Najm & Najm (No 2) - [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 thing, to cause or permit the children to come into contact with her father, Mr D, and her brother, Y.
4.That the mother’s time with the children pursuant to these orders is conditional on:
(a)That on no more than two occasions during the adjournment of this matter until 12 September 2022:
(i)the Independent Children’s Lawyer may give written notice to the Mother requiring her to undergo within 24 hours of such a request, a chain-of-custody urinalysis of a sample provided under observation to test for the presence of illicit drugs;
(ii)The Mother shall provide a copy of the results from any such testing to the Independent Children’s Lawyer and the grandfather as soon as the results are available and within 24 hours of receipt of the same;
(iii)The costs of all testing are to be met by the Mother;

(b)If the Mother does not produce test results in accordance with this Order, or produces a positive result, then the Mother’s time with the children is suspended until such time as a negative test is produced.

5.That on a without admissions basis, the Mother and Paternal Grandfather are restrained from:
(a)Discussing parenting arrangements or the current court proceedings with the children; and
(b)Denigrating the other party in the children's presence or allowing either child to remain in the presence of a third party denigrating the other party.

6.That in the event of an emergency as to the health or welfare of the children in the care of the paternal grandfather or the mother, the person who has the children in their care shall contact the other by telephone call and text message as soon as is reasonably practicable, advising the other of such medical or welfare emergency, and for the purposes of facilitation of this order:
(a)Each of the mother and the paternal grandfather shall provide to the other their contact mobile telephone number within 48 hours of the date of these orders; and shall advise the other in writing forthwith of any changes to that mobile telephone number;
(b)The paternal grandfather be restrained from providing the mother’s contact telephone number pursuant to these orders to the father, Mr B Najm;
(c)The mother be restrained from providing the paternal grandfather’s telephone number to any third party person.

7.For the purposes of the Mother's time, the Mother shall personally:
(a)Collect the children from the Paternal Grandfather at McDonald’s, Suburb L at the commencement of her time when time commences on a day when it is not a school day, or from their school on a day when time commences when it is a school day; and
(b)Deliver the children to the Paternal Grandfather at the conclusion of her time at Mc Donald’s Suburb L when time concludes on a day when it is not a school day, or to their school on a day when time concludes when it is a school day.

That, pending further Order:
8.That the mother spend time with the children as follows:
(a)Commencing from the first weekend following the making of these orders until 6 June 2022, for the first two out of each three weekends, on Saturday and on Sunday from 10.00 am until 6.00 pm on each day;
(b)As and from 6 June 2022, for the first two out of each three weekends, from the conclusion of school on Friday (or 3.00 pm in the event of Friday not being a school day) until the commencement of school on Monday (or 9.00 am in the event Monday not being a school day); and
(c)That any time spent by the Mother with the children be suspended on the middle weekend of each New South Wales block public school holiday period.

9.The Paternal Grandfather be restrained from doing any act or thing to cause or permit the children to come into contact with the Father, Mr B Najm, save and except when the Paternal Grandfather is present.
10.That the Paternal Grandfather do all such things as are necessary to authorise and direct each of the children’s schools to provide to the mother any reports, newsletters or other communications as are made available to parents in the ordinary course of the children’s attendance at school.
11.That each of the Mother and the Paternal grandfather be at liberty to provide a copy of these orders to each of the children’s schools.
12.That the Court notes that the Paternal Grandfather has no objection to the mother engaging with each of the children’s school to provide assistance if requested for each of the children.
13.That the Court notes that the mother is at liberty to take the children to attend upon a dentist and to undertake such dental procedures as she is advised.
14.
That an updated minute of order to incorporate the amended final relief sought by each of the mother and the paternal grandfather is to be filed and served on or before

31 March 2022.
15.That the matter be listed before me at 9.30 am on 8 August 2022 for case management.
16.It is noted that the proceedings remain listed at 10.00 am on 12 September 2022 for a further four (4) days of final hearing.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Najm & Najm pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J
INTRODUCTION

The final trial event as to the parenting arrangements of X, born in 2010 (who is 12 years of age) and Y born in 2010 (who is 11 years of age) was listed over four days and commenced on 21 February 2022. The trial event was unable to conclude within the allocated time and has been adjourned part heard for further hearing over four days commencing 12 September 2022. This decision relates to the interim parenting arrangements for X and Y during the period of the adjournment.
X and Y are the children of the first respondent father, Mr B Najm, born in 1981 who is 41 years of age (“the father”) and the second respondent mother, Ms Farhan, born in 1991 who is 30 years of age (“the mother”). The applicant paternal grandfather Mr Najm born in 1943 is 78 years of age (“the paternal grandfather”).
The parents married in 2009 and first separated in March 2014. The evidence remains controversial as to whether the mother left the children in the father’s care or whether she retained them on that separation.
On 19 June 2014 consent orders were made between the mother and father as to the parenting of the children. The orders provided for the parents to have equal shared parental responsibility of the children and for the children to live with the father during the week and with the mother on the weekends.
The parents reconciled around June 2014. The mother says that the father commenced consuming methamphetamine (“ICE”) at or about this time. The mother commenced consuming ice shortly thereafter. By 2015 the family had no fixed address and lived for a short period in their car. The parents then lived in an office at Suburb Q for a further short period of time until they lost that accommodation.
The evidence remains controversial as to when the paternal grandfather commenced to care for the children on a full-time basis. The father’s evidence is that he provided the children to the paternal grandfather to care for them at least during the weekdays in 2014. The paternal grandfather says he fed them at his home mid-week from 2014 when they were delivered to him by the father and that he commenced the full-time care of the children in the middle of 2015. The mother says that she primarily cared for the children until the end of 2016.
It is uncontroversial that the children were subject to a number of notifications as to risk investigated by the Department of Family and Community Services (as it was then) from about 2016. The children were identified as being at risk arising from family violence as between the parents and their exposure to violence, being significantly neglected by the parents and being exposed to the parents’ drug consumption and lifestyle.
Both the parents were arrested and charged with the possession and supply of ICE. They were imprisoned in 2017. They were each convicted of these offences. The mother was released from gaol on either 10 or 11 January 2018. The father was released from gaol in February 2019.
The paternal grandfather had retired from employment prior to the children coming into his care. He separated from his wife in April 2015.
It is uncontroversial that, for the benefit of the children, the paternal grandfather suspended his life to rescue them from what was, on any view, dire and serious circumstances of risk. He prioritised the children over his own wellbeing. The mother acknowledges this without reservation. While speculative, it was a significant possibility that, absent the paternal grandfather’s intervention, the children may have ended up in the State Child Welfare system.
The paternal grandfather has encountered and met significant challenges in the children’s behaviour and presentation.
The paternal grandfather on 17 October 2017 filed an Initiating Application seeking orders for the sole parental responsibility of the children and for the children to live with him. Justice Watts on 25 October 2017 (when each parent was in gaol) suspended the parenting orders made on 19 June 2014 and ordered that the children live with the paternal grandfather.
Following the mother’s release from gaol in January 2018, she sought to reinstate her spending time with the children. On 15 June 2018 interim consent orders were made between the mother and the paternal grandfather for the children to spend time with the mother for two hours each fortnight at the R Contact Centre. The first period of supervised time at R Contact Centre was on 24 August 2018.
The current parenting of the children is regulated by the orders made on 25 October 2017 and further interim orders made on a defended basis by senior registrar Campbell (as he was then) on 17 December 2019, being broadly that
1.That Orders made by Justice Watts on 25 October 2017 as to the suspension of the orders made 19 June 2014 and as to the children living with the paternal grandfather continue.
3.That the children spend time with the Mother:
(a)In week 1 of 2, from 10:00 am until 12:00 midday Sunday, from the first Sunday after the Mother complies with Order 6(a) hereof and fortnightly thereafter; and
(b)In week 1 of 2, from Friday 3.00 pm until 5.00 pm, from the second Friday following the Mother’s compliance with Order 6(a) hereof and fortnightly thereafter.
4.The Mother is restrained from permitting the children from coming into contact with members of the Mother’s immediate and extended family during her time in accordance with Order 3 herein.
5.For the purposes of the Mother’s time, the Mother shall personally:-
(a)collect the children from the Applicant Paternal Grandfather, “Paternal Grandfather” at McDonalds, Suburb L at the commencement of her time when time commences on a day when it is not a school day, or from their school on a day when time commences when it is a school day, and
(b)deliver the children to the Paternal Grandfather at the conclusion of her time at Suburb L McDonalds.
6. That the Mother’s time with the children in accordance with Order 3 herein is conditional upon the following:
(a)That the Mother shall obtain a certificate from her treating medical practitioner and produce a copy of the same to the parties, which certifies as follows:-
(i)The period of time the Mother has consulted that practitioner
(ii)The Mother’s mental health diagnosis, if any
(iii)The Mother’s mental health plan, if any
(iv)If applicable, the mother’s compliance or non-compliance, as the case may be with that mental health plan.
(b)The Mother shall remain compliant with any mental health plan including attendances upon treating medical practitioners and as to prescribed medicine, as required thereby;
(c) That on no more than one occasion per calendar month:
(i)the Independent Children’s Lawyer may give written notice to the Mother requiring the Mother to undergo within 24 hours of such a request a chain-of-custody urinalysis of a sample provided under observation to test for the presence of illicit drugs;
(ii)The Mother shall provide a copy of results from any such testing as soon as the results are available and within 24 hours of receipt of the same;
(iii)The costs of all testing are to be met by the Mother;
(d)If the Mother does not produce test results in accordance with this Order, or produces a positive result, then the Mother’s time with the children pursuant to Order 3 is suspended until such time as a negative test is produced and pending a negative test being produced, the Mother shall spend time with the children is accordance with Order 1 of the Orders made on 25 June 2018.
7.That on a without admissions basis, the Mother and Paternal Grandfather are restrained from:
(a)Discussing parenting arrangements or the current court proceedings with the children;
(b)Denigrating the other party in the child’s presence or allowing either child to remain in the presence of a third party denigrating the other parent.
The order made on 19 June 2014 that the parents equally share parental responsibility for the children has been suspended since 25 October 2017. The effect of that suspension is that the legal position by way of s 61C of the Family Law Act 1975 (Cth) (“the Act”) for each parent to have parental responsibility was no longer displaced by a parenting order made by the Court. Hence, since 25 October 2017, each of the mother and the father had capacity to exercise parental responsibility for the children, either independently or jointly. This circumstance has existed for in excess of the past four years. The evidence does not reveal this circumstance has generated difficulty for the paternal grandfather or the children over that period.
The proceedings were listed for a final hearing for three days to commence on 9 August 2021 and subsequently vacated and again listed for final hearing on 8 November 2021 with this second trial date also being subsequently vacated
It is uncontroversial that the father has not engaged as a party in the proceedings since 2019. He has not filed any response to the paternal grandfather’s Initiating Application, or the final relief agitated by the mother. His solicitors filed a notice of ceasing to act on 6 May 2020. The father appeared by telephone on 21 February 2022. He confirmed that he did not wish to participate as a party in the proceedings, that he did not seek any orders on his own behalf as to the parenting of his children, that he supported the paternal grandfather’s final relief sought and the paternal grandfather’s case and that he proposed to give evidence in the paternal grandfather’s case. The matter has proceeded on an undefended basis as against the father, and the orders made herein in the father’s absence.
In her evidence and in the conduct of her case at trial the mother reinforced her profound gratitude for, and appreciation of, the keystone role assumed by the paternal grandfather in parenting the children over a number of years.
A transport issue in Sydney on the first day of the hearing prevented the paternal grandfather’s K Language interpreter from attending Court. A voir dire on the first day of the trial upheld an objection by the mother to some of the evidence sought to be relied upon by the paternal grandfather. Ex tempore reasons for judgment were delivered as to the exclusion of that evidence, and these reasons for judgment assume familiarity with that judgment as published, being Najm & Najm [2022] FedCFamC1F 87.
These are child-related proceedings conducted pursuant to Part VII, Division 12A of the Act. Section 69ZR of the Act provides:
Power to make determinations, findings and orders at any stage of proceedings
(1)If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:
(a)       make a finding of fact in relation to the proceedings;
(b)       determine a matter arising out of the proceedings;
(c)       make an order in relation to an issue arising out of the proceedings.
Note:For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.
(2)Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.
(3)To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

The trial event was unable to conclude within the allocated time and has been adjourned part heard for further hearing over four days commencing 12 September 2022. In the trial to date the paternal grandfather was cross-examined by counsel for the mother and counsel for the Independent Children’s Lawyer (“ICL”). The mother was cross-examination on limited subject matters by both counsel for the paternal grandfather and counsel for the ICL. On the afternoon of the fourth day of the trial the mother prosecuted an application for variation of the terms of the “spend time with” and injunctive orders made by the senior judicial registrar on

17 December 2019. This is the determination of that application within the compass of s 69ZR of the Act.
For the reasons recorded herein I find that the factual determinations made grounded from the evidence thus far will assist the parties in focussing and potentially determining the future dispute between them. I find that the orders made will promote the best interests of the children during the period of the adjournment of the trial.
For the reasons identified herein are orders that will be made increasing the children’s time with their mother. They will continue to live with their paternal grandfather.
THE DOCUMENTS RELIED UPON
Each of the paternal grandfather and the mother identified by way of their respective Case Outline documents the affidavit evidence relied upon for the purpose of the trial.
The paternal grandfather relied upon the following documents:
·Initiating Application filed on 17 October 2017
·Notice of Risk filed 17 October 2017
·Affidavit of Mr Najm filed 16 April 2021
·Affidavit of Ms H filed 16 April 2021
·Affidavit of Mr B Najm filed 31 October 2021
·Affidavit of Mr M filed 23 December 2021
·Affidavit of Mr Najm filed 23 December 2021
·Affidavit of Mr Najm filed 22 February 2022
·Case Outline, filed on 17 February 2022 and marked as Exhibit GF 1, containing the Final Minute of Orders sought by the paternal grandfather.
The paternal grandfather filed and served but did not read:
·Affidavit of Mr N filed on 16 February 2022;
·Affidavit of Mr C, a NAATI qualified translator, filed on 11 December 2019.
The mother relied upon the following documents:
·Amended Application in a Case (which should be read as a Response to an Initiating Application), filed on 30 June 2019
·Notice of Risk, filed on 7 June 2019
·Affidavit of Ms Farhan filed 16 February 2022
·Affidavit of Ms Farhan filed 17 February 2022
·Affidavit of Mr D filed 18 February 2022
·Case Outline, filed on 18 February 2022 and marked as Exhibit M1, containing a final Minute of Orders sought by the mother.
The ICL relied on the following documents:
·A Case Outline, filed on 18 February 2022, and marked as Exhibit “ICL1”;
·A tender bundle filed 14 February 2022 and marked Exhibit “ICL2”.
The single parenting expert Dr P prepared an expert report for the purposes of the proceedings dated 29 July 2020. That document is Court Exhibit X1. Dr P attended upon the parties, the father and the children on 12 May 2020, approaching two years ago. He does not yet have the benefit of the evidence of the parties relied upon for the purposes of the trial or the documents now exhibited. The recommendations and conclusions of Dr P identified in his report are yet to be tested by the way of cross-examination of the expert. It is agreed that for the purposes of the further conduct of the hearing of the parenting trial Dr P will prepare an updated report.
The case of the paternal grandfather contended at the commencement of the trial differed to the case he submitted for the purposes of the interim parenting arrangements during the adjournment. It was his longstanding case that the mother presented an unacceptable risk to the children. Over the course of the trial, this case dissipated significantly. His initial case on a final basis was that the mother should spend two hours with the children each week. The time he sought for the mother on an interim basis during the adjournment was greater periods, being for two complete days each alternate weekend.
Agreed interim orders during the adjournment
The paternal grandfather, the mother and the ICL agreed to some of the orders regulating the parenting of the children during the adjournment of the final trial, being:
(a)That all prior orders as to the parenting of the children X born in 2010 and Y born in 2010 be discharged.
(b)That there be no order as to the allocation of parental responsibility.
(c)The children live with the paternal grandfather.
(d)In the event of any emergency of either of the children, they will communicate that circumstance to the other as soon as reasonably practical.
(e)That within 72 hours the date of any order each of the mother and the paternal grandfather are to exchange mobile telephone contact numbers and the mother is restrained from passing information as to that number onto any third party and the paternal grandfather be restrained from passing information as to the mother’s number to the father.
(f)That on not greater than two occasions during the period of the adjournment the ICL may give the mother written notice to undergo within 24 hours of such request a chain of custody urine analysis for the detection of illicit drugs, the mother to provide copies of such report results within 24 hours of receipt. The mother to meet all costs associated with the test, and in the event the mother does not produce the test results, or produces a positive result, her time with the children will be suspended until such time as a negative test is produced.
(g)The mother be restrained from doing any act of thing to cause the children to be brought into contact with her father Mr D and her brother Y.
(h)For the purposes of the mother’s time, the mother shall personally:
(i)collect the children from the Applicant Paternal Grandfather, “Paternal Grandfather” at McDonalds, Suburb L at the commencement of her time when time commences on a day when it is not a school day, or from their school on a day when time commences when it is a school day, and
(ii)deliver the children to the Paternal Grandfather at the conclusion of her time at Suburb L McDonalds.
(i)That on a without admissions basis, the Mother and Paternal Grandfather are restrained from:
(i)Discussing parenting arrangements or the current court proceedings with the children;
(ii)Denigrating the other party in the child’s presence or allowing either child to remain in the presence of a third party denigrating the other parent.
(a)That any time spent by the mother with the children be suspended on the middle weekend of each NSW public school holiday block period.
THE COMPETING PROPOSALS REGULATING PARENTING DURING THE ADJOURNMENT
The mother’s case
The mother seeks orders regulating the parenting of the children during the adjournment being:
(a)Commencing from the first weekend following the making of these Orders and expiring on a date three (3) months from the date of these Orders, the children to spend time with the mother from 9.00 am to 5.00 pm on Saturdays and from 9.00 am to 5.00 pm on Sundays on a weekly basis; and then
(b)Commencing as and from the first week following the expiration of the period set out in Order (a) above and continuing for a period of three (3) months, the mother to spend time with the children from after school on Monday to before school on Friday on a weekly basis.
(c)The children are not to be cared for by the respondent father and the said father is not to be present on those occasions when the children spend time with the paternal grandfather and the paternal grandfather is hereby restrained from allowing the children to spend time with the father;
(d)That the mother be permitted to take the children to the dentist.
The mother without concession would agree to each third weekend during the first three month period of time spent subsequent to the orders being on Sunday only (that is not on the Saturday of the third weekend). She would agree to the time-spent on the weekends commencing at 10.00 am, if it concluded at 6.00 pm, to accommodate the grandfather.
The paternal grandfather’s case
The paternal grandfather seeks orders regulating the parenting of the children during the adjournment being:
(a)The mother to spend time in week one from 10.00 am Saturday to 5.00 pm and 10.00 am Sunday to 5.00 pm, and in week two from after school on Friday until 7.00 pm.
(b)The paternal grandfather was agreeable to the order proposed by the ICL restraining the terms upon which the children may come into contact with the father, his son Mr B Najm.
The ICL’s Case
The ICL seeks orders regulating the parenting of the children during the adjournment as to time spent in the same terms as sought by the mother for the first three months from the date of any orders. As to the period thereafter until the trial resumes the ICL sought that the children spend time with the mother from the conclusion of school on Friday until before school on Monday, each weekend. The ICL did not wish to be heard as to a 10.00 am to 5.00 pm period to reflect the hours sought by the paternal grandfather on weekend days for the first three month period. The ICL sought an order that the paternal grandfather not do any act to thing to cause the children to come into contact with or be with the father, Mr B Najm, save and except when the paternal grandfather was present. The ICL sought a notation to be placed with the orders that the mother be at liberty to take the children to the dentist.
OUTLINE OF EACH CASE CONTENDED AT THE START OF THE TRIAL
It was the paternal grandfather’s case that the commencement of the trial that the children remained at risk in the mother’s care by way of:
(a)her history of drug and alcohol misuse coupled with a history of anti-social behaviour;
(b)she having historically little if any capacity to provide to the children with the basic necessities of housing and food; and
(c)she being unable to protect the children physically or emotionally; and
(d)that the mother was untested as a substantial carer of the children.
The paternal grandfather contended that the children would be at risk in the event that they spent time with the mother’s “immediate family”, in circumstances where he sought a positive finding as to significant and serious family violence being occasioned upon the mother by her father and other male members of her family, and a positive finding that she had been the subject of gravely serious sexual assaults upon her by her father, uncle and brother.
He squarely put into issue the mother’s alleged abstinence from illicit drugs since December 2017.
The paternal grandfather contended by way of his outline document that the mother “does not have the necessary insight as regards to the children’s needs”, that the mother is likely to alienate the children from the paternal grandfather and the father should the children live with her, the mother would prefer her own emotional and physical needs to those of the children should they live with her. He contended that the children will be “immersed in an environment in which criminality and dishonesty, intimidation and violence is normalised” and that it was likely that the “sexualised and unstable behaviour that they (the children) commenced to exhibit when they started to spend time with her in 2018 will recommence and will become entrenched”.
It was the paternal grandfather’s case that the children have “clearly bonded with him” and they are developing normally and satisfactorily in his care. It would be very dangerous for them to commence living with the mother”.
On a final basis, the paternal grandfather prosecuted relief in the following broad terms:
·That the paternal grandfather have sole parental responsibility for the children and they live with him
·That the mother spend time with the children
·In week 1 of 2, from 10:00 am until 12:00 pm Sunday, from the first Sunday after these orders are made and fortnightly thereafter; and
·In week 1 of 2, from Friday 3.00 pm until 5.00 pm, from the first Friday after these orders are made and fortnightly thereafter.
·Telephone communication on the mother’s birthday and Mother’s day.
·The Mother is permitted to send gifts and letters to the children via a postal address provided to the Mother by the Paternal Grandfather on each of the children's birthdays and at religious events time.
·That the mother be restrained and injuncted from:
·approaching the Paternal Grandfather,
·entering upon or approaching within 10 metres of the place of residence of the Paternal Grandfather and the children, and
·entering upon or approaching within 10 metres of any school or educational institution attended by those children or any of them.
·The Mother is restrained from permitting the children from coming into contact with members of the Mother’s immediate and extended family during her time with the children.
The mother conceded in her evidence that during the period from at least June 2014 until her incarceration, her parenting capacity was well below sub-optimal, that the children had been exposed to extensive family violence occasioned on her by the father, that she and the father had neglected the children including permitting them to live in unhygienic conditions and on occasions without adequate food, and that the focus of she and the father was directed towards their drug dependencies.
She said in her affidavit “I admit I have made mistakes; however I believe I have turned my life around”. She contended that her circumstances had significantly changed from being a goaled ICE addict to a drug-free, rehabilitated person who was living independently and working full-time. She gave evidence as to achieving a number of milestones in her addiction recovery process and undertaking courses to facilitate her parenting.
It was the mother’s case that one of the primary considerations within the Act for the children to have the benefit of a meaningful relationship with her could be progressed by way of increasing graduated time, progressing to the children living with her and spending time with the paternal grandfather. She contended that her conduct subsequent to her release from gaol evidenced any amelioration of risk to the children in her care. She said that the serious and extensive family violence occasioned to her by the father and his continued movements within a drug environment posed an unacceptable risk to the children should they be exposed to the father.
On a final basis, the mother prosecuted relief in the following broad terms:
·That mother and paternal grandfather have joint parental responsibility for the children for six months after the making of the orders.
·The mother to spend time with the children between 9am to 5pm Saturday and 9am to 5pm on Sundays on a weekly basis for three months, then from 3pm Friday to 5pm Sunday of a weekly basis for a further three months.
·Following the expiration of six months the children live with the mother, the mother have sole parental responsibility for the children.
·The paternal grandfather shall spend time with the children each alternate weekend from 9am Saturday to 5pm Sunday.
·The children are not to be cared for by the second Respondent father and the second Respondent is not to be present on the occasions when the children spend time with the paternal grandfather and the paternal grandfather is injuncted from allowing the children to spend time with the respondent father.
·The children are to be placed on the airport watch list and the paternal grandfather and respondent father are restrained from proceeding to obtain and Australian passport or a Country S passport.
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 basis
The 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.
The paternal grandfather, upon the recommendations of Dr P being read to him in his cross-examination, made it unequivocally clear that he would not accept the recommendations.
A central tenant of the grandfather’s case as to risk was the contended sexual assaults he said the maternal family committed against the mother. His affidavit records that in about 2013, the mother disclosed to him that:
18. [The mother]:“When I was thirteen years my father forced me to take of my clothes. He tied me with a rope and had sex with me. Because of that I see ghosts. They follow me. I am complicated because of the way my father treated me. Would you read the holy book to me so that I can rid of these ghosts?”

He said that in April 2014, a friend of his family told him that the mother had also disclosed to her that she had been assaulted by her father as a child. He deposed to requesting that the friend call the mother in his presence, and prompt her to retell the story of being assaulted by her father. He said that the friend did so, and that he recorded the conversation in secret. That recording and the translated transcript of the audio was the subject of evidentiary dispute at the outset of the hearing, and was struck out. The paternal grandfather gave his own recollection of overhearing the conversation between the friend and the mother, and particulars of that conversation, at paragraph 22 of his affidavit.
In cross-examination, the paternal grandfather was asked to recount the first thing the mother said in the course of the recorded telephone conversation with the friend. The paternal grandfather said, “I can’t remember everything, unless I would check the tape”. He said that he could not remember the “specific words” that the mother said during the conversation but that he could remember “everything in general”. The conversation recorded in paragraph 22 of his affidavit is very specific and detailed. He then said that he had not used the recording of the conversation to refresh his memory of what was said in the process of constructing his affidavit.
The mother deposed that she could not recall what was said in the alleged conversation. The evidence on this subject matter remains incomplete.
It was put to the paternal grandfather that he did not know whether the allegations contended to have been made by the mother in 2013 and 2014 were true. His response was that those allegations “are 90 per cent true, because [the mother’s father] has a very bad reputation”. He later said that he was “90 or 95 per cent” certain that the allegations were true. Notwithstanding his certainty, the grandfather conceded that he had not done anything to act upon the allegations when he first learnt of them in 2013 or 2014. He had not reported the allegations to the police, or at that time, taken any steps to prevent the children from coming into contact with their maternal family.
As to the second incident of concern raised by the paternal grandfather, he said in his affidavit that this allegedly took place in about 2016, at a time when the children were living predominantly with him but spending sporadic time with their parents. In his affidavit, the paternal grandfather gave evidence of a conversation he had with the father:
Mr B Najm:“Today [the mother] took Y to the bathroom in our house. She opened her legs and showed Y her private parts. She was taking a photograph of her vagina while Y was with her.”
The paternal grandfather said that following the father’s disclosure he spoke to the children alone, and that Y told him, “my mum took me to the bathroom and she took a photo of her vagina and I saw everything. I ran out the bathroom laughing at what she did”. At the time of the alleged incident in 2016, X was about six years old and Y about five years old.
In his cross-examination, the paternal grandfather’s account of these events faltered. After having denied that his position was that there was a connection between the children exhibiting sexualised behaviour and spending time with the mother, the grandfather said unprompted:
[THE PATERNAL GRANDFATHER]:   Yes. One day, when Y was little baby, Ms Farhan took her son to the bathroom and she took her undies and open her legs in front of Y. And she – she took picture of her vagina. And still, Y, from time-to-time, tell X about it….
HIS HONOUR:   Now, how old was Y?
[THE PATERNAL GRANDFATHER]:   Y was very, very young. About two
HIS HONOUR:   Two.
[THE PATERNAL GRANDFATHER]:       …or three years.
HIS HONOUR:   Two years old.
[THE PATERNAL GRANDFATHER]:   Two or three years old.
HIS HONOUR:   All right.
[THE PATERNAL GRANDFATHER]:   Yes.
HIS HONOUR:   And Y, as the two year old, is the person who told everyone about this. Is that right?
[THE PATERNAL GRANDFATHER]:   …Like, he told X and I see them laughing. I didn’t know why they’re laughing.
HIS HONOUR:   And how old was X when this laughing happened?
[THE PATERNAL GRANDFATHER]:   …Like, X is one year older than Y.
HIS HONOUR:   Well he’s 11 months older, isn’t he?
[THE PATERNAL GRANDFATHER]:   Yes, 11 months.
HIS HONOUR:   So this is a conversation between a two year old at best and a three year old.
[THE PATERNAL GRANDFATHER]:   Yes.
In re-examination the paternal grandfather recanted his evidence, stating that his earlier oral evidence was a “mistake” and that at the time, X was in “preschool or in kindergarten”. Notwithstanding the paternal grandfather’s attempts to clarify his oral evidence, he was clearly confused. He told the Court unequivocally that Y was two or three years old at the time of the incident. It was only after his cross-examination had concluded that he sought to amend his answers given.
The mother denies the event.
There is no evidence that the paternal grandfather acted protectively to ensure the children were not left in the mother’s care following the incident, nor evidence that he raised this issue with her or any other person or institution. There is no corroborative evidence of the alleged incident.
The paternal grandfather obtained tertiary qualifications in engineering in the USA. He presents with very traditional views. He highly values the education of the children.
His view of the role of the mother of children in the household is to serve, clean and shower the children. He is dismissive of the role of the mother in the education of the children having regard to his view as to the mother’s low level of secondary education. My impression was that these views are a product of his own upbringing.
The paternal grandfather’s attitude towards the mother is shaped in part by what can be described as a long-running feud between him and the maternal grandfather. He made no attempt to mask his dislike of the maternal grandfather, describing him in cross-examination as a “very bad person” with a “very bad reputation”. That dispute has disseminated to other members of each family. When coupled with the paternal grandfather’s experience of the mother’s failure to prioritise the children and her neglect in the parenting of the children prior to her imprisonment, it is clear that his current attitude towards the mother as the children’s parent is both dismissive and grossly unfavourable. Dr P opined that “[the grandfather’s] traditional views around gender roles means that he is further entrenched in his views that [the mother] is solely at fault, which is now being modelled through the children's account of events and views.”
Dr P recorded that the paternal grandfather presented as “emotional, on occasion quite histrionic during his interview, exhibiting anxiousness, panic symptoms, teary eyes as well as anger and frustration…”. The paternal grandfather exhibited a similar presentation during his oral evidence. In cross-examination by the ICL he became highly emotionally charged, standing up out of his seat in the witness box and raising his voice to emphatically yell his answers. After settling back into his chair he said he was not aware that he had stood up and yelled.
Dr P recorded that at times during his interview with the paternal grandfather, he would “disregard his line of questioning, instead preferring to return to the topic of Ms Farhan’s flaws and his issues with the maternal family”. To my observation the same could be said of the paternal grandfather during his oral evidence.
Dr P opined that the paternal grandfather had demonstrated a concerning rigidity in his thinking and that he minimised his son’s history of drug use and criminal activity. These observations of the expert were consistent with the paternal grandfather’s oral evidence. In his oral evidence the paternal grandfather insisted that he was unaware of his son’s criminal history and whether he currently used drugs. He agreed that he had not, and would not, allow the children to remain alone with the father, not because his son’s violence or drug use, but because the father would “not listen to me”.
The paternal grandfather cares for the children on a full-time basis. He receives income by way of a Centrelink pension, supplemented by financial support from his adult children.
The paternal grandfather has encountered and met significant challenges presented by the boys to date. An objective reading of their school reports from 2018 to 2020 record some historic significant absences that were subsequently rectified. They record each child’s academic performance and social behaviour improving. Consistent with his experience and his value of education, the paternal grandfather has been vigilant in ensuring the children complete their homework. He controls the time they spend on electronic devices. He ensures that the children engage in their faith. He has enrolled the children in boxing and has taken them away on holidays to other parts of New South Wales.
I accept and find that the paternal grandfather has a profound respect for the law and the authority of this Court together with any orders that it makes.
The Mother’s Oral Evidence
The mother’s oral evidence was incomplete by the conclusion of the final day allocated for trial. Counsel for the paternal grandfather and for the ICL primarily directed their cross-examination of the mother towards issues relevant to the interim determination only. I am mindful of parts of her evidence remaining untested at this time.
Since being released from gaol the mother has undergone an extensive drug testing regime. The mother has undertaken 18 urinalysis tests in the period from July 2019 to 31 January 2022. Each test recorded negative results for all screened drugs. Each result had been disclosed to the paternal grandfather via his solicitors and the ICL.
The mother gave oral evidence of having completed various parenting courses since her release from gaol, including ‘Triple P Parenting’ while she was in rehabilitation, ‘Tuning in to Kids’ in November 2018, ‘Parents and Family Anger Management’ in November and December 2018, ‘Turning to Teens’ after receiving the Family Report from Dr P in July 2020, and ‘Circle of Security’ in early 2021. She was cross-examined on this subject matter. Her oral evidence was impressive. She was able to recall details of the courses and explain the things that she had learnt from her engagement with the courses. For example, as to the ‘Turning to Teens’ course, she said in cross-examination that she had learnt about “having a structure for teens and allowing them to have a voice, but putting feeling behind it and getting them to understand what their emotion is and what they feel”. She described the courses as a “professional outlet” that assisted her to navigate her apology to the children for the impact of her historical drug use. I accept the mother’s evidence on this topic. It was not materially disputed by the paternal grandfather in the course of the hearing or in his affidavit evidence.
The mother said she had engaged a senior clinical psychologist at the recommendation of

Dr P. She said she saw the psychologist for the first time in February 2021 and had a number of sessions with that psychologist. She no longer attends upon that therapist regularly.
THE LAW
The relevant principles in relation to parenting and interim proceedings are set out in

Goode & Goode
(2007) 26 Fam LR 422 (“Goode”). The High Court in MRR v GR (2010) 240 CLR 461 (“MRR v DR”) affirmed those principles.
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. That process is modified in the circumstances of the application of s69ZR of the Act in that findings of fact can be made for the purposes of this determination in so far as it is safe and appropriate to do so.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting. Pursuant to s 65D(1), subject to certain sections, a court may make such parenting order as it thinks proper. Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”.
The matters which the Court must consider in determining what is in the child’s best interests are set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
(b)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(c)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful relationship
Section 60CC(2)(a) refers to the benefit of the meaningful relationship with both the child’s parents. It has been clearly established that a reference to “parents” in s 60CC(2)(a) is a reference to the parents of a child and to treat a person other than a parent as if they were for the purposes of the section is an error (see Burton & Curchin [2013] FLC 93-561). Conversely, s 60CC(2)(b) refers to the need to protect the children from physical or psychological harm in an unlimited way.
The mother and paternal grandfather are the two persons who are seeking orders in relation to the children. The legislation directs that a primary consideration is the benefit of the children having a meaningful relationship with their mother, and directs that relationship is elevated above the relationship between the paternal grandfather and the children. That is not the end of the matter. The nature of the children’s relationship with the paternal grandfather is specifically identified for consideration by way of s 60CC(3)(b).
Under the mother’s proposal, a meaningful relationship between her and the children will be able to progress. Under the grandfather’s proposal, it will progress but it will be restricted. His proposal will allow at least some informal ad hoc contact and relationship between the father and the children. Whether that relationship is meaningful or not is yet to be determined. The mother’s proposal will not permit any relationship between the father and the children.
Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The relevant question is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either of the parents or paternal grandfather.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
In this matter each of the mother and paternal grandfather allege risk is a relevant consideration in the construction of any parenting orders to be made for the period of the adjournment.
On the mother’s part, she identifies a risk posed by the paternal grandfather allowing the children to spend any time, even if it is supervised, with their father. She says that risk arises from the father’s significant family violence perpetrated against her throughout the course of the relationship, the children’s exposure to such violence, and from an allegation that the father has taken no steps to rehabilitate himself after having been released from gaol. The mother contends an ongoing risk of physical or psychological harm towards the children should they come into contact with the father.
The father in his affidavit is silent as to the allegations of he being violent towards the mother and as to his continued drug use. He deposes to having spent no time with the children alone since having been released from gaol.
The grandfather’s evidence in cross-examination was that he was unaware as to any violence between the mother and father during their relationship, although he said he was aware that the mother had obtained an Apprehended Violence Order protecting herself against the father. He maintained an ignorance to the father’s alleged continuing drug use. Notwithstanding that, the grandfather forcefully deposed that he would not let the children see their father alone.
I am mindful that each of the mother and the father are yet to be cross-examined on these matters. I am also mindful that serious allegations of family violence cannot be disregarded just because the evidence is controversial and factual findings cannot be made at this time. The Court must remain alive to controversies, the ultimate resolution of which may have a significant bearing upon the orders which meet the children’s best interests (see Salah & Salah(2016) FLC 93-713 at [33]-[45]; Eaby & Speelman (2015) FLC 93-654 at [18]-[19]).
I attach weight to the alleged circumstances of family violence and its impact on the children, the father’s history of drug use and neglect, the absence of reliable evidence as to his rehabilitation from that history and his failure to participate in the fabric of the children’s lives after his release from gaol. This gives rise to an obligation to act cautiously. At this stage there is an absence of evidence as to the father’s present drug use. I am satisfied that this, coupled with the grandfather’s strong evidence that he would not leave the children alone with the father, provides further foundation for the mother’s allegation that the father presents a risk to the children. In my view, an order restraining the grandfather from allowing the children to come into contact with the father, without him being present, as sought by the ICL and as has occurred historically, shall safeguard them from that contended risk.
As identified earlier in these reasons, on the paternal grandfather’s case the risk posed by the mother in spending further time with the children was identified as being her history of drug use, her untested capacity to care for the children as teenagers, and the impacts of her bringing the children into contact with the maternal family. Over the course of the trial the grandfather’s allegations of risk diminished.
Firstly, I am satisfied that on the evidence before me that the mother’s historical drug use does not present a current risk to the children. The mother has undertaken regular drug testing for some years now and will continue to do so. She has established a scaffold of professional supports to navigate her ongoing drug rehabilitation, which I am satisfied she is committed to maintaining. Over the course of a long period of litigation, now for more than four years, the mother has maintained a steady course of rehabilitation and she has also progressed with her life. That has occurred even though the grandfather has refused to shift from his position as to restrictive time spent. In cross-examination the mother’s evidence on the topic of her determination to rebuild her life for she and the children and her underlying resolve was strengthened rather than challenged.
The paternal grandfather implicitly no longer contends that there is an unacceptable risk to the children of being in the mother’s care for extended periods during the day by reference to the time spent regimes that he prosecutes during the period of the adjournment. It is not alleged that she will present a risk to them during those periods. In submissions he did not identify any physical risk to the children if they spent time with the mother overnight.
The second category of risk said to be posed by the mother is her inexperience in parenting the children at their age, and given their unique challenges. I do not accept that contention. The mother has parented the children effectively at all opportunities afforded to her. Dr P observed, and it is clear from the contact records produced under subpoena to R Contact Centre, that the mother was well-prepared for each period of supervised time she spent with the children. She brought meals for the children and appropriate games for them to play. She was adept in dealing with their challenging behaviour, including by responding to their critical comments towards her.

The mother has imposed appropriate boundary testing and has used the knowledge and skills in parenting courses she has undertaken to manage the children’s behaviour. In her cross-examination the mother accepted that since her unsupervised time with the children commenced there have been occasions where X has challenged her and said rude things to her. She answered appropriately when asked how she deals with his behaviour, by saying:
In that situation, I – I would give X options and I would say look, you can either – you can either just take a minute to think about what you said and how that would impact me and other people, if you were to say it to other people, or you can – we can discuss it together and I would tell him if – how it makes me feel and how it would make other people feel if he was to 30 say it. And I would give him that option of either thinking about it and coming back to me or use having to work through it together.
No implication was promoted on behalf of the paternal grandfather that the mother’s response was anything less than appropriate. She acknowledged broadly that there are likely to be further challenges to the children transitioning into her care, but said that she was equipped to deal with them. The mother was pressed on her capacity by counsel for the grandfather but her cross-examination on this topic revealed her to be thoughtful, child-focussed and prepared.
The paternal grandfather, by way of his interim relief sought, implicitly accepts the mother’s evidence as to having some capacity to address the challenging behaviour of the boys that he too he has also experienced.
In Deiter & Deiter [2011] FamCAFC 82, the Full Court also said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. The period of the adjournment here is some seven months. It will allow time for the parties to obtain an updated report from Dr P, and for the children to have the benefit of spending more significant time with their mother before any further assessment by Dr P.
The Court’s enquiry on this interim basis should primarily be “prospective”, that is, considering the prospect of the child having a meaningful relationship with the parent in the future. However, at the same time, the Full Court in McCall & Clark (2009) 41 Fam LR 483 recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future.
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
(b)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(c)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(4)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular sis.
(5)Avoiding further proceedings:
(a)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(6)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
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.
I am mindful that Dr P is yet to be cross-examined and am cautious as to the weight I place on his opinion for the purpose of this interim determination.
I accept Dr P’s opinion that at the present time the children have a strong positive bond with their paternal grandfather and view him as a significant care giver. This was not disputed at trial. I accept the mother’s evidence that the children have a valuable relationship with their grandfather that ought to continue.
As to the mother’s relationship with the children, I accept that it is in the process of being re-established but that it is nonetheless a positive one. The contact records produced by R Contact Centre depict the children demonstrating affection to their mother and being excited to see her, despite their behaviour towards her being challenging at times. The mother’s evidence as to the unsupervised time spent with her children subsequent to the December 2019 orders was not dissimilar to those observations. She said in her affidavit that while the children are in her care “there are constant hugs and kisses” and that they “openly display affection towards [her], and [she] likewise displays affection towards [the] children”. Notwithstanding that evidence, the mother acknowledged that the children continue to behave poorly towards her at times. That is understandable in the circumstances.
Dr P in his report recorded that when the children are with their mother X was more reserved in interacting with her than Y. Both children were tactile with their mother with Y being warm, expressive and animated in his interactions with his mother engaging with many hugs and cuddles with Y repeatedly seeking physical proximity to his mother.
Dr P opined that having regard to the traditional cultural views on gender expectation as held by the paternal grandfather, “the boys would benefit from a strong female role model and mother figure in their lives to better counter balance these views”.
He further opined:
140.Moreover, prolonged removal of a maternal attachment figure is not considered to be at all positive for the children's emotional development or their psychological wellbeing. To her credit, Ms Farhan demonstrated appropriate boundary-setting behaviours during her visits at the contact centre, has completed parenting courses and expressed her intention to complete further courses to suit the children's developmental needs. She has also shown an ability to regulate her distress at the boys' at times rude and disrespectful behaviour during their visits, and is able to prioritise their needs over her own discomfort and unease. In this way, increasing time with their mother would have more limits set on bad behaviour as she would be a positive influence in their lives.
144.On the basis of the current review, it is this clinician's view that at this time, Ms Farhan is able to adequately prioritise and meet the children's needs. It is a recommendation from this assessment, that the Court could favourably consider a substantive increase in her time with the children in an incrementally stepped manner. Should Ms Farhan demonstrate continued engagement in therapeutic intervention, negative urinalysis, maintain appropriate accommodation separate from her family, and stable employment, then contact could gradually progress to full Saturdays and Sundays, then overnight visits and then a shared care arrangement alternating between Mr Najm and Ms Farhan, with the potential to then becoming a majority/minority care arrangement to Ms Farhan, ultimately with alternate weekend care to Mr Najm which would be more in keeping with his role as the children's grandfather. The Court also needs to remain mindful of Mr Najm's age and state of health, and coupled with the children's young ages, provision for enhancing their relationships with their mother must be weighted accordingly.
On the evidence to date, I accept Dr P’s opinion at this stage, subject to further evidence on this matter. It will be subject to scrutiny and possible revision upon the release of Dr P’s supplementary report and his cross-examination at the continuation of the trial event. The evidence before me suggests that the mother has done everything in her power to take on board Dr P’s recommendations in her report and place herself in a position to engage in a gradual increase of her time with the children. She has maintained therapeutic intervention, negative urinalysis testing, has obtained appropriate accommodation separate for her family and capable of homing the children, and has continued with her path of employment.
I also accept, however, that it would not be in the best interests of the children to suddenly change their care arrangements away from the grandfather, who is an important person in their lives and has been central to their care for many years now. An appropriate balance ought be struck to allow the children to spend more meaningful time with their mother, without destabilising their routine and relationship with their grandfather.
Dr P opined and I accept on both parties’ evidence that the children’s experience in living with their parents was a home environment of substance abuse that was chaotic, disorganised and distressing.
Dr P expressed concern that the negative way in which the paternal grandfather described the mother and his views that “she is the mother” as echoed by him in cross-examination such that the mother was mostly to blame for the events leading to the children being removed from their parents care, coupled with the boys “near mirror image narratives” led him to conclude that the paternal grandfather is transmitting negative views to his grandchildren and has overtly encouraged the children from reconnecting with their mother.
Increasing meaningful time for children with their mother will enable them to experience a parent who loves and cares for them dearly. My impression was that the children are not materially aware that their mother has demonstrated substantive gains since her release from gaol for both their own and her benefit. I find that it is in their best interests to experience with their mother in a natural home environment supported by the maternal family.
During her cross-examination the mother impressed with a clear understanding as to the structure and content of the parenting courses she has undertaken and how she has applied what she has learnt in regulating the conduct of the boys during the limited time she has spent with them to date and how she would propose to regulate any challenging behaviour of the boys in the future.
I find that the mother has over the course of the litigation exhibited a significant child focus in her behaviour. Notwithstanding the limited time she has spent with the children since mid-2018, she has not “buckled under the pressure”.
The paternal grandfather says that the children need not speak to the mother by telephone because they are unwilling to share their telephone number with their mother. It is his belief that it is best “left in their hands”. He says that the children speak to their father by telephone once per week and visit their father in his presence.
There is no communication or meaningful exchange between the mother and the paternal grandfather. During the course of her oral evidence the mother presented as being receptive as to communicating with the paternal grandfather by telephone or in person. The paternal grandfather during the course of cross-examination made it clear that he saw no benefit in communicating with the mother in the future. I accept Dr P’s opinion that the prospect of the paternal grandfather accepting any clinical input to improving to assisting him to improving his communication style with the mother “remains guarded”.
Parental Responsibility
Section 61DA of the Act requires the Court, when making any parenting order in respect to a child, to apply a presumption that is in the best interest of a child for the child’s parents to have equal shared parental responsibility for the child. Where the presumption applies, it conditions the Court’s power to make parenting orders (MRR v GR at [20]). If the presumption is applied, the order for equal shared parental responsibility should be made for all aspects of parental responsibility.
The presumption applies unless there are reasonable grounds for the Court to believe that the child concerned has been subjected to abuse of family violence (s 61DA(2) of the Act) or it may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility (s 61DA(4) of the Act). When making an interim order (as is the case here), the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order (s 61DA(3) of the Act).
The proposals of the paternal grandfather, the mother and the ICL clearly raised issues about the application of the presumption. They each submitted and I find that the presumption does not apply having a regard to the evidence of abuse, neglect and family violence and is rebutted by the evidence such that I am satisfied that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.
I further find that in making these interim orders it is not appropriate for the presumption to apply in circumstances where:
(a)Each of the mother, the paternal grandfather and the ICL specified that no such order is sought; and
(b)No direct communication has occurred between the mother and paternal grandfather or between the mother and the father for many years;
(c)The father not being materially engaged in the children’s lives since he was gaoled;
(d)The paternal grandfather was absolute in his evidence that he and the mother have not communicated and are not able to communicate;
(e)It is not proposed that the children’s schools or names be changed during the course of the adjournment;
(f)It is not proposed that their places of proposed residence would vary from either the paternal grandfather or the mother’s homes; and
(g)There is no evidence that the paternal grandfather has historically encountered any difficulties in the past years in accessing any health providers or schools for the children.
I am satisfied that no order as to parental responsibility ought to be made at this interim stage.

As to the agreed discharge of orders made on 19 June 2014 and 25 October 2017, the legal position by way of s 61C of the Act for each parent to have parental responsibility is no longer displaced by a parenting order made by the Court. There is no evidence that this will prejudice the children in circumstances where:
(a)The father has failed to engage in their parenting since his at least his incarceration and subsequent to his release at any time during the proceedings; and
(b)Having regard to my findings as to the current capacities and attitude of the mother
As identified earlier in these reasons there is a complete absence of communication between the paternal grandfather and the mother. Any order made for any degree of shared parental responsibility between them, including an equal sharing of parental responsibility, would engage the provisions of s 65DAC of the Act. This would mean where there was an exercise of parental responsibility involving a decision about the major long term issues in relation to the children, the holders of that shared parental responsibility would be required to make a decision jointly and would be obliged by way of the section to make a genuine effort or attempt to consult. On the evidence the likelihood of that as between the paternal grandfather and the mother at this stage is remote.
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.
I accept the submission of the paternal grandfather that a 10.00 am start to time spent on weekend day time spent will permit him and the boys to sleep in after a school week. I accept that it is important for the boys to experience weekend and some holiday time with both the paternal grandfather and the extended paternal family. Provision will be made in any orders to ensure that the boys continue to have some opportunities to spend time with their paternal engagements and their social activities.
There is no evidence that the paternal grandfather has not at all times acted protectively for the children including at times when the children have come into contact with their father. There is no evidence that the paternal grandfather would not act protectively for the children in the future.
The injunctive orders sought by the mother as to a blanket prevention of contact with the father may be misinterpreted by the children. The children should not have a foundation to come to the conclusion that there is any reason for them to blame their mother for not being able to see their father.
The overall import of the oral evidence was that it was in the children’s best interests for the mother to be able to engage with the school directly and to provide such assistance as she is able in the children’s education. Orders will be made as not opposed by the paternal grandfather to facilitate the mother’s capacity to take the children to the dentist as necessary while they are in her care pursuant to these orders and will also facilitate her engagement and attendance at the children’s respective schools.
Having regard to all of the foregoing best interests considerations for the reasons explained, I am satisfied that the orders at the forefront of these reasons are in the best interests of the children.

I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 11 March 2022

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

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