Kennedy and Masuyo
[2012] FamCA 471
•18 June 2012
FAMILY COURT OF AUSTRALIA
| KENNEDY & MASUYO | [2012] FamCA 471 |
| FAMILY LAW – CHILDREN – Where the children have been exposed to high levels of domestic violence by both parties – where the mother alleges alcohol misuse and drug abuse by the father – where the nature of each child’s relationship with each of their parents is different – where the mother and the children are Torres Strait Islander – where there are practical difficulties in travelling between the locations where the parties reside - where the younger child may spend block periods of time with his father on X Island – where restrictions are placed upon the younger child’s time with the father both in terms of the use of alcohol and restrictions on travel by sea FAMILY LAW – DE FACTO PROPERTY – where the husband’s evidence was that the parties attempted a reconciliation for a period of two days after 1 March 2009 - declaration pursuant to s 90RD(2)(d) Family Law Act that a period of the de facto relationship of the parties existed after 1 March 2009 |
| Family Law Act 1975 (Cth) |
| Dahl & Hamblin [2011] FamCAFC 202 |
| APPLICANT: | Mr Kennedy |
| RESPONDENT: | Ms Masuyo |
| INDEPENDENT CHILDREN’S LAWYER: | Terry Newman |
| FILE NUMBER: | CSC | 196 | of | 2010 |
| DATE DELIVERED: | 18 June 2012 |
| PLACE DELIVERED: | Thursday Island |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 29 February 2012 – 2 March 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Benson |
| SOLICITOR FOR THE RESPONDENT: | Bottoms English |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fellows |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Newman Family Lawyers |
Orders
Parenting
All previous orders and undertakings be discharged.
Subject to order 9, the father have sole parental responsibility in relation to the child D born … July 1995.
D spend time with both his parents as he chooses.
The mother have sole parental responsibility in relation to the child L born … July 2000 except L shall attend T Secondary School, Y Island, whilst the mother lives on Z Island or Y Island or at any other place from where L can commute to T Secondary School on a daily basis.
The child L shall live with his mother.
The child L shall spend time with his father as follows:
6.1.At any time agreed by the parties in writing but failing any other agreement:
6.1.1.On one weekend per month from the conclusion of school on the Friday until the commencement of school on Monday with the father to collect L from school and return L to school;
6.1.2.The weekend referred to in 6.1.1 be the weekend which commences the first Friday of the month, except that if the weather does not permit the father to travel to Y Island by sea, the father may, on 24 hours notice in writing, cancel that proposed visit and nominate another weekend in that month during which L will spend time with his father and his father will travel to Y Island by air.
6.1.3.For the first half of all school holidays which are in or commencing 2012 and the second half of all school holidays which are in or commence 2013 and alternating each year thereafter, such holidays to commence at 12 noon on the first Saturday of school holidays and conclude at 12 noon on the middle Saturday of the school holidays and at 12 noon on the middle Saturday of the school holidays and 12 noon on the final Saturday of the school holidays respectively.
6.1.4.During periods either or both the children are in the care of the father, the father shall not consume or use illegal substances or consume alcohol for 24 hours prior to his time with the children and throughout the duration of his time with the children and the father will ensure no person shall consume alcohol in his home whilst the children are in his care.
6.1.5.For a period of three months from the date of these orders, L shall spend time with his father on Y Island, Z Island or W Island and in the waters one nautical kilometre around those islands (including any other island within that distance).
6.1.6.After a period of three months from the date of these orders, L may spend time with his father on X Island on the following conditions:
6.1.6.1.L stays at M Street, X, or any other place that the father ordinarily resides on X Island from time to time;
6.1.6.2.Until L is 14 years of age, Ms N not be present at M Street, X, or what other premises the father might ordinarily live on X Island from time to time whilst L is with the father except between the hours of 10am and 5pm;
6.1.6.3.The father inform the mother in writing seven days beforehand of his intention to take L to X Island;
6.1.6.4.Until the end of the 2012/2013 Christmas school holidays the father present himself to Mr R, (…) on one occasion each day when he is with L on X Island at a time to be agreed upon between the father and Mr R and failing agreement at a time nominated by Mr R for the purposes of Mr R or his nominee making some assessment as to the father’s sobriety;
6.1.6.5.The father may take L to the west coast of the mainland (for example to Bamaga and Seisia) upon the father giving the mother seven day’s written notice of his intention to do so. The father is not to travel with L by boat from or to the Y Island/Z Island/W Island area to or from X Island.
6.1.7.Mr R at the conclusion of the third term school holidays and at the end of the 2012/2013 Christmas school holidays, provide to the Independent Children's Lawyer and the mother’s lawyer, a short written report confirming that in his observations (or the observations of any person Mr R may nominate) when L has been with his father on X Island, the father has not been under the influence of alcohol;
6.1.8.Mr R forthwith report to the Independent Children's Lawyer and the mother’s lawyer in writing, if in his opinion, the father has failed to comply with order 6.1.4 or 6.1.6.4 and if such a report is received, the Independent Children's Lawyer has liberty to relist the matter before me on seven days notice.
The child L shall communicate with the father by telephone every Wednesday night between 7:00pm and 7:30pm with the father to initiate the calls to a telephone number provided by the mother.
Neither party shall use or be under the effects or an illegal substance or have drug paraphernalia in their residences when caring for the children.
The mother ensure both children have the opportunity to participate and maintain instruction and exposure to their expected and usual Torres Strait Island cultural practises.
Both parents shall encourage and support the child D to obtain qualified professional education and therapeutic counselling pertaining to illegal substance abuse and alcohol misuse and assist D to develop relationships with Torres Strait Island community elders for the purpose of guidance and support.
Neither party shall denigrate the other parent or their extended family members or the other parent’s cultural practises or identity within the presence or hearing of the children and shall remove the children from the presence of other persons who may be doing so.
Neither party shall physically discipline the children.
Either party intending on holidaying with the children outside the Torres Straits Island area shall provide the other parent in writing with itineraries and contact telephone numbers, 7 days prior to such time away from the Torres Strait Islands.
The parties inform the other of any emergency medical procedures concerning the child including any attendance by them at a hospital or doctor/medical centre whilst they are in the care of that person.
The children communicate with their father as and when they choose, using their mobile phones as provided to them by the father.
The father from time to time place money in an iSaver account (with the NAB) to fund L’s calls to his father on L’s mobile phone.
The child L shall be at liberty to telephone his father at any time L chooses using his mobile phone.
The mother shall authorise the school attended by L to provide to the father at his expense copies of school reports, school circulars and newsletters and any school photographs. and the mother will do everything necessary to provide authority to L’s school principal and L’s guidance officer to speak to the father about L.
The father authorise the principal of the college that D attends to communicate with the mother about D’s progress and to assist the mother facilitate making arrangements to contact D.
The mother will do nothing to impede L receiving gifts, letters and cards from his father and in particular the mother shall not return gifts to the father.
The father be restrained from allowing L to come into contact with Mr C of W Island.
Written communication required by these orders should be by email or SMS and for that purpose, each parent is to provide the other with their current email address and mobile telephone number from time to time.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
Pursuant to s 90RD(2)(d) Family Law Act a declaration is made that a de facto relationship existed between the parties which ended after 1 March 2009.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kennedy & Masuyo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 196 of 2010
| Mr Kennedy |
Applicant
And
| Ms Masuyo |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parents live in the Torres Strait Islands. When the parties separated for the last time, the mother left the family home which was built on her traditional land on X Island and went to Z Island to live. The mother is an indigenous person, the father is not. The father remained on X Island.
Currently the elder child, who goes to school on Y Island, is aligned with his father. He is now of an age where the parties agree that he will be the master of the destiny of his future relationship with his parents. The younger child lives with his mother on Z Island. When he has spent time with his father, that time has been spent on Y Island. At the time of the hearing, he had not seen his father for several months.
Although there is an air service between X Island and Z Island (and ferry from Z Island to Y Island), the father prefers for financial reasons, to make a three hour journey by dingy. Sometimes the weather prevents him from being able to do this. The father seeks flexibility in arrangements in relation to his regular visits to Y Island to see the younger child.
The parties were involved in a de facto relationship for about 15 years. The relationship was characterised by occasions of domestic violence. The mother acknowledges that on occasions she was violent, but says that her violence was in retaliation to the behaviour of the father. The parents also used drugs and in particular marijuana. Throughout the relationship the father has drunk alcohol. He concedes that on occasions he has drunk to excess. The mother claims that he was usually intoxicated. The extent of the father’s drinking patterns was an issue at trial.
The father’s drinking patterns were the primary reason why the mother opposed the father seeing the younger child away from Y Island. The father says that the interim arrangements that required him to see the younger child on Y Island were problematic and expensive. He wishes to be able to take the younger child to neighbouring islands and the most proximate part of the mainland of Queensland when he has the younger child on weekends during term time. The boats that he has offer accommodation and the father wishes to be able to camp on islands close to Z Island and to fish in the waters, particularly around Y Island, Z Island and W Island. The mother opposes the father having that type of freedom because of her implacable fears in relation to the father’s use of alcohol and his behaviour generally.
There were numerous separations and reconciliations between the parties, the separations usually being after an incident of domestic violence and with the mother being the person who normally left. The children witnessed much domestic violence between their parents. The mother also says that the domestic violence extended to the children towards the end of the relationship. The father on the other hand alleges that the mother behaved in an unstable way and it was she who perpetrated violence against him. Because of the behaviour of both parents in 2004, the child welfare authorities removed the children from the parties and placed them in foster care.
It is the mother’s case that in 2009 she left X Island with the younger child to seek professional counselling for domestic violence and to defend an application for a domestic violence order brought against her by the father. The parties’ current relationship is characterised by bitterness and recriminations and their current ability to communicate is minimal.
The mother has requested that the father vacate the mother’s traditional island home. When the trial commenced the mother originally made that application under s 68B(1)(c) Family Law Act (“FLA”). During the hearing, the mother indicated that the injunctive/exclusive occupation orders that she sought in relation to her traditional lands on X Island were being made in the context of a proposed application for alteration of property relying upon the de facto property provisions in the FLA. I allowed the mother to make that oral application over the father’s objections. I indicated, however, that I would not be finally dealing with that application in the context of the parenting hearing. I have heard evidence in the property application from Ms B and Mr R but I am part heard in that application. It was not the mother’s intention to return to X Island if the father was going to continue to live elsewhere on X Island.
The father submits that the final separation took place before 1 March 2009. I indicated in the current hearing I would determine as a preliminary matter the mother’s oral application for a declaration that the relationship between the parties ended after the date of the commencement of the de facto relationship property legislation in the FLA. Based on the evidence given by the father, I found that part of the relationship did occur after the relevant date and consequently the mother was entitled to bring her application for alteration of property. The exact nature of the mother’s property interests on X Island will be the subject of a further determination in the context of the overall property hearing between the parties. During this hearing I took evidence from two elders from X Island relating to the nature of those property interests. The mother wishes to be able to receive rent from the island. The father is not currently contributing any significant child support to assist the younger child.
In September 2011, the mother and D had an argument about whether or not D could use Commonwealth benefits to travel to X Island to be with his father for school holidays. D at that time was living with his mother. The mother was making the point that D was not entitled to the benefit as it was based upon X Island being his normal residence. More fundamentally however, the mother simply did not want D to go to X Island to be with his father for the holidays. This caused a rift in the relationship between the mother and D.
During her oral evidence, the mother said “in her heart” she did not want either boy to have any relationship with their father. It was clear that her concession to allow the father to see the younger child on Y Island was one which had been taken in consultation with her lawyers for a forensic purpose and did not represent the mother’s true belief as to what should happen in the best interests of the younger child.
Both children have suffered emotionally. The elder child has acted out with aggression and anti-social behaviours, being regularly suspended from school. He has however repatriated himself somewhat recently and is now back at TAFE. Previously he had been found drinking alcohol and using marijuana when in the care of his father and using alcohol when at boarding school and under the care of his mother.
The younger child has displayed very sensitive and trauma type behaviours, including a fear of being separated from his mother. The mother concedes that the younger child enjoys spending time with his father but contends that the younger child is likely to be emotionally affected by spending extended periods of time with his father alone, particularly if his older brother is not present. It is the father’s proposal however that the younger child’s extended periods of time with him would be primarily spent when both boys were together.
The mother asserts that the child L has negative memories of his time on X Island, including his father’s heavy drinking and violence and of being separated from his mother. As will be more fully set out in the chronology, there was a significant period in 2008 and 2009 where both boys lived with their father on X Island without the mother being there.
APPLICATIONS
By the commencement of submissions, the Independent Children’s Lawyer (“ICL”) sought the following orders:
1.That the mother have sole parental responsibility for the child [L KENNEDY] born … July 2002.
2.That the father have sole parental responsibility for the child [D KENNEDY] born … July 1995, subject to order 7.
3.That the child [D KENNEDY] spend time with both his parents as he chooses.
4.That the child [L KENNEDY] born … July 2000 shall live with the mother.
5.That the child [L KENNEDY] shall spend time with and communicate with the father [MR KENNEDY] as follows:
5.1.At all times as agreed by the parties;
5.2.During school terms for up to one weekend per month (subject to the father giving the mother notice by text, email or writing 21 days prior) from the conclusion of school Friday until commencement of school Monday with the father to collect the child from school and return the child to school; and
5.3.That from three months of the date of these orders, the father shall only spend time with the child on [Y] Island, [Z] Island, [W] Island or the waters between those islands.
5.4.After a period of three months from the date of these orders, [L] may spend time with his father on [X] Island, subject to the following conditions until the end of January 2013:
5.4.1.The father present himself to Mr [R] (…) on one occasion each day when he is with [L] on [X Island] for the purposes of Mr [R] or his nominee making some assessment as to the father’s sobriety;
5.4.2.Mr [R] at the conclusion of the third term school holidays and at the end of January 2013, provide to the Independent Children's Lawyer and the mother’s lawyer, a short written report confirming that in his observations (or the observations of any person Mr [R] may nominate) when [L] has been with his father on [X Island], the father has not been under the influence of alcohol;
5.4.3.Mr [R] forthwith report to the Independent Children's Lawyer and the mother’s lawyer in writing, if in his opinion, the father has failed to comply with order 5.4.1 or order 5.7 and if such a report is received, the Independent Children's Lawyer has liberty to relist the matter before me on seven days notice.
School holidays
5.5.For the first half of all school holidays [in] 2012, the second half [in] 2013 and alternating each year thereafter with the collection to commence at 12noon on the first Saturday of the school holidays and to conclude at 12 noon on the middle or last Saturday of the school holidays.
Communication
5.6.By telephone every Wednesday night between 7.00pm and 7.30pm with the father to initiate the calls to a telephone number provided by the mother.
5.7.During periods either or both the children are in the care of the father, the father shall not consume or use illegal substances or consume alcohol for 24 hours prior to his time with the children and throughout the duration of his time with the children.
6.That neither party shall use or be under the effects or [sic] an illegal substance or have drug paraphernalia in their residences when caring for the children.
7.That the mother ensures both children have the opportunity to participate and maintain instruction and exposure to their expected and usual Torres Strait Island cultural practises [sic].
8.That during periods the child [L] spends time with the father, [MS N] shall not reside in the father’s residence.
9.Both parents shall encourage and support the child [D KENNEDY] to obtain qualified professional education and therapeutic counselling pertaining to illegal substance abuse and alcohol misuse and to assist the said child to develop relationships with Torres Strait Island community elders for the purpose of guidance and support.
10.That neither party shall denigrate the other parent or their extended family members or the other parent’s cultural practises or identity within the presence or hearing of the children and shall remove the children from the presence of other person’s who may be doing so.
11.Neither party shall physically discipline the children.
12.That is either party intends holidaying with the children outside the Torres Strait Island area, they shall provide the other parent with itineraries and contact telephone numbers, 7 days prior to such time away from the Torres Strait Islands.
13.That the parties inform the other of any emergency medical procedures concerning the child including any attendance by her at a hospital or doctor/medical centre whilst she is in the care of that person.
14.The mother will authorise the school attended by the child to provide to the father at his expense copies of school reports, school circulars and newsletters and any school photographs.
15.That the parties keep the other advised of the child’s residential address and emergency contact details for the child and keep the other advise [sic] of any change of residential address within 24 hours of such change.
16. That the father be restrained from allowing [L] to come into contact with [Mr C] of [W Island].
The father agreed with these orders. He sought an order there be some mechanism for him to send the mother a message if he was unable to spend time with the child L on the nominated weekend (because of bad weather), and to nominate a different weekend. The mother agreed to accept emails from the father for this purpose. The father also sought a specific order that L attend high school on Y Island. The mother agreed her intention was for L to attend that school. The father also sought that the locations he could take the children in the first three months be expanded to include the Northern Peninsula Area (for example, Bamaga and Seisia). The father sought an order that he be able to send gifts to the children, without the mother telling the children they have to return the gifts.
The parties also agreed that the father provide L with a mobile phone and put money in his iSaver account to fund calls from that mobile phone.
At the commencement of submissions, the mother’s primary position was that she sought sole parental responsibility for both children and that they both live with her. She agreed that the children should spend time with the father one weekend per month. However she sought for that time to be only on Y Island, unless the Court was satisfied that the father would abstain from consuming alcohol and illegal drugs and not engage in or expose the children to domestic violence or other violent behaviour.
The mother’s alternative position was that if the ICL orders were accepted, she sought a similar order to the ICL’s order 14; that the father authorise D’s school to provide her with information about D’s progress at school. The father agreed to this. She further sought that order allow her to make arrangements to visit D at his boarding school. The mother continued to oppose L spending block periods of time with his father.
DOCUMENTS RELIED UPON
The applicant father relies on the following:
20.1.“Amended” Initiating Application filed 14.10.2010
20.2.Initiating Application filed 6.04.2010
20.3.The applicant’s affidavit sworn 10.02.2012
20.4.The applicant’s affidavit sworn 30.03.2011
20.5.The applicant’s affidavit sworn 2.07.2010
20.6.The applicant’s affidavit sworn 9.06.2010
20.7.The applicant’s affidavit sworn 9.02.2010
The respondent mother relies on the following:
21.1.Amended Response to Initiating Application filed 6.09.2011
21.2.The respondent’s affidavit sworn 31.08.2011
21.3.The respondent’s affidavit sworn 7.07.2010
21.4.The respondent’s affidavit sworn 23.02.2012
21.5.Affidavit Ms B sworn 24.02.2012
Other independent material relied upon:
22.1.Affidavit of Cultural Ambassador Mr R dated 30.03. 2011
22.2.Family Consultant Report by Ms G dated 24.03.2011
22.3.Memorandum to Court by Family Consultant Ms E dated 29.03.2011
22.4.Exhibits book prepared by the Independent Children’s Lawyer filed 20.12.2011
SHORT HISTORY
The mother was born in 1960 and is now aged 51.
The father was born in 1961 and is now aged 50.
The parties met around 1992-1994.
The child D was born in July 1995 and is now aged 16.
The child L was born in July 2000 and is now aged 11.
The parties separated in 2009 (after 1 March 2009).
CREDIT
It is not necessary to make credit findings to determine this case. Neither party conceded that they had any significant part to play in the current difficulties that face the children. The father gave evidence in a measured and calm way and made concessions about his behaviour where those concessions were sought. He did however, in my view, seek to minimise the extent to which he used alcohol and other drugs, particularly marijuana.
The mother was a less impressive witness than the father, but it was difficult for me to assess how her demeanour was affected by the domestic violence that she has suffered at the hands of the father (although at times she has accommodated the husband in their altercations). She was, however, brutally honest about how she felt “in her heart”.
There is a volume of material (particularly in the tender bundle prepared by the Independent Children's Lawyer) which chronicles in an objective way the difficulties that the parties have had during their relationship and the difficulties the children have had during their parent’s relationship.
Given the concessions each party has made of their own behaviour and what is contained in contemporaneous objective reporting by independent observers, there is no need in this case for me to reconcile any differences in the evidence between the two parties.
Neither party is blameless. Both parties have significantly contributed to the current circumstances and difficulties of the children.
CHRONOLOGY
The mother was born in 1960.
The father was born in 1961.
The father’s new partner Ms N was born in 1972.
The mother’s son F Masuyo was born in 1984. F’s maternal grandmother traditionally adopted him and became his parent. The mother says she has a good relationship with F and maintains regular contact with him.
The father’s son S was born in 1984. The father has limited or no contact with S.
The father’s daughter H was born around April 1987. The father has limited or no contact with H.
The parties met in Cape York in 1994. The father was living on A Island.
The parties’ first child D was born in July 1995.
The parties commenced cohabitation in September 1995.
LL, the daughter of the father’s new partner (Ms N) was born in 1995. LL currently resides with her grandfather.
In 1996, the mother and D moved to A Island to live with the father.
In November 1997, the parties relocated to X Island. X Island is halfway between the Cape York Peninsula of Australia, and the southern coast of Papua New Guinea.
The parties’ second child L was born in July 2000.
Around 2003 or 2004, the father took out a Domestic Violence Order (‘DVO’) against the mother.
In 2004, the father locked the mother out of the house. In response, she picked up an axe and began threatening the father. The child D tried to intervene. The father contacted the Department of Communities (Child Safety) who removed the children and placed them with maternal relatives residing in the same community.
On 11 November 2004, Department of Communities (Child Safety) relocated the children to Cairns and placed them with their maternal aunt, whom they had not previously met.
Around February or March 2005, the children returned to their parents under a Protective Supervision Order.
In 2007, the mother took out a DVO against the father. After he was served with the order, the father took the children to Cairns for three weeks without informing the mother.
In November 2007, the father moved to Cairns. He commenced a relationship with another woman.
In 2007, the father attended Alcohol, Tobacco and Other Drugs Service (‘ATODS’) in Cairns to “detox”. In the Family Consultant report, Ms G records the father as explaining he attended ATODS because he thought he was “over-drinking”. During his cross examination of Ms G, the father denied this and said he attended ATODS because the mother said he was over-drinking. The father alleges ATODS told him he did not have a drinking problem.
In December 2007, the father returned briefly to celebrate Christmas with the mother and children. He returned to Cairns in January 2008.
In February 2008, the mother and children moved to Cairns and the parties attempted to reconcile their relationship.
In March 2008, the mother alleges the father told her and the children to leave his home. The mother took a big carving knife from the sink and stabbed herself in the hand and arm. The father called the police and emergency services. The mother was taken to hospital for medical attention.
In May or June 2008, the father relocated back to X Island leaving the children with the mother in Cairns.
In 2008, D was suspended numerous times from … High School in Cairns.
In August 2008, the parties agreed that the children would relocate back to X Island to live in the family home with the father. The mother remained working in Cairns and had regular contact with the children.
In 2009, D began attending T Secondary School on Y Island. He was suspended in April and May 2009.
In May 2009, the mother moved from Cairns back to X Island. Two days after she moved, the mother was informed that her father was quite ill and she was required to go to Y Island.
In July 2009, the mother relocated with the child L from X Island to Y Island while the father was away working on the mainland.
In October 2009, the father met his new partner Ms N.
During 2010, D was suspended from T Secondary School on five occasions.
On 14 July 2010, D was suspended from K School.
On the 20 July 2010, Federal Magistrate Willis made orders (by consent) that D continue attending school at T Secondary School on Y Island. Her Honour ordered the child L to live with the mother on Y Island and spend substantial and significant time with his father. The child L was to live with his father:
66.1.During all school holidays on X Island;
66.2.At times when the father visits Y Island (including overnight time)
Around October 2010, the father and Ms N were involved in a physical altercation, resulting in police involvement.
In July or August 2011, D was suspended again from K School and moved in with the mother.
In September 2011, D and the mother had an argument. He relocated to X Island to live with his father.
On 28 February 2012, D began attending T TAFE to complete his final year of secondary education. Around this time he began boarding with Mrs BL on Y Island.
MAJOR ISSUES
Drug and alcohol use by the parties
Both parties admitted they have used marijuana. Both deny they are currently using the substance.
The father alleges the mother was a very heavy user when the parties first met. He alleges she smoked marijuana every day.
In her affidavit, the mother alleges the father was growing marijuana on A Island during 1997. The mother asserts the parties used marijuana together. She told the Family Consultant that she used marijuana approximately once per week “if [it] was offered to her”, but said she did not purchase marijuana when she had children. In her oral evidence, the mother conceded she smoked marijuana at least until 2008.
The mother alleges the father gets drunk often. She alleges the father has left the children unattended while he was intoxicated.
The father asserts he does not drink during the week, or while the children are with him on school holidays. He said when he was with friends he may consume nine or ten beers.
The father denied he told the Family Consultant that he attended ATODS because he “thought [he] had been over-drinking”. He indicated during the Family Consultant’s cross examination that the mother thought he was over-drinking and he attended ATODS to prove to the mother that he had not been drinking. However, the Family Consultant has a contemporaneous note of her interview with the father, which she recorded his explanation for attending ATODS as “because I thought I had been over-drinking in 2007”. I accept Ms G has accurately recorded what the father told her and I find that the father went to ATODS at this time because he thought he was “over drinking”.
Domestic Violence
Both parties allege significant domestic violence in the form of verbal, emotional and physical assault. Both parties have applied for DVO’s against the other.
The mother alleges the parties’ relationship was already violent in 1997, “because of the father’s drinking”. She asserts the father would hit her with an open hand across her head. The father denied this ever occurred. I accept the mother’s evidence about that.
The mother deposes that in 2002, the father hit her on the head with a cup filled with hot coffee while she was breastfeeding the child L. She had a large cut at the top of her head. The father denies he hit her on the head. He says that the mother was sitting alone on the bed. The parties argued and she attempted to throw her cup of hot coffee on him. He says that he swatted the mother’s hand to try to avoid the coffee, and the cup hit the wall, shattered, then ricocheted back and cut her head. I accept the mother’s evidence about this incident.
During 2004, following an argument between them, the mother asserts that the father drove their car into the house, destroying the front extension. The father admits he did this.
After this the mother says the parties attended upon the Community Council for the purposes of mediation. The mother alleges that at that mediation the Council asked the father to leave the community for a week. The father alleges that mediation never occurred, and that the chairperson of X Island had said to him that he should leave the island because the Community Council believed there was a need to protect his own safety. He denies he was asked to leave the island for the mother’s and the children’s safety. The mother alleges the father refused to leave and in a fit of anger burned her belongings and used an axe to smash holes in the water tanks the family used. The father denies he burned any of the mother’s belongings. He agrees he put holes in the water tank, not out of anger but rather to “get rid of all of the old rotted matting to actually re-fibreglass the tank”. I accept the mother’s evidence about what happened at this time.
Material from the Queensland Police reveals police involvement in domestic disputes from 2003.
The children have witnessed much of the violence between the parties. Police records reveal, amongst others, the following events:
83.1.On 10 June 2004, the parties had a verbal argument. The mother left the family home, and the father locked himself inside. The mother later returned with an axe, threatening and abusing the father. The children were outside with the mother. In her affidavit, the mother admitted she wielded an axe and smashed a wall of the house.
83.2.On 22 August 2004, the children were present when the mother grabbed the father by the throat. She then grabbed a knife and a fishing spear. The father ran out of the house telling the children to run for help. The mother started throwing stones at the father. The father hit the mother on the bottom and on the head with a piece of wood.
83.3.On 4 November 2007, the father grabbed a metre long stick and raised it up to the mother, threatening her. The child D stood between the parties.
In the morning of 5 June 2008, the father accused D of stealing money from the mother. The father grabbed D by the throat, shaking him and yelling at him. The father relented and let go of D after the mother demanded he stop. That afternoon, the father slapped the mother across the face when she tried to stop him taking the children.
The father continues to be violent in his new relationship with Ms N. The first reported incident occurred in October 2010 when the father and Ms N were both intoxicated. An argument erupted when the father confronted Ms N about flirting with another man. The father smashed Ms N’s phone. They began hitting one another, although neither one can agree who threw the first punch. Ms N told the Family Consultant the father broke a window louver and a drinking glass. However in the police report, the father alleges Ms N broke the louver and a vase.
Ms N’s previous relationship was also violent. She admits that she stabbed her ex-husband in the shoulder with a “small steak knife”, after he punched her.
Ms N told the Family Consultant that the father and D have never had a physical altercation but that she has had to intervene in their verbal disputes on occasion.
The mother’s mental health
The father alleges the mother “was plagued by depression”. He alleges that mother would sit outside for hours staring, and not communicating, and when he asked what was wrong, she would go “crazy” with displays of verbal and physical aggression.
As already mentioned, during a dispute between the parties in 2008, the mother stabbed herself twice in the arm with a knife. The mother says the father was screaming at her to leave Cairns, and leave the children with him. She says she was “extremely worked up and upset”. The mother told the Family Consultant she “had no thought to kill herself and her actions were impulsive”.
The mother’s current mental health was not placed in question during the hearing.
The child D’s behaviour
D is attending T TAFE on Y Island. He is in year 12.
D has displayed significant behaviour problems.
D has been suspended from school numerous times for being disrespectful to teachers and smoking. He regularly truanted.
D was suspended from his high school in Cairns for making sexually explicit comments to a female peer. The parties said that D was expelled for this incident, but the student incident report from the High School (found in exhibit 1) shows he received a 15 day suspension.
On 4 August 2011, D moved out of the boarding facility K School after being suspended. After his suspension, he lived briefly with his mother on Z Island and caught the ferry to school on Y Island. In September he moved in with his father on X Island and was completing his school work by correspondence.
D is currently boarding with Mrs BL on Y Island. At the date of the hearing, the father was anticipating that D would imminently move to GG Boarding School.
The father says D has admitted using marijuana. Around July 2010, the father took D’s bowl and sachet of marijuana from him. D asked where his ‘gunja’ (marijuana) was, and was upset with Ms N for telling the father about his smoking.
Around December 2009, D allegedly ran away and returned home drunk around 2 am.
In June and July 2011, the police were called to the family home on X Island. D was caught smoking drugs.
During his oral evidence, Mr R said that he observed D drinking around December 2011. He said “it was easy to see that he was under the influence because he was carrying a couple of cans of beer.”
In his interview with the Family Consultant, D denied any drug use. He asserted he had drunk alcohol, but never to the point of intoxication.
The father reports D had thoughts of self harm. The principal of the K School, Ms I, told the Family Consultant that D had told the school nurse he thought about hanging himself.
D told the Family Consultant he had thoughts of suicide in 2008 and 2009.
The child L’s emotional health
In 2008, whilst living in Cairns, L became anxious his mother would leave him at school. L ran away on three occasions. The mother used to sit outside L’s classroom to make him feel safe, and later worked at the school canteen.
The father recounts L’s anxiety when, on one occasion, the mother was late to collect him from his father. The father describes L as becoming “panicked” and asking “Where is Mum?” and “She’s not here”.
In the family interview with L, D and the father, the Family Consultant observed L repeatedly ask when he was to go back to his mother.
The mother reports that L has settled into his school at Z Island Primary.
Cultural issues
The mother is a Torres Strait Islander. She was traditionally adopted (a practice known as “Kupai Omasker”) by her maternal uncle. She grew up on X Island and attended high school on the mainland. The father is not indigenous.
In the Family Consultant’s report dated 24 March 2011, the mother expressed the importance of the children’s cultural heritage.
The mother explained D’s initiation into manhood was to include a ceremony where his uncle shaved D for the first time. The father admitted that D had a moustache and he let D shave before the ceremonial event.
The mother relocated L to Y Island when the father had left X Island briefly for work on the mainland.
The mother denies that in December 2009 she initiated action to remove the father from the family home which is located on traditional land. However, the mother did write to the V Co-op Bodies Corporate Native Title stating a non Indigenous man was residing in her home while she and her children were in crisis accommodation.
For much of 2011, the mother took the children to Y Island on weekends for cultural education. The children learnt a ceremonial dance for the tombstone opening of one of the elders.
During her oral evidence, the mother gave evidence that L’s cousin (who is considerably older; he is married with six children) is teaching him to fish. She is teaching L the X language at home, and he participates in cultural dancing at school. She made it clear that while the father resided on X Island, she would not take L there to participate in any culture practices.
The father asserts that the children should also learn about “Australian” culture.
THE EVIDENCE OF MR R
Mr R was called as an independent expert to give evidence about cultural matters relating to the children’s connection with X Island. In doing so, he also gave some evidence about the mother’s property interests on that island.
In oral evidence however, it became clear that Mr R lived across the road from the former matrimonial home on X Island. Mr R had made observations of the father and his new partner in recent times. It gave an unexpected and candid insight into how the father had minimised recent difficulties.
Mr R gave evidence that he had observed the father intoxicated on three occasions in 2012. On one of those occasions, he observed the father carrying liquor, shouting abuse at neighbours. Mr R said that the father got into his vehicle and drove down the street, towards the neighbour’s house. Mr R gave evidence that he knew the father was drunk on that occasion (and not just angry) because he was not “speaking…in a reasonable language…[if he were sober but angry] he would be aware of the surroundings and he would control his words. Whereas when he’s drunk he’s uncontrollable.” Mr R said that when the father returned D came out of the house and tried to calm his father down.
On the other two occasions, Mr R heard the father and Ms N in a verbal dispute. He said he could tell Ms N was drunk because her eyes were “sleepy” and she had a “drunk face”. He also said he could smell the liquor, when the father and Ms N took their argument outside.
The father offered some explanation for these events. He said that the argument with his neighbours had started because people were asking him for alcohol that evening and that he was refusing to give them any alcohol. The argument was particularly heated because the father had discovered a person had been spreading a “terrible rumour…about … [Ms [N]] that she had been engaging in a sexual relationship with her cousin. He denied he was drunk on that occasion. I however accept Mr R’s evidence that he was.
The father agreed he and Ms N have had verbally abusive arguments in January and February of 2012.
Apart from the denial I have recorded above, the father did not fundamentally challenge the rest of what Mr R had said and despite the damning nature of Mr R’s evidence, at the end of the trial indicated he was comfortable with Mr R to be a monitor of his alcohol use whilst L spends time with him for extended periods on X Island (at least for a period of time). I formed the clear impression that the father was not particularly upset with Mr R because Mr R had only reliably answered questions that he had been asked on his oath.
WHETHER THE FATHER POSES ANY UNACCEPTABLE RISKS
The mother objects to the father taking the children to X Island by any mode of transport. She asserts the children are at particular risk travelling to X Island by boat. The mother said that the father “drives very fast… and he doesn’t know how to take shortcuts.” The reference to “shortcuts” related to taking a shorter route between the islands which involved the need for a detailed familiarity with tidal movement and the location of channels and reefs. The mother conceded that the shortcuts she was referring to were often risky, and it was safer not to take them.
She gave one example during her evidence of a time where the boat’s motor failed and the father told her to put the anchor down and activate the emergency device onboard. The mother argued that the father was reckless in embarking on the journey when he knew the boat’s motor had not been working properly, although she didn’t raise any concern with him at the commencement of the journey. I do not find that the father engaged in reckless behaviour at this time. Given the appropriate safeguards, I do not find there is an unacceptable risk in relation to boating activities.
The mother also asserts there is a risk that L will be exposed to more family violence between the father and Ms N. I accept that is a risk and measures should be put in place to minimise that risk.
I do accept the mother has an apprehension about L being in a boat with his father. I will acknowledge this by making an order, for a short time, which significantly restricts the places the father can take L on the water. That restriction will then be relaxed somewhat, however the father is not to travel with L from Y/Z Islands to X Island by boat.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII FLA 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
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)
Both boys would benefit from continuing to have a meaningful relationship with both parents.
The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
As detailed above, the children have been exposed to high levels of family violence. There is no doubt this has had a demonstrable effect upon D. I find both children have been significantly affected by it and that there is a need to protect L, in particular, as far as is possible, from the psychological harm flowing from it.
The additional considerations
Children’s views (s60CC(3)(a))
In 2010, D told the Family Consultant he would prefer to live with his mother and L rather than at the boarding facility, and to spend holidays with his father and L on X Island.
However since that time, D has relocated himself to X Island. D is at an age where he should choose what time he spends with each of his parents.
L told the Family Consultant he liked living with his mother. L asserted he did not want to live with his father, explaining he would worry about his mother. He said his father would get angry at him, but his mother does not get angry.
L asserted “his mother did not allow him to spend time with his father but his father allowed him to spend time with his mother”. L also stated he did not want to spend time with his father during school holidays, and would be upset spending less time with his mother.
Relationships of the children with the parents and other persons (s60CC(3)(b))
D has a strained relationship with the mother. The Family Consultant spoke to the principal of K School, Ms I, who gave examples:
137.1.D did not want to know his mother’s phone number.
137.2.After speaking to the mother on the phone, Ms I noted D’s behaviour became erratic; slamming the phone down, pacing and being disrespectful to the authorities at the boarding facility.
137.3.After D had a disagreement with his mother over the telephone, he arrived in an intoxicated state at the women’s shelter where his mother was residing. The mother said she took his mobile phone and he became angry and violent. He needed to be restrained from hitting her.
As recently as September 2011, D and the mother argued over his ability to use Commonwealth funds to travel to see his father. The mother gave evidence that D threw a cup at her and stormed out.
In contrast, L has a strong relationship with his mother. L told the Family Consultant he loved his mother and was happy she brought him back to Y Island.
The Family Consultant noted L spoke negatively about X Island, claiming there were “too many drunk people there every night.” He elaborated by saying his father drank on a Friday and if the mother was not present, D would look after him. L told her his father “growls” (get cross) at him if he thinks L has misbehaved. L was reluctant to talk about spending time with his father.
Despite this, the Family Consultant noted that L appeared at ease when interacting with the father in an observation session, initiating and responding to conversations with him and listening to his instructions. She observed that L became anxious towards the end of the time with his father and on numerous occasions L enquired about the time and when he had to go back to his mother.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
In her meeting with the parties on 29 March 2011, Family Consultant Ms E notes the mother “believes the children should have no relationship with their father whatsoever as he is a bad influence on them”.
During her cross examination, the mother agreed she still held this opinion, and she asserted she strongly distrusts the father. She also agreed that “we [she and the children] don’t talk about their father in the house… he’s not part of our household discussion.”
I find that, absent any order, it is unlikely the mother would facilitate L spending time with his father.
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
The children have already been placed into care twice. During that time, they had three different carers. It is appropriate to attempt to frame orders which attempt to minimise further disruptions in their lives.
In her interview with the Family Consultant in November 2010, Ms N expressed a preference to stay on the mainland to care for her father. She was unsure what that would mean for her relationship with the father. However, at the hearing it was apparent Ms N had chosen to continue residing with the father. Ms N and the father have now been living together between a year and a year and a half.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
The father is currently residing in X Island in the former family home. The mother is currently residing on Z Island. The islands are roughly 70 kilometres apart, and are accessible by boat or by plane.
The father says the travel time between the two islands is approximately three hours by boat. However, the father says that because the journey is across open water it is unsafe for him to travel by boat if there is bad weather.
There are flights between X Island and Z Island. If booked in advance they cost approximately $200 return, however at short notice they may cost $600 return. Flights are infrequent, and there is no flight on a Sunday. The first flight on Monday from X Island leaves at around 11:35am and takes approximately an hour. This means that if it became necessary for L to take this flight, L would miss half a day of school.
On the mother’s alternative proposal, the father would travel to Y Island (either by boat directly or a flight to Z Island then a ferry across to Y Island), and get accommodation for the weekend. He says a motel on Y Island costs $210.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))
Both parties’ capacity to provide for the needs of the children has at times in the past been compromised by their use of alcohol and other drugs and the occasions of family violence. The mother has overall adequately provided for L’s needs.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
D turns 17 years old in July 2012.
L is approaching adolescence and is finishing his last year of primary school.
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
The children are X Islander. The mother is expected to take responsibility for their cultural education and I have discussed already how she is fulfilling that responsibility.
The former family home is on X Island. The land is under native title.
I am yet to hear the property dispute in this matter. I have some evidence that the boys may be entitled to take their mother’s land and other land on X Island through traditional inheritance.
The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
In the interview with Family Consultant Ms E on 29 March 2011, the mother asserted that if the Court orders the children to spend any time with their father, the mother intends never to see the children again and will “disown them from their culture”. In her oral evidence, the mother stated she made this comment “in frustration” and now regretted it. However she agreed that her view on this point had only changed on the first day of the hearing, and if the children were to see their father she would “be thinking [that they should be disowned from their culture] but [she] wouldn’t say it.”
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
I have already detailed the significant history of family violence between the parties and other violence involving the father and how the children have been caught in the middle of it.
For example, Mr R gave evidence that D had attempted to calm his father down on two occasions where an argument had erupted between the father and another person.
Likelihood of order leading to further proceedings (s60CC(3)(l))
Whilst I acknowledge there are some risks in the father travelling with L by sea, the conditions I place on the father’s travel with L by sea are primarily aimed at minimising the mother’s fears and increasing the chances that L’s time with his father will happen.
EQUAL SHARED PARENTAL RESPONSIBILITY
The parents have extremely poor communication. The mother reiterated that she did not trust the father. The father has made unilateral decisions without the mother in regards to D’s education. The father was of the opinion that “it’s fairly inappropriate for me to talk through solicitors to [the mother] about things that are personal to me and [D].”
It was a common position between the parties and the ICL that an equal shared parental responsibility order was not appropriate in the circumstances of this case.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Although I am not mandated to consider it, the ability of the parents to communicate and the distance they live away from one another mitigates against an equal or substantial and significant time arrangement for the children.
CONCLUSION ABOUT BEST INTERESTS
It is in D’s best interests for his father to have sole parental responsibility for him, subject to the mother having an opportunity to involve D in Torres Strait Islander cultural practices.
I find that it is similarly appropriate to make an order in the mother’s favour in respect of parental responsibility for the child L subject to a specific order that L attend T Secondary School, Y Island. The mother however is at liberty to change L’s school should she wish, if she moves back to X Island.
It is in L’s best interests for him to ordinarily live with his mother. Although the mother is strongly opposed to L spending any block time with his father, I find it is in L’s best interests to make such an order. L’s time with his father will be subject to a number of conditions. The principal one relates to the father’s use of alcohol and bringing L into contact with persons in his household who are using alcohol. Mr R has agreed to monitor the father’s sobriety for a period of time and I will be making orders to implement that arrangement. As already mentioned, restrictions will be placed upon where the father can take L on the water during periods of time when he is with him. L will be able to holiday with his father on X Island but Ms N should not be present overnight during those periods until L is 14 years old. This order is necessary to restrict the future opportunity of the father exposing L to incidents of family violence in the father’s household. However, it will also give L an opportunity to interact with Ms N. Non denigration orders are appropriate as is an order that the parties not physically discipline the children. Either may take a child on holidays away from the Torres Strait Islands with appropriate notice. The father can provide the children with mobile phones to communicate with him and the father is to fund the costs of L’s mobile phone. The mother is to authorise L’s school to provide the father with specific information and the father likewise is to authorise the college that D attends to communicate with the mother about his progress and to assist the mother facilitating making arrangements to contact D. The father has agreed not to bring L into contact with Mr C, a person about whom the mother has concerns, particularly when he interacts in a social way with the father. The mother is not to impede the father sending L gifts, letters and cards.
DID THE PARTIES’ DE FACTO RELATIONSHIP EXIST AFTER 1 MARCH 2009
In Dahl & Hamblin [2011] FamCAFC 202, the Full Court considered whether multiple periods of cohabitation could be combined to form one de facto relationship. Their Honours say at [21]:
By the use of the word “periods” in s 90RD(2)(a) and s 90SB(a), Parliament must clearly have envisaged that a de facto relationship can breakdown and resume with the result that the original earlier period of the relationship and any resumed period (or periods) after other breakdowns are capable of aggregation to establish the total time of the relationship for jurisdictional purposes.
Their Honours continued at [48]:
…if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. (emphasis added)
The mother asserts that the parties’ de facto relationship ended in September 2009 when she moved to Y Island.
At the start of the hearing, the husband asserted that separation occurred in 2008. However, during his oral evidence, the father admitted that the parties attempted to reconcile when the mother returned from Cairns to X Island in late May 2009. We had the following exchange:
HIS HONOUR: And she [the mother] came and stayed with you in the house you and [L] were in?
MR [KENNEDY]: Yes, your Honour.
HIS HONOUR: Right. And was there an attempt at a reconciliation at that time?
MR [KENNEDY]: Yes. It lasted about four days. And she openly said, “I’m only back here – I know what I’m going to do. I’m going to fight you through the courts for ”
HIS HONOUR: For a four-day period, you thought you were back together again?
MR [KENNEDY]: I – we were working at that, yes, but it didn’t last.
HIS HONOUR: It might not have lasted, but for those four days, you thought you were back together again?
MR [KENNEDY]: The first two of them, yes. We were still trying to reconcile our differences.
HIS HONOUR: Did you sleep in the same bed together on those two days?
MR [KENNEDY]: Yes.
HIS HONOUR: Did you have a sexual relationship at that time?
MR KING: Yes.
HIS HONOUR: And you basically, for those two days at least, resumed ?
MR [KENNEDY]: Everything was good.
HIS HONOUR: Yes. You resumed your relationship?
MR [KENNEDY]: Yes. As best we could, yes.
HIS HONOUR: Yes. So at least for that short period of time, the two of you had agreed that you were going to try and reunite the family – live together as a family again?
MR [KENNEDY]: Yes. And we had talked about it on the telephone as well while she was in Cairns ….
The mother gives a different version which, if accepted, would more decisively establish the existence of a period when the parties were in a de facto relationship after 1 March 2009. I do not need to reconcile the conflicting positions of the parties. Even on the father’s own evidence there was a period of two days when I find the parties resumed their de facto relationship after 1 March 2009. In reaching that conclusion, I take into account the way the parties lived their lives during the relationship (with a number of separations). The father’s evidence that the mother told him in September 2009 that in her view the relationship was then over is also of some significance.
I am comfortably able to declare, pursuant to s 90RD(2)(d) FLA, that this was a de facto relationship that did not end until after 1 March 2009. It was a de facto relationship that existed for a period in excess of two years and the parties had two children. The jurisdiction to alter de facto property interests under the FLA is consequently enlivened.
I certify that the preceding One hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 June 2012.
Associate:
Date: 19.6.12
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