El Najjar and El Najjar

[2009] FamCA 630

FAMILY COURT OF AUSTRALIA

EL NAJJAR & EL NAJJAR [2009] FamCA 630

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms El Najjar

RESPONDENT: Mr El Najjar

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: SYC 1264 of 2008

DATE DELIVERED: 25 June 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 25 June 2009

REPRESENTATION

APPLICANT: No appearance by or on behalf of the mother

SOLICITOR FOR THE RESPONDENT: Mr Samaan

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

Orders

THE COURT NOTED:

A.The letter received from the mother on 25 June 2009 was marked Exhibit “A” of today’s date

B.The Children and Parents Issues Assessment report by Ms B dated

22 May 2009

was marked Exhibit “B” of today’s date.

AND IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children of the relationship:

   (a)       E born … January 1996

   (b)       M born … October 2000 and

   (c)       D born … September 2002

   (“the children”) live with the father.

2. The parties shall not denigrate the other in the presence of the children and will ensure to the best of their ability that no third party shall denigrate the other in the presence of the children.

3. The parties shall keep the other informed as to any medical appointment the children attend whilst in their care.

4. The parties shall provide to each other copies of all school reports, and notices as to school activities received from any school the children are enrolled and further shall authorise the school to provide such reports and notices to the other parent.

5. The Court noted that it declined to make at this stage an Order in terms of paragraph 3 of the father’s Response to Initiating Application filed 4 April 2008.

6. The father is to have sole parental responsibility for the children.

7. The Court noted that it makes no order for contact with the mother at this time but liberty is granted to her to apply.

8. An application be made for the appointment of a Case Guardian for the mother by the Independent Children’s Lawyer.

9. A transcript of my Reasons for Judgment is to be taken out and provided to the husband, the Independent Children’s Lawyer and the Case Guardian when appointed.

10. The matter is listed for mention before me at 9.30 am on Wednesday,
    11 November 2009.

11. Liberty is granted to all parties to apply on seven days notice to the others specifying the matters to be raised.

12. Leave is given the Independent Children’s Lawyer to issue subpoenas.

13. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym El Najjar and El Najjar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1264  of 2008

MS EL NAJJAR

Applicant

And

MR EL NAJJAR

Respondent

And

LEGAL AID COMMISSION OF NEW SOUTH WALES

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before the Court are proceedings which were listed today to proceed by way of Less Adversarial Trial.  They are proceedings commenced by an Application filed by Ms El Najjar who is the mother of five children who were initially the subject of her application.

2. The father Mr El Najjar filed a Response to the Application in which he sought orders to the effect that the children be placed in his care and that they have a relationship to the mother on certain defined terms.

3. The Application suggested that the mother was suffering from mental illness and that she should not have contact with the children until such time as it could be demonstrated that she had fully recovered her health.

4. The Court received on the morning of the hearing a letter from the mother, a copy of which is Exhibit “1” of today’s date.  In that the mother refers to her ill-health and says that she is now recovered.  She seeks she says to apologise for her non-appearance today but in effect says that she will be unable to appear herself, she had no solicitor, she would feel uncomfortable.

5. The Court has had the benefit of a report in these proceedings from Ms B who is a Family Consultant, copy of which I will mark as Exhibit “2” and the contents of which I will incorporate in my judgment as background facts.

6. It seems to me that the Court cannot continue with the hearing of this matter in fairness both to the parties and the children in circumstances where there is clear evidence that the mother may be suffering a disability.

7. Ms B in her evidence given orally today indicates that the mother was highly emotionally labile when she saw her and that she believed that based on her conduct in interview that she would be unable to adequately instruct a solicitor nor conduct court proceedings herself.

8. In the circumstances I have asked the Independent Children’s Lawyer to seek to procure the appointment of a case guardian for the mother so that the matter can be finalised.  In the meantime I think there needs to be some certainty brought into the situation that currently exists in relation to the children.

9. The father seeks orders set out in his Response which provide the children live with him – one of them I might say is now 18 and the other one is 17.  I do not propose to make any order with respect to the 18 year old nor indeed the 17 year old since I believe that they will determine what they wish to do in any event.

10. I will however make an order which will deal with the other three children E born in January 1996;  M born in October 2000 and D born in September 2002 and in respect of those children and those children only I make orders in terms of paragraph 2 of the Response to the Initiating Application filed by the husband on 4 April 2008.

11. I decline to make at this stage an order in terms of paragraph 3 and order that at this time the father have the sole parental responsibility for the children.

12. I direct that an application be made for the appointment of a case guardian for the mother by the Independent Children’s Lawyer.

13. I make no order for contact with the mother at this time but give her liberty to apply.

14. I make orders in terms of paragraphs 6, 7 and 8 of the orders sought in the Response.

15. My reasons for making those orders are that these children have been interviewed by Ms B and have uniformly expressed a view that they wish to live with their father.

16. The children have described incidents which have occurred during periods in which they have lived with their mother and which are set out in Ms B’s report which leads me to the conclusion that it would be unsafe at this time for these children to be exposed to contact with their mother since it would expose them to an unacceptable risk of psychological or physical abuse.

17. It is of course the hope of this Court that the mother does recover and is able to play a positive role in the life of these children.

18. At the present time for the reasons set out in Ms B’s report I am not inclined to make any order other than as set out above.

(Recorded – not transcribed)

1. I order that a transcript of my reasons be taken out and be made available to the parties and provided to the husband and the Independent Children’s Lawyer and the Case Guardian when appointed.

(Recorded – not transcribed)

1. The matter is adjourned to 11 November 2009 at 9.30 am for mention on that date.

2. I give liberty to all parties to apply on seven days notice to the others specifying the matters to be raised.

(Recorded – not transcribed)

1. Leave is given to the Independent Children’s Lawyer to issue subpoenas.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  25 June 2009