FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najar & Bata [2024] FedCFamC2F 1336
File number(s): PAC 2262 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 27 September 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60DE, 61D Cases cited: Banks & Banks (2015) FLC 93-63
Betros & Betros [2017] FamCAFC 90
Gorman & Huffman and Anor [2016] FamCAFC 174
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 29 – 30 August 2024 Place: Parramatta Counsel for the Applicant: Mr Karp Solicitor for the Applicant: Ark Law Lawyers Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Supreme Justice Lawyers Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Jlm Family Lawyers ORDERS
PAC 2262 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAJAR
Applicant
AND: MS BATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The mother have sole parental responsibility for making the major long-term decisions for the children X born in 2011, and Y born in 2013 (“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother.
5.Within 48 hours the father is to provide to the mother, by way of her solicitors, an email address at which he can be contacted for the purposes of Orders 6 and 7 herein.
6.Should the children express a wish to spend time or communicate with the father, and should the mother consent to such time or communication, the mother shall contact the father by email to arrange for such time or communication to occur.
7.The mother shall notify the father of any serious medical issue or hospitalisation that either of the children suffer from as soon as is reasonably practical to do so and shall include the diagnosis, prognosis and all reasonable updates by email.
8.Both parents are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.
9.Both parents are hereby restrained from speaking about the other parent, the other parent’s family or a member of the other parent’s household in a derogatory or negative manner in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father, Mr Najar, is restrained by injunction from:
(a)contacting the children or mother directly or through third parties other than legal representatives;
(b)approaching or attending upon the children’s schools;
(c)attending the children’s…
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CaseChat Overview and Summary
The court considered various factors, including the children’s wishes, their welfare and best interests, and the actions and conduct of both parents. It found that sole parental responsibility for major long-term decisions should rest with the mother, and that the children should live with her. The father's contact with the children was to be limited and conditional on both the children's wishes and the mother's consent, with specific instructions on communication and notification of medical issues. The court also imposed restrictions on the father's ability to contact the children directly or through third parties, attend the children’s school, or visit their residence without prior written consent from the mother. Additionally, the court directed the removal of the children's names from the Family Law Watchlist and permitted the mother to apply for passports for the children and to take them overseas without the father's consent.
The court’s final orders included the discharge of all previous parenting orders, granting the mother sole parental responsibility for major long-term decisions, and outlining specific arrangements for the children's contact with the father. The court also imposed restrictions on communication and conduct between the parents in the presence of the children, and directed the removal of the children’s names from the Family Law Watchlist. The Independent Children's Lawyer's application for costs against the father was dismissed, and the ICL's appointment was discharged.
Orders
Orders of the court
PAC 2262 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR NAJAR
Applicant
AND:
MS BATA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
27 SEPTEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
2. The mother have sole parental responsibility for making the major long-term decisions for the children X born in 2011, and Y born in 2013 (“the children”).
3. The children live with the mother.
4. The children spend time and communicate with the father in accordance with their wishes and only with the written consent of the mother.
5. Within 48 hours the father is to provide to the mother, by way of her solicitors, an email address at which he can be contacted for the purposes of Orders 6 and 7 herein.
6. Should the children express a wish to spend time or communicate with the father, and should the mother consent to such time or communication, the mother shall contact the father by email to arrange for such time or communication to occur.
7. The mother shall notify the father of any serious medical issue or hospitalisation that either of the children suffer from as soon as is reasonably practical to do so and shall include the diagnosis, prognosis and all reasonable updates by email.
8. Both parents are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.
9. Both parents are hereby restrained from speaking about the other parent, the other parent’s family or a member of the other parent’s household in a derogatory or negative manner in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
10. Pursuant to s 68B of the Family Law Act 1975 (Cth) the father, Mr Najar, is restrained by injunction from:
(a) contacting the children or mother directly or through third parties other than legal representatives;
(b) approaching or attending upon the children’s schools;
(c) attending the children’s residence unless invited to do so in writing by the mother.
11. The Australian Federal Police be directed to remove the names of the children X born in 2011 and Y born in 2013 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
12. For the purposes of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the children X born in 2011 and Y born in 2013 are permitted to have an Australian Passport and the mother is hereby permitted to apply for an Australian Passport for the children X born in 2011 and Y born in 2013 without the consent of the father.
13. For the purposes of s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take the children X born in 2011 and Y born in 2013 from the Commonwealth of Australia without the consent of the father.
14. The ICL’s application for costs against the father is dismissed.
15. The ICL’s appointment is discharged.
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.
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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