Mazziz and Mazziz

[2007] FamCA 1457

FAMILY COURT OF AUSTRALIA

MAZZIZ & MAZZIZ [2007] FamCA 1457

FAMILY LAW – CHILDREN – Interim orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Mazziz

RESPONDENT: Mr Mazziz

FILE NUMBER: NCC 208 of 2007

DATE DELIVERED: 24 September 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: JUSTICE MULLANE

HEARING DATE: 14 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M. Myers of Cameron & Myers

SOLICITOR FOR THE RESPONDENT: Mr P. Quinn of Tonkin Drysdale Partners

COUNSEL FOR THE INTERVENOR: Mr R. Peattie

SOLICITOR FOR THE INTERVENOR: Locker Law

SOLICITOR FOR THE INDEPENDENT CHILD’S LAWYER: Mr Scally, Legal Aid Commission of NSW

ORDERS

1. Pending further order the child S born … October 1995  live with the father and spend time with the mother:

   1)every second weekend from end of school Friday to start of school Monday;  and

   2)such other periods as the parents agree.

IT IS NOTED that publication of this judgment under the pseudonym Mazziz & Mazziz is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:   NCC 208 OF 2007

MS MAZZIZ

Applicant

And

MR MAZZIZ

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are reasons for an interim order regarding the living arrangements for the parents’ daughter S, who will turn 12 in October 2007.

BACKGROUND

1. The parties have 3 children:  a son K who will turn 18 next February, a daughter Y, who will turn 15 in October and S.

2. The parents separated in March last year.  The mother instigated the separation and the father left the home.  He has since resided in premises where he conducts his business, located about 500 metres from the former matrimonial home.

3. But 2 months after the separation the father had divorced the mother in a mosque under Islamic religious law and married another woman, also under Islamic religious law.

4. It appears there has been very serious conflict between the parents, and the children have been much involved.  The parents are still in conflict and not communicating 18 months after the separation.  They both have made allegations against each other of being involved in pornography.  The mother alleges the father has been convicted at Gosford Local Court of assaulting her.  The Gosford Local Court made an Apprehended Violence Order on 6 December 2006 restricting the father’s conduct for 12 months for the purpose of protecting the mother.

5. K and Y have lived with the mother since separation.  S did too, until February 2007.  Then there was an incident between her and the mother, and S has since lived with the father.  The only evidence of what happened is by the father, who was not present.  The mother denies there is any estrangement between her and S, but S did not spend time with the mother from February 2007 for some weeks and since then her time with the mother has been irregular visits when she did not stay, until in the last few months.   She has stayed overnight about once per week with the mother and also has sometimes visited for a day.

6. It needs to be noted that from about April 2006 to at least February 2007 K and Y did not spend time with the father and what time they are spending with him now is very limited.  K sees his father for only about an hour a week and Y has recently spent time with the father but it has not been regular, has not been for lengthy periods, and has not been overnight.

7. The father’s evidence is that when S visits the mother she does not want to return to the father, as Y is visiting him.

THE PARENTS’ PROPOSALS

1. The father’s evidence is that he “promised” S when she left home to come to him in February 2007 that he “would provide a home for her for as long as she wishes and she is free to see her mother whenever she wants to”.  He said, “I offered her a place to stay whenever she wants to”.  When asked whether he thinks it appropriate for an 11 year old to have responsibility for such decisions, he demonstrated no insight into the child’s obvious conflict of loyalties or the undermining of the mother’s role and her relationship with her mother that his conduct might cause S.  He did not show any recognition of any responsibility to support the other parent or S’s relationship with her other parent. 

2. The father proposes S spend each second weekend with the mother from Friday to Sunday and such other periods as the parents agree.

3. The Independent Lawyer for the Child submitted that S’s interests require it to “lock in place” a minimum regime for spending time with the mother.

4. The mother proposes, despite the difficulties of the last 7 months, that there be interim orders for S to spend time with the mother each second weekend from end of school Friday to start of school Monday and each Tuesday and Wednesday from end of school to start of school the next day.  That would be 7 nights per fortnight.

THE PARENTS’ AGREEMENT

1. The parents have consented to an order that any orders for K be vacated, as he can make his own arrangements to see his father and for Y to reside with the mother and spend time with the father overnight each Saturday and for such other periods as the parents agree.

S

1. The relationship between the mother and the father is so bad it does not include any communication.  From the father’s evidence, not only have they exposed the children to their conflict, they have also at times involved the children further by using the children to convey messages between the parents.

2. In their parenting roles they are dysfunctional

3. The Family Consultant, Ms L gave evidence that the effect of the parental conflict on the children is probably significant.  It seems all of them have been involved in the conflict and all of them are having difficulties relating to each of the parents.

4. Her opinion is that S is being pressured to choose between her parents, and is likely to be suffering adverse effects on her self-confidence and self-esteem.  The Family Consultant also expressed concern about the anxiety S would be experiencing in discussions in one parent’s home about the other parent.  She said S would be quite anxious about what would be said and what she should say.  She said she is probably compartmentalising her life – talking about some things in each house and not in the other.  This she said is likely to cause her stress or anxiety.

5. The Family Consultant also expressed the opinion that S may have experienced a sense of loss when her father left the home.  She would not understand.  She may not have expected it.  She may have been shaken, saddened, upset or grief stricken.  At S’s age she is likely to see the parents’ separation and conflict in “black and white” terms – “right and wrong”.  She is also more likely to see appropriate solution to the conflict about the children and where they live as being about achieving a result that is fair between the parents, rather than the best result for the children.

6. The Family Consultant said that where children are the topic of their parent’s conflict they can blame themselves for a parent leaving.  She said the “black and white” approach is especially common with children of S’s age with low self confidence.

7. Ms L said the children are all likely to be very confused.  They may feel they are forced to pick a parent, may try hard to keep everyone happy, and will say things to please, especially in such a high conflict situation.

8. She said that when a child thinks a parent has negative views about the other (as these children would think that about both parents) the child can demonstrate loyalty to that parent by negative statements about the other.

9. She also warned of children of conflicting parents playing the parents off.

CONCLUSIONS

1. On an interim basis S’s interests are best addressed if the Court requires that she spends time with her mother and siblings at least every second weekend in their home.  It would be in her interest for the parents to also agree to additional time from time to time

ORDER

1. Accordingly, the order will be that pending further order S continue to live with the father and spend time with the mother:

   1)every second weekend from end of school Friday to start of school Monday;  and

   2)such other periods as the parents agree.

______________________
Justice Mullane

Date:   24 September 2007