Najm & Najm (No 2)

Case [2022] FedCFamC1F 122

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Najm & Najm (No 2) [2022] FedCFamC1F 122

File number(s): SYC 6820 of 2017
Judgment of: CAMPTON J
Date of judgment: 11 March 2022
Catchwords: FAMILY LAW – CHILDREN – Exercise of power to make findings of fact, determine any issues arising in the proceedings, and make orders pursuant to s 69ZR(1) of the Family Law Act 1975 (Cth) – Dispute as to parenting arrangements during the adjournment period of a part-heard trial – Where the mother and father had historically been regular users of the drug methamphetamine – Where the mother and father were convicted of criminal offences relating to the consumption and distribution of methamphetamine and subsequently gaoled – Where interim orders were made for the children to live with the paternal grandfather upon the parents’ incarceration – Where the children have now lived with the paternal grandfather for some four and a half years – Where the mother was released from gaol and has undertaken significant rehabilitation programs – Where the mother has spent regular but limited time with the children for the past two years – Orders for an increase of time spent between the mother and child pending a final determination of the proceedings.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65D, 65DAA, 65DAC, 69ZR, Part VII, Division 12A
Cases cited:

Burton & Curchin [2013] FLC 93-561; [2013] FamCAFC 180

Deiter & Deiter [2011] FamCAFC 82; [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2007) 26 Fam LR 422; [2006] FamCA 1346

McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Salah & Salah(2016) FLC 93-713; [2016] FamCAFC 100
Division: Division 1 First Instance
Number of paragraphs: 145
Date of hearing: 21 February 2022
Place: Sydney
Counsel for the Applicant: Mr Wong
Solicitor for the Applicant: East Sydney Law Pty Ltd
Solicitor for the Respondent: Litigant in person (did not participate)
Counsel for the Second Respondent: Mr Eardley
Solicitor for the Second Respondent: Emanuel Refenes Solicitor
Solicitor for the Independent Children’s Lawyer: Ark Law Lawyers
Counsel for the Independent Children’s Lawyer: Dr McConaghy

ORDERS

SYC 6820 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR NAJM

Applicant
AND:

MR B NAJM

Respondent

MS FARHAN
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

11 MARCH 2022

THE COURT ORDERS:

By consent as between the mother and the paternal grandfather, and on an undefended basis as against the father;

1.That all prior parenting orders as to the children of X born in 2010 and Y born in 2010 (“the children”) be discharged.

By consent and pending further order as between the mother and the paternal grandfather, and on an undefended basis as against the father;

2.That the children live with the paternal grandfather.

3.That the mother be restrained from doing any act or…

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Najm & Najm (No 2) [2022] FedCFamC1F 122
Case
[2022] FedCFamC1F 122
Decision Date

CaseChat Overview and Summary

In the case of Najm & Najm (No 2), the primary legal issue before the court was determining the best interests of the children in the context of their care arrangements with their mother and paternal grandfather. The case involved a dispute between the mother and the paternal grandfather over the children's living arrangements and the level of contact they should have with their mother. The mother sought increased time with the children, while the paternal grandfather argued for limited contact and gradual integration. The court was required to weigh the evidence and recommendations from various sources, including the Single Expert, Dr P, and the views of the children, to determine the most appropriate parenting arrangement.

The court's reasoning involved a thorough analysis of the evidence presented by both parties, as well as the expert's report. The court found that while the paternal grandfather had valid concerns about the children's welfare, it was in the children's best interests to have a gradual increase in their time with their mother. The court accepted Dr P's opinion that a sudden change in the children's care arrangements could exacerbate their stress and anxiety. The court also considered the children's views, noting that while they had some reservations, they also expressed a desire to have their mother more involved in their lives. The court concluded that a measured approach to increasing the mother's time with the children would be beneficial for their emotional development and psychological well-being.

The final outcome of the case was that the court ordered a gradual increase in the children's time with their mother, subject to specific conditions to ensure a smooth transition and to protect the children's welfare. The court also directed the paternal grandfather to facilitate the children's contact with their mother and to assist in promoting a positive maternal attachment. The orders aimed to balance the children's need for stability with the opportunity for them to develop a relationship with their mother, while ensuring that any changes were made at a pace that would not overwhelm the children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The ICL contended that subject to the evidence, orders ought to be made on a final basis consistent with the broad recommendations contained in the report of the Single Expert, Dr P, being that the children’s time with the mother should increase to majority care on a graduated basisThe Paternal Grandfather’s Evidence The paternal grandfather gave his oral evidence through an K Language interpreter. While his oral English language skills are limited, he had little difficulty understanding the questions put to him in English, and answered partly in English and partly in K Language. He said he has good skills and capacity at reading English. When taken to specific parts of the trial affidavit evidence of the mother it was clear that he was either not aware of the contents of her affidavits or that he had read them and had forgotten the contents. He said that he thought he had read the mother’s affidavit but that it was “a long, long time ago”. The grandfather’s oral evidence was that he did not know the mother ceased taking drugs in December 2017, nor that she had returned negative urinalysis testing results consistently since that time. These facts were clearly set out in the mother’s affidavits. That said, upon the mother’s evidence being identified to him during the course of his cross-examination as to her stable housing, full-time employment and that she had refrained from consuming drugs since December 2017, he explicitly accepted each fact and accepted the rehabilitation undertaken by the mother of her life. During his cross-examination the paternal grandfather said that:·He was unaware that he sought an injunctive order that the mother be prevented from attending at the children’s school. He said, “I don’t care if the mother goes to the school” and that he was “happy for the mother to collect the children from school”; ·He was unaware that he sought an order that the children’s time with their mother be suspended during the school holidays; ·Notwithstanding his Case Outline document recording “a likelihood that the sexualised and unstable behaviour that they (“the children”) commenced to exhibit when they started spending time with (“the mother”) in 2018 will recommence and become entrenched” this contention was never his case. He denied any sexualised behaviour of the children after they commenced seeing their mother and the R Contact Centre was a function or product of them seeing their mother;·He was unaware of the serious sexualised behaviour and anti-social conduct of the children at school 2018, 2019 and 2020. He was horrified when appraised of the conduct of the boys sourced from school records and exhibited into evidence. His position was that as the school had not asked to speak to him it was not necessary for him to attend the school. ·He was not willing to work with the mother to support the children at school. As the cross-examination of the paternal grandfather progressed it was my impression that he was not familiar with the content of the report of Dr P and of the foundations for the expert’s evaluations. He said that he had read the report, but “a long time ago when [he] received it, about a year and a half ago”. He said that he could not remember what Dr P asked him in the course of his interviews because he could not understand or hear Dr P properly.

Decision

Reasons for decision

As no order for equal shared parental responsibility is made or proposed to be made, s 65DAA of the Act is not engaged obliging consideration as to the whether the children should spend equal time or substantial and significant time with each parent.CONCLUSION The Court is left with no doubt that both the mother and the paternal grandfather each perceive their respective proposals to be in the best interests of the children. I am mindful of the primary consideration identified in s 60CC of the Act and the necessity to achieve a balance best promoting the children’s interests during the period of the adjournment. To his credit the paternal grandfather recorded as to his opinion regarding the mother “she means everything to the kids, not me”. The paternal grandfather sees his role as being a grandfather, father and the mother to the children. Notwithstanding his capacities, a person of his age ought not to have such onerous responsibilities for two challenging boys. It was his case that the terms of time spent by the mother during the period of the adjournment ought not be extensive or to progress at too rapid a rate having regard to the reality of she having little experience in parenting challenging boys. It was submitted that the mother was yet to experience “the deluge of parenting yet to rain down” and in the circumstances any progression as to time spent ought to be cautious. Dr P opined that it would not be feasible for the children to reside with the mother “at this stage without creating an even more volatile environment for the children and exasperating their stress and anxiety”. I accept that opinion at the present time. I accept the submission of the paternal grandfather that it is not in the children’s interest to dramatically or suddenly alter their care arrangements. I accept the submission of the ICL that “the children ought not to be overwhelmed by change”. The regime of orders to be made will ensure that the mother has the opportunity to further enrich the children’s lives and give her time to develop “on the ground” her parenting skills. It will ensure a regime for the presence of a growing maternal attachment figure for the children to experience in their lives. This will be positive for the children's emotional development or their psychological wellbeing. They will be able to experience their mother being able to prioritise their needs over her own in stark juxtaposition to both the neglect they suffered prior to their care falling to their grandfather and to the narrative reinforced to them about their mother over the past years. The discharge of the order in blanket terms not to bring the children into contact with the “maternal family” will ensure that the mother will have the benefit of assistance from her mother and sisters in parenting the boys going forward. The success of the reintegration of the mother in a meaningful way into the children’s lives will rest with the paternal grandfather. The Court expects that he will, notwithstanding his own views, facilitate and promote the time to be spent by the children with their mother.

Ratio Decidendi

Legal Principle Established

In reaching my decision, I have considered all of the relevant sections of the Act albeit that I am not required as a matter of law to specifically address each such consideration. I will now address the relevant issues.Additional Considerations It is the paternal grandfather’s case that the children have “complicated feelings” towards both their parents, given the past. The paternal grandfather gave evidence as to the children, especially X, repeatedly raising with him complaints as to the day to day care provided by his mother prior to her incarceration and contrasting that to the care he enjoys with the paternal grandfather. His evidence records complaints by X as to the “state of the house” when he lived with his parents. The paternal grandfather said the children, especially X, have said to him that they did not wish to see or spend time with their mother in accordance with the orders of 17 December 2019. The paternal grandfather had ensured that the children attend saying words to the effect “you have to go, if you think I can’t force you then will get the police to take you”. It is his case that the children are critical of the mother after attending for time with her and that he directs the children not to speak disrespectfully about their mother. It is the paternal grandfather’s view that the children remain “angry with the past”. Dr P recorded that both children had identical narratives about their childhood recounting the same few instances to illustrate their mother’s short comings as a parent when they were considerably younger. He opined that neither child described any criticism or short comings of their father as a parent and additionally expressed a wish to have more time with their father. It was Dr P opinion that both children’s narratives impressed as being “quite rehearsed”. Dr P found that while both children expressed reservations as to substantive increase in the time spent with their mother there was limited articulated rational to support this position. He recorded that neither child showed any signs of fear spending time with their mother when assessed. As to the children’s views, Dr P’s report recorded:134.It was evident from their interviews that the children appear to have adopted a strategy of seeking a path of minimum resistance, which at a superficial level reduces the level of conflict to which they are exposed, but at a deeper level is likely resulting in considerable internalised stress and anxiety for both children. While it is understandable that the children have concerns around their mother's integrity, that is, whether she will 'abandon' them again, given the children's skewed perspectives on the events leading up to the change of care arrangements, coupled with a level of social and emotional maturity that potentially lags their age-matched peers, this reduces the level of confidence the Court could have if it is to place substantive weight on their views.135.In the current context of the assessment, both children were reluctant to express their desire to have their mother more involved in their lives, however it was evident in their interactions that they loved their mother. On the basis of these it would be reasonable to conclude that the children's wishes to continue with some form of the existing parenting arrangement but without the parties fighting. As noted above, it is this clinician's recommendation that the Court should be quite measured about the weight it places on the children's views, while taking into account the considerable positive gains the mother has made, and also balancing the children's needs to have relationships with both sides of their family.