Najar & Bata (No 2)
[2025] FedCFamC2F 690
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najar & Bata (No 2) [2025] FedCFamC2F 690
File number(s): PAC 2262 of 2022 Judgment of: JUDGE STREET Date of judgment: 2 May 2025 Catchwords: FAMILY LAW – Contravention application – respondent father convicted of counts 1 to 12 of the contravention application – stood over for sentencing. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Forlan & Forlan (No 2) [2017] FamCA 936
Panno & Panno [2018] FamCAFC 195
Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 2 May 2025 Place: Sydney Solicitor for the Applicant: Ms K Ziayee of Supreme Justice Layers For the Respondent: The Respondent appeared via video/audio-link ORDERS
PAC 2262 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BATA
Applicant
AND: MR NAJAR
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.In respect of counts 1-12 of the contravention application filed 20 March 2025, the Court convicts the respondent father on each count.
2.The respondent father is directed to file and serve any affidavit evidence that he wishes to rely, in respect of sentencing, on or before 6 June 2025.
3.The matter is stood over for sentencing at 10:00 am on 21 July 2025 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
4.Leave is granted to the parties to file and serve written submissions seven (7) days prior to the hearing.
5.The applicant mother is directed to send a letter to the respondent father identifying the nature of each order if not identified in the existing application that the mother seeks within 14 days of today’s date.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET
This is an application for contravention under Division 13 of the Family Law Act 1975 (Cth) (“the Act”) that was filed on 20 March 2025, supported by an affidavit of the applicant mother (“the mother”). The counts in the contravention application are as follows:
Count 1: The father drove past the mother and the children residence, waved at
the children and said ‘Hello’
Count 2: The father sent messages to the mother using [a payphone]
Count 3: The Father Dropped off Dessert at the mother and childrens residence.
Count 4: The Applicant father sent messages to the mother using [a payphone]
Count 5: The father sent messages to the mother using [a payphone]
Count 6: The father sent messages to the mother using [a payphone]
Count 7: The father sent messages to the mother using [a payphone]
Count 8: The father contacted the mother’s family member in [Country B] via Email
Count 9: The father had attended the mother and the childrens residence without
invitation and left chocolate outside the front door.
Count 10: The father sent messages to the mother using [a payphone]
Count 11: The father had attended the mother and the childrens residence without
invitation and left sweet dish.
Count 12: The father had attended the mother and the childrens residence without
invitation and left a letter in the mailbox
In the contravention application, it was identified that the relief being sought by the mother is as follows:
1. That the father, [Mr Najar], be restrained from stalking, following, or approaching the mother and children.
2. That the father be prohibited from attending the mother and children's residence unless invited in writing by the mother.
3. That the father be restrained from contacting the mother's family members, including by email, or through any other means.
4. That the father comply with the court orders dated 27 September 2024 and refrain from further contravention.
At the commencement of calling the matter, the Court raised with the parties whether or not this is a matter where it may have been appropriate to make a parenting order. There was no consensual position identified in respect of that issue, and the Court accordingly proceeded to hear the contravention application.
The first thing the Court did was, when the respondent, Ms Najar (“the father”) appeared, was clarify whether he had sought to take any steps to obtain legal aid through the order that was made by the registrar on 23 April 2025. The father confirmed that he had not taken any such steps and that he was in a position to proceed with the application. The Court explained to the father the nature of the contravention hearing and referred to and identified the statutory provisions in relation to the "meaning of contravene a child related order" under s 70NAC of the Act and the meaning of "reasonable excuse" in s 70NAD of the Act. The Court explained the process that would be followed in accordance with r11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The Court then went through each count to obtain a response from the father in respect of each allegation. In respect of the 12 counts, the father did not admit to a contravention.
The Court proceeded to identify the evidence before it, being the affidavit of the mother dated 17 March 2025. The father was not permitted to cross-examine because of s 102NA of the Act and took no other objection to the affidavit, which included, when admitted, the annexures which were treated as being in evidence with the affidavit.
The Court then invited the father to respond to each allegation, having heard the evidence-in-chief advanced by the mother, and the father gave a response to each count, seeking to explain why it was that he believed he had not engaged in any contravention and believed that it was not him that had engaged in the conduct alleged. The Court then gave the father the opportunity, if he wished, to give evidence in the contravention hearing. The father did not give any evidence in relation to those contraventions.
The relevant orders made by the Honourable Newbrun J on 27 September 2024 included order 10, set out relevantly as follows:
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.
In determining this application, the Court has taken into account the objects in s 70NAB of the Act which are as follows:
Objects
The principal objects of this Division are to meet the best interests of children to whom child - related orders relate by:
(a) supporting compliance with child - related orders; and
(b) resolving difficulties associated with child - related orders that are parenting orders which have contributed to non - compliance with such orders (including by varying or making further orders); and
(c) deterring non - compliance with child - related orders; and
(d) upholding the authority of the court by enforcing compliance with child - related orders where the court considers this necessary and appropriate; and
(e) providing for sanctions for a person who contravenes a child - related order without reasonable excuse.
The Court has taken into account the meaning of "contravene a child related order" in s70NAC of the Act which is as follows:
Meaning of contravene a child - related order
(1) A person contravenes a child - related order only if:
(a) the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii) the person makes no reasonable attempt to comply with the order; or
(b) the person is not a person to whom the order applies, and the person is not a child, but:
(i) the person intentionally prevents compliance with the order by a person to whom the order applies; or
(ii) the person aids or abets a contravention of the order by a person to whom the order applies.
Note: A child - related order that is a parenting order may be subject to a later parenting plan: see section 64D. This means that conduct that would otherwise contravene such an order may not constitute a contravention because of the terms of a later parenting plan.
(2) Without limiting subsection (1), the following table sets out circumstances in which a person contravenes a child - related order.
The Court has also taken into account the meaning of "reasonable excuse" in s 70NAD of the Act which provides:
Meaning of reasonable excuse for contravening a child - related order
Where person did not understand obligations
(1) A person has a reasonable excuse for contravening a child - related order if:
(a) the person contravened the order because at the time of the contravention the person did not understand the obligations imposed by the order; and
(b) the court considers that the person ought to be excused in respect of the contravention.
(2) If the court decides that a person has a reasonable excuse under subsection (1) for contravening a child - related order, the court must explain to the person, in language likely to be readily understood by the person:
(a) the obligations imposed on the person by the order; and
(b) the consequences that may follow if the person contravenes the order again.
Protection of health or safety of a person
(3) A person has a reasonable excuse for contravening a child - related order if:
(a) the person contravened the order because the person reasonably believed that the person's actions constituting the contravention were necessary to protect the health or safety of the person, a child or any other person; and
(b) the period of the contravention was not longer than necessary to protect the health or safety of the person, child or other person.
Section does not limit circumstances of a reasonable excuse
(4) This section does not limit the circumstances in which a person may have a reasonable excuse for contravening a child - related order.
The Court has taken into account the provision in relation to the burden of proof in respect of reasonable excuse. However, in this case, it is not the position that the father advanced a defence of reasonable excuse in answer to the 12 counts of the alleged contravention.
The Court has also taken into account the standard of proof under s 70NAE of the Act and that this is not a case in respect of which either the mother has requested or the Court is contemplating making an order of the kind identified in s 70NBF(1)(d) of the Act. The Court has also taken into account the observations made by the learned senior appellate judge of Division 1, the learned Strickland J, in Panno & Panno [2018] FamCAFC 195, as well as the observations of the learned Loughnan J in Forlan & Forlan (No 2) [2017] FAMCA 936.
In considering whether there has been proved, on the balance of probabilities, the contraventions, the Court has taken into account the seriousness of the nature of the allegation in a Briginshaw sense in respect of parenting orders that have been made by the Honourable Newbrun J.
Leaving out the annexures, the mother’s evidence in respect of the contraventions was short and concise and relevantly as follows:
Count 1 – information and evidence 7.
7. On 29 October 2024, at 3:30 PM, the father drove down the street where the children and I live, waved at the children, said hello, and passed by my car, where the children and I were sitting.
Count 2 – information and evidence 8.
8. On 30 October 2024, at 8:52 AM, the father used the [payphone] to send me a message. This message violates the court orders under Order 10(a). see Annexure A
Count 3 – information and evidence 9.
9. On 23 November 2024, the father also left dessert in the letterbox with $100 cash. See Annexure B
Count 4 – information and evidence 10.
10. On 23 November 2024, at 1:15 PM, he used the [payphone] to send me a message. This message violates the court orders under Order 10(a). See Annexure A.
Count 5 – information and evidence 11.
11. Later on 23 November 2024, at 7:44 PM, he used the [payphone] to send another message. This message violates the court orders under Order 10(a). See Annexure A.
Count 6 – information and evidence 12.
12. On 1 December 2024, at 6:54 PM, he used the [payphone] to send another message. This message violates the court orders under Order 10(a). See Annexure A
Count 7 – information and evidence 13.
13. On 24 December 2024, at 10:52 PM, he used the [payphone] to send one more message. This message violates the court orders under Order 10(a). See Annexure A.
Count 8 – information and evidence Signature of person making this affidavit (deponent) Signature of witness 4
14. On 30 December 2024, the father sent emails to my mother’s email address and mailed a parcel to her in [City H, Country B]. He did not include his name on the parcel, only his address and phone number. (See Annexure C)
Count 9 – information and evidence 15.
15. On 10 February 2025, the day after our return, the father left chocolate gifts outside the front door of our residence. Breaking order 10 (c ) of the final orders.
Count 10 – information and evidence 16.
16. On 11 March at 3:16 PM, the father left another message via [payphone], stating: “Take sweet dish from outside, on the red bin, for [X] and [Y]” (see Annexure D).
Count 11 – information and evidence 17.
17. At 4:00 PM on 11 March 2025, I went outside and found the sweet dish placed on the red bin, which the father had moved and positioned in front of the gate (see Annexure E).
Count 12 – information and evidence 18.
18. At around 4:00 PM on 11 March 2025, the father had left a letter to me in the mailbox of our residence. See annexure F
The Court has taken into account that the mother was not cross-examined. However, that is not of itself a basis for discounting the weight to be given to the evidence on oath from the mother.
The Court will return to each of the counts individually but in determining whether or not the contraventions were made out, the Court has given particular weight in terms of credibility to the evidence of the mother in respect of the allegations concerning the communications sent to the mother’s family being the maternal grandmother’s email address in City H, Country B. Annexure C being an email from Ms Najar sent on 30 December 2024, patently addresses matters in relation to the children and his views in relation to the children. It is the clearest example of intentionally failing to comply with the order made by the learned Newbrun J.
The father volunteered the proposition that he was not bound by the orders of this Court when he was in Country B and gave no evidence in relation to the contravention. The erroneous proposition that he was not bound by the order anywhere in the world was one made patently clear to the father by this Court. The subject matter that the father addressed in that email covered subject matter that had been addressed in detail by the learned Newbrun J in his reasons for the parenting orders. The relevant order in relation to count 8, the subject of alleged contravention, is order 10(a). The communication sent to the mother’s family was squarely a communication through a third party, being the maternal grandmother, sent by the father intentionally. The father contended that he was not bound by these orders in respect of conduct that takes place in Country B. That is a proposition to which I have already referred to as being entirely fallacious.
The orders of this Court bind a person within this Court's jurisdiction and in respect of parenting orders they bind that person’s conduct wherever they are in the world when those orders are made.
The Court finds that the conduct of the father in relation to count 8 materially corroborates, in terms of credibility, the mother's evidence which was otherwise untested in respect of each of the contraventions.
Whilst it may be the case that there would be broader issues if the Court was seeking to make findings beyond reasonable doubt, in the present case, the Court only needs to make the findings to the requisite standard being on the balance of probabilities. Having the benefit of the mother's evidence in respect of count 1 the Court finds that the father is a person to whom the order 10(c) applied, being a parenting order, and in respect of that count the Court accepts the mother's evidence that the father drove past the mother and the children's residence on 29 October 2024 at 3:30pm and waved at the children and said hello. The Court finds that the contravention was intentional and that there was no reasonable excuse in respect of the contravention.
In relation to count 2, which reflects a similar formulation of count, found in count 4, count 5, count 6, count 7 and count 10 where payphone messages were sent to the mother. The father had the opportunity to give evidence and did not do so. In the circumstances where the Court has identified accepting the credibility of the mother and it being corroborated independently by annexure C, the Court, on the balance of probabilities, accepts the mother's evidence that the father sent a message using a payphone on 30 October 2024 at 8.52 am, when the father was a person to whom order 10(c) applied, being a child related order. The Court finds that the father intentionally failed to comply with the order and that there was no reasonable excuse in respect of that non-compliance, and that the contravention of count 2 is made out.
In relation to count 3, the Court accepts the mother's evidence in relation to the father dropping off dessert at the mother's residence on 23 November 2024 at 1:15 pm. The Court finds that the conduct engaged in by the father was conduct in circumstances where he is a person whom order 10(c) applied and that he intentionally failed to comply with the order and has no reasonable excuse for non-compliance. The Court finds the contravention in count 3 is made out.
In respect of count 4, the Court accepts the mother's evidence as to the father sending a message using a payphone on 23 November at 1:15pm . On the balance of probabilities, the Court finds that the father was the person who sent the message to whom the order 10(a) applied and that the father did so intentionally and has no reasonable excuse in respect of the contravention. The contravention in count 4 is made out.
In relation to count 5, the Court accepts the evidence of the mother in respect of the sending of a payphone message on 23 November 2024 at 7:44 pm, and on the balance of probabilities finds that the father is a person to whom order 10(a) applied and that the father intentionally failed to comply with the order and has no reasonable excuse. The contravention in count 5 is made out.
In relation to count 6, the Court accepts the mother's evidence in relation to the sending of a payphone message on 1 December at 6.54 pm, as having been sent by the father. The Court finds the father is a person to whom the order 10(a) applied and that the father intentionally failed to comply with the order and has no reasonable excuse. The contravention in count 6 is made out.
In relation to count 7, the Court accepts the evidence of the mother and finds that the father sent the message to the mother using a payphone as identified on 24 December 2024 at 10.52 pm. The Court finds the father is a person to whom the order 10(a) applied and that the father intentionally failed to comply with the order and has no reasonable excuse. The Court finds that the contravention in count 7 is made out.
In relation to count 8, the Court accepts the mother's evidence in relation to the father contacting the mother's family as earlier identified by this Court and finds that was a contravention of order 10(a), being an order applying to the father. The Court finds that the father intentionally failed to comply with the order and has no reasonable excuse in respect of count 8. The contravention in count 8 is made out.
In relation to count 9, the Court accepts the mother's evidence on the balance of probabilities and finds that the father is a person to whom order 10(c) applied and that on 10 February 2025 at 8:50 pm, the father attended the mother's residence without invitation and left chocolates outside the front door. The Court finds that the father intentionally failed to comply with order 10(c) and has no reasonable excuse. The contravention in count 9 is made out.
In relation to count 10, the Court accepts the mother's evidence and finds that the father sent a message using a payphone on 11 March 2025 at 3.16 pm when being a person to whom the child related order 10(a) applied. The Court finds that the father intentionally failed to comply with that order and has no reasonable excuse. The contravention in count 10 is made out.
In relation to count 11, the Court accepts the mother's evidence that on 11 March 2025 at 4:00 pm the father attended the mother and the children's residence without invitation and left a sweet dish and that, at that time, the father was a person to whom order 10(c) applied and that the father intentionally failed to comply with the order and has no reasonable excuse. The Court finds that the contravention in count 11 is made out.
In relation to count 12, the Court accepts the mother's evidence in relation to the father attending the mother and children's residence without invitation and leaving a letter in the mailbox on 11 March 2025 at 4:00 pm at a time when the father was a person to whom the child related order in 10(c) applied. The Court finds that the respondent father intentionally failed to comply with order 10(c) and has no reasonable excuse. The contravention in count 12 is made out.
It is for these reasons the Court makes the above orders.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street. Associate:
Dated: 29 May 2025
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