BZ and DAK
[2007] FMCAfam 596
•16 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZ & DAK | [2007] FMCAfam 596 |
| FAMILY LAW – Parenting – parental responsibility – parent children should live with – mother remarried – children strongly opposing mother’s new relationship – risk to children from mother’s new partner – father’s involving children in parental conflict – mother pressing for orders only for youngest of three children. |
| Family Law Act 1975, ss.43, 60B, 60CA, 60CC, 61DA, 64B, 65DAA Evidence Act 1995, s.140(2) |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | BZ |
| Respondent: | DAK |
| File number: | PAM2196 of 2005 |
| Judgment of: | Halligan FM |
| Hearing dates: | 5, 6, 7 March 2007, 1 August 2007 |
| Date of last submission: | 1 August 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 16 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Henness |
| Solicitors for the Respondent: | Self Represented |
ORDERS
All prior parenting orders in relation to the children JK born 8 February 1990, TK born 18 March 1993, and CK born 8 May 1999, are discharged.
The parents shall have equal shared parental responsibility for the child CK.
The child CK shall live with the father.
The child CK shall spend time with the mother-
(a)Each Sunday from 1.00 pm to 3.00 pm at Stockland Mall shopping centre, Merrylands, for 4 Sundays commencing the first Sunday after the making of these orders, in the absence of TZ;
(b)Each Sunday from 1.00 pm to 5.00 pm for 4 Sundays commencing on the fifth Sunday after the making of these orders, in the absence of TZ;
(c)Each Sunday from 1.00 pm to 5.00 pm for 4 Sundays commencing on the ninth Sunday after the making of these orders;
(d)Each Sunday from 9.00 am to 5.00 pm for 4 Sundays commencing on the thirteenth Sunday after the making of these orders;
(e)Thereafter, from 9.00 am to 5.00 pm on both Saturday and Sunday of each alternate weekend, commencing the seventeenth Saturday after the making of these orders;
(f)From 9.00 am to 5.00 pm on Mother's Day if the child is not otherwise spending time with the mother;
(g)For a period of at least 2 hours on the child’s birthday;
(h)For a period of at least 3 hours each Christmas Day and each Easter Sunday;
(i)Otherwise as agreed between the parents.
The father shall deliver the child CK to the mother at the commencement of her times with the child, and collect the child from the mother at the conclusion of her times with the child, at Stockland Mall shopping centre Merrylands, unless otherwise agreed between the parents.
The mother's time with the child is suspended on Father's Day.
The father shall provide the mother with copies of all reports, newsletters, notices and correspondence relating to the schooling of the children TK and CK within 7 days of receiving them, and shall notify the mother of all school events and activities in relation to the children TK and CK that parents may attend as soon as possible and in sufficient time for the mother to attend the activity if she wishes.
Neither party shall denigrate the other or any member of the other’s family or household, in the presence or hearing of the child CK, and shall ensure no other person, including the children JK and TK, do so.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2196 of 2005
| BZ |
Applicant
And
| DAK |
Respondent
REASONS FOR JUDGMENT
Introduction
From the time the father vacated the parties’ former matrimonial home in February 2005, the parties exercised equal time shared care of their three children, JK born 8 February 1990, now aged 17, TK born
18 March 1993, now aged 14, and CK born 8 May 1999, now aged 8. The children spent each alternate week with each parent.
In early 2006, the mother formed a relationship with TZ. The father believed Mr TZ was a danger to the children as he had been informed Mr TZ had a criminal record and had assaulted his former wife. It appears the children came to resent Mr TZ and their mother's relationship with him, and on 28 May 2007, the parenting arrangement broke down and the children remained with the father. The mother then commenced these parenting proceedings.
Interim consent orders were made on 26 June 2006, reinstating the previous shared care regime, but it too broke down and the children have not seen the mother since August 2006, other than on occasions the mother has seen the 2 youngest children at school.
Ultimately, the mother seeks no orders in relation to the 2 eldest children. She seeks orders in relation to CK that the parents have equal shared parental responsibility, that he live with the mother and spend time with the father each alternate weekend and for half school holidays with changeovers to occur at Merrylands police station, that the father not spend time with the child at the father's business premises at Merrylands, and that neither denigrate the other in the presence or hearing of the child.
The father, who conducted his case without legal representation, ultimately sought orders that he have sole parental responsibility for the three children, that the children live with him and spend time with the mother for 2 hours once a month at a specified shopping centre under his supervision, that while the children are spending time with her the mother not permit Mr TZ to live with her, and that the wishes of the 2 eldest children be taken into account by both parents in relation to the orders.
At the commencement of the hearing the only witnesses on affidavit were the mother and father. I granted the mother leave to call Mr TZ as a witness in her case with his evidence in chief given orally. He was a crucial witness in relation to a number of significant issues, and the mother's failure to have him on affidavit was not satisfactorily explained. I clearly explained to the father that he was entitled to seek an adjournment if, having heard the evidence in chief of Mr TZ, he needed time to prepare to meet his evidence. In the event, the father indicated he did not need an adjournment after having heard Mr TZ’s evidence in chief.
I also granted the father permission to call the parties’ eldest child as a witness, and permitted him to give his evidence in chief orally.
Background
The father was born in Australia on 19 June 1965 and is 42. The mother was born in Syria on 2 February 1970 and is 37. The parties married in Australia on 24 January 1988, separated in January 2004, and were divorced by a decree that became final on 12 August 2005.
On 7 February 2005, consent property settlement orders were made by the Family Court of Australia under which, inter alia, the father was to transfer to the mother his interest in the former matrimonial home at Greystanes and pay her $90,000, and the mother was to transfer to the father her interest in business premises at Merrylands. The father was also to indemnify the mother in respect of a debt secured on the former matrimonial home. The orders also provided for the father to vacate the former matrimonial home by 21 February 2005. The father vacated the property on this date. The parties had lived under the one roof from separation until the father vacated the property.
On 3 August 2006, the mother married Mr TZ. They commenced to live together on a full time basis in October 2006. She and Mr TZ have a daughter, Angel, born on 19 February 2007.
Credibility of witnesses
There are many factual issues between the parties in this case with no independent corroboration available, making the credit of the 4 lay witnesses particularly important.
I have some concerns about the reliability of the father's evidence.
At best, he seemed to let his antipathy for Mr TZ and the mother affect his evidence. There were internal inconsistencies in his evidence about the alleged threatening phone call to him from Mr Zrieka on
21 April 2006. JK, called to corroborate aspects of the father's evidence, directly contradicted part of the father's evidence about this phone call and was adamant that the father’s evidence was wrong. The father's evidence about why the children came to fear Mr TZ contained inconsistencies, as did his evidence about CK wetting or soiling himself in late June 2006. I am satisfied he was dishonest in his affidavit evidence about not living in his business premises with the children. In fact, I am satisfied he disregarded the interim parenting orders made in June 2006, not to have the children at those premises more than 2 nights in any week the children live with him. I therefore treat the father's evidence with some caution.
I also had some concern that JK let his dislike of Mr TZ colour his evidence, and as mentioned, there was direct conflict between JK and the father about an aspect of the alleged phone call from Mr TZ on 21 April 2006. While his feelings appeared to colour his evidence,
I was not as concerned about JK’s evidence as I was about both the father's and TZ’s evidence.
The mother was not seriously challenged in her evidence. She did erroneously deny the father's assertion that on 28 May 2006, she acquiesced in the children remaining with the father. Her own evidence was that she agreed with TK remaining with the father and made no suggestion she sought to have JK come to live with her for her week. It was only CK that she said she pressed to have come to her. Otherwise, she was not successfully challenged in her evidence, and nor was her evidence inconsistent. I therefore accept her as generally a reliable witness.
TZ claimed to the Family Consultant who prepared the Family Report that in relation to his criminal record dating from 2000 and 2005, he had been found innocent on appeal, that he was innocent of any wrong doing and had been “set up”, and said he feared possible future assaults by the police. In his evidence in the wife's case in reply, TZ seemed to suggest that there had been a series of charges on which he was convicted at Burwood Local Court in either 2000 or 2002, but the convictions were overturned on appeal to the Parramatta District Court in 2003. Counsel for the mother suggested that the gist of TZ’s statements to the Family Consultant and his evidence before me was that between 2000 and 2005, he had not been convicted of any offences which were not overturned on appeal.
In fact, the matters TZ referred to do not correspond with any entry on his criminal record. He was convicted of assault at Penrith Local Court in 1997, and on appeal to the Parramatta District Court in 1999, the conviction was upheld but the penalty was reduced. There is no other record of a conviction at Burwood Local Court appealed to Parramatta District Court. He denied that these charges were in a different name. The only other appeal appearing on his criminal record is an appeal against 4 firearms convictions at Downing Centre Local Court on
9 May 2006, arising from an incident that occurred in July 2005. That appeal had not been decided at the time of the interview with the Family Consultant. The appeal against the firearms convictions was dismissed after the Family Report was prepared.
I am therefore concerned that TZ was not truthful in what he told the Family Consultant, and was not truthful in what he said before me in seeking to explain himself. At no time did he attempt to give any evidence in chief about his criminal record. I therefore treat his evidence with the same degree of caution as I treat the father's evidence.
The evidence
The mother first met TZ in January or February 2006. From about March 2006, they lived together at TZ’s mother's home on the weeks the children were living with the father. During the weeks the mother had the children, she lived at the former matrimonial home and he lived at his mother's.
In his first affidavit, the father said that from conversations with the two eldest children he understood that the three children’s fear of TZ “stemmed from a few past interactions with him and also stemmed from the mother's instructions that they were to have future interactions with him”. In his second affidavit, he said he understood the children's fears of TZ “stem from overheard or direct telephone conversations with him as well as indications from the mother that they were to have future interactions with him”.
By the time the shared care arrangement broke down in May 2006, JK had never met TZ and had spoken to him on the phone twice. TK and CK had met TZ twice, once at a barbecue and a week later at a carnival, in about February or March. TK had spoken to TZ on the phone perhaps once or twice, and CK had not spoken to him at all on the phone. In cross-examination, the father conceded that nothing in the 2 youngest children's personal interaction with TZ up to that point gave them cause to fear TZ.
Not only did the children come to express a fear of TZ. The children also came to reject spending time with the mother. It would seem from the evidence that the most likely causes of any fear the children may have had of TZ are an alleged phone call from TZ to the father on
21 April 2006, things JK heard about TZ from his friends and which he probably passed on to the other children directly or through the father, and things the father told the children about TZ. The father admitted talking to the eldest two children regularly about TZ, and telling them he is a criminal, which is true.
On the evidence, the most likely causes of the children rejecting spending time with the mother appear to be the children's belief, perhaps fuelled by the father, that the mother was choosing TZ over them and neglecting them in favour of him, and allegations the mother hit and threatened to hit TK in arguments about TZ. How alleged incidents of family violence between the parents in March and May 2006, impacted on the family dynamics is more difficult to judge. The AVO proceedings flowing from the family violence and from TZ’s alleged threats against the father commenced after the shared care arrangement broke down.
TK’s birthday, 18 March 2006
The father said that he arranged a birthday celebration for TK at the aquatic centre at Homebush on 18 March, to which both he and TK invited the mother. He said the mother indicated she would come around lunch time, and accordingly the father delayed lunch until the mother arrived. He said that at about 12.30 pm, when the mother had not arrived, he rang her and TK spoke to her mother saying she wanted her to come. The father spoke to the mother who said she was feeling too unwell to come, but when the father pressed her further, she said she would come in about half an hour. The mother had not arrived by about 2.30 pm so the father rang her again. The mother said she did not think she could make it, the father pressed her to come, and then the mother asked to speak to TK, who said she did not want to speak to the mother if she was not coming. The father said he made TK speak to her mother, and TK was upset. Another lady present for the birthday celebration then took the phone and after speaking to the mother the call ended. The mother did not come to TK’s birthday celebration.
The mother said that when TK invited her to her birthday celebration she told her she did not want to come because of the relationship between her and the father. She denied ever telling either TK or the father she would attend. In cross-examination, she agreed the father had rung her on the day, and that a woman she did not know spoke to her on the phone and started “lecturing” her about her daughter, something the mother did not appreciate. This woman asked her to come for the sake of her daughter, and the mother said she could not as she was feeling unwell. She denied telling the father on the day she would come to the celebration. She agreed she had spoken to TK once on the phone on 18 March.
Because of concerns I have about other aspects of the father's evidence, I am not satisfied that the mother did agree to attend the birthday celebration in advance, nor am I satisfied she told the father she was coming when he contacted her on the day. Nonetheless, it does seem likely that TK experienced some disappointment at her declining to come. In the rapidly deteriorating atmosphere between the parents at this time, this may have been represented to or seen by the child as a sign the mother was more interested in pursuing other activities than spending time with the children on significant occasions.
Phone calls between father and TZ on 19 March 2006
TZ said that the first time he spoke to the father was when he returned a missed call to his mobile phone on 19 March 2006.
The father said that on Sunday 19 March 2006, he was taking the children to the swimming pool, and they wanted to collect their goggles from the mother's home. When they arrived, the mother was not there. The father rang her and the mother would not say where she was, but told the father to let himself into the home for the children to get what they wanted. While there, TK picked up the mother's phone account and commented on how high it was. TK then asked the father could they ring the mother of a friend of hers to arrange to all meet at the pool. They were unsure of the number, but as the woman was a good friend of the mother's, believed that one of the called numbers on the mother's account would be hers, and TK dialled one of the numbers she thought was the right one on the mother's phone. When the call was connected, TK asked the father to listen and the father heard a recorded message of a male voice speaking in English and in Arabic, and the father told TK to hang up and find her goggles.
Soon after, the father said the mother's phone rang and when he answered it there was an exchange with a male person who asked why the father had rung him, the father denied ringing him, and the male caller swore at him, so the father hung up. The father did not suggest he was threatened in any way on this occasion. The father said that although he did not know who the caller was, TK later, after going to the carnival, said it was TZ.
The father said that after this call, he rang the mother and told her about it, and the mother said she did not know who it was.
TZ agreed he rang the father and gave a similar account of the conversation, that is he asked why the father had rung him, the father denied doing so, and TZ swore at the father.
The fact such an innocuous incident ranked so highly in the scheme of things in this case illustrates the depth of feeling about the mother entering a new relationship at this time. The father clearly felt he was entitled to know every detail of the mother's personal life, and appears to have been highly suspicious and displeased about the mother at this time.
Violent incident on 19 March 2006
The mother said that on 19 March 2006, the father delivered the children to her, entered her home and refused her requests to leave. She said he chased her to her bedroom, where she locked herself in, and the father banged on the door, putting his fist through the door. The father refused to leave when she threatened to call the police, so she did so. The father only left after the police arrived about 30 minutes later. She said she went to Merrylands police station and was told she could only apply for an AVO if the father did something again. The mother said the father knows several police officers at the Merrylands police station, and they would not help her.
The father said that he returned the children to the mother's home at about 8.20 pm, and the mother was not home. JK rang his mother, who said she would be there soon. The father spoke to the mother and told her she should be there, and she said they should wait inside for her. He said she arrived at 9.45 pm, when a verbal argument ensued between the parents during which the mother swore at him and TK and CK were crying saying they wanted to go with him with CK clinging to his leg. The father said he made the children remain with the mother after she refused his request for CK to spend the night with him.
The father did not deny the mother's allegations of him chasing her to her room, banging on her door, and putting his fist through the door. Nor were these things put to him in cross-examination. However, as the father specifically gave evidence about this incident in an attempt to put the mother in a bad light, I consider his failure to deny the mother's allegations of family violence against him particularly telling. I am satisfied the father did chase the mother, bang on her door and put his fist through the door, and that the mother was fearful of the father as a result. I am further satisfied that this occurred when all three children were present in the home.
Phone calls on 21 April 2006
The father said that on 21 April 2006, he received an abusive and threatening phone call from TZ. He said JK was present and because he could not identify the caller, he put the call on loudspeaker for JK to hear. The call subsequently ended and the evidence of the father, JK and TZ is that JK rang TZ and challenged him about ringing and threatening his father. But in the evidence of the father, and between the evidence of the father and JK, there are inconsistencies, and TZ denies having rung the father on this day and denies saying what JK alleges he said in JK’s call to him.
In his first affidavit, the father asserted he was present on an occasion when the eldest child had a phone conversation on the speaker phone with TZ when TZ made unspecified threats to the boy. In his second affidavit he repeated this allegation and annexed to his affidavit a copy of a statement the boy made to the police, in which JK said that on 21 April 2006 he was present when his father answered his (the father's) mobile phone, and after putting the phone to his ear briefly, put the phone on speaker. JK said in the police statement that he heard a male voice he said he recognised as TZ’s, swear at the father and threaten the father. There is no indication how JK recognised TZ’s voice. In his statement to the police, JK said a short time later he walked outside and rang TZ on his own mobile phone. He said he spoke to TZ and threatened him if he came near his brother or sister, or any of his family, and TZ threatened anyone who came near the boy’s mother.
In his statement to police in May 2006, the father alleged that on
21 April 2006, he received a phone call from TZ in which TZ threatened to kill him. The father asserted in the police statement that after this phone call, he feared for the safety of himself and the children, yet he apparently did nothing about it until after the mother made her statement to the police.
In his oral evidence in chief, the father said that in the phone call with TZ on 21 April, after the father put the call on speaker phone TZ said words to the effect of “If you or your kids get between me and your ex-wife, I’ll kill you”. He said JK terminated this call. The father said he had only spoken to TZ once before this call, on 19 March when he did not know who the male caller was.
In cross-examination, the father said he put TZ's call on speaker phone so that JK could hear the threats. He said that when TZ said “If you or your kids come between me and your ex-wife, I’ll kill you”, the call was not on speaker phone, contradicting his evidence in chief. The father said he put the call on speaker phone so the children could identify the caller, who he could not identify. However, he then said only JK was with him when he put the call on speaker phone, and that TK and CK walked into the room after the call was put on speaker phone. He then sought to clarify the inconsistency by saying he put the call on speaker phone so that JK might identify the caller.
The father said the call on 21 April 2006, took about 10 minutes. The father said that after TK and CK came into the room, TZ started to calm down, and at the end of the call TZ said he was going to send the father an SMS with his new phone number so the father could ring him and they could arrange to meet over coffee to discuss matters. When cross-examined about his statement to the police that after this call he feared harm from TZ, the father insisted that he did, but by reference to matters that occurred later.
In cross-examination, JK said that most of the two phone calls is clear in his mind. He denied ringing TZ at 1.00 am. He said the first call between TZ and his father was around 9.00 pm or 10.00 pm, and he called TZ immediately after that call. He said it was a Friday night, and while he worked on Friday nights between 7.00 pm and midnight, he was not working that night.
In cross-examination JK agreed his statement to police that he had spoken to TZ over 5 times before 21 April 2006, was not correct. He said he told police it was a few times.
In relation to the first call, between the father and TZ, JK said it lasted a couple of minutes, maybe more, the father hung up the phone while TZ was still swearing at him, when the call ended TZ and the father were not speaking pleasantly to each other, that TZ did not offer to SMS the father his new phone number so they could have coffee and discuss matters, and if the father said he did the father is wrong.
In re-examination JK said he could remember a phone conversation between TZ and the father when TZ offered to SMS the father his phone number so they could meet and have coffee, but he was unsure if it was on the night of 21 April or before. However, he then said there was only one call between TZ and the father that was put on the speaker phone on 21 April 2006, so this possible other call could not have been on 21 April 2006. He then repeated that if his father said this happened on 21 April 2006, he was wrong.
TZ in evidence in chief said that he received a call from JK at about 1.00 am on 22 April 2006, in which JK accused him of threatening his father and his brother and sister, all of which TZ denied. JK then said he had heard TZ make the threats.
TZ denied having spoken to the father or JK on 21 April before this call from JK. He repeated his denials of having spoken to the father on 21 April 2006, in cross-examination. However, he agreed that when JK rang him, he sounded upset, and said the boy “told me off”. He denied having threatened anyone during JK’s phone call.
The inconsistencies within the father's evidence and between the evidence of the father and JK about the alleged phone call from TZ are concerning. On one version of the father's evidence, the threat JK said he heard TZ make was made before the call was put on speaker phone and thus JK could not have heard it. There was conflict about whether JK or the father terminated the call, and about whether the call was terminated while TZ was still making threats, or whether the call had become civil enough for TZ to invite the father to call him to arrange to have coffee together before the call was terminated.
There are at least 3 interpretations open on this evidence, namely that the call took place as alleged; the call took place, only the father heard the conversation and he later told JK about it; or the call never took place. TZ contends the latter is correct. But why then did JK ring TZ obviously very upset with him and allege he had threatened to harm his father? On TZ’s version of events, no threatening call was made, so for JK to make the call he did he must have been falsely told that such a call was made. But JK has sworn that he was present for at least part of the call TZ denies making.
Ultimately, to find the call was made by TZ as alleged in the father's case requires a finding of criminal conduct. While the standard of proof is the civil standard, the Court must take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged (s.140(2), Evidence Act 1995). Because of the inconsistencies in the father's evidence, including in relation to the basic issue as to whether JK could have heard what he said he heard, I am not satisfied TZ made the threats on this occasion alleged against him.
Children's alleged neglect by mother
The father also said that based on unspecified conversations with the children, he believed the children were left to their own devices for significant periods when in their mother's care because of her preoccupation with TZ.
In his oral evidence in chief, the father said that in about May 2006, TK rang him one morning when the children were in the mother's care and told him the mother had just left to see someone who was sick and would not tell the children who it was. He said he rang the mother who said she had had to leave the children but would be back in an hour. When the father offered to stay with the children the mother said it was alright as JK was there. When the father pushed the issue the mother said it was up to him, so he went and stayed with the children until the mother returned. He said she returned about 3 hours later.
The parties’ son JK said that in late March or early April 2006, while the three children were in the mother's care, the mother received a phone call that she said was from a friend and that she would be out for about 1 hour. He said the mother came home 2 hours or more later.
The mother did not deny these matters, and I am satisfied they occurred.
Violent incident on 14 May 2006
The mother asserted that when the father was at her home on 14 May 2006, to deliver the children to her, he refused her request to leave her home, and threatened her “boyfriend”. The mother asserted that she ran to her bedroom and locked the door, and that the father remained banging on the door and shouting for over 5 minutes, continuing to threaten both her and her boyfriend. Soon after he left.
The father did not deny this allegation, nor was it put to him in cross-examination. Unlike the incident of 19 March 2006, the father gave no evidence about this date. In light of the seriousness of the allegation and it not having been put to the father in cross-examination, I am not prepared to find that the father behaved on this occasion in the manner alleged.
Mother makes statement to police and AVO application issued against father
On 19 May 2006, the mother made a statement to Liverpool police about the alleged incident of 14 May 2006 and the incident of
19 March 2006, and on 8 June 2006, a Complaint and Summons was issued on the complaint of the police for an AVO against the father for the mother's protection.
Father and JK make police statements and AVO proceedings issued against TZ
On 26 May 2006, the father and JK made statements to police about the alleged phone call from TZ on 21 April 2006, and subsequently a Complaint and Summons was issued on the complaint of the police for an AVO against TZ for the protection of the father and JK.
Children do not go with mother on 28 May 2006
The mother said in her evidence in chief that the equal time arrangement broke down on 28 May 2006, when the father refused to deliver the children to her, telling her the children were better off with him and did not want to return to her because she caused an AVO to be issued against the father. In fact, the application for the AVO against the father did not issue until the following month. There is no direct evidence of the mother having told the father she had made a statement to police for an AVO, although she sought to suggest that the actions by the father and JK in causing an application for an AVO to be issued against TZ was in retaliation for her action.
The father said in his evidence in chief that on about 28 May 2006, the children told both parents that they did not wish to return to the mother's care when this was due under the parents’ arrangement. The father said the mother said to the children “If you’re with me and you don’t want to come where I go, even if it means my boyfriend’s place, you can stay with your father then”.
The mother denied making this statement on this occasion. She said that she had previously, and not in the father's presence, said to the children in February 2006, after meeting TZ, “If you are not going to have respect for me you can stay with your father until you respect me”. She said this was in response to increasing defiance to her being exhibited by the children. She also said she had said to the children from time to time, “If I’m going somewhere, you are coming with me. You don’t give me orders”. This evidence of the mother is suggestive of the children resenting the mother's relationship with TZ from very soon after she met him, as early as February 2006.
The father said the mother acquiesced in the children remaining with him for her week commencing 28 May 2006, and for the following week which was the father's week. The mother denied acquiescing in the children remaining with the father. She said she repeatedly spoke to the children on the phone trying to encourage them to reside with her on the week about basis the parents had previously implemented, but the children offered a variety of reasons why they could not return to her.
The mother said that on 28 May 2006, TK spoke to her on the phone and said “I don’t want to come home because you’re with TZ”. The mother said TZ had never resided with her. Based on TZ’s evidence, this is not true. His evidence was that the mother lived with him from March 2006, on alternate weeks when the mother did not have the care of the children. The mother said she replied to TK “That’s fine. Come home when you are ready. I’m not going to force you but CK wants to come home”. The mother said she then spoke to JK and told him to get CK’s things ready to return to her, and JK told her CK did not want to return to her, and would not let the mother talk to CK, hanging up the phone. The mother said she had heard the father's voice in the background say before the call was terminated “Like hell. You’re not going to get him”.
The mother’s evidence therefore is that on 28 May 2006, she only pressed to have CK come into her care. Despite her denials, she did in fact acquiesce in the 2 oldest children remaining with the father.
I otherwise accept the mother's evidence about her attempts to have CK come into her care.
Children do not go with mother on 11 June 2006
The father said that on about 11 June 2006, when the children were due to pass into the mother's care, the children again indicated that they did not wish to go with the mother. He said the children said “Mum, we don’t want to go back to you as long as you’re with your boyfriend”. The mother agreed the children continued to express a reluctance to return to her, and asserted it was because of what the father had told the children.
Interim AVO against father on 23 June 2006
On 23 June 2006, an interim AVO was made against the father for the mother's protection containing the usual statutory restraints under s.562BC, Crimes Act 1900 (NSW), and restraining the father from assaulting molesting, harassing, threatening or otherwise interfering with the mother, from entering the premises where the mother lives or works, and from approaching, contacting or telephoning the mother except to arrange or exercise contact as agreed in writing or as authorised by an order or registered parenting plan.
Interim parenting orders 26 June 2006
As mentioned, interim parenting orders were made on 26 June 2006, to reinstate the prior equal time shared care arrangement, with the children to live with the mother from 27 June 2006, until 2 July 2006, and each alternate week from 9 July 2006. However, the order in relation to JK was expressed to be suspended from after the second period of residence with her. The interim orders also restrained the mother from bringing the children into contact with TZ, restrained the father from residing at his business premises at Merrylands for more than 2 nights during any residence period with him, restrained both parents from interfering in the other’s residence periods, restrained both parents from denigrating the other in the children's presence or hearing, restrained both parents from involving the children in the current proceedings by discussing the proceedings, showing the children documents filed in the proceedings, or otherwise, and restrained both parents from allowing the children to be in the same room as a person smoking.
Mother's time with children under interim parenting orders
The father said that the children were returned to the mother under the consent interim orders made on 26 June 2006, on 27 June 2006. They were due to remain with the mother until Sunday 1 July 2006.
The father said he saw the 2 youngest children at their school during that week, and on the Friday, he attended Mass at the church adjacent to the 2 youngest children’s school, and after Mass CK ran up to him and before the father could get him to the toilet, the boy wet his pants. The father sought to suggest an emotional cause for this, which he said was unusual. The mother suggested an emotional cause may have been anxiety at the father's presence when he was living with the mother and apprehension that if the father was present and the mother attended, there may have been conflict between the parents.
In oral evidence in chief, the father gave a rather different version of this incident. He said that in about July 2006, he went to a Mass the school children attended, and a little girl approached him and asked him to see CK as he had wet and soiled himself. He said he asked CK why he did so, and the boy said it was because he did not want to stay with the mother. He said he changed the boy and he went back into Mass.
This differs in several respects from the version of this incident related in his affidavit evidence – namely, as to who approached the father, the child or a girl; whether it was during or after Mass that the father became aware of the issue; whether the child wet himself or both wet and soiled himself; and whether or not the child said to the father it was because he did not want to stay with the mother. These inconsistencies lead me to disregard the father's evidence about this suggested incident.
When the children returned to him on 1 July 2006, the father said the 2 eldest children told him the mother had said to them she intended marrying TZ. This was not challenged and I accept it.
The mother said that the father attended the 2 youngest children's school when she was delivering and collecting them on Wednesday
28 June, Thursday 29 June and Friday 30 June. Paragraph 5 of the interim consent orders made on 26 June 2006, provides that “neither party shall interfere with the other’s periods of residence”. There is no evidence from the mother that the father attempted to interact with the children in any way. However, the mother was clearly fearful of the father and apprehensive about altercations developing between the parties in front of the children. The mother said the father continued to attend the 2 youngest children's school during her residence weeks thereafter, despite her solicitor writing requesting he not do so.
I accept this unchallenged evidence of the mother, and find it consistent with an intrusive and controlling attitude by the father towards the children’s time with their mother.
The mother’s evidence is that when these proceedings were mentioned at court on 18 August 2006, her solicitor informed the Court and the father that the mother had married TZ on 3 August 2006 and was expecting his child in February 2007. When the mother attended to collect the 2 youngest children for her next period of residence with them under the interim parenting orders 2 days later, she said the father and the children did not attend the changeover location. After waiting 30 minutes after the specified changeover time, the mother was confronted by 4 males and left in a distressed state, necessitating her attendance at a hospital.
In cross-examination, the mother said that on an earlier occasion in August when the children came into her care, the children came with empty bags. When she got the children home, she asked the children why they had come with empty bags, then broke down and went into her room. She denied the suggestion the children had asked her several questions, or that she told the children that if they did not like TZ being around they could go back to their father. She said that when she came back out about 15 minutes later, the children were gone. She rang the police to report the children missing and was told by the police that the children had rung them.
The mother has not seen the children since August 2006, despite the interim orders.
The mother said in cross-examination that since she married TZ on
3 August 2006, none of the children have come into contact with him.
In cross-examination, the mother suggested that her relationship with TZ was not the fundamental problem. She said that early in her relationship with him, she said she would stop seeing him when the children objected, but then the complaint against her became that she took JK’s car away from him. She thus formed the view that it was not her relationship with TZ that was the real problem.
The father said in cross-examination that he had not tried to have the children see the mother since August 2006, because she had not contacted him. When asked about him contacting the mother, he suggested this was prohibited by the AVO, but when shown the AVO, conceded that it did not prevent him contacting the mother about contact with the children. He admitted the mother's solicitors wrote several times in December 2006, about her seeing the children, and he did nothing to have the children see the mother.
The parties’ son JK said in his oral evidence in chief that on
20 August 2006, the father dropped the three children off at Merrylands police station at around 8.00 pm to spend the following week with the mother. The mother collected the children and took them to her home, where he argued with the mother about her boyfriend. He said the three children then collected their belongings and left the mother's home. From a nearby school they rang the police and their father. They became aware the mother was looking for them so they hid in the school grounds. Ultimately, the father collected them, took them to the police station where they made a statement, and then they went home with the father. Since then he said the mother had rung him 5 or 6 times, and on a few occasions he had refused to speak to her. In cross-examination he admitted the mother had also sent him many SMS messages and he had replied to very few.
JK said that since August 2006, the father had not stopped the children going to or speaking with the mother, had told the children on Christmas Day they should speak to their mother, and told him he should ring the mother on her birthday in February.
JK in cross-examination said he believed the mother does not care about him and is selfish, and that he has discussed this with his younger siblings but only when they have said it themselves. He also admitted speaking to the younger children about rumours he had heard about TZ. JK said he heard from friends that TZ was a criminal, a drug dealer, and had bashed his former wife.
Allegations TK said mother hit her and threatened to hit her
The father in his oral evidence in chief said that in about July 2006, TK told him that she had knocked on the mother's door and the mother said “If you knock again, I’m gonna smash you”. He further said that at the end of July 2006, during a week she was living with the father, TK told him the mother hit her because she did not want to go to her boyfriend’s place, and that the mother told her “If you don’t come with me and you don’t listen to me and go where I go, I’ll smash you. You can go to your father”.
The mother denied hitting or threatening to hit TK, or speaking to her in the manner alleged by the father. Because of the view I take of the relative credit of the parties, I prefer the mother's evidence and am not satisfied the mother has hit TK or threatened to hit TK.
Request mother provide children's summer uniforms
In his oral evidence in chief, the father said that in October 2006, when the children were due to change into their summer school uniforms, he asked the mother for the children's summer uniforms when both attended a parent meeting at the school. He said the mother did not answer him. He said on the way home, TK and CK told him they too had asked the mother for their summer uniforms, and the mother had said “When you come back to live with me you’ll have your uniforms”. He said he did not receive the children's summer uniforms from the mother until about 2 ½ weeks later, by which time he had bought replacement uniforms. He said the mother returned 1 pair of shorts for CK.
JK said that both TK and CK told him they asked the mother for their summer uniforms and the mother refused and said the father could buy new ones. This is different to what the father says TK and CK told him.
The mother said that the father did not speak to her about the summer uniforms but TK and CK did. She said she told the children she would look for them. She said that the when she saw the children a week later, she had not found the uniforms, which were packed in boxes at her home. When she told the children this, they said the father was going to buy them new uniforms. A week later, when the weather was hot, the children still had winter uniforms on. She asked TK about this and the child said the father had not yet bought the new uniforms. The mother then found the uniforms and took them with her when she saw the children a week later. Again it was very hot and she changed CK into the summer uniform. She said she brought 1 pair of shorts for CK, which is all he had, 2 shirts for him, and 1 summer dress for TK, which was all she had.
In cross-examination, the mother denied telling the 2 youngest children to tell the father to buy them their uniforms, although she did say they may be too small. She said it took her a couple of weeks to find the uniforms, as they were packed away and she had some appointments. She was not working, and over the 2 week period it took her to find the uniforms, she could not remember how many appointments she had.
Despite the view I take of the relative credit of the father, JK and the mother, the mother's explanation for taking so long to find the children's summer school uniforms when the weather had become so hot was unconvincing. What ever was said, it seems she delayed inordinately in providing the summer uniforms she had.
Final AVO against father
On 9 November 2006, a final AVO for 2 years was made against the father for the mother's protection containing the s.562BC prohibitions, and restraining the father from assaulting, molesting, etc the mother, from going within 50 metres of the premises where the mother resides or works, and from approaching, contacting or telephoning the mother except for the purpose of arranging or exercising “access” to children.
The father appealed against this order, and on 23 March 2007, the District Court varied the period of the AVO from 2 years to 6 months. The AVO was otherwise confirmed.
Final AVO against TZ
On 16 November 2006, a final AVO for 2 years was made against TZ for the protection of the father and JK containing the s.562BC restraints, and restraining TZ from assaulting, molesting, etc the father or JK, from going within 100 metres of the premises where the father or JK reside or work, and from contacting the father or JK by any means including through a third party other than his solicitor.
Alleged incident outside Local Court on 16 November 2006
On 16 November 2006, the father made a statement to police contending that on that day, after the AVO against TZ had been granted, as he and JK left the court house JK said that TZ was there, he then heard TZ say “Woof! Woof!”, and he saw the mother and TZ walking away. He contended that he then heard TZ yell out in Arabic “Later dog, I will show you”. The father said at this stage TZ was about 3 metres away from him. The police declined to take action on the alleged breach of the AVO as in their opinion there was insufficient evidence and they were concerned that the father was “somewhat bending the truth”.
In cross-examination, the mother said she was with TZ at court on 16 November 2006, and said she did not hear him say anything to the father or JK outside the court after the AVO was granted.
TZ denied in cross-examination having made the statements as alleged by the father and JK.
I am not satisfied it is more likely than not that TZ made the alleged threat.
Father's conviction for breaching AVO
The father admitted in cross-examination that in November 2006, he was convicted of breaching an AVO. There is no evidence of what the father did in breach of an AVO. The father said he was appealing the conviction of all grounds.
TZ’s antecedents
TZ has a significant criminal record. He was fined for offensive language in 1994, was found guilty on assault but no conviction was recorded in 1994, was convicted of assault and on appeal was placed on a bond in 1999, was convicted on charges of larceny, goods in custody and possession of ammunition without a licence on 1999, was convicted of goods in custody, use unregistered and uninsured vehicle, give false particulars, and drive unlicensed in 2000, and was convicted on 4 firearms offences in May 2006. His appeal against the 4 firearms convictions was dismissed.
The firearms convictions in 2006 arose out of an incident in 2005 when TZ was the victim of a serious assault by 2 men in and outside licensed premises. The police who attended questioned TZ about a suggestion he had a firearm. While he denied initially being armed, the police file indicates the police subsequently found a stolen, fully loaded Glock pistol on TZ’s person. TZ was convicted on 2 charges of possession of a loaded firearm in a public place and 2 charges of possession of an unauthorised firearm.
The Family Consultant states in her Report that in relation to his criminal record dating from 2000 and 2005, TZ went to great pains to point out that he was found innocent on appeal. He suggested he was innocent of any wrong doing, and had been “set up”. He suggested the only danger he faces is possible future assault by the police. As previously mentioned, I am not satisfied with TZ’s evidence in this regard.
Children's involvement in parental conflict
The mother said that after the AVO proceedings were commenced against the father, in phone conversations she had with the children they referred to and read from court documents, and accused the mother of lying. Before and after the interim parenting orders were made on 26 June 2006, the children said to the mother that the father had told them the mother did not want them and was lying to them.
The father said in cross-examination that he tells the children they need to keep away from TZ because of his reputation. Later in cross-examination he denied speaking to CK about TZ, but said he has told JK and TK that TZ is a criminal. He denied telling them TZ is a drug dealer.
The children's antipathy for TZ, as mentioned earlier, may arise from several factors. Of those factors, the evidence about the alleged threats made by TZ to the father and allegedly overheard by JK on 21 April 2006, is unconvincing. Thus, by the time the equal time shared care arrangement broke down on 28 May 2006, there is no evidence to satisfy me that the children had been exposed to any behaviour by TZ to them or towards their mother or father that might explain their attitude to him, such as the father asserted. I therefore find it is more likely than not that the children's attitude to TZ was formed by the father's attitudes and views being conveyed to them directly by the father, and by JK conveying to his younger siblings the information he obtained from his friends about TZ.
As for the causes of the children's attitude towards the mother, the Family Consultant opined in the Family Report that rather than this being a case of parental alienation, the children love their mother but are fearful for her with TZ. I accept this evidence, which was not challenged. I therefore find that it is more likely than not that the children's attitude to the mother has been significantly affected by the father's and JK’s attitudes and views towards TZ being conveyed to the younger children. I accept that the younger children's views may also be influenced by concerns at the mother's life choices from a religious and/or moral perspective, TK placing a condition of her mother separating from TZ and going to confession before staying with her again. I also acknowledge the probable influence of a concern by the children at the mother's actual or perceived division of her time between them and TZ where she previously was able to give the children her undivided attention.
Mother's proposals
As mentioned, the mother proposed no orders for the eldest two children and that CK live with her and spend time with the father on alternate weekends from 5.00 pm Friday to 5.00 pm Sunday, and for half school holidays.
The mother did not see splitting the 3 siblings as a problem for CK. She said he told her JK is never around and always spending time with his friends, and he never mentions TK. However, she conceded that all the children love each other, and since she had not seen the children since August 2006, she is unaware of the current relationships between them. The mother said that TK and CK attend the same school and could see each other there regularly, and that JK and TK are welcome to come to her home every day, and eventually will come to see her as she has done nothing wrong.
The mother's proposal would involve CK living with her,
TZ and his new half-sister Angel in the former matrimonial home. The mother is not in the paid workforce and is available to care for the child full time. The inference is that the mother would keep CK at his present school.
Father's proposals
In his first affidavit, the father said that after vacating the former matrimonial home, he moved to his mother's residence at Greystanes, his father having passed away in March 2005. He said this remains his “primary place of residence”, but also said he had converted his work premises at Merrylands to include “some bedrooms so that the children and I could spend some time alone there”. In his second affidavit, he said that the conversion of his work premises occurred since about March 2005.
The mother said that she believes that since at least January 2006, the father has been living at his work premises at Merrylands, including for periods the children have been in his care. She believes these premises are not approved for residential use. She said that from what the children have told her, she believes an office is used as a bedroom, lounge room and dining room, and that the three children all sleep with the father in this one room. She said the factory premises do not have permanent cooking facilities, and have one shower and one toilet.
In JK’s statement to police on 26 May 2006, which the father relied on as evidence in his case, JK stated that since the parents ceased living in the same property in early 2005, he and his siblings have lived each alternate week with the father at the Merrylands property.
In his statement to police on 26 May 2006, the father states that his home address is the Merrylands property.
When sworn in and asked to state his name, address and occupation, the father gave the Merrylands address, not his mother's address at Greystanes, as his address.
In cross-examination the father said he lives at the Merrylands address and that the children live there with him. He said there is a small flat in the workshop premises, which are zoned residential, and it has 2 bedrooms, he and JK sharing one bedroom and TK and CK sharing the other.
The father's mother was not a witness in his case to corroborate where he lives, and the father gave no explanation for her absence.
I am satisfied that the father and the children live in the business premises at Merrylands, not with his mother, and that the father has continued to do so contrary to the interim parenting orders made in June 2006.
The father does not work due to injuries suffered in a motor vehicle accident some years ago. He is available to care for the children on a full time basis. He told the Family Consultant he would like to buy a house in which to live with the children, but it seems unlikely the father could do this without selling the business premises, which he appears, according to the Family Consultant, reluctant to do because of a plan he has with JK that JK will eventually open an auto electrician’s business from the premises. Apparently, that is the type of business the father previously conducted before his accident.
The Family Report
The Family Consultant observed in the Family Report that despite their disparate ages, the children presented as a tightly knit group, expressing love for both parents. “They had a fierce loyalty towards their father and a strong conviction that their mother has ‘done the wrong thing’”. This is a reference to the children's views of TZ and the mother’s relationship with him.
TZ accompanied the mother to her interview for the Family Report, and was interviewed by the Report writer. However, while the children were observed by the Report writer interacting with the mother, that did not occur with TZ, as the children told the Report writer that if they were asked to be in the same room as TZ, they would walk out and leave the Court.
The Family Consultant stated in the Report that JK sees TZ as a “bad person” and “a criminal”, based on what he had heard from people he knew. He said he believed TZ was a drug dealer.
I note TZ has no convictions for drug offences. He also said he believed TZ had bashed his former partner, and that TZ was responsible for prank phone calls being made to his father's and his own phones, and for a graffiti attack on the father's premises in Merrylands, which suggested the father was a paedophile. JK gave what the Family Consultant described as a “graphic account” of how the children left the mother's home after an argument the children had with the mother in August 2006 about TZ. JK was adamant that the mother's continued relationship with TZ was an absolute impediment to his seeing the mother again.
TK expressed to the Family Consultant the hope that TZ would just disappear after taking a sum of money the father recently paid the mother under the property settlement. She too indicated that the mother's continued relationship with TZ was an impediment to her staying with her mother. She perceived TZ as dangerous, and worried that he might hurt her mother.
CK indicated to the Family Consultant that he would like to see his mother, but not if she was with TZ. He said the reason he was not seeing his mother was because she was “sleeping with a Moslem and a bad man. I don’t trust him. He sells drugs”.
JK expressed the view that the only way he would be prepared to resume his relationship with the mother is if she left TZ and “proved she has changed”. TK said that the only circumstances under which she would stay with the mother is if she left TZ and then went to confession. CK said he would like to visit his mother, but not if she is with TZ. He would be happy to sleep overnight at the mother's house if she was not with TZ.
In observation with the mother, which occurred some 5 months since the children had spent any significant time with her, the children articulated their love for their mother both verbally and physically, while expressing disappointment and disapproval for her actions in re-partnering with TZ. TK told her mother that while she missed her, she would not come to the mother's home because TZ is there. It appeared that TK and CK in particular miss their mother, but the children's negative views of TZ were paramount.
The Family Consultant expressed the view that although the father has almost certainly involved the children in all details of the mother's activities, including CK, this was not a case of parental alienation, as the children loved their mother very much and were very worried for her. In the opinion of the Family Consultant the children are angry at what they perceive to be the mother's selfish and uncaring actions in relation to them. In her opinion, the children are driving a hard bargain, effectively requiring the mother to choose between them and TZ. Of course, this is an impossible choice now for the mother, who has a fourth child to TZ, who is her husband. As the Family Consultant expressed it, the mother is in a “no win” situation.
I pause to observe that I agree with the Family Consultant’s observations about the father involving the children in all aspects of the mother's behaviour. This in my view has been contrary to the children’s best interests and has been psychologically abusive of them. The concerns the children have for their mother with TZ largely reflect the father's antipathy to him. Whether these concerns are objectively justified to the extent the father holds them and has projected them onto the children is another matter. On the other hand, for JK, and to a lesser extent for TK, because of their ages it is unlikely that their attitude to the mother and TZ is solely because of the father's undoubted influence on them.
The Family Consultant recommended that the children live with the father and spend up to 2 hours each week with the mother at a Merrylands shopping centre at mutually agreed times, with the father to absent himself from the vicinity during the visits. She also recommended unlimited phone communication between the mother and children and that the mother receive copies of all school and TAFE reports about the children, and notification of special events at the children's schools.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975. They involve competing applications as to parental responsibility, the parent the children lives with and the time they spend with the other parent, and are thus for parenting orders (s.64B).
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII in the following terms:
“60B - Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.”
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests. It is as follows:
“60CC - How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3)
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b)
Additional considerations
(3) Additional considerations are:
(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)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred
Consent orders
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.”
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in
Goode v Goode[2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, decided after the 2006 Shared Parental Responsibility amendments, as follows:
Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss. 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
When making a parenting order, the Court must apply a rebuttable presumption that it is in a child's best interests for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)). This presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person living with a parent, has engaged in abuse of a child who was a member of the parent’s family or of the persons family, or family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the court that it would not be in the child's best interests for the parents to have equal shared parental responsibility (s.61DA(4)).
If there is, or is to be, an order for equal shared parental responsibility, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b) and (2)(d)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
Where s.65DAA applies and neither party seeks an equal time or substantial and significant time order, the court must nonetheless consider these options, but must ensure in doing so that the parties are afforded procedural fairness by having their attention drawn to the section and its consequences, and by being afforded the opportunity to adduce evidence relevant to the options the section raises and to address the court on them. (As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340).
The primary considerations
The benefit to the children of having a meaningful relationship with both parents – s.60CC(2)(a)
The undoubted potential benefit to all three children of a meaningful relationship with both parents is not really the issue in this case. The issue is whether and if so on what basis there can be a meaningful relationship of benefit to the children when each of the children's relationships with the mother are so strained and inhibited. The influences on the children that have created the current situation and the other relevant considerations will dictate whether and if so how the children can have a beneficial meaningful relationship with the mother. Certainly so far as the 2 eldest children are concerned, because of their ages and level of maturity, and their entrenched views, this is probably not a matter that can be remedied by any court order, which the mother recognises in not pressing for any order in relation to them.
The need to protect the children from harm from abuse or neglect or exposure to family violence – s.60CC(2)(b)
I am not satisfied that mother has hit TK or threatened to hit TK. I am therefore not satisfied the need to protect the children from abuse arises in this case.
Nor am I satisfied that the mother has neglected the children. The mother leaving the children for a period, variously described by the father as 3 hours and by JK as up to 2 hours or more, and in the care of JK when he was 16½ years old, is not in my view neglectful.
There is evidence of family violence perpetrated by the father on the mother on 19 March 2006, in the presence of the children. However, I am satisfied issues of protection of the mother, and through her of the children if with her are being addressed through the AVO proceedings, and neither party seeks any particular orders by reference to issue of family violence between the parents.
The father believes TZ was violent to his former wife, and relied on the police records in Exhibit B to support his contention. He also suggested the same records identified other instances when TZ had been violent to neighbours. However, the father did not put any of these matters to TZ in cross-examination, and he thus has not been given an opportunity to respond to them. The police records, while admissible evidence as being business records, are nonetheless a hearsay record, being a record made by a police officer of what someone had told him or her. In the absence of these matters being put fairly to TZ, I am not prepared to make findings adverse to him about these matters, and am not satisfied on the evidence that there is an issue of risk of family violence to any of the children while with the mother because of TZ. There is however, a risk of the children being exposed to violence on TZ, as he advised the Family Consultant.
The additional considerations
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 – s.60CC(3)(a)
The mother acknowledged that she was aware that none of the children wanted to live with her, and that the children call her husband a Muslim and say he is a bad man. She said that when she questioned them the children agreed they were not scared of TZ from their own experiences of him, but were scared of him because he had been threatening their father. The children told the Family Consultant they were also scared TZ would hurt their mother. It also appears that at least CK has expressed a wish not to see his new half sister.
The children, for whatever reason, have all expressed clear views. There is no issue that no orders should be made in relation to the eldest two children contrary to their views. The real issue is about CK.
While CK is considerably younger than his siblings, he nonetheless has fairly clear and strong views. They cannot simply be ignored. On the other hand, his level of maturity at age 8 and the greater need for his mother that the Family Consultant believes he has suggest that rather lesser weight may be given to his views, subject to the other relevant considerations.
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child) – s.60CC(3)(b)
As already mentioned, the children all love both parents. However, their relationship with their mother is affected by their strong opposition to her relationship with TZ. Although they have had very little interaction with him, the children's relationship with TZ is a strongly negative one.
The children's relationships with each other are very strong in the Family Consultant’s view, contradicting the mother's suggestion of a somewhat tenuous relationship between CK and his older siblings. In fact, the Family Consultant perceived the father and the three children as a tight knit group, “us against the world” as she expressed it.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent – s.60CC(3)(c)
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents – s.60CC(3)(i)
In considering both these matters the Court must have regard to sub-ss.(4) and (4A), as set out above.
The father has not displayed either a willingness or an ability to facilitate a close and continuing relationship between the children and their mother. And in what he has done he has shown a poor attitude to the children and the responsibilities of parenthood. He has quite inappropriately not only exposed the children to the parental conflict, he has directly engaged them in it by showing them court documents and calling JK as a witness in his case. He has not sought to positively encourage the children to live with the mother in accordance with the interim orders of June 2006. JK’s evidence of the father encouraging him to call his mother a few times, and saying the father has not stopped the children seeing their mother, and the father's reliance on it, speak strongly of an attempt at self justification of his inaction in encouraging the mother/child relationships.
The mother is entitled to pursue her own life as she sees fit. The parents are divorced. It is not a legitimate concern of the father whether the mother re-partners per se. However, it is a legitimate concern of the father whether any new partner of the mother may be a risk to the children. And it is legitimate for a parent to appropriately warn a child of potential dangers they may encounter.
In this case, the father has obtained information from sources he has not disclosed on which he has formed a strong view that TZ is a risk to his children. In the event, some of the matters that caused the father concern have been established by evidence before me, namely TZ’s criminal history. Some have not, such as suggestions TZ is a drug dealer and beat his former wife.
But the way the father dealt with the information he had is of concern. There is no evidence he sought to discuss his concerns with the mother, although she did say early in the relationship she offered the children to end her relationship with TZ, but then a different complaint was raised against her.
I do not accept that the father exposing the children to the details of the various court proceedings the parties have been involved in was in the children's best interests. It certainly was not necessary to protect the children from any perceived danger from TZ. In my view it amounted to psychological abuse of the children by the father. I am satisfied it was designed to enlist the children as partisan supporters of the father in his litigious combat with both the mother and TZ, and he did it with no apparent regard or concern for its potentially harmful effect on the children.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living – s.60CC(3)(d)
The effect on CK of spending time or living with the mother when his older siblings are opposed to doing so themselves is a real issue in this case, because of the evidence about the tight knit group the children present. The Family Consultant expressed some concern that to treat CK differently to his older siblings may place him in a difficult situation with other members of the family. On the other hand, the Family Consultant said that she did not see that an order for the child to spend time with the mother on an increasing regime would be problematic.
I interpret this evidence as suggesting CK may have difficulties in his relationships with his older siblings if he were required to live with the mother, but a regime of spending time with her may not cause such severe problems.
An order that CK live with the mother would remove the child from the negative influences against his mother from the father and his older siblings, and may make it easier for the child to continue a meaningful relationship with the mother. It may also make it easier for the child to develop a relationship with his younger half sister, Angel. An order that CK spend time with the mother may enable the child to continue a meaningful relationship with the mother, but not if the time was limited to only 2 hours per month as the father seeks.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis – s.60CC(3)(e)
This in not a relevant consideration in this case.
The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs – s.60CC(3)(f)
The comments made in relation to the considerations under s.60CC(3)(c) and (i) above indicate the father may not be able to properly meet the children's emotional needs. His abusive conduct in inappropriately enmeshing the children in the parental conflict and in using arguably legitimate concerns about the impact on the children of exposure to TZ as an excuse for doing so indicate an inability to separate the children's needs from his own. The fact is that the children still love their mother, but their antipathy towards TZ has been fed and fuelled by the father regardless of the consequences for the children and their relationship with their mother. The father since August 2006, has been content to let the children's relationship with their mother simply wither away, not encouraging any meaningful relationship between the mother and the children at all, under the guise of some suggested serious risk to the children of exposure to TZ despite the interim orders prohibiting the mother bringing the children into contact with him. There is no evidence to suggest the mother has breached the interim orders in this respect – the children have not met TZ since well before the interim orders were made. In fact, it is the father who has been prepared to ignore the interim orders, both by having the children live with him at the Merrylands address on a full time basis, and by not ensuring the children spend the time with the mother they should have under the interim orders. The father has also shown an inability to appreciate and therefore meet the children's psychological needs and well being by exposing them to the family violence he perpetrated on the mother on 19 March 2006.
There is no suggestion the father is not able to meet the children's physical or educational needs.
With only one qualification, there is no evidence on which the Court could find that the mother is not able to meet the children's needs. I am not satisfied that the mother was neglectful of the children, nor am I satisfied she hit or threatened to hit TK. The only qualification is in relation to TZ, and whether the mother's bringing the 2 youngest children into contact with him twice in February/March 2006, and proposing that CK live with her and TZ, displays a disregard for or an inability to meet CK’s needs.
The mother said TZ told her everything about himself, including about his criminal history. She must therefore be taken to know, and to have known at relevant times, of his significant criminal record, and that he considers himself at risk of possible future assault. She must also be taken to know, and to have known at relevant times, that TZ continues to maintain his innocence in relation to convictions for serious offences even after unsuccessfully appealing those convictions.
TZ’s most recent convictions relate to an incident that occurred 2 years ago. There is no evidence of any subsequent charges against him. While rehabilitation is always a possibility, there must be some genuine concern when TZ does not acknowledge any wrongdoing. Objectively, the risk of re-offending must then be greater. He himself believes there is a risk of being assaulted again. And he gave no evidence about his criminal record, and certainly gave no evidence on which the Court could base a finding that he has turned over a new leaf. Thus, objectively I am satisfied there is a risk of TZ re-offending, and of being the victim of a further assault or assaults. If any of the children were to live with the mother and TZ, there is a risk of them being exposed to a criminal lifestyle, to TZ’s distrust of, if not open antipathy to, the police, and to the possibility of serious violence upon TZ.
I am concerned that the mother nowhere in her evidence gave any indication she had considered these risks to the children. I am therefore satisfied that she has been prepared to put her own needs in relation to her relationship with TZ ahead of the children’s needs to a safe environment, good adult role models, and being raised to be responsible, law-abiding members of society.
There is a further facet of the complex family dynamics in this case to which I have earlier adverted, and that is the religious/moral upbringing of the children and the consistency or otherwise with that upbringing of the mother's re-partnering. As mentioned, the conditions TK placed on staying with the mother of separating from TZ and then going to confession indicates the potential significance of this aspect. The 2 youngest children attend a Catholic school and the evidence suggests the father attends Mass otherwise than merely on Sunday. Yet this aspect was not explored in the parties’ evidence, nor was it pursued by the Family Consultant, whose focus appropriately was on the family dynamics. I am therefore unable to place significant weight on this matter.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant – s.60CC(3)(g)
I have already commented on the children's respective ages and maturity in dealing with their views, and have adverted to the religious/moral upbringing of the children. There are no further matters relevant to this consideration.
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right – s.60CC(3)(h)
This consideration is not relevant.
Any family violence involving the child or a member of the child’s family – s.60CC(3)(j)
I have already dealt with the issues concerning family violence.
Any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person – s.60CC(3)(k)
I have already set out the terms of the currently operative AVO’s.
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 – s.60CC(3)(l)
This aspect was not addressed in any of the parties’ submissions. It is not plain that the orders the mother seeks, the orders the father seeks, or some arrangement in between, for example an equal time arrangement or CK living with the father but spending more time with the mother than the father proposes, will be less likely than any other option to lead to further litigation.
Any other fact or circumstance that the court thinks is relevant – s.60CC(3)(m)
Neither party argued there was any other relevant consideration. However, in my view the fact the mother has remarried and she and her husband have a baby daughter, and the potential impact on that family unit of the restrictions the father seeks to place on the mother bringing the children into contact with her husband, is a relevant consideration. By adversely impacting on the mother and her psychological well being, or by placing an insurmountable hurdle to the mother in fact having a relationship with the children, the restrictions the father proposes may adversely impact on the children’s best interests. Of course, if there is also a risk to the children if some such restriction is not imposed, then the competing risks need to be balanced. I will consider this further below.
Discussion and decision
The first matter to be addressed is what order should be made in relation to parental responsibility for the children, because of the possible consequences under s.65DAA of an equal shared parental responsibility order. The mother seeks no order for the eldest two children, and an equal shared parental responsibility order for CK. The father seeks an order that he have sole parental responsibility for all three children.
The rebuttable presumption about equal shared parental responsibility does not apply where there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in child abuse or family violence (s.61DA(2)). I am satisfied that the father has engaged in family violence towards the mother in the presence of the children. I am not satisfied the mother has abused TK. I am not satisfied TZ has engaged in family violence or child abuse.
Thus, the rebuttable presumption under s.61DA does not apply. However, that does not preclude the Court making an equal shared parental responsibility order if satisfied it would be in the best interests of any or all of the children.
While the father has had some legitimate concerns about risks to the children from TZ, I have found that some of the ways the father sought to address that with the children have been inappropriate and have been abusive of the children. There is no evidence to demonstrate that the mother is not capable of making appropriate decisions about major long term issues concerning the children.
In fact, because of my findings that the father has inappropriately involved the children in the parental conflict, in my view it is important for at least CK’s welfare that the mother retain a significant involvement in the child’s upbringing. It will facilitate the maintenance of as meaningful a relationship as is possible in the difficult circumstances of this case between the boy and his mother. The alternative of granting the father sole parental responsibility will in my view create the opportunity for further exclusion of the mother from the boys’ life, contrary to the first of the primary considerations. I can see nothing in any of the additional considerations that would warrant the mother's exclusion from this important role in relation to CK. I am therefore satisfied that an equal shared parental responsibility order should be made in relation to CK.
In relation to the eldest two children, I am not satisfied any parenting orders, including a parental responsibility order, should be made. The children are making their own decisions about their relationship with their mother. It is unnecessary to either grant the father sole parental responsibility or an order that the eldest two children live with him for the present parenting arrangements to continue.
It is to be greatly hoped that in time, the eldest two children may renew their relationship with their mother. To do so, I am satisfied, would be in their best interests. However, to grant the father sole parental responsibility or a live with order is not only unnecessary, it may convey the incorrect impression, or it may be used to suggest to the children, that their mother is unworthy of involvement in their upbringing. And I am satisfied that is not the case. Because of the incorrect negative impression of the mother's worth as a parent and a person that the orders the father seeks may convey to the children, I am satisfied such orders are not in the eldest children's best interests. What will best promote their interests is no parenting orders at all.
What remains to be decided is what further parenting orders will promote CK’s best interests. Because of the intended equal shared parental responsibility order for him, the Court must consider not only the parties’ proposals, but also the options of an equal time order (s.65DAA(1)), and if an equal time order is not made, a substantial and significant time order (s.65DAA(2)).
The mother has irrevocably committed herself to her relationship with TZ – they are married, have a new daughter, and are living together. It is simply untenable to contemplate an order that CK live with the mother and not be brought into contact with her husband. Section 43, although seldom now referred to, remains in the Family Law Act, and the Court is bound to apply its provisions, including para.(a), the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life, and para.(b), the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.
The mother and father are now divorced – their marriage, at least in a civil if not an ecclesiastical sense, has ended. The subsisting marriage, again in the civil if not the ecclesiastical sense, is the mother's marriage to TZ. And the mother and TZ have formed a new family, with the responsibility for the nurture, care and education of their new daughter.
The subject children too are members of a family, and it is their best interests, rather than those of any of the adults, or of Angel, that are the paramount consideration in this case. Their family does not just comprise them and their father. It rightly comprises them and both their parents. However, the relationships of each of the children with their mother are at best under great strain, and at worst for the eldest two children, have broken down. And this is because of their perceptions, however formed, of their mother's husband.
This creates an almost insurmountable problem. The mother concedes the 2 eldest children are not amenable to any orders to spend time with her, so strong are their views against her husband and so independent have they now become. But CK is much younger, and is more amenable to parental direction. An order that he live with or spend time with his mother is a viable option despite his stated views against visiting the mother or sleeping at her home if her husband was present.
I accept that the father honestly believes in the correctness of his actions in seeking to “protect” the children from TZ, despite my criticisms of him for some of the ways he has sought to do so. The reality is that no order of the Court will change the father's attitude to TZ or his perception of the risk he poses to the children. Whether CK lives with the father, or lives with the mother and spends time with the father, or spends equal time with each parent, he will continue to be exposed to not only the father's attitude to TZ but also his siblings’ negative attitude to him as well. Thus, it might be argued that the less time CK spends with the father and his siblings, the less opportunity there will be for him to be exposed to negative influences about the mother in her relationship with TZ that may inhibit him benefiting from a meaningful relationship with his mother.
On the other hand, the more time CK spends with the mother, the greater the risk that the difficult position this will place him in with his siblings will result in damage to his relationship with his siblings, and the greater the risk of creating inner conflict and turmoil for the child in relation to his perceived loyalty or lack thereof to his siblings and his father. As the Family Consultant commented, not only did the three children present as a tight knit group, so did the father and the children.
Thus, what needs to be weighed are the relative costs to the child of the various options, a matter in relation to which neither the factual evidence nor the opinion evidence of the Family Consultant provides any clear answer.
Having regard to the present strained relationship of CK with his mother, his strong relationship and close bond with his siblings, and the potential adverse impact on his relationship and bond with his siblings of spending equal time or substantial and significant time with the mother, much less living with the mother, I am satisfied that the option of living with the father and spending time with the mother is better for the boy than any of the other alternatives, despite the risk to his chances of developing a stronger relationship with the mother that the greater exposure to the negativity of his father and siblings will entail. I am satisfied that there is some risk to CK from being exposed to TZ for any significant periods of time, and in my view this tips the balance of this case against CK spending any significant time with the mother. In my view, it also tips the balance against CK spending any overnight time with the mother at this stage.
If in time the mother can demonstrate that TZ has been rehabilitated from his criminal past and that there is no real risk of his being further assaulted, then, other things being equal, it would benefit CK to move to greater periods of time, including overnight time, with the mother. This would not only provide a greater opportunity for him to benefit from a meaningful relationship with his mother, but also from a closer relationship from his younger half sister. However, I am satisfied that at present, such an arrangement is not in his best interests.
What would presently be in CK’s best interests is a regime of spending time with his mother, initially for shorter periods and in TZ’s absence, but increasing in duration and commencing to involve TZ over time, while not extending to overnight periods. That will provide CK an opportunity to renew his relationship with his mother and to develop it over time, and to gradually get to know TZ and hopefully reduce his concerns about him, while minimising any risk to CK that TZ may in fact pose to him.
I therefore propose to order that CK live with the father and spend time with the mother, initially for a few hours weekly at a shopping centre in TZ’s absence, then at the mother's home in TZ’s absence, then with TZ present, and with the duration of time increasing until it becomes both days of each alternate weekend, but not overnight.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 16 August 2007
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