FAMILY COURT OF AUSTRALIA
Najam & Fayed [2021] FamCA 107
File number(s): PAC 318 of 2021 Judgment of: FOSTER J Date of judgment: 9 March 2021 Catchwords: FAMILY LAW – CHILDREN – interim Parenting – best interests – where child seriously ill – where parties not agree as to where child should reside upon discharge from hospital – where conflict between parties – where interim order made for child to live with mother and for the mother to have sole parental responsibility and consult the father – where matter adjourned for short period to allow parties to consider issues. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60C, 61DA, 65DAA Cases cited: Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode and Goode [2006] FamCA 1346
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92MRR v GRR (2010) 240 CLR 461
Number of paragraphs: 69 Date of hearing: 8 February 2021 Place: Parramatta Counsel for the Applicant: Ms Hayward Solicitor for the Applicant: T & S Law Firm Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Thurlows Family Lawyers ORDERS
PAC 318 of 2021 BETWEEN: MR NAJAM
ApplicantAND: MS FAYAD
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
8 FEBRUARY 2021
PENDING FURTHER ORDER AND WITHOUT PREJUDICE AND WITHOUT ADMISSION BY EITHER PARTY IN RELATION TO ANY FURTHER OR OTHER INTERIM OR FINAL ORDERS TO BE SOUGHT BY THEM, THE COURT ORDERS THAT:
1.Pending further order, the mother have sole parental responsibility for the child X and in the exercise of that responsibility she before making any significant decision in relation to the child and, in particular, the child’s ongoing medical and care or circumstances consult the father.
2.Pending further order, the child live with the mother.
3.Pending further order, the child spend time with the father as agreed between the mother and the father.
4.The father do all necessary things and sign all necessary documents so as to authorise and direct that upon the child being discharged from hospital she be discharged into the mother’s care and not otherwise.
5.Pending further order, the father be restrained by himself, his servant or agents from removing or seeking to remove the child from the day-to-day care of the mother.
6.Reasons for judgment to be published at a later date.
7.The father file and serve a Response to the mother’s Initiating Application and any affidavit sought to be relied upon by him in support of any interim orders sought by him by no later than the close of business on Friday, 12 February 2021.
8.The Registrar’s duty callover date of 11 February 2021 vacated.
9.These proceedings are adjourned for judicial case management, and if necessary interim hearing, to 9.30 am on Friday, 12 February 2021.
10.Due to the ongoing situation with the coronavirus (COVID-19), attendance in person is not required, but you are required to attend by telephone via AAPT…
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- Najam & Fayed [2021] FamCA 107
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- [2021] FamCA 107
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CaseChat Overview and Summary
The court was required to determine interim parenting orders, specifically addressing where the child would live, who would have parental responsibility, and how the parents would consult on significant decisions, particularly concerning the child's medical care. The court also had to consider the primary considerations under section 60CC(2) of the *Family Law Act 1975* (Cth), namely the benefit to the child of a meaningful relationship with both parents and the need to protect the child from harm.
Justice Foster applied the best interests of the child as the paramount consideration. The court noted that while a meaningful relationship with both parents is important, the need to protect the child from harm is to be given greater weight. Evidence indicated a substantial escalation of parental conflict following the mother's proposal of marriage, including instances where the child was exposed to verbal abuse and threats from the father. The court found that the existing parenting plan had previously facilitated meaningful relationships with both parents, but the current conflict necessitated a different approach to safeguard the child.
Pending further order, the court ordered that the child live with the mother and that the mother have sole parental responsibility, with a requirement to consult the father on significant decisions, particularly medical care. The father was ordered to facilitate the child's discharge into the mother's care and was restrained from attempting to remove the child. The matter was adjourned for judicial case management and a potential interim hearing shortly thereafter.
Orders
Orders of the court
PAC 318 of 2021
BETWEEN:
MR NAJAM
Applicant
AND:
MS FAYAD
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
8 FEBRUARY 2021
PENDING FURTHER ORDER AND WITHOUT PREJUDICE AND WITHOUT ADMISSION BY EITHER PARTY IN RELATION TO ANY FURTHER OR OTHER INTERIM OR FINAL ORDERS TO BE SOUGHT BY THEM, THE COURT ORDERS THAT:
1. Pending further order, the mother have sole parental responsibility for the child X and in the exercise of that responsibility she before making any significant decision in relation to the child and, in particular, the child’s ongoing medical and care or circumstances consult the father.
2. Pending further order, the child live with the mother.
3. Pending further order, the child spend time with the father as agreed between the mother and the father.
4. The father do all necessary things and sign all necessary documents so as to authorise and direct that upon the child being discharged from hospital she be discharged into the mother’s care and not otherwise.
5. Pending further order, the father be restrained by himself, his servant or agents from removing or seeking to remove the child from the day-to-day care of the mother.
6. Reasons for judgment to be published at a later date.
7. The father file and serve a Response to the mother’s Initiating Application and any affidavit sought to be relied upon by him in support of any interim orders sought by him by no later than the close of business on Friday, 12 February 2021.
8. The Registrar’s duty callover date of 11 February 2021 vacated.
9. These proceedings are adjourned for judicial case management, and if necessary interim hearing, to 9.30 am on Friday, 12 February 2021.
10. Due to the ongoing situation with the coronavirus (COVID-19), attendance in person is not required, but you are required to attend by telephone via AAPT telelink at the judicial case management listing before Justice Foster on Friday, 12 February 2021 at 9.30 am.
Notation
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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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
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
Thus the orders to be made are guided by the best interests principles.The primary considerations: s 60CC(2) The primary considerations are: (a)The benefit to the child of having a meaningful relationship with both of the child's parents; and (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2)(a) – “meaningful” relationship In Mazorski v Albright [2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed: [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”. It appears from the mother’s evidence that prior to the incident on 31 December 2020 the child enjoyed a meaningful relationship with each parent. She deposes that the 2019 parenting plan “worked very well” and that she and the father “managed to co-parent in a very amicable and healthy manner.” The arrangements in the 2019 parenting plan allowed for both the mother as primary carer and for the father to spend significant time with the child, allowing them each to build a meaningful relationship with the child. Both the mother and the father enjoyed taking the child for various outings and the mother deposes of an outing in November 2020 when the parents together took the child to a playground. The orders proposed facilitate the continuation of the child’s meaningful relationship with both the mother and father, within the current context of rapidly escalating parental conflict.Section 60CC(2)(b) – the need to protect In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). Since the mother informed the father of her proposal in marriage on 4 December 2020, there has been substantial parental conflict. The child has been exposed to parental conflict at two handover events. On 5 December 2020 the father verbally abused the mother in the presence of the child. At this event the father vituperated the mother in response to the mother informing the father of her receipt of a proposal in marriage and it is deposed that the father threatened to “take” the child and that the mother would “never see her again”. The mother asserts that the child was “visibly upset” and asked the father to “calm down” and the father responded by grabbing the child and placing the child in a different room before continuing to verbally abuse the mother.