FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leonard & Najdi [2021] FedCFamC2F 23
File number(s): PAC 6621 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 8 September 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - orders made Legislation: Family Law Act 1975 (Cth) ss 69ZL, 62G(2), 60B, 60CA, 60CC, 61DA, 65D, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286Marvel & Marvel (No 2) [2010] FamCAFC 101
SCVG & KLD (2014) FLC 93-582
Division: Division 2 Family Law Number of paragraphs: 74 Date of last submission/s: 16 August 2021 Date of hearing: 16 August 2021 Place: Parramatta Counsel for the Applicant: Mr Elachkar of Counsel Solicitor for the Respondent: Ms Thams Solicitor for the Independent Children's Lawyer: Ms Lam ORDERS
PAC 6621 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEONARD
Applicant
AND: MR NAJDI
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
8 SEPTEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Mother’s proposed Orders 1, 2, 3(a) and 3(b) set out in her Proposed Minute of Order attached to her Case Outline filed 15 August 2021 is dismissed.
2.That the child X born 2015 shall live with the Father and spend time with the Mother as follows:
(a)During the short school holidays (Terms 1, 2 and 3 commencing at the cessation of Terms 3 2021) and continuing thereafter the child shall spend time with the Mother in accordance with the following schedules:
(i)For the second half of the short school holidays in the years ending in an odd number.
(ii)For the first half of the short school holidays in the years ending in an even number.
(b)During the long school holidays, commencing Term 4 2021 school holidays, and continuing thereafter
(i)For the second half of the long school holidays each year ending in an odd number.
(ii)For the first half of the long school holidays each year ending in an even number.
(iii)Such other times as agreed between the parties agree in writing.
(c)On the child’s birthday, from 5.30pm to 8.30pm should the child 's birthday fall on a school day or 9.00am until 12.00pm, should the child's birthday fall on a non-school day.
(d)On Eid-Al-Fitr and Eid-Al-Adha:
(i)During the celebration of Eid-Al-Fitr and Eid-Al-Adha, from 12.00 pm to 7.00 pm on the first day of Each Eid.
(ii)Should there be disagreement between the parties in respect of the Gregorian calendar date of Eid-Al-Fitr or Eid-Al-Adha, the parties shall rely on the dates confirmed by the Australian National Imams Council.
(e)On Mother's Day from 3.00pm Friday preceding Mother’s Day until before school after Mother’s Day.
(f)That on Father’s Day, the time with the Mother be suspended and the child shall spend time with the Father from 3pm Friday preceding Father’s Day until before school after Father’s Day.
(g)Such other times as may be agreed between the…
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CaseChat Overview and Summary
Judge Newbrun carefully considered the evidence and submissions from both parties, as well as the recommendations of the Independent Children's Lawyer. The judge dismissed some of the mother's proposed orders but accepted others, resulting in a detailed schedule for the child's time spent with each parent during school terms and holidays. The court also set specific conditions for changeovers, communication, and the handling of medical emergencies. Furthermore, the judge imposed restrictions on the parents' conduct to safeguard the child from exposure to parental conflict and to ensure both parents fulfilled their responsibilities. Finally, the court ordered a family report to be prepared by a Family Consultant to assist in future decision-making regarding the child's care.
The final orders included detailed provisions for the child's living arrangements, communication between the parents, and measures to protect the child from the effects of parental conflict. The court also mandated that both parents complete a parenting course and attend a family consultation. The child was to remain enrolled at the same school, and the form of the order was subject to review for minor errors or variations.
Orders
Orders of the court
PAC 6621 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS LEONARD
Applicant
AND:
MR NAJDI
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
8 SEPTEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. The Mother’s proposed Orders 1, 2, 3(a) and 3(b) set out in her Proposed Minute of Order attached to her Case Outline filed 15 August 2021 is dismissed.
2. That the child X born 2015 shall live with the Father and spend time with the Mother as follows:
(a) During the short school holidays (Terms 1, 2 and 3 commencing at the cessation of Terms 3 2021) and continuing thereafter the child shall spend time with the Mother in accordance with the following schedules:
(i) For the second half of the short school holidays in the years ending in an odd number.
(ii) For the first half of the short school holidays in the years ending in an even number.
(b) During the long school holidays, commencing Term 4 2021 school holidays, and continuing thereafter
(i) For the second half of the long school holidays each year ending in an odd number.
(ii) For the first half of the long school holidays each year ending in an even number.
(iii) Such other times as agreed between the parties agree in writing.
(c) On the child’s birthday, from 5.30pm to 8.30pm should the child 's birthday fall on a school day or 9.00am until 12.00pm, should the child's birthday fall on a non-school day.
(d) On Eid-Al-Fitr and Eid-Al-Adha:
(i) During the celebration of Eid-Al-Fitr and Eid-Al-Adha, from 12.00 pm to 7.00 pm on the first day of Each Eid.
(ii) Should there be disagreement between the parties in respect of the Gregorian calendar date of Eid-Al-Fitr or Eid-Al-Adha, the parties shall rely on the dates confirmed by the Australian National Imams Council.
(e) On Mother's Day from 3.00pm Friday preceding Mother’s Day until before school after Mother’s Day.
(f) That on Father’s Day, the time with the Mother be suspended and the child shall spend time with the Father from 3pm Friday preceding Father’s Day until before school after Father’s Day.
(g) Such other times as may be agreed between the parents and the Independent Children’s Lawyer in writing.
3. For the purposes of changeover, the Mother shall collect the children from the front entrance of School B at the commencement of her time and shall return the child to that same location at the conclusion of her time.
4. That if changeover is to take place on a non-school day, changeover shall take place at the Suburb C McDonalds.
5. The parties shall communicate about issues concerning X only through the parenting application, Our Family Wizard App and each of the parties shall pay their own costs of maintaining their respective accounts, unless in case of an emergency.
6. Each parent shall notify the other of any medical emergency or hospitalisation of the children as soon as is reasonably practicable and these Orders shall constitute authority for either parent to make enquiries with the children’s treating health practitioners as to their general progress and wellbeing.
7. Each parent is restrained from denigrating the other parent or any member of their extended family in the presence or hearing of the child and shall not allow any other person to do so.
8. Each parent is restrained from discussing the family law proceedings to the child.
9. The parties, without admissions, shall ensure that the child punctually attends school for a full-day and otherwise provide medical evidence for the child’s absence.
10. Each parent shall ensure that they promptly notify the other and keep the other informed of:
(a) Any medical problems or illnesses suffered by X while in their care.
(b) Any medication that has been prescribed or otherwise given to X together with such information as is required to enable the other party to be reasonably able to accurately administer such medication in the future (if required).
(c) In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
11. Each parent shall each authorise any medical practitioners that X may attend to release all information regarding X to the other parent.
12. The Mother and Father are authorised to receive all information relating to the child from the child’s school or extra-curricular activities ordinarily available to parents.
13. In the event of a medical emergency pertaining to X, the party with whom X is residing at that time shall as soon as practicable do all things to notify the other party of such emergency.
14. Neither party discuss these proceedings with X or disclose any Court documents in these proceedings to other persons.
15. Each parent shall enrol in and complete the “Keeping Kids in Mind” course (or a parenting after separation course of similar content and duration) and shall provide the Independent Children’s Lawyer and the other parent (or that parent’s solicitor if they are legally represented) with evidence of their completion of the course.
16. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship shall attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by March 2022.
17. The Family Report shall deal with the following matters:
(a) Any views expressed by the child(ren) the subject of parenting Orders sought in this case, provided that the child/ren shall not be required to express a view in relation to any matter;
(b) The nature of the relationships of the child(ren) with each of the child(ren)’s parents and with significant other persons;
(c) The willingness and ability of each of the child(ren)’s parents to facilitate and encourage a close and continuing relationship between the child(ren) and the other parent;
(d) The likely effect of any changes in the child(ren)’s circumstances, including the likely effect on the child(ren) of any separation from:
(i) either of the parents: or
(ii) any other child, or significant person, with whom the child(ren) has/have been living.
(e) The practical difficulty and expense of the child(ren) spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child(ren)’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) The capacity of each parent, or another person, to provide for the needs of the child(ren), including emotional and intellectual needs;
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other child(ren) and of either of the child(ren)’s parents and any other characteristics of the child(ren) that the reporter thinks are relevant;
(h) Each parent’s attitude to the child(ren) and to the responsibilities of parenthood;
(i) Any family violence involving the child(ren) or a member of the child(ren)’s family.
18. The parties shall attend all appointments with the Family Consultant and shall ensure the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
19. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to a party or the Independent Children’s Lawyer.
NOTATION:
(a) That the child shall remain enrolled at School B.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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