Paul and Little

[2010] FamCA 1149

FAMILY COURT OF AUSTRALIA

PAUL & LITTLE [2010] FamCA 1149

FAMILY LAW – CHILDREN – With whom a child lives – Relocation

APPLICANT: Ms Paul

RESPONDENT: Mr Little

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 10329 of 2009

DATE DELIVERED: 2 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: BRISBANE

JUDGMENT OF: Bell J

HEARING DATE: 29 & 30 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Hodgson Lawyers of Goodna

COUNSEL FOR THE RESPONDENT: Ms Frizelle

SOLICITOR FOR THE RESPONDENT: A P Hodgson & Associates, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fotheringham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That all previous orders be discharged including the order for the PACE alert.

2. The child K born … July 2008 live with the mother.

3. The parents have equal responsibility for the long term care, welfare and development of the child.

4. The mother be permitted to relocate to New Zealand but not until Friday, 4 March 2011.

5. The father spend time with the child each alternate weekend until 4 March 2011 from 4.00pm on Friday to 6.00pm on Sunday such time to commence the first weekend after Christmas 2010.

6. The father spend time with the child from 9.00am until 7.00pm on Christmas eve 2010.

7. In the event the mother relocates to New Zealand the father spend time with the child at all times as may be agreed between the parties for block periods of no more than 3 days.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10329 of 2009

MS PAUL

Applicant

And

MR LITTLE

Respondent

REASONS FOR JUDGMENT

1. This is a parenting application.  The Court’s jurisdiction was excited, initially, by the application of Mr Little - hereinafter referred to as “the father” - for an order restraining the mother from leaving the jurisdiction of Australia.  This took place - if my memory serves me correctly - on about 11 November 2009.  The father was ordered to do certain things.  He did not comply with that order.  The mother subsequently filed an initiating application in support of parenting orders and that was filed 4 December, and I will be taking that as the initiating application for my hearing, which took four days and the father, of course, is the respondent to that.

2. The father was born in 1956 and some 30 years later, the applicant mother was born.  They commenced a relationship in 2007, when the mother was about 18 years of age and from such relationship, a child was born, being K in July 2008.  This is not the first of the respondent father’s children.  He has, as is set out in his affidavit, children from at least five other relationships.  I am unaware if there were any other relationships which did not result in children being born.  However, as appears in paragraph 3 of his affidavit of 29 September 2010, he has six children, other than K, from previous relationships.

3. They vary in age from C, who is 34 years of age, to T, who is 10 years of age.  I will be touching more upon this when I discuss Dr W’s report in relation to the psychiatric health of the parties, but I indicate that it appears, quite clearly on evidence before me, that each one of the mothers of these children - each one of the mothers who was in a relationship with this respondent - left.  He says, and I emphasise this, that he could understand no reason for their leaving.  He did everything that was reasonably expected of a father, lover, partner and husband and that he cannot understand why they left.  Although he does say, within Ms D’s report at about paragraph 3, thereafter, as to the reasons or a reason which he saw.

4. I refer to a report of 8 October 2010.  I will incorporate in these my reasons that report, since I considered it very well done.  For instance, he refers at paragraph 3 to C’s mother having “shot through with my best mate.  Paragraph 4, he complains that R’s, who is now 31 years of age, mother, caused him to be in and out of Court.  Insofar as Z is concerned, now 23, he alleged that the mother ran away and changed their names.

5. Insofar as N is concerned, he gives no explanation at all, and insofar as L and T are concerned, I will be touching upon his allegations that this woman not only abandoned him, but also forged his signature to at least one court order.  The parties lived, according to the mother, in somewhat straitened circumstances, because the father did not seek gainful employment.  He denies that this is the case.  He has indicated to me that he is running a reasonably successful business which, at this time, is not producing that much money, but that he has always been able to adequately maintain the women in the numerous relationships that he has been involved in and their children.

6. I consider that his statement there is quite farcical in the extreme.  He has not, on the evidence before me, either adequately or at all, maintained these previous children.  They all disappeared at a comparatively young age.  He has not maintained his present daughter, K, notwithstanding that the Child Support Agency has assessed him for the magnificent amount of something like $1500 per year.  He considers - as he has told me barefaced in court - that the relations of the mother - that being, in fact, her aunt and her husband - should maintain the child. 

7. He says it was indicated on at least two occasions that he should not have to pay maintenance because he was not getting adequate contact with the child.  After asking him when he did start getting adequate contact - which was about April this year, as a result of Principal Registrar Filippello’s order, he still did not pay it.  It is not an amount of much size.  He indicates he cannot afford it.  Well, as I said to him, I try to ascertain how he could possibly afford to have his child with him full time.  He cannot, on his evidence. 

8. He cannot afford to maintain his child because he cannot pay $22 a week.  The mother is, with respect to her, a fragile personality.  Dr W has investigated her psychiatric health, as well as the father’s.  As I said, I will be touching upon that at a later stage.  She is a New Zealander.  She has had a somewhat chequered early life.  She has fought with her mother.  As a result thereof, she left the mother and attempted to reconcile, if I may put it that way, with her father and sought for some years to do so.  The father came to Australia.  She followed him across. 

9. Regrettably, such attempt on her part to form a relationship with her father appears to have been fatally flawed early on, and it is no longer in existence.  She was, as I understand, for a period taken into care in New Zealand but she has, as I have said, come across here, entered into a relationship with the respondent some 30 years older than herself, has given birth to a child and now finds herself in a most difficult position in that, as she says, and there is no evidence to the contrary.  She has little or no support here, other than for her aunt and her partner who are returning - they are New Zealanders - to New Zealand in the new year.

10. She has no one else here.  She may have some friends in relation to a playgroup which she attends with K at the local church.  She is unable, on her evidence - and no evidence was put before me to contradict this statement - that she finds it impossible to seek a job;  first, to get a job.  First of all, it is difficult to find.  Secondly, being a New Zealander, any job that she is capable of doing, seems to go to an Australian and that the employers prefer Australians to New Zealanders.

11. I do not think that she can complain of that although, obviously, that does affect her ability to maintain herself and the child.  She cannot avail herself of Centrelink benefits, other than for an amount in relation to K which is about $250 a week, because she is not an Australian citizen.  It is one of those roundabout arguments.  She cannot become an Australian citizen because she cannot afford to.  No one, of course, in this badly presented case, as far as I am concerned, saw fit to put before me what are the requirements for a person to become an Australian citizen. 

12. I have mentioned it in passing that it may require a certain amount of money to be in some bank account but, as I said, I was not informed so consequently, I will have to find that she is unable to become an Australian citizen.  What is she left with?  She is left with the charity - and I say “charity” - of living with her relations - very fine people.  I saw them in court but, of themselves, say that they have been - shall we say - subsidising her welfare.  She gets $250 per week for K and that is all her income.  Her relations are mainly in New Zealand. 

13. She does have an uncle here - Uncle M - from whom she is estranged.  In fact, the father resides in a house of Uncle M’s and Uncle M, according to the father, is very, very, critical of the mother’s looking after the welfare of the child K.  But he did not come to court to tell us that.  And notwithstanding the provisions of Division 12, wherein the Rules of Evidence do not apply, I do not believe that I should accept what someone who has not got the guts or determination to protect K’s welfare, who does not come to court to accept his evidence, being transmitted by a person of whom I have little faith in his credit.

14. The reason I should say that now is this.  On three occasions he has alleged that documents which he acknowledges his signature is very similar are not his.  First of all, he says Ms O, who is the mother of the two children L, who is now 11 and T, who is now 10, she forged his signature upon a consent order placed before a court.  Notwithstanding the fact that such signature was on a document, which indicates that he was represented by solicitors, and he acknowledges that at the time, he was represented by the solicitor of that name, who witnessed the document. 

15. He further says that he has contacted the Department of Child Services on several occasions and in particular, the Mount Gravatt office, I think it was.  Was it Mount Gravatt?  I think it might have been Mount Gravatt.  I have had put before me, by the Independent Children’s Lawyer, the whole records of DoCS in relation to the father’s applications, and there is no record of his applying to the Court;  none at all to the department.  I do not believe him.  It is as simple as that.  I do not believe him.  I do not believe a man who sees fit not to maintain his children.

16. In particular, I do not believe a man who sees fit to indicate that some other person, who may be a relation to the mother of the children, are the ones who should be supporting the child, not himself.  I do not believe that a man who spends $200 per week on a motor vehicle, is incapable of supporting his child to the miniscule extent of $22 per week.  I do not accept when he says that he gives the money - that he gave the money to the mother and she rejected it.  In fact, I generally just do not accept his credit at all.  However, he appears as though he does a reasonably good job insofar as K is concerned.

17. On the evidence before me, Ms D is of the view that, in fact, he may be more child-orientated than the mother.  That, in itself, is something which is in his favour and I do not deny that.  The mother was immature.  Ms D has said that in her family assessment document, which is of little force and effect.  She was of the view that she was - I think she used the word “petulant” and “bad tempered” and “was not child focussed.”  She has, however, expressed her pleasure and surprise that in a comparatively short period before - between that assessment and the date of her report - 8 October - that she has shown a degree of maturity and has improved.  I think that is the case.

18. It is quite clear, in my view, that she and the father could not agree on what day of the week it is.  There seems to be a great antipathy by her towards him,  perhaps not so much by him towards her, but then that may, of course, be explained by Dr W’s report of this man.  He suffers from a personality disorder not otherwise specified.  See page 4 of the report of Dr W exhibited to his affidavit of 3 November 2010.  As the doctor says:

    This relates to his persistent maladaptive pattern of multiple, sequential, intimate relationships with people needing help -

19. I underline “maladaptive” -

    It involves his enduring pattern of inner experience behaviour that deviates markedly -

    I underline “markedly” -

    from the expectation and his culture, manifested by perceiving and interpreting his role as a helper, being blurred with his role as a life partner and the role of the person he helps, being to remain as his life partner, his affectivity moving from sympathy to love when this is inappropriate.

20. He said:

    The personal functioning being, trying to maintain the above role patterns, in his intimate relationships.  The enduring pattern is inflexible and pervasive.  The enduring pattern leads to a clinically significant distress and impairment in social functioning, and the pattern is stable and of long duration.

    That it be said that not only has he tired by the diagnosis of the, I found quite impressive, psychiatrist, but also the mother is. 

21. The mother, as it appears, has an adjustment disorder which is chronic - see page 4.  This relates to the development, which she has shown, of emotional symptoms and depressed moods, at times expressed in an angry way - see Ms D’s report - in response to identifiable stress of a conflictual nature - see her relationship with the father - within three months of the significant conflict.  It involves clinically significant symptoms with marked distress;  that is in excess of what could be expected from an exposure to conflict and significant impairment in social functioning.

22. He is of the view that the mother would be very likely to remit from her psychiatric illness shortly after she perceived that the stress involved in the conflictual situation has resolved.  This is important, in my view, because it is the application inter alia of the mother that she be allowed to relocate to New Zealand where she has the support of her mother and other relations;  where she will have the support of the Social Services of New Zealand;  where she will be much more comfortable;  where she would be able, she says, to have more opportunities of seeking gainful employment to adequately maintain the child, because I am quite satisfied that the father will not.

23. This looms large in Ms D’s report.  Ms D has - as I have said in her report - I think it is very well done - set out at paragraph 24 under subheading “issues in dispute”, she believes that the matters that are of concern in this Court - and I am not doing them in the same order that she has:

    ·The capacity of the mother to facilitate the child’s relationship with her father and promote him to their daughter; 

    ·the capacity of the parents to meet the basic care and protective needs of the child;

    ·the parental relationship which is characterised with this function, and the impact of this upon the parent’s capacity to make shared decisions and communicate about issues affecting the child;  and

    ·the relationship of the child with either her father or her mother, if the mother relocates to New Zealand.

24. Many allegations have been made by the father about the incompetence and downright dangerousness of the mother looking after the child.  He is prone, as Dr W said, to exaggeration and I am more than satisfied - see page 6 - wherein the doctor says:

    It is most likely that [the father] grossly exaggerates the severity of the depression in [Ms Paul] -

    that is the mother, of course -

    given the absence of any mental health diagnosis in her general practitioner records.

25. He probably exaggerated other negative comments about the mother.  It is most likely that the mother minimised her level of expressed anger and that he was of the view that that minimisation could well be at risk to K’s emotional and physical safety.  I am quite satisfied that the father, in this case, has grossly exaggerated everything.  There are complaints which have been supported, but he has exaggerated them for his own personal view and that is, that he wishes to have, perhaps, the responsibility of one of his other six children permanently in his hands.

26. I have to take into consideration those matters as set out in section 60CC and these will be, obviously, gravely affected by my decision in relation to relocation.  For instance, insofar as (2)(a) is concerned, the benefit of a child having a meaningful relationship with both of the child’s parents, it is quite clear should I allow the child with the mother to go to New Zealand, the relationship between herself and her father, will be affected.  Ms D has referred to that strongly, and I recognise that and Ms D has indicated that the relationship between the father and the child is important and should it be ceased - or should it stop - there would be, perhaps, emotional worries concerning the child as she grows older.

27. Ms D is also of the view that the child being removed to New Zealand would necessitate, if at all possible, the father only having block contact because he says he cannot afford to go across to New Zealand.  For a period, he had paid for by the mother or by some other person, because the father says he cannot afford to pay for it.  It is well known that with younger children, it is preferable to have shorter periods of access with shorter times in between rather than as the children get older, with longer periods of access and longer periods between.

28. Should the child go to New Zealand, it would appear to me to be very difficult for a meaningful relationship to be retained.  But that does not mean that I can not make an order that the child relocate.  There are many other things that I have to consider.  For instance, I have to protect the child from physical or psychological harm, or being subjected to, or exposed to, abuse, neglect or family violence - (2)(b).  It appears to me that there is, in a way, of being a neglect of the child in relation to her maintenance.  The child has been struggling, with the mother having to, in effect, seek charity to maintain the child and with no assistance of the father.

29. I asked the father to put before me the difficulty that he has in paying $22, or thereabouts, per week by producing his books.  He was unable to do so because, he says he cannot get in contact with the bookkeeper.  I asked him whether, in fact, there was an income tax return.  He said, “No” because that was with the bookkeeper.  I asked him about the year 2008/2009.  He says he has only had an income tax return, which is being prepared by the bookkeeper, for this year.  The man, to me, was of a great deal of concern. 

30. I did not, naturally, take any views of the child, since she is too young to make any.

31. I have already touched upon the fact that the parents have a good relationship with the child.  It may be that the father has a slightly better relationship with the child, but he does not, and will not, accept the expense or the inconvenience to maintain the child.  That is his big problem - a huge problem - that I cannot quite get over.  The mother, I think, was so young.  She was only 18, I think, at the time when she had the child, but she has had difficulty.  She now appears to be maturing, according to Ms D, and now is more capable of adequately looking after the child.

32. She is, indeed, fortunate that she has had Mr and Mrs B to assist her in a most difficult time of her life.  I say, in passing, that there has been a great deal of criticism directed to this Court about the slowness of it - matters coming on.  This matter was originated in December 2009.  It is being completed in December 2010.  Go to any other court in Australia and see if you can get a case of this difficulty done in that time.  You cannot.

The capacity of each of the child’s parents to provide for the needs of the child

1. Well, I have already touched upon the fact that the father fails to, and will not, assist his child because he says he cannot afford it which, to me, seems unlikely.

The emotional, intellectual needs

1. Well, the poor child.  She is very young, but it appears to me as though she is meeting her milestones.  I think Ms D has some concern that the child may not be speaking or is using as many words as she possibly can.  That may be another matter.  However, it is not of much moment as far as I am concerned.  The child is reaching her milestones.  Insofar as section (4) of section 60CC is concerned:

   The Court must consider the extent of the child’s parents - has fulfilled, or failed to fulfil, her responsibilities as a parent.

2. I am quite satisfied - and I have made it quite clear - I think the father has.  He has failed in his responsibility to adequately maintain the child, without adequate excuse - without adequate evidence - without any good reasons for not doing so.  It irritates me intensely that these, not only men, but women as well, come along and say, “I want my child, but I am not going to pay for it.”  That is, in effect, what is happening here.  Someone else is going to have to do it;  Mr and Mrs B;  the taxpayers.  They do not get out and work.  He says he is working.

3. I refer to the Child Support assessment - it might have been an appeal - where they indicated how much money he has to expend on just paying his bills.  No evidence was put before me as to his income and that worried me intensely.  The mother does not like the father.  I do not think she would promote the relationship between the father and the child to any great extent, whether she was here or in New Zealand.  And I am very concerned that the father would not promote the relationship of the child with the mother.  It is a no-win situation.

4. It is a ‘damned if you do and damned if you do not’ situation.  It is of great concern to me, but I can only act upon the evidence or lack of evidence, and endeavour to do the best I can by this poor child.  If we had people who put their own interests behind themselves and put the child first, we would not have a Family Court.  We have got it.  These cases are getting worse and worse.  The parents are getting more and more dysfunctional.  It is an absolute tragedy.  They do not know how children grow up but, perhaps, that is the reason why we are having so many problems with emotional distress in children.  However, that is not to deal with this case.

5. I have to consider what has happened since separation.  The parties have separated.  They have lived separately apart.  I am referring to 4A.  They have lived separately and apart, and the difficulties are only too apparent, which we have set out in full in this four day trial, which I would dearly love to be able to sit down and give a fully lengthened cut and pasted judgment over a period of days, but I do not have the time.  I have to look at other dysfunctional families, as well as this one.  Insofar as four is concerned, I touched on four.  Naturally, of course, this is not an Aboriginal child and six does not apply.

6. May I say that the child has primarily bonded with the mother.  That is quite clear from Ms D’s report.  She is a young child.  To remove her from the mother, I would think, would cause her great deal of emotional distress over a lengthy period.  That has been recognised by the father’s legal advisers since they have suggested - if my memory serves me correctly - that if the child is to be removed, it be moved over a graduated period so the child could become more comfortable with being removed from the mother. 

7. I am not going to do that, but I have to consider whether I will allow the mother to take the child, as is said by the father - quite rightly - and, perhaps, the only thing that I really accepted from him, was that, in fact, she can go at any time, but whether the child could go is the question that I have to determine now.  What do we have for competing proposals?  The father says that he will look after the child.  I think he would.  I think he would.  I think he would do his best.  How he is going to maintain the child, I do not know.  He put no proposal before me as to that.  What will happen if I do not give the child to the father, which I make it quite clear now, I will not and I would cause the mother to stay here.

8. The mother’s difficulties will continue and they will exacerbate.  She will be - as she says, “It may happen” but at present, she is unable to get a job.  She is unable to access Centrelink benefits, other than for the $250 per week.  She has little, or no, contact - and worse - Mr and Mrs B are leaving and going back to New Zealand.  As I said, they are New Zealanders.  She will have no one here to support her.  She will have no one here to back her up in relation to the difficult relation she would have between herself and the father.  I do not believe that I could allow that to happen, because her mothering would be gravely affected.

9. I have to balance it against the detrimental effect it could have upon the child, insofar as a relationship between herself and her father not being promoted because of the tyranny of distance, as against the great difficulty the mother will have in parenting here if she remains in Australia.  I cannot take that risk.  In New Zealand, she will be confident.  She will be supported.  The child, therefore, will benefit more, I believe, from that than she will if, in fact, she does not have as much contact as is desired and is quite properly pointed out by Ms D over their ensuing years.

10. Of course, if the father can find some mates to go to New Zealand - which he indicates he cannot - or if the father is so much desirous of increasing his relationship with the child, he can go to New Zealand.  He has many tickets in the plant - in building, demolition work.  I would have thought that if, in fact, he is as well qualified as he says he is, that he should be able to find a job, albeit with some difficulty, and he can go there and, obviously, contact would take place.  Unfortunately, I have to consider the matter of MRR v GR. 

11. I am of the view that there should - as was pointed out - there should be equal shared responsibility for the child, because I think it is important that the father has an input into the future of the child in relation to those important matters.  I have to consider whether there would be significant and substantial contact.  There will be if he goes to New Zealand;  there will not be if he does not, so what am I supposed to do?  I have to make an order that will promote the welfare of the child insofar as contact is concerned, and an order will be produced by the Independent Children’s Lawyer, which will take into consideration the fact that the child will be residing in New Zealand.

12. There must be contact between the father and the child.  I note in the proposed orders ‑ ‑ ‑

    RECORDED   :   NOT TRANSCRIBED

13. That is why I want the Independent Children’s Lawyer - counsel - to prepare a memo for me of the orders that will encompass what I am going to say.

ORDERS DELIVERED

1. Thereafter, the difficulty is, of course, how are we going to organise that?  As was quite properly said by Ms D, it is necessary for the father if he is going to have block contact in this case, to have it scatter gunned almost - to have three days here;  two days back with the mother.  The only thing I can do is - I feel - is because I do not know whether the father is going to go across there - he says he will not because he cannot afford it.  I just have to leave it to contact to be as arranged between the parties, with the fact that the parties take into consideration what has fallen from Ms D, and that is, that if she is over there for any length of time, he is to have block periods but no more than three days in duration for the first period of block contact.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 2 December 2010.

Associate:     

Date:              15 December 2010