Naillon & Naillon
[2022] FedCFamC1F 966
Federal Circuit and Family Court of Australia
(DIVISION 1)
Naillon & Naillon [2022] FedCFamC1F 966
File number(s): ADC 3296 of 2021 Judgment of: BERMAN J Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – CHILDREN – Interim orders – Where the applicant paternal grandmother has not spent time with the children since November 2020 – Where the paternal grandmother seeks orders to spend time with the children – Where the mother initially opposed any time spending – Where following production of a Child Impact Report, the respondent mother makes a concession that there should be a resumption of a relationship between the children and the paternal grandmother – Consideration that a graduated introduction might be the best way forward – Orders. Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 1 December 2022 Place: Adelaide Counsel for the Applicant: Mr Roberts Solicitor for the Applicant: KP Lawyers Counsel for the First Respondent: Mr Heinrich Solicitor for the First Respondent: Mildwaters Lawyers Counsel for the Second Respondent: Ms Ross Solicitor for the Second Respondent: Alex Mandry Legal Group ORDERS
ADC 3296 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS C NAILLON
Applicant
AND: MS NAILLON
First Respondent
MR NAILLON
Second Respondent
order made by:
BERMAN J
DATE OF ORDER:
7 December 2022
THE COURT ORDERS:
1.That further consideration of the Application of the paternal grandmother to spend time with X (“X”) born 2011 and Y (“Y”) born 2013 (“the children”) be listed for hearing on 20 February 2023 at 9.00 am (1 hour allowed).
2.That any further affidavits to be relied upon by the parties be filed and served by no later than 4.00 pm on 13 February 2023.
3.That the children spend time with the paternal grandmother from 10.00 am to 12.30 pm on the following dates:
(a)11 December 2022;
(b)15 January 2023; and
(c)every third Sunday thereafter, subject to further order.
4.That the children spend time with the paternal grandmother on 24 December 2022 from 9.00 am to 11.30 am.
5.That handover occur at the Town L Police Station or such other place as the parties may agree.
6.That the paternal grandmother do all things necessary to ensure that the father is not left unsupervised with the children.
7.That the paternal grandmother do all things necessary to ensure that the father’s partner, Ms M, is not present during the time spending.
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 Naillon & Naillon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
Introduction
Ms Naillon (“the mother”) and Mr Naillon (“the father”) are the parents of X born 2011 (“X”) and Y born 2013 (“Y”) (collectively “the children”).
Ms C Naillon is the applicant of these proceedings and the paternal grandmother.
The mother and father separated on 31 August 2019. Since separation, the children have remained in the mother’s primary care.
The father commenced proceedings by Initiating Application filed on 8 November 2019 in relation to parenting matters (on file number ADC 4878 of 2019).
There are allegations of family violence perpetrated by the father as against his current partner, Ms M (“Ms M”).
The mother brought an Application to suspend the father’s time with the children. On 11 December 2019, the father filed a Notice of Discontinuance.
Final Orders were made on 9 February 2021 which provided for the mother to have sole parental responsibility for the children and for the father to spend time with the children as may be agreed between the parties provided that the father undertakes a hair follicle test with a resultant negative outcome for illicit drugs.
There is a dispute between the mother and the father as to the extent of the father’s request to resume spending time with the children and the mother’s opposition to same subject to the father undertaking a satisfactory hair follicle test.
As a consequence of the ongoing disagreement between the parties, the father has now filed a Contravention Application alleging non-compliance by the mother of the final Orders which allow the father to communicate his request to resume spending time with the children (on file number ADC 4878 of 2019).
A consequence of the dispute is that at least since the date of the final Orders, the father has not spent time with the children.
By Initiating Application filed 8 July 2021, the paternal grandmother seeks the following interim order:
1.That during the period of the adjournment that the Paternal Grandmother do spend time with the children … each alternative Sunday between 11.00am and 1.00pm.
The children have not spent time with the paternal grandmother since November 2020.
By Order of 25 January 2022, Ms N (a Court Child Expert), provided a Child Impact Report dated 28 June 2022 to assist the parties and the Court to better understand the needs of the children.
The interrelationship between the parties is complex. Ms M has a son P from a previous relationship. P resides with Ms M and the father. P attends the same school in Town L as the subject children. Ms M is employed in the paternal grandmother’s business on a part-time basis.
The Court Child Expert has recorded the father’s current position of being litigation weary and of not wanting to engage further in the proceedings.
The father indicated that he would further consider his position generally in respect of the children and in particular as to whether he would continue to prosecute his Contravention Application once he has seen Ms N’s report. It does not appear that the father has come to a clear and determined position.
The animosity between all parties is heightened by the mother’s Initiating Application filed on 15 July 2021 which seeks orders for settlement of property and in part, to reverse a transaction of rural property from the father to his parents (on file number ADC3408 of 2021).
The Court Child Expert properly engaged with the children. She found X to be a mature, serious and thoughtful child and when asked to set out and name the adults that were important to her, paragraph 25 of the report records the child identifying “mum, dad, grandma, pop, nan and pop” as all being of “equal importance”.
The interruption to the relationship between the father and the children is highlighted by X in paragraph 27 of the report:
27.[X] described her relationship with her father as “good…normally get along” she looked down and became teary when she said they hadn’t seen him for over a year. [X] continued to look down and her tone was quieter as she spoke of her father and the feelings around not seeing him. [X] said she “wants to see him, I miss him” and would be “happy” to stay overnights at his home…
She was also asked about her relationship with the paternal grandparents and appeared ambivalent to seeing the paternal grandmother.
Y presented to the Court Child Expert as a confident child but readily became emotional and teary when speaking of her father.
She considered that her father still loved her and she had formed a relationship with Ms M’s son P, such that at paragraph 37 of the report, she reported to the Child Court Expert that she considered that P “is like a brother to me I love him so much”. Both children were demonstrably sad that their parents had separated and Y remembered pleasant involvement with the paternal grandmother.
Ms C Naillon
The paternal grandmother recognises that she has not seen the children now for some time and that a graduated introduction might well be the best way forward.
Counsel for the paternal grandmother highlights that whilst her Initiating Application seeks limited arrangements, given the tenor of the Child Impact Report, consideration should be given to the duration of the time sought to be extended even though the orders specifically sought a duration of two hours.
One aspect that did warrant some consideration, was a submission that given the period of two hours is limited, it should not be diminished by travelling time between Town Q, where the paternal grandmother lives, and Town L, which is the town closest to the mother.
Whilst noting that the mother has opposed all time between the children and the paternal grandmother, the mother’s Outline of Case document filed 30 November 2022, indicates that the mother has reconsidered her position and now proposes the following orders:
1.That the children … spend time with the [paternal grandmother] from 11am until 1pm on the following dates:-
(a) Sunday the 11th of December 2022,
(b) Friday the 23rd December 2022,
(c) Sunday the 15th of January 2023, and
(d)every third Sunday thereafter until further order of this Honourable Court.
2. That handover occur at the [Town L] Police Station.
3.That the [paternal grandmother] do all things necessary to ensure that the Father is not left unsupervised with the children.
4.That the [paternal grandmother] do all things necessary to ensure that the Father’s partner [Ms M] is not present during the time spending.
5.That the matter be adjourned for further directions to a date not before the 20th of March 2023.
As is immediately apparent, there is a concession in the orders sought by the mother that there should be a resumption of a relationship between the children and the paternal grandmother. The mother supports a cautious approach and it is her evidence that the children are distressed by the litigation and despite the views expressed by them to the Court Child Expert, she apprehends they may be highly resistive to spending time with the paternal grandmother.
Both parties contemplate that whatever interim orders are made, the proceedings need to be relisted to consider how the matter should be progressed.
I consider that I should take direction from the mother’s position that reintroducing the children to the paternal grandmother should be carefully undertaken.
I have fallen in with the submission of counsel for the paternal grandmother that the Court should put in place interim arrangements but bring the matter back early in 2023. Whilst there is some difference between the parties as to whether the matter should return in February or March, I have advised counsel that the matter will be listed before me at 9.00 am on 20 February 2023.
In the interim, I propose to broadly fall in with the orders sought by the mother save as to the time that is proposed on 23 December 2022 and that the time spent is limited to two hours between 11.00 am and 1.00 pm.
23 December 2022 is intended to enable the children to spend time with the paternal grandmother (and also with the father if he chooses to attend in the absence of Ms M) before Christmas Day. The paternal grandmother is fully engaged in her business and given the proximity to Christmas Day, I accept her submission that she would not be able to spend time with the children on 23 December.
I propose to order that the children spend time with the paternal grandmother on 24 December 2022.
There is merit in the submission on behalf of the paternal grandmother that the travel time between Town Q and Town L, whilst modest will nonetheless consume some of the time that the children would be in the paternal grandmother’s care.
The distance between the mother and the paternal grandmother is under 10 kilometres. I propose to accept the utility of a handover of the children at the Town L Police Station but given the paternal grandmother will be required to undertake the travelling, I propose to extend the children’s time with her to two and a half hours. It is hoped that the father will take the opportunity to spend time with the children when they are in the care of their grandmother. It is to the mother’s credit that she does not oppose the involvement of the father subject to the conditions that his time be supervised and in the presence of the paternal grandmother and in the absence of Ms M.
For those reasons, I make orders as appear at the commencement of these reasons.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 7 December 2022
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