Estevez & Niftrik
[2025] FedCFamC1F 339
•8 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Estevez & Niftrik [2025] FedCFamC1F 339
File number(s): SYC 7972 of 2022 Judgment of: ALTOBELLI J Date of judgment: 8 May 2025 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where prior orders of the Court provide the Second Applicant with supervised visitation time – Where such supervised visitation time has infrequently occurred – Where the Second Applicant disputes the reason for interruptions to the time –Where the Court determines the frequency, cost and provider of supervised visitation – Where the Court orders that a new supervision provider be retained at the same frequency – Where the Second Applicant is to bear the cost of such supervision. Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 8 May 2025 Place: Sydney Solicitor for the First Applicant: Mr Simons of Remington & Co Solicitors Solicitor for the Second Applicant: Ms Torrisi of Family Law Practice Australia Pty Ltd Counsel for the Respondent: Mr Bellhouse-Smith Solicitor for the Respondent: Carson & Associates Solicitor for the Independent Children's Lawyer: Ms Mason of Mason Mia & Associate - Solicitors & Advocates ORDERS
SYC 7972 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ESTEVEZ
First Applicant
MRS ESTEVEZ
Second Applicant
AND: MS NIFTRIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
8 MAY 2025
THE COURT ORDERS THAT:
Amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 12 May 2025
THE COURT ORDERS THAT:
1.Orders are made by in accordance with the document marked “A” dated this day and attached hereto.
2.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
THE COURT NOTES THAT:
A.The matter will be listed for mention upon receipt of the Updated Family Report of Family Consultant, Ms J.
“A”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 2)
FILE NO: (P)SYC7972/2022BETWEEN:
MR ESTEVEZ (Applicant)
AND:
MRS ESTEVEZ (Applicant)
AND:
MS NIFTRIK (Respondent)
AND:
INDEPENDENT CHILDREN’S LAWYER
That pending further order:
1.That the Orders 9(a) – (b) and (d) made by the FCFCOA on 26 April 2023 be discharged.
2.The children X born in 2016; and Y born in 2019 (“the children”) spend time with the Applicant Paternal Grandmother supervised by C Supervision (‘the Supervision Service’) and regarding time under this order:
(a)The Applicant Paternal Grandmother and mother must forthwith:
(i)Contact the Supervision Service arrange any necessary appointments for assessment for suitability for supervision of the time the children spend with the Applicant Paternal Grandmother (‘the assessment’);
(ii)attend the assessment;
(iii)comply with any appointments made by the Supervision Service for supervised time;
(iv)comply with all reasonable policies and rules of the Supervision Service;
(v)comply with all reasonable requests or directions of the staff of the Supervision Service; and
(vi)pay all costs of the Supervision Service.
(b)If after assessment the parties are accepted by the Supervision Service as suitable for supervised time, the Applicant Paternal Grandmother is thereafter to spend time with the children at a frequency of once per fortnight for a period of not less than two (2) hours and no more than four (4) hours.
3.That the Applicant Paternal Grandmother’s spend time with the children in accordance with these orders be subject to the following conditions that:
(a)the Applicant Paternal Grandmother shall not allow any third parties to spend time, unless as otherwise ordered by the Court.
(b)the Applicant Paternal Grandmother shall not provide the children with sugary snacks and otherwise respect the dietary requirements of the children as communicated by the Respondent Mother;
(c)the Applicant Paternal Grandmother shall not bring distressing or graphic material to spend time which may cause the children distress;
(d)the Applicant Paternal Grandmother shall respect the supervisor and comply with all rules and directions of the supervisor;
(e)the Applicant Paternal Grandmother shall not denigrate the Respondent Mother during visits;
4.That within 7 days from the date of these Orders, the Mother provide the Applicant Paternal Grandmother with a list of food and drinks that may be provided to the children.
5.The Applicant Paternal Grandmother and Mother shall do things to cause the Supervision Service to prepare written visitation reports and provide these after each visitation.
6.The Applicant Paternal Grandmother be and hereby is restrained from permitting, causing or facilitating any communication or contact between the father and the children unless as otherwise ordered by the Court.
7.The Applicant Paternal Grandmother shall pay all fees charged by the Supervision Service.
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 Estevez & Niftrik has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
The matter before me relates to two children, X (“X”) who is nine, and Y (“Y”) who is six (collectively “the children”). The children currently live with the respondent; Ms Niftrik (“the mother”), do not spend time with the first applicant; Mr Estevez (“the father”), and have previously spent time with the second applicant; Mrs Estevez (“the paternal grandmother”). It is the breakdown of that arrangement that brings the matter back to Court.
The paternal grandmother, who is 68, wants to vary the current orders that enable her to spend time with X and Y. Her original proposal to the Court, which is contained in her Application in a Proceeding filed 17 March 2025 (“the application”), was for the time to eventually become unsupervised, but commence as supervised. However, today, her proposal is that it be supervised time pending the final hearing of this matter, which is in December 2025.
The paternal grandmother lives in Suburb D, which is close to Town E, is the location of one of the supervised contact services that is proposed; namely F Centre. The paternal grandmother, unfortunately, has a medical condition, and is in the midst of a treatment which the Court accepts is quite invasive and debilitating on her. It is submitted on her behalf that it affects her mobility, and the Court accepts that in general terms.
On 26 April 2023, Senior Judicial Registrar Jenkinson made an order that provided for the paternal grandmother to spend time with the children supervised at F Centre supervised contact service at Town E once per fortnight for two hours. The evidence suggests that out of the 50 possible visits, only 22 occurred. The last visit appears to have been in August last year, which is about nine months ago at the date of this hearing.
The contact service terminated the arrangement because of failure to comply with policies and directions. In her evidence, the paternal grandmother presents a different perspective on the breakdown of that supervised contact arrangement. The Court is not in a position at an interim hearing to make findings of fact about what actually occurred, though the Court ventures an impression that perhaps there were underlying attitudinal issues that, at least, contributed to the breakdown of that arrangement. The Court sought, and was given, reassurance by the paternal grandmother’s solicitor as to why those underlying attitudinal issues would not reoccur in any subsequent arrangement.
The paternal grandmother's proposal is supported by the father but is opposed by the mother. The mother in effect proposes that the supervision remain as it is, at F Centre on the basis that that facility has indicated that they are willing to reinstate the arrangement subject to the frequency being reduced to monthly, and the cost being borne by the paternal grandmother solely.
The mother, who lives in Town G; again not too far from Town E, acknowledges the inconvenience to the paternal grandmother. Her case at final hearing, which is largely based on risk to her and the children of family violence from the father; a risk which the mother contends is not adequately acknowledged by the paternal grandmother, is that the final orders she seeks would predicate a very cautious approach to the reinstatement of contact, and that, at the very least, it be on a supervised basis. Despite the order sought by the paternal grandmother in the application, and perhaps with the benefit of legal advice, the order that she now seeks is for supervised contact.
The evidence before the Court includes:
·Application in a Proceeding filed 17 March 2025;
·Response to an Application in a Proceeding filed 23 April 2025;
·Case Outline Document of Mrs Estevez filed 7 April 2024;
·Case Outline Document of Mr Estevez filed 2 May 2025;
·Case Outline Document of Ms Niftrik filed 2 May 2025;
·Case Outline Document of the Independent Children’s Lawyer filed 7 May 2025;
·Affidavit of Mrs Estevez filed 17 March 2025;
·Affidavit of Mr Estevez filed 23 April 2025;
·Child Impact Assessment of Ms H dated 20 April 2023; and
·Family Report of Ms J dated 24 January 2025.
The children are represented by an experienced Independent Children's Lawyer, and the proposal that is made on their behalf is largely aligned with the paternal grandmother's amended proposal this morning. That proposal would provide for X and Y to spend time with the paternal grandmother using a different supervised contact service called C Supervision.
Now, the difference between F Centre and C Supervision is that the former service; identified in the current order, is one based at a physical facility in Town E whereas the proposal of the paternal grandmother, the father and the Independent Children's Lawyer; C Supervision, occur with a service that the Court will describe for all practical purposes as being a mobile service. It is inferred from the orders that, if the Court makes the order proposed, supervision take place at the home of the paternal grandmother, which addresses her mobility issues and still provides the level of supervision that the Court is satisfied is required to keep the children safe.
The Court accepts that much information that is relevant to the case was given from the virtual bar table, so to speak. The information in question is the cost of the services. On the assumption that the information given to the Court is correct, the service provided by F Centre referred to in the existing orders, would be more expensive than the alternative of C Supervision.
The issue of the cost to the parties is put fairly and squarely by the mother and the paternal grandmother. There is no evidence before the Court about this, other than an acceptance that the mother is bearing all costs associated with raising the children and caring for them. It seems that no financial contribution towards the cost is being made by the father or the paternal grandmother. That is part of the reason why the mother proposes that the contact only take place monthly rather than fortnightly.
It is apparent to the Court, and I think it is not in dispute, that the relationship between the mother and the paternal grandmother is a poor one. There do appear to be real issues about their capacity to agree to anything, which I must say does suggest a lack of insight in the paternal grandmother's original proposal contained in the application.
The matter is listed for final hearing before me commencing 15 December 2025, so any order the Court makes will have a relatively short longevity. Nonetheless, from the Court's perspective, and it is common ground between all the parties, it is important for X and Y to resume spending time with their paternal grandmother. The question is, which service, how often, and who bears the cost.
The Court is satisfied that any safety issues are addressed by supervision, and it matters not which of the two services. The Court places no weight on the contention that X is resistant to F Centre. I am not satisfied that it is in the interests of the children to maintain the relationship with a person, who is a significant person in their life, to only have monthly contact, particularly in circumstances where there has been such a long absence. Not that a long absence in spending time this is in any way their fault. If there is to be time, the Court accepts that the frequency should be fortnightly.
In a case where everyone raises concerns about cost, the existing supervised contact centre and the costs associated with it largely rule it out. The benefit to the children of spending time with their paternal grandmother at her home, a place that the Court understands from the evidence is not unfamiliar to them, is self-evident. There is no downside to the mother of that taking place, provided it is rigorously supervised.
The issue of cost is a difficult one to assess on the basis of lack of evidence. It is likely the case that all parties in this case are receiving some form of financial assistance from other parties, whether it be legal aid, whether it be family, whether it be friends. It is likely that all parties; certainly the paternal grandmother, would prioritise any order of the Court insofar as it relates to payment of costs of supervised time.
It does cause the Court concern that the mother is bearing all costs associated with X and Y. In the circumstances, whilst the Court favours the order proposed by the paternal grandmother, which is largely adopted by the Independent Children's Lawyer and supported by the father, the Court does not agree that the cost should be shared. On that basis, whilst I am prepared to make orders in terms of that proposed by the paternal grandmother, it will not be on the basis that the cost is shared. It will be on the basis that she bears the cost herself.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 May 2025
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