Najm & Najm (No 3)

Case [2022] FedCFamC1F 740

Federal Circuit and Family Court of AustraLIA

(DIVISION 1)

Najm & Najm (No 3) [2022] FedCFamC1F 740

File number(s): SYC 6820 of 2017
Judgment of: CAMPTON J
Date of judgment: 28 September 2022 
Catchwords: FAMILY LAW – CHILDREN – Where the mother and father were convicted of criminal offences relating to the consumption and distribution of a prohibited substance and subsequently gaoled – Where the children reside with the paternal grandfather – Where the paternal grandfather seeks sole parental responsibility for the children – Where the mother proposes graduating time until the children are returned to her care and that she have sole parental responsibility for the children – Father does not apply for parenting orders but supports the paternal grandfather’s application –Where the mother had a history of drug abuse but is now rehabilitated – Where the children have demonstrated challenging behaviour and are struggling at school – Where the mother is adept in responding to the children’s needs and has the capacity to address their behavioural and academic challenges – Where the paternal grandfather and the mother have no capacity to communicate with one another – Where the mother has spent regular and increasing time with the children for the past two years – Orders for the children to live with the mother and to spend time with the paternal grandfather following a period of suspension in that time.  
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 61DA, 65D, 65DAA
Cases cited:

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

B & B (1993) FLC 92-357; [2014] FamCAFC

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34

Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15

G & C [2006] FamCA 994

Hall & Hall (2016) FLC 93-709; [2016] HCA 23

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Najm & Najm [2022] FedCFamC1F 87

Najm & Najm (No 2) [2022] FedCFamC1F 122
Division: Division 1 First Instance
Number of paragraphs: 293
Date of hearing: 21 – 24 February; 12 – 16 September 2022
Place: Sydney
Counsel for the Applicant: Mr Wong
Solicitor for the Applicant: East Sydney Law Pty Ltd
The Respondent: Litigant in person (did not participate)
Counsel for the Respondent: Mr Eardley
Solicitor for the Second Respondent: Emanuel Refenes Solicitor
Counsel for the Independent Children's Lawyer: Ms McConaghy
Solicitor for the Independent Children's Lawyer: Ark Law Lawyers

ORDERS

SYC 6820 of 2017

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

MR NAJM

Applicant
AND:

MR B NAJM

First Respondent

MS FARHAN

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

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AGLC
Najm & Najm (No 3) [2022] FedCFamC1F 740
Case
[2022] FedCFamC1F 740
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Najm & Najm (No 3) involved a dispute between the mother and the paternal grandfather over the care of the children. The court was tasked with determining the best interests of the children and making appropriate parenting orders. The key legal issues the court had to decide included the appropriate living arrangements for the children, the allocation of parental responsibility, and the extent of contact the children should have with their father and the mother’s brother.

The court considered various factors, including the paternal grandfather’s health, the mother’s employment and income, and the children’s previous living conditions. The court found that the mother should have sole parental responsibility for the children, who should live with her. The paternal grandfather’s visitation rights were suspended for three months and then gradually increased. The court also made orders to mitigate the children’s exposure to risk by restricting their contact with the father and the mother’s brother without supervision. The court reasoned that this arrangement would promote the children’s well-being and avoid further conflict between the parties.

The final orders included provisions for the children to live with their mother, with specific arrangements for the paternal grandfather’s visitation rights to increase over time. The court also issued injunctive orders to protect the children from potential harm by limiting their unsupervised contact with the father and the mother’s brother. These orders aimed to ensure the children’s safety and support their adjustment to living with their mother, while still allowing for some interaction with their paternal grandfather.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There were some items that were agreed upon by the mother and paternal grandfather by the conclusion of the trial, including that:(a)All previous parenting orders as to the children should be discharged; (b)That whichever party the children live with or primarily live with should have sole parental responsibility for them; and(c)That each of the mother and the paternal grandfather should be restrained from allowing the children to come into contact with the father save and except if the paternal grandfather is present. Background The paternal grandfather was born in 1943 and is aged 78. He obtained tertiary qualifications in the USA. He retired from employment prior to the children coming into his care. The paternal grandfather said he is good health save for experiencing high blood pressure. He receives income by way of a Centrelink pension, supplemented by financial support from his adult children. The mother left high school in Year 10 and commenced working in a business owned by her parents. That she did not complete secondary school was a source of significant complaint by the paternal grandfather. The mother now works in a permanent, full-time position for “EE Program” which she said is a therapeutic program assisting women who have previously experienced drug and alcohol dependence. Her hours are from 8.00 am to 4.00 pm on Monday to Friday and her work is based in Suburb FF. She gave evidence of having some flexibility with her work-arrangements in terms of the leave she is able to take. She earns an income from that employment of between $1,650 net and $2,000 net per week (being in the range of $86,000 and $105,000 annually). Reports to the Department of Family and Community Services 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 late 2015. 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. Evidence of some of those reports were included in ICL-3, being the Independent Children’s Lawyer’s tender bundle. The initial report made to the Department in October 2015, potentially from a staff member at the children’s school, records:[Y] (4) regularly presents to pre-school smelling strongly of cigarette smoke and urine. His hair is very long and matted. [Y] rarely has a bag or change of clothes. Staff have provided changes of clothes fur him previously,Excessive discipline was also considered as [Y] presented to school this morning with red marks An assessment completed by the Department in February 2016, which followed a meeting between the assessor and the children’s teacher, recorded that in early 2016, X reported he and Y had been living out of an office space with the father. That housing was deemed “physically unsafe” and unhygienic.

Evidence

Evidence Before The Court

For the reasons that follow, orders will be made so that the mother will have sole parental responsibility for the children and for the children to live with the mother. The children’s time with the paternal grandfather shall be suspended for a period of three months. Thereafter, the children’s time with the paternal grandfather will increase gradually, such that by Term 3, 2022, they will spend each alternate weekends and substantial time during the school holidays with him. Other orders will be made of an injunctive nature, mitigating the exposure of the children to risk by coming into contact with the father and the mother’s brother without the mother or the paternal grandfather being present. Evidence The paternal grandfather relied on the following material for the purpose of the trial: ·Initiating Application filed on 17 October 2017;·Notice of Risk filed 17 October 2017;·His affidavit filed 16 April 2021;·His affidavit filed 23 December 2021;·His affidavit filed 22 February 2022;·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;·His affidavit sworn and filed on 2 September 2022; ·His affidavit sworn and filed on 9 September 2022; ·A proposed Minute of Order dated 12 September 2022, marked Exhibit GF3. In addition to the above, the paternal grandfather filed and served by did not read an affidavit on Mr N filed on 16 February 2021. It was not controversial that Mr N was a private investigator engaged by the paternal grandfather’s solicitors to conduct surveillance on the mother, and that his affidavit, although not read, exhibited his surveillance reports. The letter of instruction sent by the solicitors on behalf of the paternal grandfather became Exhibit ICL6. The paternal grandfather initially sought to rely on the sworn and served affidavit of Mr C, a NAATI qualified translator, filed on 11 December 2019. Mr C’s affidavit annexed a report translating a conversation that was alleged to have occurred between the paternal grandfather and the mother over the telephone in 2014. That report was objected to and struck out for the ex tempore reasons delivered on the first day of trial. These reasons for judgment assume familiarity with that judgment as published, being Najm & Najm [2022] FedCFamC1F 87. After this determination, the paternal grandfather no longer sought to rely on Mr C. Mr M was not required by counsel for the mother or the Independent Children’s Lawyer for cross-examination. The mother relied on the following material for the purpose of the trial:·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·Her affidavit filed 16 February 2022·Her affidavit filed 17 February 2022·Affidavit of Mr D filed 18 February 2022·Her affidavit sworn and filed on 6 September 2022·A Minute of Order dated 15 September 2022 and marked Exhibit M15.

Decision

Reasons for decision

Having regard to the paternal grandfather’s attitude to the mother, and the inherent unlikelihood of meaningful communication between them, I will not order an exchange of information between them as to long-term issues. It will be a future source of friction and disquiet. It is in the interests of the children to ensure the paternal grandfather is aware of their progress at school. Orders will be made to facilitate that process. Conclusion For all these reasons, it is in the children’s best interest for the children to live with their mother. I accept that it is in their best interests for that transition to be supported in the manner opined by Dr P. On balance, a period of 10 weeks, being the entirety of Term 4 2022 will ensure that the children can “bed into” the mother’s household, absent inter-family hostility and unfettered by interference. This time period will ensure that the children have time to adjust, avoiding loyalty conflicts. All the parties agree that holiday time interaction is different from that during the school term. To my mind an adjustment to the regime proposed by the Independent Children’s Lawyer is in the best interests of the children, in the terms as ordered at the commencement of these reasons. I will not make a number of the orders as sought by the mother, paternal grandfather and Independent Children’s Lawyer that have not been the subject of submission or identification as to evidentiary foundation. The orders made are prescriptive so as to avoid future disputes and conflict. The Independent Children’s Lawyer will be directed to confer in person with the children within 48 hours so as to ensure that they are aware of the Court’s orders, its reasons for the orders, and the consequences that will flow should all the relevant participants to this parenting enquiry not progress the Court’s determination as to how their best interests ought to be promoted. The application by the Independent Children’s Lawyer for costs The Independent Children’s Lawyer applied for an order that each of the mother and paternal grandfather pay equally her costs as sought in Exhibit ICL-7, being a sum of $11,461.75 each within a period of six months. The paternal grandfather is on a Centrelink pension living in a rental property. The mother is on a limited income and will have the obligation to meet the costs of maintaining the children. She too resides in leased premises and has no property. Each of the paternal grandfather and the mother’s costs of the proceedings have been funded by extended family. The Independent Children’s Lawyer submits that this source will be available to fund any costs as ordered. I do not accept that submission. There is no evidence to the import that if called upon by the mother or the paternal grandfather, other family member would provide funds to pay any cost liability (see Hall & Hall (2016) FLC 93-709). The Independent Children’s Lawyer has undertaken a significant and important role in these proceedings for the benefit of the children.

Ratio Decidendi

Legal Principle Established

Having regard to all the evidence, I am not satisfied that the paternal grandfather has established that the maternal grandfather poses an unacceptable risk to the children and the injunctive relief as sought restricting their contact with him will be refused. Additional considerations Section 60CC(3) sets out additional considerations in determining what is in the children’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 children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views;(b)Sub-section (3)(b) – the nature of the relationship of the children with each of the children’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 children and either of the children’s parents and any other characteristics of the children that the Court thinks relevant; and(d)Sub-section (3)(h) – issues pertaining to the culture of the children if the children 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 children’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 children’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 children’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 children’s parents.(3)Issues of family violence:(a)Sub-section (3)(j) – any family violence involving a child or a member of the children’s family; and(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the children or a member of the children’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 children’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.