at K Street, Suburb L, would not be an appropriate venue or for that matter a neutral location.
I note that this matter is before me for a final hearing in February of next year. I am not satisfied at this stage that for Y to spend time at K Street, Suburb L would not cause him some distress. I just do not know. He is only seven and he has been through a significant trauma already in his life.
I do not propose to take any risk that might further cause him any additional trauma. In circumstances where there is no evidence before me that would permit me to make a positive assertion that it would not cause him trauma, I decline to make the order as sought by the father.
Costs reserved to the hearing.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 October 2022
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