Paulen and Brider
[2011] FamCA 421
•9 June 2011
FAMILY COURT OF AUSTRALIA
| PAULEN & BRIDER | [2011] FamCA 421 |
| FAMILY LAW – Children – Where the two children of the marriage have resided with the mother since separation – Where contact between the children and the father has been minimal and sporadic – Where the mother has at no stage promoted a relationship between the children and the father – Where the mother has previously made serious allegations of a sexual nature against her own mother, her father and her former husband – Where no evidence to support such allegations – Where the mother’s behaviour and evidence has been wholly inconsistent – Where previous telephone contact with the father has been punctuated by angry outbursts in the mother’s home – Telephone contact will not be ordered. FAMILY LAW – Children – Parental responsibility – Where the ICL recommends equal shared parental responsibility – Where there are poor levels of communication between the parties – Where parties live a considerable distance apart and neither party is prepared to relocate – Impracticable to order equal time – Proposed that parties have equal shared parental responsibility. FAMILY LAW – Property settlement – Where the mother seeks alteration of property orders pursuant to section 79 – Where the mother seeks property division of 60:40 in favour of the father – Where the mother has made no financial contribution and only a limited contribution as a homemaker and parent – Where the opportunities of future employment for both parties are relatively minimal – Property to be divided 75:25 in favour of the father. FAMILY LAW – Orders – Draft orders are proposed, with final orders to issue – Parties to have equal shared parental responsibility – Children to live with the mother – Children to spend two nights per week with the father and half of the school holidays – Father to pay to the mother the sum of $65,000 within six months by way of property settlement – In the event the father is unable to pay this sum, the property owned by the father is to be sold by trustee for sale – Where parties cannot agree on a trustee for sale, the court will appoint a trustee for sale. | |
| APPLICANT: | Mr Paulen |
| RESPONDENT: | Ms Brider |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Damian C, Solicitor |
| FILE NUMBER: | BRC | 979 | of | 2008 |
| DATE DELIVERED: | 9 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 24 - 26 May 2010 and 7 February 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kissick of Counsel appearing for the Applicant Father on 24 – 26 May 2010 and Mr Summers of Counsel appearing for the Applicant Father on 7 February 2011 |
| SOLICITORS FOR THE APPLICANT: | Mr Paulen Joyce Solicitors for 24-26 May 2010 and Power & Cartwright Solicitors for 7 February 2011 |
| COUNSEL FOR THE RESPONDENT: | Mr Pieterse of Counsel appearing for the Respondent Mother on 24-26 May 2010 and the Respondent Mother appearing in person on 7 February 2011 |
| SOLICITORS FOR THE RESPONDENT: | Madsen Law, Solicitors on 24-26 May 2010 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor of Counsel appearing for the Independent Children's Lawyer |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | C Farquar Mediation & Family Law, Solicitors |
Orders
Final form of Orders to issue from Chambers on 10 June 2011.
IT IS NOTED that publication of this judgment under the pseudonym Paulen & Brider has approved been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 979 of 2008
| Mr Paulen |
Applicant
And
| Ms Brider |
Respondent
REASONS FOR JUDGMENT
I am asked to determine what orders should be made concerning the future care of two children, A born in 2005 and R born in 2006. The Applicant Father (Mr Paulen) was born in 1947. The Respondent Mother (Ms Brider) was born in 1986.
Prior to the parties commencing their relationship Mr Paulen had been married for about 30 years to his former wife Ms C and there are two adult sons of that relationship. The evidence would indicate that that relationship terminated in about 1997 but Mr Paulen remained on good terms with his former wife. Exhibit 6 provides some corroborative evidence of that fact.
In about 1999 when Ms Brider was 13 years of age she attended M High School. She was residing with her mother and step-father. Mr Paulen was the school bus driver. Ms Brider says she had been sexually abused by her maternal grandfather in the past and her complaint about this had been dealt with in the Courts, but she was not sure with what result. She was also complaining about being physically assaulted by her step-father in her then environment.
She confided in Mr Paulen and the situation developed where he became her confidante. Ms Brider referred to him as “Dad”. Ms Brider’s relationship with her own mother and father was problematic. Ms Brider describes the relationship with Mr Paulen as a father/daughter type relationship. Ms Brider at one stage made allegations that her own father also sexually abused her but she subsequently withdrew those allegations. Her account of how she came to make the allegation against her father is set out in her affidavit filed 28 November 2008 at paragraphs 10 and 14.
In January 2003 Ms Brider attended at a facility for homeless youth K Youth Services in, M Town. The records of this youth service were subpoenaed by Mr Paulen’s legal representatives and tendered (exhibit 6). There are numerous detailed entries of the time Ms Brider spent at this institution from the 7 January 2003 until she was requested to leave on the
10 March 2003. I will be making reference in more detail to this exhibit later in these reasons.
Eventually as a result of adverse comment by family and acquaintances in M Town relating to their suspicions as to the nature of their relationship, Mr Paulen and Ms Brider relocated to Melbourne.
Mr Paulen’s evidence is that a sexual relationship had not commenced at that point in time (see paragraph 12 of affidavit filed 25 July 2008).
There is evidence from Ms Brider that sexual relations commenced with Mr Paulen when she was 13. Other reports from her would indicate she accepts a sexual relationship commenced in 2003. When she was 16 years of age Mr Paulen says she was 17 years old when a sexual relationship commenced. I note she would have turned 17 in May 2003. In the first report of the social worker Mr Y at paragraphs 3 and 5 he records being informed that the relationship commenced in 2003 and Ms Brider informed him she was 16 years of age at the time sexual relations commenced, while Mr Paulen was equally insistent she was 17 years of age. I am not accepting of the claims by Ms Brider that there was a sexual relationship between them prior to 2003.
The two children were born in the time the parties resided in Melbourne. Shortly after the birth of the second child Mr Paulen became seriously ill and was hospitalised. Mr Paulen’s son Mr W (born 1977) travelled to Melbourne and resided in the home with Ms Brider to assist with the care of the two young children. An affidavit of Mr W was filed on the 25 July 2008. He was not required for cross examination. Ms Brider’s father also resided in this home for a period around this time.
After Mr Paulen recovered from his illness he relocated with Ms Brider and the two children to G Town. A block of land was purchased in his name. They commenced residing at a local caravan park while a house was being constructed on the land. In January 2008 the parties separated. I find it likely that on separation Ms Brider immediately commenced a relationship with her current partner Mr B and that relationship has continued to the present time. The younger child stayed with Mr Paulen for two nights after separation.
On the morning of the 21 January 2008 a violent incident occurred on the streets of G Town when R was grabbed by Mr B from Mr Paulen’s care. When Mr Paulen attempted to retrieve the child he was assaulted by Mr B. Mr B was subsequently charged and convicted over this incident.
Around this time Ms Brider made allegations that Mr Paulen had sexually abused his daughter. She later filed a document discontinuing the notice of child abuse.
Since separation the children have lived with Ms Brider. There have been lengthy periods of time when Mr Paulen has spent no time with the children or limited supervised time.
Litigation History
There was a three day trial on the 24, 25 and 26 May 2010. At the conclusion of that hearing I reserved my decision but there was an expectation Mr Paulen would see the children unsupervised on specified occasions to include a period of a few hours immediately the proceedings concluded. Mr Paulen through his legal representatives filed an application to reopen the evidence in July 2010. That application was heard on the 26 August 2010. It transpired that he had had very little time with the children in the intervening three months despite making a number of requests for weekend time. I made an order for the evidence to be reopened and set the matter down for hearing in February 2011. On the 26 August 2010 I made orders providing for Mr Paulen to spend time with the children each weekend from Saturday morning to Sunday afternoon.
Ms Brider’s legal aid was terminated and on the adjourned date she appeared not legally represented. I was informed that in the period from the 26 August 2010 until late January 2011 Mr Paulen had had regular weekend periods with the children in accordance with the August Court orders although not without some degree of difficulty on occasions.
Mr Paulen continues to reside in G Town in the house he has had constructed on the land. Ms Brider continues to reside with Mr B in the L district.
There are five children residing in the house with Ms Brider and Mr B being the children the subject of the current proceedings, two children of their relationship born in 2009 and 2010 and a child T who is eight years of age who is a child of Mr B’s from a previous relationship in Western Australia.
I propose to first examine the reports and the exhibits in this matter as being the most objective and more reliable evidence. I will firstly consider the observations as to Ms Brider’s presentation and history.
Exhibit 3 – File of the G Counselling Service
Ms Brider attended this service and consulted with psychologist Mr D. He saw her on a total of nine occasions from the 26 June 2007 through to the
20 November 2007. Mr D subsequently terminated the therapeutic counselling because of the inability of Ms Brider to arrive punctually for her appointments.
In his typed notes of each consultation it is apparent that the parties were experiencing marital difficulties. Mr Paulen was complaining of Ms Brider’s erratic behaviour:
…[Ms Brider’s] behaviour could be quite irrational and erratic and she would be calm one moment, but excessively emotional and angry the next. [Mr Paulen] also advised that [Ms Brider] could not be reasoned with and she would get very angry with him to the point of screaming and hitting him.
I asked [Ms Brider] about her behaviour – she was reluctant to discuss the issue and agreed that her behaviour was as Mr [Paulen] reported.”
At subsequent consultations Ms Brider was attending the sessions by herself but informed the psychologist that the arguments with her husband continued on a regular basis. Mr Paulen had become aware that she had been sending text messages to a former boyfriend enquiring if he still had feelings for her. This made an already troubled marital situation even worse.
After Ms Brider took an overdose and was hospitalised Mr D made a referral for Ms Brider to see a psychiatrist in Buderim, Dr M.
Exhibit 4 – File of Dr M - Psychiatrist
Dr M saw Ms Brider on the 16 November 2007. His handwritten notes of that date have been tendered into evidence together with a letter to the general practitioner of the 22 November 2007. Dr M’s diagnosis was in the following terms:
21 year old year old woman with complex post traumatic stress disorder following abuse as a child.
She suffers ongoing PTSD symptoms and is also moderately depressed. Apart from [Mr D’s] support, [Ms Brider’s] only support in [G Town] is from her much older husband. She has no family or friends here. Understandably there are complex power dynamics in her marriage which are now leading to significant conflict.
In his handwritten notes the psychiatrist quotes Ms Brider informing him:
My husband doesn’t listen. I hit and kick and throw things. The two children two years old and 11 months they don’t want to be with me. When he ([Mr Paulen]) doesn’t listen to me it reminds me of my grandfather and step-father.
She proceeded to make disclosures of being raped by her grandfather when she was 13 years of age.
To the doctor Ms Brider disclosed that her full sister had been molested by her
step-father.
First Report of Social Worker, Mr Y –
26 August 2008
Mr Y was engaged by the Independent Children’s Lawyer to interview the parties. He interviewed them at his rooms in Brisbane on the 31 July 2008. At paragraphs 27, 29 and 30 of his report under the subheading “Mother” he observes:
27.[Ms Brider] presented her views inadequately. She expressed herself [sic] views in a flat monotone voice with little expression other than irritation if questioned greatly on any particular issue. She lacks confidence, appeared anxious and uncertain in her expressions, and had difficulty pronouncing her words.
29.She defined the current dispute with [Mr Paulen] as pertaining to his desire to have the children on a week-about basis. Of this, she expressed the view that “I think that might muck them up later in school and they do three days a week day care, Monday, Tuesday and Friday at [L Town]”. She added concerns about his age, relating this vaguely, appearing to think that he might fall unwell and perhaps be incapable of caring for the children.
30.Her previous allegations that he had been sexually abusing A appear to have been forgotten and she didn’t mention this until asked. …
At paragraph 39 he observes of Ms Brider:
39.Prior to being evicted by her mother [likely to be June 2003 – refer exhibit 6] she states that her mother would coerce her into having sexual relations with other men who were friends of hers. This took various guises including enticing her to meet them in the park for other reasons which would inevitably lead to them raping her, and she states that this occurred on several occasions prior to her being evicted from her mother’s home. …”
There is evidence before the Court in exhibit 6 that Ms Brider’s mother was expressing grave concerns about the presence of Mr Paulen in Ms Brider’s life in the first half of 2003. The genuine concern expressed by Ms Brider’s mother as recorded in that exhibit would appear to cast doubt on the veracity of the claim that Ms Brider’s mother willingly allowed the then 16 year old Ms Brider to have sexual relations with male friends of hers. It is possible Ms Brider’s account of her mother’s behaviour is accurate but on balance I am not accepting of same.
At paragraph 42 of the report Mr Y records:
42.Later in the interviews it emerged that [Ms Brider] has previously alleged that her father has sexually abused her and although she later dropped these charges, it led to a breach in their communication for some time. She does concede, although she maintains that it is hardly relevant, that he has been accused of sexually molesting other children, namely two nieces. She does not know the result of these charges and has not inquired, as she feels that this lies in the past.
At paragraph 46 in the final paragraph of his assessment of Ms Brider for the purposes of the first report Mr Y notes:
46.[Ms Brider] presents as an extremely vulnerable young woman. There is no history of drug use or violence on her part but she has an extremely dependent personality arising from severely traumatic episodes over the course of her childhood. She is not currently receiving any counselling assistance and despite admitting that she has been struggling with nightmares mood swings and bad dreams, she feels that she can survive without any such assistance.
Report of Family Consultant, Ms P
On the 14 November 2008 a family consultant interviewed the parties and the children. This report is annexed to an assessment memo dated 17 November 2008. Her observations of Ms Brider are recorded at page 2:
[Ms Paulen], aged 22 years, wishes to remain as the children’s primary carer and for [Mr Paulen] to spend unsupervised time with them on alternative week-ends. She alleges that [Mr Paulen] has sexually harmed [A], but that she has withdrawn the allegations due to limited evidence. [Ms Paulen] assumed responsibility for the violence in the marital relationship, blaming [Mr Paulen] for triggering her and associating it with her traumatic childhood and subsequent mental health issues (“Postal [sic] Trauma Depression”). [Ms Paulen] identified a lack of communication in the parental relationship and ongoing conflict as
[Mr Paulen] does not listen to her. The reverse sentiment was identified by [Mr Paulen].Both parents recognised that the historical and current parental dynamics is having an adverse affect upon their children. They each advocate that they are in the better position to primarily parent the children. [Mr Paulen] lacks insight into the concerns regarding the nature of his earlier relationship with [Ms Paulen], whilst [Ms Paulen] refutes any concerns regarding Mr B. She is seeking therapeutic intervention regarding her childhood experiences, whilst [Mr Paulen] is completing a parenting program.
[Ms Paulen] was receptive to feedback and able to recognise (to a point) that her childhood experiences affect her parenting and are being reflected in her own children’s lives. [Mr Paulen] was less receptive to feedback, particularly with respect to any issues relating to him. He was quite defensive and deferred responsibility of his relationship with
[Ms Paulen] onto her. Both parents appear to be focused on their children’s welfare; however the question remains whether they have the capacity and ability to address their children’s welfare.
Report of Dr E
Ms Brider attended an interview with Dr E on the 27 January 2009. Ms Brider arrived 25 minutes late for the scheduled interview.
Dr E notes (page 2) that:
She was born in Brisbane. Mother is in her forties living at [M Town]; father is about 41. Her parents separated when she was 10. She said her father now lives between [L Town] and Brisbane as he works in [L Town] and has a fiancé in Brisbane. He is a cleaner of the abattoirs.”
At page 3 Dr E notes:
She attended a primary school in [N Town] before moving to [M Town]. She didn’t like primary school. She said she was dyslexic. She can only read a few things and gets very frustrated by this. Her father helps her with reading. She didn’t do well at school. She said during years 8 and 9 she was in and out of Court. This is because she made a complaint that her maternal grandfather had sexually molested her when she was 13. Her mother never believed her. She said the matter went to Court. Although her grandfather was restrained from having any contact with her, she doesn’t think he was convicted. She had to testify.
Ms Brider would have turned 13 in May 1999. This was at a time when she was attending the M High School. For her primary education she had attended a special school in M Town after her parents moved to that area when she was about ten years old.
At page 4 of her report Dr E notes:
At interview she arrived 25 minutes late. She was unsmiling; reasonably well groomed; did not give a very clear consistent history. She exhibits low average intellectual ability and appears to have specific learning disability, dyslexia. She has a significant history of sexual abuse as a child and her relationship with [Mr Paulen] could also be seen as sexually abusive. She exhibits posttraumatic stress disorder with confusion about sexual boundaries and also appears uncertain about her initial allegation that [A] had been sexually abused.
Mr Paulen had been interviewed by Dr E on the 2 February 2009. Her report is annexed to an affidavit filed on the 11 February 2009. On the 19 February 2009 Mr Paulen phoned a community outreach worker with the S Family Relationships Centre. He is recorded as making various threats to this person that he would harm the mother and children.
The matter was reported to the G Town police and the father was arrested. As a result of this arrest he remained in custody on remand for about a month. He was charged with using a carriage service namely a telephone network in such a way that reasonable persons would regard that use as being menacing, harassing or offensive.
The evidence would indicate that although Mr Paulen disagreed with the account given by the Lifeline counsellor he pleaded guilty to the charge. He had been held in custody for about one month prior to be dealt with in the Magistrates Court. It appears that he was sentenced to time served.
Second Report of Mr Y of 20 August 2009
In his second report Mr Y made observations of Ms Brider in the following terms (paragraphs 18 and 23):
18.[Ms Brider] expressed herself in monotone, without much accompanying expression. She had difficulty understanding some questions.
23. She has withdrawn the allegation of sexual abuse of A by her father, but only because her lawyer told her she could not prove it. As to whether she believed the allegation, she said “It is hard to say…..I feel like it is wrong to take a two year old into the male toilets when the mother is home and then have two other blokes follow, I feel that is odd.
Third Report of Mr Y dated 13 May 2010
The interviews for this report were conducted on the 22 April 2010. At paragraphs 5, 6 and 7 of the report Mr Y notes:
5.As in previous interviews, [Ms Brider] lacked expression and her views were mostly expressed in a monotone.
6.Her living circumstances are largely unchanged. She is living in the same house with [Mr B], describing their relationship as “really good, he works part time with the land lord doing fencing, spraying and gets paid”. She then elaborated that their relationship had “ups and downs”, referring to this as “normal apart from the fact that [Mr B] drinks”. She stated that this was “not heavy” but “4 or 5 cans of Jacks (Jack Daniels)” which made things “financially rough we have gone defacto and have lost money”.
7.[Mr B] moved into her home when their baby was born and helped a far bit. She needed this because I was sort of a bit depressed and found it a bit hard to start with.”
At paragraphs 10, 11 and 12 she is quoted as saying:
10.In discussion of her proposal for the future, [Ms Brider] gave a confused reply. She is seeking that “I get full custody and [Mr Paulen] gets every second weekend”. She wants them to spend time with him and “I want them to build a relationship with him”.
11.As to previous allegations of sexual abuse, she states “part of me believes it and the other part doesn’t”. [Mr B] is not so undecided; she stated “[Mr B] believes it” but “I make my own decisions”. Separately [Mr B] remained very vocal about his views.
12.In a later interview, [Ms Brider] clarified that the alternate weekend time which she was proposing for [Mr Paulen] should be supervised, this on the basis of her unresolved concerns of past abuse, and the threats that he had made to her through a Lifeline counsellor.
The Court has had the benefit of the file from the S Contact Centre to which reference will be made in due course. By and large it shows the children spending enjoyable time with their father but on all too frequent occasions the contact visits were cancelled and on other occasions the children began expressing fear at seeing their father.
At paragraph 13 of his third report Mr Y records that when he informed Ms Brider that he was going to introduce the children to their father, she smiled and said, “good luck”. He noted she thought it extremely unlikely that this could be facilitated.
At paragraphs 30 and 31 of his report after the children had seen their father and were being returned to their mother Mr Y notes:
30.When I finally took the children back to their mother – [R] told his mother that he wanted to spend more time with “[Mr Paulen]”.
[Ms Brider] said that this was the opposite of what [R] had been saying to her only that morning.”31.In play with both parents, the children were responsive and active. Their development at this junction presented as normal.
Profile of the Father – First Report Mr Y of 26 August 2008
Mr Y at paragraphs 14, 15, 17, 18 and 26 describes Mr Paulen in the following terms:
14.[Mr Paulen] expressed his views in an extremely adamant and animated manner. He was particularly concerned to deny the allegations of sexual abuse as strenuously as possible, expressing his disgust and dismay that this has been alleged against him. He was emotional throughout his account although not to the point of tears. He did appear to find it difficult to stay within the confines of the question at hand.
15.[Mr Paulen] is currently living in a home recently built in [G Town]. He is not working although he can do casual work occasionally. He presented as finding it difficult to cope without the children and as being emotionally traumatised by the separation.
16.He expresses dire concerns about [Mr B]. He assumes he is in a relationship with [Ms Brider] and states that he knows that he had a problem with drinking and drugs in addition to violence. He is very fearful of the contact that [Mr B] is having with his children.
17.He believes that [Ms Brider] is very dependent on other people and cannot do anything by herself. This is partly because she cannot read or write and also because of her emotional needs.
26[Mr Paulen] presented in an extremely emotional manner. This can be explained by the sequences of events that have occurred following separation. In a general sense he appeared to struggle to express his views confidently and maintained a far greater focus on his complaints about [Ms Brider] than in any reflection upon his own actions.
Report of Dr E – Assessment of Father
At page 7 of her report Dr E records:
At interview he was pleasant; told a reasonably clear history but tended to put himself in the role of a victim in relation to [Ms Brider]. He rationalised his involvement with her by saying that she would not leave him alone. He has no significant psychiatric history. There was no disorder of thought, mood or perception and his history did not give any indication of any propensity to sexually abuse children.”
At page 8 she summarises the situation in the following terms:
[Mr Paulen] gives a history indicative of psychological health until he found himself in the position of being flattered by the confidence of [Ms Brider] in him. He describes an awareness of the inappropriateness of their sexual relationship but appears to have succumbed to his rescue fantasies and the enjoyable experience of being idealised. He vehemently denies any sexual abuse by him of his daughter or anybody else but obviously his relationship with [Ms Brider] if not technically abusive did demonstrate a lack of boundaries.
I accept the force of this criticism by Dr E. Mr Paulen acted appropriately at the beginning of the relationship in attempting to help a young, troubled individual. She became infatuated with him and thereafter, he did his best not to become involved with her, so long as she was underage. He revealed a lack of judgment and lack of boundaries in eventually succumbing to her requests and demands that she accompany him on his move to Melbourne.
Second Report Mr Y dated 20 August 2009
In this report Mr Y notes at paragraph 4:
4.[Mr Paulen] presented in an agitated manner, anxious to convey his views and concerns, and often oblivious to the question posed, extrapolating over areas obviously central to his views.
At paragraph 10 Mr Y records Mr Paulen’s version of the incident with the Lifeline help counsellor:
10.He related the background to this incident as “this woman (the counsellor) promised me that once the sex charge had been dropped she could get me more time (with the children)”. He states that he subsequently phoned her and when she said that she couldn’t help, describes his reaction as, “I just lost it…cause I have been put through hell, both with my ex and this new guy, I lost it, and every time you pick up the papers some guy has killed his children and I said when do you people put your hands up, after someone is dead, do I have to die”.
At paragraph 14 Mr Y observes:
14.His proposal remains that the children reside in his care, because “ I don’t believe they are in safe hands, all this is a grab for the estate”. As was often the case it was difficult to disentangle [Mr Paulen’s] concerns, but separate to the view that [Ms Brider] is motivated by money, he also believes that “she is not capable”, meaning she is unable to care for the children properly.
Third Report of Mr Y of 20 May 2010
Mr Y notes at the commencement of this report that Mr Paulen’s time with his children remained supervised until December 2009 at which point his time with them ceased as the Contact Centre ascertained the children were so opposed to attending that they were unable to facilitate time being spent with Mr Paulen.
At paragraph 18 he records:
18. [Mr Paulen] presented in a morose manner.
17. His undertone is unmistakingly [sic] bitter. Of his life in general, [Mr Paulen] reflected, “I am a total mess”, as he speaks in detail of what he views as various attempts by [Ms Brider] to usurp him having any relationship with the children.”
Orders Sought by Respondent Mother
The Mother seeks orders as set out in a case information document filed on
20 May 2010 as follows:
·she have sole parental responsibility for the long term, care, welfare and development of the children;
·each party to have responsibility for periods of time when the children are in the care of the respective parent;
·that the children live with her and that the Father be at liberty to communicate with the children by telephone at any reasonable time;
·the Father is to spend time with each child on that child’s birthday;
·a graduated increase in the period of time the Father has with the children with the Father ultimately spending every second weekend from 5.00 pm Friday until 5.00 pm Sunday; and
·one half of the school holidays.
In written submissions dated 26 May 2010 produced by Counsel for the Mother with minor changes he adopts the proposals of the Independent Children’s Lawyer as set out in a case information document filed 20 May 2010 that the children spend time with the Father gradually increasing to each second weekend from 5.00 pm Friday until 5.00 pm Sunday.
Orders Sought By Applicant Father
The Father for his part seeks orders:
· that the children live with him;
· that he have sole parental responsibility for the children;
· the parties be individually responsible for making any day to day decisions when the children are in the respective care of that parent;
· the Mother spend time with the children each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday with the time to be extended in the event it is a long weekend;
· half school holidays; and
· the children not be permitted to have contact with their maternal great grandfather, Mr Paulen Mr H, their maternal grandmother, Ms C, their great uncle, Mr C and their maternal grandfather, Mr Brider.
I will deal with the property settlement issues as a separate judgment after consideration of the children’s issues.
Applicant Father’s Witnesses
The Father had filed a total of ten affidavits on the following dates:
·5 February 2008;
·25 July 2008;
·20 August 2008;
·2 February 2010;
·23 April 2010;
·20 May 2010; and
·28 July 2010.
Affidavits Filed After Leave Granted to Re-Open Evidence
After leave was granted on 26 August 2010 to re-open the evidence the Father also relied on affidavits filed on the following dates:
·filed 25 August 2010;
·21 January 2011; and
·3 February 2011.
Other Witnesses for Applicant Father
·W, his son, whose affidavit was filed 12 April 2010;
·Mr F, a friend of the Father, who resides in the M Town district whose affidavit was filed on 29 April 2010; and
·Mr R, a friend of the Father, whose affidavit was filed on 25 July 2008.
The three witnesses for the Father were not required for cross examination and their evidence is thus before the Court on an unchallenged basis.
Respondent Mother’s Witnesses
The Mother relied on affidavits filed by herself on:
·27 February 2008;
·23 May 2008;
·28 November 2008;
·12 April 2010;
·affidavit filed on 26 August 2010 in response to the Father’s application to re-open the evidence.
and:
· two affidavits of her current partner Mr B filed on 12 April 2010 and 25 May 2010 respectively;
· an affidavit of Ms Brider’s maternal aunt and uncle, Ms Q Brider and Mr O Brider who filed a joint affidavit on 29 August 2008; and
· an affidavit of Ms K a friend of Ms Brider’s.
The only witness for the Mother who was required for cross examination was Mr B.
Independent Children’s Lawyer’s Witnesses
As previously noted, for the Independent Children’s Lawyer, reliance was placed on:
· three reports prepared by Mr Y a social worker, dated 26 August 2008, 20 August 2009 and 13 May 2010;
· Dr E psychiatrist, two reports the first dated 6 February 2009 giving a psychiatric opinion about the Mother and Father, and 19 February 2009 being a report on Mr B; and
· Ms P, Family Consultant assessment report dated 17 November 2008.
The only witness for the Independent Children’s Lawyer required for cross examination was Mr Y.
Exhibits Tendered In Three Day Trial in May 2010
The exhibits tendered were as follows:
1. Flagged items contained in subpoenaed documentation of Queensland Police Service (Legal Liaison Unit) dated 30 April 2008 and 9 June 2009.
2. Flagged items contained in subpoenaed documentation of S Family Contact Centre dated 17 May 2010.
3. Flagged items contained in subpoenaed documentation of G Town Psychology and Counselling dated 23 July 2008.
4. Flagged items contained in subpoenaed documentation of Dr M dated 24 July 2008.
5. Flagged items contained in subpoenaed documentation of Department of Child Safety Court Services (M Town) dated 6 May 2008.
6. Flagged items contained in subpoenaed documentation of Department of Child Safety Court Services (V Town) dated 20 August 2009.
7. Flagged items contained in subpoenaed documentation of Department of Communities (Child Safety) (U Town) dated 20 August 2009.
8. Flagged items contained in subpoenaed documentation of Department of Child Safety Court Services (G Town) dated 5 June 2009.
9. Flagged items contained in subpoenaed documentation of Kaylan Youth Services Incorporated (M Town) dated 28 April 2010.
10. CDs of telephone conversations between Father and children.
Further Exhibits Tendered at Hearing 7 February 2011
1. Photo of children taken by Father.
2. Photo originals.
3. DVD.
4.U Town Hospital Emergency Department records 11 September 2010.
Observations on Exhibit 6 – File Notes from Kaylan Youth Services
I note in exhibit 6 reference is made to conversations with two persons in positions of responsibility namely Ms J from Centrelink and the school counsellor from Ms Brider’s school which record positive observations of the role of Mr Paulen. Ms Brider says she was residing with Mr Paulen in 2003 or frequently at his home. This is inconsistent with Mr Paulen’s behaviour in booking her into the homeless shelter on the 7 January 2003. It is also inconsistent with his statements to a number of adults as recorded in the notes that he was conscious of the fact that Ms Brider was infatuated with him and was embarrassed by it.
For the entry of the 7 January 2003 it records Ms Brider as saying that she gets on well with her mother. This would seem to be inconsistent with her complaints that her mother was arranging meetings with adult males who were having non-consensual sexual relations with her.
Around this time she appears to have been in a relationship with a boyfriend Mr W. Ms Brider had been fitted with a contraceptive implant. It is not revealed when this procedure was carried out but she was aged 16 at the time this entry was made.
I find it is unlikely there was a sexual relationship between Mr Paulen and Ms Brider in circumstances where he was making arrangements for her to see her school counsellor and the police about the conduct of the maternal grandfather and her step-father. The maternal grandfather had been dealt with by the Courts for his abuse of Ms Brider in 2001, but she was still troubled by it and was wanting to discuss matters with Mr Paulen.
Ms Brider’s mother produced to the staff at the shelter a series of letters said to have been authored by Ms Brider.
There was no cross examination on these documents nor did Ms Brider ever identify them as being her letters. If she is the author it would seem inconsistent with claims that she is illiterate. The handwriting in the letters appears more sophisticated than is evident in Ms Brider’s signature on Court documents.
The entry of the 11 January 2003 records Ms Brider’s mother as saying:
She does not know whether [Ms Brider] really has some sort of sexual relationship with [Mr Paulen], or whether this is imagination or fantasy on [Ms Brider’s] part. Is [Ms Brider] manipulating [Mr Paulen] by telling him about her problems real or imagined and getting him to help her. Whichever is the case [Mr Brider] is infatuated with [Mr Paulen] to the extent that she has split up from [Mr W] her very caring devoted and sensible boyfriend.”
Ms Brider’s mother confirmed to the shelter staff Ms Brider was sexually abused by her grandfather when she was 13.
It is noted in the records that Ms Brider had told her mother that she was pregnant when she was not and the mother recorded:
[Ms Brider] enjoyed causing her stress and thought it was funny. [Ms Brider] has been known to make false allegations of sexual misconduct against another person.
There is no elaboration in the notes in relation to this entry. The records indicate Ms Brider was visiting with and staying with Ms C, Mr Paulen’s former wife. The entry for the 26 January 2003 notes Mr Paulen and his former wife taking Ms Brider to a “gig” that evening. In a discussion later that evening with the night worker about emotional and relationship issues, Ms Brider denied any sexual relationship with Mr Paulen. The entry of the 31 January 2003 records conversations (second hand) where Ms J from Centrelink tells of a telephone conversation with Mr Paulen. The records notes:
Gained the impression that he is just a kind fatherly man who wanted to help [Ms Brider] but found he had got too involved. He indicated to [Ms J] that he wants to wean [Ms Brider] from her dependency on him but doesn’t want to upset her. [Ms J] asked if any of us would object to discussing things with [Mr Paulen]. I said I would not mind if it could be helpful.
The entry of the 7 February 2003 records a conversation with Mr Paulen where he acknowledges his awareness that Ms Brider was becoming “increasingly dependent on him and he can now see that she is infatuated with him although he says he has never done anything to her of a sexual nature”.
The entry of the 3 March 2003 notes:
[Ms Brider] went to school during the day but was basically forced to come back to [K Youth Services] because [Mr Paulen] refused to take her in.
This does not seem to be the type of conduct of a person who was said to be having a consistent exploitative sexual relationship with a then 16 year old girl.
Ms Brider has made claims that the relationship had commenced as early as the year 2000 when she was 13 years of age. I find this extremely unlikely in the main because of the number of times she has made a statement that the sexual relationship did not commence until 2003 as recorded by Mr Y and in other documents.
Observations of Applicant Father’s Affidavit Evidence
I am inclined to accept the account that Mr Paulen was working full time in Melbourne but Ms Brider was constantly phoning him at work because she was having difficulties caring for her first born. Mr Paulen says that he gave up work in January 2006 as Ms Brider was not coping.
Mr Paulen in his affidavit of the 5 February 2008 (paragraph 36) deposes that in his experience Ms Brider cannot tell the time, is illiterate and is subject to mood swings and acts irrationally.
None of these aspects was tested in the course of cross examination. The evidence that she was consistently late for interviews with Mr D the psychologist and with Dr E and at changeover times may be some indication that she has difficulty telling the time.
In paragraph 13 of his affidavit sworn and filed on the 2 February 2010 Mr Paulen deposes:
13.When the Mother left she only took [A] and was not interested in taking [R].
I find this is unlikely to be the case. The evidence would indicate that once Ms Brider had made up her mind to end the relationship with Mr Paulen she engaged with Mr B and the two of them systematically set about in an exercise designed to remove the younger child from Mr Paulen’s care.
Other areas of Mr Paulen’s evidence which would question his reliability as a witness include his overstating of the initial contributions he made as to the value of the car he brought into the relationship and the value of the furniture. I would somewhat cynically record this is a not uncommon practice with litigants in the position of the father.
I do not place any great reliance on the fact that in the information sheet which was filed at the time that he instituted proceedings, it records that the relationship commenced in 1999. I do not interpret that as being the commencement of a sexual relationship but simply that it was when he was engaging in counselling by listening to her history and a father/daughter type relationship was developing.
I sense a degree of hyperbole as to the shortcomings of Ms Brider’s family in general, particularly in his affidavit filed on 25 July 2008 though I accept he could be accurately reporting what he has been told by Ms Brider but the reliability of her account has to be discounted.
Affidavit Evidence of Respondent Mother
At paragraph 5 of her affidavit of the 27 February 2008 she deposes that the relationship commenced in the year 2000. At paragraph 32 of this affidavit in detailing the incident at the in G Town when Mr B assaulted Mr Paulen she says she did not see anything. I find this account by Ms Brider unlikely in view of the description as to the size of the café and the fact that it occurred immediately in front of her.
In the records of the Department of Child Safety there is a typed interview recorded at the G Town CSSC on the 24 January 2008. It is quite apparent from the detailed account there that she did in fact witness the assault on her then husband.
At paragraph 38 of her affidavit she deposes that she is able to budget and manage her own expenses:
38.…as I had been living by myself before I started living with [Mr Paulen].
The reality is Ms Brider had been excluded from her mother’s home and spent three months at a homeless shelter only to be excluded from there. It demonstrates an inability on Ms Brider’s part to comply with directions and reasonable requests together with an irresponsible attitude bordering on wilfulness.
It would seem that Mr Paulen and Ms Brider relocated to Melbourne in about September 2003 by which stage Ms Brider would have turned 17 years of age. She was evicted once again from her mother’s home in about June 2003. This is recorded in a handwritten note in exhibit 6. It is possible that she lived by herself from about July 2003 but it would be inconsistent with her dependent nature where she appears to have been constantly seeking to reside in another person’s household. It is possible that for that period of time she did move into Mr Paulen’s home, but that again would appear to be inconsistent with the evidence of Mr F to which I shall make reference shortly.
Mother’s Allegations Father Has Sexually Abused His Daughter
I am more than satisfied there is no basis whatsoever in relation to this allegation. The whole case of Ms Brider as presented at the three day hearing in May 2010 was that Mr Paulen’s time with the children should increase to alternate weekend time unsupervised. The whole thrust of the presentation of the case on this basis negatives any suggestion that Mr Paulen has acted inappropriately in a sexual manner or in any fashion with his daughter.
The behaviour of Ms Brider however throughout the period since separation has been quite inconsistent. There is evidence from various sources including the CD and DVD which were tendered into evidence (exhibits 7 in the May 2010 proceedings and exhibit 3 in the February 2011 proceedings respectively) which would indicate that Ms Brider’s views are largely directed by Mr B who has consistently expressed a hostile attitude towards Mr Paulen. The fact that Ms Brider is in this dependent relationship is also noted by Mr Y in his reports.
In her affidavit filed on the 28 November 2008 at paragraphs 39, 40 and 41 she deposes:
39.I was suspicious that there may have been more going on in terms of [Mr Paulen] engaging in sexual misconduct towards [A]. As time has passed and I have looked at the situation again I realised that my concerns were probably based on the fears of abuse that I have carried in my life for many years rather than anything in particular I witnessed [Mr Paulen] do or say.
40.I have always, even during the time that [Mr Paulen] and I were together, been fearful that he would sexually abuse our daughter. This was as a result of two major factors, firstly what had happened to me in my own life and secondly, it always appeared to me that [Mr Paulen] favoured [A] over [R] in terms of a greater proportion of his time spent reading with or spending time alone with her or playing with [A] as compared to [R].
41.I can say that I have never seen any behaviour of [Mr Paulen] towards either of our children which other than what I have referred to in paragraph 36 above which would suggest that he has engaged in any inappropriate sexual behaviour towards them.
Ms Brider’s persistent attempts to have her daughter examined by medical practitioners at hospitals and in private practice of itself was tantamount to abusive behaviour.
After the matter was transferred from the Federal Magistrates Court to this Court, Ms Brider completed a parenting questionnaire on the 24 April 2009. In that document (paragraph 52) she proposed that the children spend every second weekend with Mr Paulen and for half school holidays. I have previously referred to the report of the family consultant Ms P where as early as November 2008 Ms Brider was proposing unsupervised alternate weekend time.
However, in Ms Brider’s affidavit of the 26 August 2010 (paragraphs 11 and 21) she was still requiring Mr Paulen’s time to be supervised. Notwithstanding the proposal in the questionnaire and the earlier affidavit of November 2008, throughout 2008 and a considerable part of 2009, Mr Paulen was only permitted to have supervised time with his children.
In the written submissions prepared by Ms Brider’s Counsel dated 26 May 2010, it clearly sets out that Ms Brider supports the alternate weekend and half holiday proposals. The reality is that between that date and when the matter came back before me in August 2010, Ms Brider had not provided any meaningful time for Mr Paulen to spend with his children. Any such time was clouded by spurious allegations that he had sexually abused his daughter in the X Centre’s toilets immediately after the conclusion of the three day trial.
Respondent Mother’s Allegations Generally
I note Ms Brider has made serious allegations against her own mother, her father and her former husband. I am satisfied on the whole of the evidence there is no basis in fact for any such allegations. I have previously noted how the allegations of Ms Brider’s conduct are inconsistent with the independently recorded notes of Ms Brider’s mother being concerned about her daughter. Ms Brider’s own affidavit concerning the allegations of her father seem to explain the allegation as arising from a momentary and inadvertent touching. The fact that she has consistently sought out and stayed with her father of itself would indicate there was no adverse incident. Ms Brider’s own affidavit in relation to the allegations involving her former husband are indicative of the fact that there was never any merit in the allegations.
In relation to the allegations involving the maternal grandfather it seems from Ms Brider’s mother that there was some incident but the version given by Ms Brider does not seem to equate with the way the matter has been dealt with. In various ways it is said the matter was reported to the police and that he pleaded guilty but did not receive a term of imprisonment. This statement by Ms Brider is confirmed by case notes created on the 30 May 2001 in the M Town office of the Department of Child Safety. The summary of contact note reads:
Home visit by [Ms Z] on 29 May ’01 at 3.30 pm to [Ms Brider] and [Ms C]. The charges against the grandfather have finalised and he was given a three year good behaviour bond. He is not to have contact (even if supervised) with the children for three years. He is allowed to speak to the children by telephone. Ms C has stated that she will not allow any contact in the future and that the grandfather is unaware of where they are currently living. Ms Brider’s father is currently living in Brisbane and there are fears about contact with the children. Ms C is currently not allowing any of the children to visit with him and should he come to M Town, the children will only be allowed supervised contact with him.”
It is an astonishing proposition where the child was so young and the act is said to have involved both incest and rape that such a light sentence was imposed.
The only sensible conclusion I can reach is that the grandfather must have been accused of some degree of touching of the child. The fact that Ms Brider claims to have been raped either did not happen or was not accepted by the Courts.
There are many other aspects of Ms Brider’s evidence where she has glossed over situations or engaged in a degree of hyperbole. One such instance is where she deposes to the fact that when Mr Paulen was in hospital for about two months she cared for both her former husband and the children by herself. The evidence would indicate that Mr Paulen’s son came down from Melbourne to assist Ms Brider because she would have great difficulty in coping by herself and her father also came to assist.
Whether the Respondent Mother Has Promoted a Relationship Between the Children and the Applicant Father
I am strongly of the view that at no stage has Ms Brider promoted a relationship between the children and Mr Paulen. The reasons for so concluding are:
·Insisting on an ongoing basis on Mr Paulen’s time being supervised by a Contact Centre when as early as November 2008 Ms Brider was satisfied that there was no merit in the sexual abuse allegations.
·The number of cancelled visits to the Contact Centre seems indicative of not promoting a relationship particularly where there was rarely any offer made for make-up time.
·The statements made to Mr Y particularly in the third report where Ms Brider expressed surprise that the children were happy to see Mr Paulen.
·Ms Brider’s affidavit of 4 April 2010 at paragraph 50 where she deposes:
50.I do not think the children have a close relationship with [Mr Paulen]. The children do not talk about Mr Paulen or seem to worry about him. A has mentioned to me that she wants her toys back from [Mr Paulen] but that is the only time she has spoken of him.
This does not accord with the observations of Mr Y of the children acting in a loving fashion with their father.
·Allowing the children to refer to Mr B as “Daddy” and to their natural father as “[Mr Paulen]”. This is almost invariably, as here, a tell tale sign that the father’s relationship with the children is not valued.
Observations of Respondent Mother’s Partner – Keith Brennan
Dr E made an assessment of Mr B when she had a consultation with him on the 2 February 2009. At page 2 of her report she notes that he had a “spot of trouble” in relation to some burglaries and served time in a Western Australian prison. She records him saying he “was in for four years”.
At page 4 of her report:
At interview he was pleasant, co-operative, told a consistent clear story, appeared to be honest about his background. He has had a very dysfunctional childhood and significant difficulty with all interpersonal relationships. He gives a history of conduct disorder as a child and
anti-social personality disorder as a young adult. He has a history of one depressive episode which is probably an adjustment disorder with depressed mood. There is a significant history of sexual abuse within his family from which he has tried to remove himself. He denies any significant substance abuse or alcoholism.Opinion
From his history [Mr B] also appears to be a person who has rescue fantasies in relation to female partners. He appears to have sensed the same vulnerabilities in [Ms Brider] that [Mr Paulen has]. Both [Mr B] and [Ms Brider] have a history of difficulties with interpersonal relationships and [Mr B] has expressed a reluctance to commit himself permanently to his current relationship. There is a probability that it may be short lived.
Notwithstanding this prediction it has been almost two and a half years since this forecast and they are still in a relationship.
In his second report of August 2009 Mr Y described Mr B as “a garrulous man with concrete views”.
At paragraph 33 of that report Mr B informed Mr Y that he had served three years for “home invasion”. He also appears to have a series of driving offences in more recent times as he is currently disqualified from driving.
I have no doubt whatsoever that Ms Brider has been in a relationship with
Mr B since at least the time of separation. It would appear on the facts that they did not commence to reside together until about mid-2009, presumably on the basis that they were receiving more money by way of benefits and assistance by living in separate households. Ms Brider in her affidavit deposes to the fact that by mid-2009 they were now defacto and less money was coming into the household.
Mr Paulen produced a photograph of Ms Brider attending on one contact visit with a noticeable black eye. It would not surprise me at all given Mr B’s temperament if there were episodes of domestic violence in Ms Brider’s household but there is no direct evidence off that. Ms Brider’s explanation when questioned about the black eye was unconvincing.
The behaviour of Mr B as reflected in the CD and DVD tendered into evidence reveals a person given to angry outbursts who is not at all concerned about raising his voice in the presence of the children. The evidence overwhelmingly suggests particularly from the DVD and CD that Mr B is the dominant person in the relationship and he has taken it upon himself to very much interfere in any arrangements being made between Ms Brider and Mr Paulen.
It would be my view that the children would be much better off if Mr B could be persuaded to remove himself from any involvement and not engage at all with Mr Paulen.
Because of the appalling nature of the telephone calls, I do not propose to make an order for telephone communication.
At paragraph 43 of the second report of Mr Y, Mr B is recorded as supporting Ms Brider’s proposal that the children have only supervised visits with Mr Paulen. On precious little evidence Mr B appears convinced that Mr Paulen is a paedophile.
I was not impressed by Mr B. I would go so far as to observe I formed a very poor view of him both as a step-father figure for the children and as a man. He is aggressive, loud and uncouth. I would not see his presence in the household as being in any way in the best interests of the children.
In the course of final submissions Ms Brider’s own Counsel observed:
Your Honour it has to be admitted that the way in which the allegations with respect to [Mr Paulen] have been handled by [Ms Brider] has been very far from perfect but your Honour perhaps if we look at that – rather than in the clinical setting of this Court room but through the eyes of [Mr B] and [Ms Brider] who are very clearly not particularly highly educated. On [Dr E’s] examination or assessment of [Ms Brider] in a lower intellectual level they have what might be termed a street way of dealing with things. And that also has to be put in context of the horrendous lives that they have lived.”
Later in the course of his submissions he observed of Mr B:
He too has had an awful background. He doesn’t present necessarily as the nicest and most child focused person in the world but what he has presented as being is trying very hard, very hard to do what he perceives to be the right thing by his children and to be protective towards their mother. Now that has taken on occasions the form of butting heads or rudeness and disputes and fights between him and [Mr Paulen]. He says [Ms Brider] gets abused and finally I’ve had enough and cracked, so to speak in response to that. My learned friend Mr McGregor in his submissions said that your Honour would find that both the males are at fault in that obligation and I would echo that submission and would say that the tapes will also show that and that it was transpires during telephone conversations.”
I am not accepting of the submission that the degree of blame worthiness in relation to the verbal altercations between Mr B and Mr Paulen are at the same level. Mr Paulen is a man in his 60s who by nature is good hearted and a man who would not seek out conflict. Mr B is poorly educated, uncouth and aggressive. Mr Paulen has every right to speak to his children on the phone. It is Mr B who shows no insight whatsoever in the recordings on the CD in yelling and abusing Mr Paulen in the presence of the children. Whilst
Mr Paulen’ behaviour in reacting to this is not ideal, it is at least more capable of understanding than the outright rudeness and aggression of Mr B.
Counsel for Mr Paulen described the behaviour of Ms Brider and Mr B as being in the nature “street cunning”. I readily accept that that is a crude but accurate description of the behaviour of Mr B and Ms Brider to restrict Mr Paulen’s ability to have a relationship with his children.
Incident of Applicant Father’s Phone Call to Counsellor and Making Threats of Harm
The police records would indicate that in February 2009 a complaint was made by a counsellor about Mr Paulen’s behaviour in making threats during a telephone conversation. It is a regrettable and unfortunate incident. I am prepared to find that it was out of character and reflects the behaviour of a loving father who has had false allegations made about him and has been frustrated in his ongoing attempts to spend time with his children and promote a close relationship with them.
Evidence of Other Witnesses
Mr R
Mr R knew Mr Paulen when the two of them were working for a period of time for the same bus company in G Town in late 2007. He makes positive observations as to the caring nature of Mr Paulen towards the children and the obvious good relationship between them.
Mr F
Mr F filed an affidavit on the 29 April 2010. He worked with Mr Paulen driving school buses for M Town Transit Coaches in the 1990s. In paragraph 2 of his affidavit he says that he was familiar with Mr Paulen’s house in AA Street, Suburb BB and:
…from 2001 until [Mr Paulen] left that address I used to call in to see him unannounced in many occasions both during the day and the night and he was the only occupant of the house each time I went there. I would have called at that house at least once a week.
In paragraph 3 he observes:
3.The only person I ever saw there was on one occasion I arrived just as his ex-wife was leaving. There was never any indication that a female lived in that house.
This evidence reinforces the observations and findings I have previously made.
His evidence is corroborative of Mr Paulen’s claim that he did a great deal of the housekeeping and caring of the children and that Ms Brider seemed “disinterested”.
Mr W
I have previously made reference to the fact that this affidavit details his observations of residing with Ms Brider in 2007 in the house in Melbourne. He is scathing in his assessment of Ms Brider.
Affidavit of Ms O and Mr Q
This affidavit was filed on the 29 August 2008. I do not find any great assistance from the terms of this affidavit. There is an inference the Court is asked to draw that on one occasion in G Town in 2007 Mr Paulen was giving A a bath and she came out screaming. I am not prepared to draw any adverse inference arising out of this incident.
Affidavit of Ms K
This witness was not required for cross examination. She is a close friend of Ms Brider’s. She is referred to as “aunty” by the children. She speaks well of Ms Brider’s parenting ability. She makes critical comments of Mr Paulen contained in paragraphs 23 to 37 of her affidavit. In relation to her reports of hearing the phone call from Mr Paulen as noted at paragraph 32 of her affidavit, the more reliable evidence is to be found in the CD produced by Mr Paulen where he has recorded numerous attempts to communicate with his children.
Parental Responsibility
Ms Brider originally sought an order for equal shared parental responsibility (see her amended response filed 11 June 2008). In her amended case outline filed on the 19 May 2010 shortly before the trial she sought an order for sole parental responsibility. I appreciate that there had been a number of developments in the intervening time such as Mr Paulen’s outburst to the Lifeline counsellor and also from Ms Brider’s perception the children’s reluctance to see their father even in a supervised setting.
Counsel for Ms Brider in his written submissions (paragraphs 52 to 57) argues:
52.The ICL recommends an order for equal shared parental responsibility.
53.[Mr Y] does not recommend either party have sole parental responsibility.
54.Under cross examination [Mr Paulen] seemed to suggest that he is not able to consult about decision making with [Ms Brider] because the Children live with her but, were they to live with him, circumstances would require she and he to interact. [Ms Brider’s] evidence is that would like to be able to communicate with [Mr Paulen] but cannot.
55.With the greatest of respect to both the evidence of [Mr Y] and the views of the Independent Children’s Lawyer, it is submitted that the obligations for consultation between the parties in relation to major long term issues in respect of the Children could only be frustrated in circumstances where the Court expert recommends that they have no contact with each other.
56.Decisions will need to be made about major long term issues impacting upon the Children, and it is noted that [Mr Y] suggested that the parties could communicate in writing.
57.Whilst imperfect, it is submitted that the Mother’s proposal is the one least likely to lead to future conflict and is, therefore, the proposal that resonates with the best interests of the Children.
Where there is no order for parental responsibility then the law provides that the parental decision making remains a joint undertaking (s 61C).
In a reply document filed on the 20 August 2008, Mr Paulen likewise sought an order for equal shared parental responsibility. However, in a case outline document of 26 May 2009 he sought an order for sole responsibility. Presumably part of the reason for the change of approach was his developing belief that Ms Brider at all times would place obstacles in his path in allowing him to develop and maintain an ongoing relationship with his children.
I accept the submissions from Counsel for the Independent Children’s Lawyer that there is no evidence of family violence apart from the incident on the
21 January 2008. It would not surprise me to learn there was a level of domestic violence in Ms Brider’s household but there is no evidence before the Court to establish this. There is no evidence of the police being called to the household or Ms Brider being observed with any form of injury other than the one occasion when she had a black eye for which she has given her own explanation.
There is evidence in the CD and the DVD of Mr B behaving in an aggressive, loud manner. I accept that on these occasions there is communication with the children’s father and it may well be he does not act in this fashion at all times. I note that Mr Y observed Mr B to be loud and garrulous.
There is a presumption in favour of equal shared parental responsibility, unless it is shown that there is family violence or that it would be not in the best interests of the children. I accept that there is a poor level of communication at the present time between the parents themselves; I have the distinct impression Ms Brider’s household functions at a fairly chaotic level. There is evidence of financial difficulties such as having insufficient money for petrol and other outlays. The evidence would indicate that the adults in the L Town household are not well educated and would have difficulty assisting the children with reading skills, homework and such like.
For reasons soon to be given, when considering s 60CC factors I will be making orders that Mr Paulen have the children for two nights each weekend from Friday afternoon after school until 5.00 pm Sunday and for half school holidays.
This situation has been in place since the orders of August 2010. I am informed that, to the parties’ credit, this time has continued to take place.
Once an order for parental responsibility is made s 65DAA mandates that the Court must consider either equal time or substantial and significant time.
In the course of final submissions, Counsel for the Independent Children’s Lawyer noted:
In this case, ultimately, it is my submission that the children should spend substantial and significant time with [Mr Paulen] after that time has been built up. And indeed, on my instructions, your Honour providing things go well there be no reason once the relationship with [Mr Paulen] has built up why it would not be in the best interests of the children to spend equal time with him.
There were proposals as put forward by the Independent Children’s Lawyer that Mr Paulen’s time with the children should be gradually increased. As I have earlier noted Mr Paulen’s requests for time in the period from late May 2010 until his application to re-open the evidence in July 2010 was once again seriously frustrated notwithstanding assurances given by Ms Brider to the Court that she would be compliant with Court orders. Ultimately the Independent Children’s Lawyer as I recall lost patience with Ms Brider’s behaviour as did the Court and simply ordered the immediate implementation of full weekend time. It has not been demonstrated in any manner that this development has had an adverse impact on the children.
I do not propose to consider equal time on the basis that I would not see such an arrangement as being practical given the parties live a considerable distance apart and neither party indicates preparedness to relocate.
Given the past history of this matter and the high level of aggression displayed by Mr B, it is probably better that the two households are a considerable distance apart.
I am satisfied the children have a good relationship with their father and to spend regular time with him would be very much in their best interests.
I had contemplated making it three nights a fortnight to include Friday, Saturday and Sunday evenings, but this would mean the children having to travel a considerable distance on a Monday morning prior to schooling. The only practical solution where the children will be living with Ms Brider during the week is for the children to attend school with their siblings in the L Town district.
The arrangement outlined would give Mr Paulen four nights out of 14 being every Friday and Saturday night with Mr Paulen to return the children on the Sunday evening. Mr Paulen would get to spend an extended period of time with the children during school holiday periods. The orders would be for Mr Paulen to collect the children from school. In the event for whatever reason their child is not at school he or she is to be delivered to the school and to be collected at the conclusion of the primary school day on Friday afternoons.
I had contemplated giving Mr Paulen more than half of the school holidays but as Ms Brider will have virtually no weekend time it is better that the children have some holiday time with their siblings in Ms Brider’s household.
Having given the matter a great deal of thought, I have come to the conclusion that notwithstanding the unsatisfactory nature of the communication level between Ms Brider and Mr Paulen, an order for equal shared parental responsibility should be made. The major reason for doing this is because as a result of these orders the children will be spending time each week with their respective parents. There will simply have to be a level of improvement in communication. It would not make sense to have the primary carer not have a role on the important issue of parental responsibility, but in my view, Mr Paulen would bring to bear a much more experienced reasoned and sensible approach to issues such as medical care. It concerns me that A is frequently ill and may not be receiving appropriate medical care at all times in Ms Brider’s household.
Section 65DAA
As previously noted because of the distance apart it is not reasonable practical for there to be an order for equal time.
I am firmly of the view however that this is a situation that cries out for Mr Paulen to have substantial and significant time with his children as provided for by this section. The atmosphere the children would be exposed to in Mr Paulen’s household is likely to be a calm and caring environment with a relatively high standard of living.
In Ms Brider’s household the behaviour is likely to be chaotic and crude. There is some evidence of the child R using obscene language. It would not surprise me at all if the use of such language in Mr B’s presence was an everyday event.
I have given serious thought to placing the children in their father’s primary care, but ultimately accepted the force of the submissions by Counsel for the Independent Children’s Lawyer that Ms Brider has been the primary carer and it would be too traumatic for the children to be separated from her.
I expect there is a reasonable likelihood that at the expiration of six months when the property settlement moneys are paid as provided for later in these reasons, that Mr B will depart taking T whether or not he gets his hands on the property settlement payout to be received by Ms Brider.
When delivering the reasons for judgment I will hear the parties in relation to the issue of handover arrangements. I would proceed on the basis that the driving duties should be shared. I had considered interim orders but ultimately determined this matter has been before the Court for too long with a turbulent litigation history. It has not been an easy matter on which to adjudicate. Orders made will issue as final orders but Ms Brider should appreciate that I have found a great deal to criticise in her household particularly the presence of Mr B and little to criticise in Mr Paulen’s household. If she does not comply with the Court orders for Mr Paulen to see the children each weekend and for half holidays, she may well find the children removed from her care and placed in the full time care of their father.
Injunction Restraining Children from Spending Time with Their Maternal Grandparents
It is clear from the terms of these reasons that I am satisfied there is no reason whatever why the children cannot see their maternal grandparents. There was no evidence in relation to other persons. There was no evidence that Ms Brider is likely to want to bring the children into contact with their maternal grandfather. I leave it to the discretion of the parties that they will have the children’s best interests at heart and will not leave the children exposed to any risk by placing them in the care of someone who has been dealt with for sexually abusing children.
Section 60CC Factors
Section 60CC(2)(a)
Primary considerations
The primary considerations are:
a.the benefit to the child of having a meaningful relationship with both of the child’s parents
I have already made observations on this aspect. It is likely that the conduct of Mr B and Ms Brider was malicious in nature in a deliberate attempt to ensure Mr Paulen did not interfere in their lives and as some form of punishment for his behaviour in forming a relationship with Ms Brider at such a tender age.
From a reading of Mr Y’s report and an assessment of his evidence I am clearly of the view that it is important for the children to have a meaningful relationship with their father. It is beyond doubt that they have a meaningful relationship with their mother and that will continue.
Section 60CC(2)(b)
b. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Listening to the CD of the telephone conversations is a traumatic exercise for me as an adult who has for many years heard evidence of dysfunctional families. The children should be allowed to speak to their father without the phone being on speaker phone, but as I have indicated earlier I do not propose to make an order for telephone communication. The parties are free citizens and whilst the children are in Mr Paulen’s household he may find it appropriate for the children to phone Ms Brider and speak to her. Ms Brider likewise would do well to encourage the children during the week to phone their father and discuss any arrangements and plans with him.
What has been happening for a consistent period of time in Ms Brider’s household is tantamount to abuse. The breaches of Court orders, the breaches of arrangements by cancelled time at Contact Centres casts Ms Brider’s behaviour in a very poor light indeed. Depriving the children of the opportunity to spend time with their father is tantamount to abuse.
Section 60CC(3)(a)
Additional considerations
Additional considerations are:
a.any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children were not interviewed as to their wishes because of their tender years. I am satisfied that the children by their conduct as observed by
Mr Y have a close and loving relationship with both their parents and that is something that the parents should appreciate and attempt to build on.
Section 60CC(3)(b)
b. the nature of the relationship of the child with:
i. each of the child’s parents; and
ii.other persons (including any grandparent or other relative of the child)
A factor which has influenced me in allowing the children to remain in the primary care of their mother is the ongoing relationship with their siblings. The children T is not a blood relation but it would appear that there is a good relationship between the children and that child. There is evidence the children are attached to the infants born in 2009 and 2010. The relationship of the children with their father has been seriously compromised by Ms Brider’s behaviour but it is to be hoped that the indications of the children wanting to spend time with their father will lead to the development of a close and stable relationship for the children.
Section 60CC(3)(c)
c.the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I have nothing further to add. If my prediction that Mr B is likely to have left the relationship by the end of the year, I have some concerns about the ability of Ms Brider with her dependent personality to be able to cope. There is a real risk that she would enter into yet another unsatisfactory relationship. I am unable to predict developments but it is a measure of why Mr Paulen should be seeing the children each week and no doubt he will receive from them reports as to who are the members of Ms Brider’s household.
Section 60CC(3)(d)
d.the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i. either of his or her parents; or
ii.any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I have nothing further to add in addition to the observations previously made. Although it is a considerable driving time the benefit for the children of having a relationship with their father outweighs the stress on subjecting them to a drive of a couple of hours on each occasion twice a week.
Section 60CC(3)(e)
e.the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As previously noted. The parties have been able to travel considerable distances in the past.
Section 60CC(3)(f)
f. the capacity of:
i. each of the child’s parents; and
ii.any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I place considerable weight on the household which is able to provide a better environment for the children’s educational needs. By any measure Mr Paulen’s household would be the preferred environment if this was the sole test. It is to be hoped that Mr Paulen can add to the children’s reading and writing skills on weekends when they are in his care. I would have grave reservations that Ms Brider or Mr B would be in a position to:
a.physically assist the children with anything other than the most basic homework; and
b. have the will and foresight to encourage the children’s education.
Section 60CC(3)(g)
g.the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Nothing further to add.
Section 60CC(3)(h)
h. if the child is an Aboriginal child or a Torres Strait Islander child:
i.the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii.the likely impact any proposed parenting order under this Part will have on that right
Neither child is of Aboriginal or Torres Strait Island heritage.
Section 60CC(3)(i)
i.the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Whilst I have been critical of Ms Brider, I am mindful of her chaotic upbringing. It appears that she was told by her mother on a number of occasions that she was no longer welcome in her household. She was at risk of being homeless at a relatively early age. It is apparent that there was some degree of sexual abuse perpetrated by her maternal grandfather. It is likely that she was subjected to a degree of domestic violence by her step-father. I accept that notwithstanding the impoverished nature of her upbringing Ms Brider loves her children and they in turn reciprocate her affection. I accept that she would at all times want to act protectively but she has difficulty maintaining concentration and does not have a high work ethic. I rely on the observations of Mr Paulen and his witnesses to make that observation. Mr Paulen has at all times demonstrated a responsible attitude to parenting. He is to be commended for his persistence in pursuing this litigation to the end to ensure that he sees his children and is able to develop a proper parenting relationship with them.
Section 60CC(3)(j)
j.any family violence involving the child or a member of the child’s family
Unable to make any findings.
For the above reasons orders will issue as set out on page 3 of the reasons.
Property Settlement
On the 11 June 2008 by way of an amended response document, Ms Brider sought orders for an alteration of property interest pursuant to s 79 of the Family Law Act. In that amended response she sought that she be excused from precisely formulating the financial orders until there had been full disclosure by Mr Paulen of his financial position.
In a financial questionnaire that was filed on the 1 May 2009, Ms Brider assessed the contributions both at final separation and as at the date of filing the document as 65 per cent in Mr Paulen’s favour and 35 per cent in her favour. At Part C paragraph 8 she proposed that the property be divided 60/40 with Mr Paulen to receive the larger share although that appeared to be limited to the s 79 factors.
In an amended case outline filed on 5 June 2009 she again does not articulate the final orders that she is seeking.
At page 13 in paragraph 5.1 of the case outline document it is noted:
(c) Throughout the period of cohabitation the wife was not in employment and has been in receipt of a Centrelink benefit since she left school. These payments contributed to the household expenses and supplemented the husband’s income when he was not working.
(d)The wife was the primary care giver of the children throughout the period of cohabitation. The wife also performed the majority of the household tasks such as sweeping, mopping, vacuuming and washing clothes. The husband has a bad back and was unable to assist the wife with these tasks. The husband typically worked five days a week when he is employed.
(e)The wife provided care to the husband before and after his admission to hospital in 2006.
In relation to s 75(2) factors the wife notes that she is of a relatively young age and has not completed her high school education, has no employment skills and is in receipt of a disability pension. It is submitted 5.2(b):
5.2(b)The wife has no immediate prospects of employment and faces significant time spent in obtaining any sort of employment skills. The wife would encounter difficulties in obtaining employment due to her lack of employment knowledge and workable skills.
It is further submitted Ms Brider is the primary care giver to the two children of the marriage.
In paragraph 5.3 it is submitted that the commencement of the relationship by Mr Paulen “sabotaged any prospect she had in obtaining any skills or qualification that would suit her for future employment”.
I do not accept that a finding could be made on the evidence that it was any conduct on Mr Paulen’s part which led to Ms Brider not pursuing her education. Whilst not in any way approving of the fact that he commenced a relationship with Ms Brider when she was 17 years of age, I do not accept that this has precluded her from seeking to improve her skills for employment. It was one of the first things Mr Paulen did when the parties relocated to Melbourne was to ensure that Ms Brider was enrolled in a TAFE course in an attempt to improve her literacy skills. She elected not to pursue that course.
In the Respondent Mother’s written submissions produced to the Court on the
26 May 2010 at paragraph 59 it is noted that Ms Brider seeks an order that the property be divided 60 per cent to her former husband and 40 per cent to herself.
In those proposals it is said that the property pool in the proceedings is $274,800 and $2,239.20 in superannuation.
There was no challenge to this by Counsel for Mr Paulen.
It appears to reflect the calculations set out in a “balance sheet” document that was filed on the 1 May 2009. The index to the Court file reveals that this was marked as document “51A” and was filed on Mr Paulen’s behalf on 11 May 2009.
There did not appear to be any contention but that the value of the G Town home was $258,000. I note in the financial statement of Mr Paulen filed on the
20 August 2008 he valued the subject property at $250,000. It appears that the subject property is unencumbered.
The only other assets would appear to be the motor vehicle which Mr Paulen retained at the time of separation. He values that at $15,000 being a Honda CRV 2006 model. I note that the figure adopted in the balance sheet appears to be $13,500. I propose to ignore furniture and effects. The only other asset was a caravan. This caravan had been purchased in 2007 for about $22,000. It was acquired after the parties relocated from Melbourne to G Town. The evidence from Mr Paulen was that the vehicle was sold for approximately $10,500. It was asserted by Ms Brider that this was a considerable undervaluation.
I note that in her financial statement she values the caravan at $15,000.
There was no evidence adduced from any motor dealer or caravan dealer as to what would have been the proper market value. In any event, no matter what price it sold for, I accept Mr Paulen’s evidence that the proceeds found their way into improvements to the house which had been constructed on the vacant land.
I expect that Mr Paulen would have sought to obtain the best price possible for the caravan and whatever price he received was expended in improvements to the property. To bring the caravan into account is to run the risk of double counting.
Mr Paulen has had to use the vehicle for the purposes of attending to spend time with the children. It appears that after commencing the relationship with
Mr B, Ms Brider and Mr B acquired a vehicle which they still have. No attempt was made to value that vehicle or place evidence before the Court as to how it was acquired. I accept Mr Paulen’s evidence that at the time of separation Ms Brider and/or Mr B removed $3,000 from a joint bank account and that she had also had taken about $1,000 from money held in the caravan.
There is a superannuation fund valued at $2,239. Mr Paulen concedes that he was able to access the previous superannuation moneys which he contributed to the purchase of the property in Melbourne. I will bring into account the superannuation fund although there is no evidence as to what age Mr Paulen is able to access it.
Mr Paulen’s evidence in relation to the property settlement issues is to found in an affidavit filed on 20 August 2008. The parties commenced cohabitation probably in the second half of 2003. They married in 2004 and separated in January 2008. In paragraph 4 Mr Paulen sets out that at the time the parties moved to Melbourne he sold his house in M Town for $200,000 and he had a motor vehicle worth approximately $20,000. He says he had a house full of furniture worth $20,000 and cash to the value of approximately $10,000. He had superannuation of $10,000.
At paragraph 5 he notes:
5.All the money I had available to me including the funds which I borrowed went into the house in Melbourne.”
He was employed from March 2004 until January 2006 earning approximately $850 a week. When he sold the house in M Town he paid off the mortgage on the house in Melbourne. He says that he had made improvements to the house to the approximate value of $15,000. He sold the Melbourne house for $258,000 but claims that he made a loss on the sale.
I am inclined to accept the evidence of Mr Paulen and his son Mr W that Ms Brider contributed very little by way of a housekeeping role or even in parenting duties. She frequently found it difficult to cope such as the time when Mr Paulen was hospitalised and his son and her father attended at the house to assist her to cope. This view of the evidence is confirmed by Mr F.
Where the marriage was of a relatively short duration, where Ms Brider has made no financial contribution and her contribution as homemaker and parent could be described as minimal, I would accede to the submission made by Counsel for Mr Paulen that by way of s 79 factors the property should be divided 90/10.
Section 75(2)
In the case outline document filed on behalf of Mr Paulen of the 1 June 2009 it notes that he is 61 years of age and has spent most of his adult life as a bus driver and has no other qualifications. He has back problems and there did not appear to be any challenge to that although no medical evidence has been produced. The prospects of future employment for Ms Brider would have to be seen to be relatively remote with Mr Paulen’s prospects being somewhat better. Ms Brider has had two more children with her present partner.
I note from the transcript in the course of final submissions Counsel made the submission:
Depending on where the children live a division of the property that sees the Mother receive 20 per cent-25 per cent in my respectful submission is appropriate in all of the circumstances adjusting for s 75(2) factors.
I am inclined to agree. The property pool that I will bring into account would be limited to the house and the superannuation fund. Taking that into account total assets are $260,239 which I will round off to $260,000, 25 per cent of that amount equates to $65,000.
Mr Paulen should be able to borrow on his unencumbered property and if necessary find suitable part time or full time work to be able to service such a loan.
I have grave concerns that Ms Brider will be overborne by Mr B’s forceful personality and he will end up spending the money in a rash manner.
I note in the course of cross examination Mr B was asked:
MR KISSICK: Have you discussed with her any likely property settlement.
[MR B]:She has spoken about how she would like to buy a house and settle the kids down and put money back into their trust fund which [Mr Paulen] took out and closed down ---
MR KISSICK: How much has she anticipated she was going to get?
[MR B]:She hasn’t thought of a figure or anything like that. But she wants to put a deposit down on a house and at least try and set her kids up. And she was speaking about maybe putting it into their name or something like that so that way she knows that – everybody’s telling her that I’m just going to up and leave with the money and stuff like that. At least she knows that it can’t be touched.”
At paragraph 36 he stated:
MR KISSICK: Now you were asked this morning a question about whether you discussed a property settlement with Ms Brider and you said that you “didn’t want anything to do with it”.
[MR B]: Yes.
MR KISSICK: What did you mean by that?
MR B:I don’t want anything to do with it. That’s hers and her kids and I have told her that right from the start and I have even said it in front of her dad and her friends.”
I have to record that I am very cynical of the reliability of any assurances given by Mr B. I note the forecast by Dr E that the relationship with Ms Brider would not last. Perhaps in a cynical way it could be speculated that the attraction of a significant pay out to Ms Brider from the property settlement would be a factor which has kept Mr B in the relationship to date. Mr B is on oath as saying he does not want anything to do with the money. It is not a Judge’s function to tell people what to do with their income or property, but Ms Brider would be well advised to place the money in an account where she is the only one who can access it or perhaps get her mother or father to mind the funds and invest them on her behalf.
Counsel for Mr Paulen conceded that Mr Paulen’s position in relation to property settlement that he should receive 100 per cent of the property was untenable. I accept that that is so. Equally I find that there is no basis for awarding Ms Brider such a significant share of the modest assets as 40 per cent as claimed by her.
I propose to give Mr Paulen six months in which to pay the sum of $65,000.
In the event this amount is not paid there will be an order for the sale of the property with corresponding orders to ensure that Ms Brider receives the sum of $65,000 together with any interest which may have accrued on that sum from the date it was first payable.
Draft Orders
The orders I propose are as follows:
Children’s Issues
1.That the children, A born … 2005 and R born … 2006, live with the Mother.
2.During school term the Father is to spend time with the children from after school each Friday until 5.00 pm Sunday. In the event either child is not attending school on a Friday, the Mother is to ensure that child is delivered to the school for the Father to collect the child in accordance with these Orders.
3.The Mother is to collect the children at 5.00 pm each Sunday during school term at such venue as the parties may agree in writing but in the event they are unable to agree then as may be further determined by the Court.
4.The parties have equal shared parental responsibility for the children.
5.In years ending with an odd number the children are to spend time with the Father for the first half of the school holidays with the Father to collect the children from their school on the last day of the school term and return the children to the Mother at such place as handover occurs on Sundays during school term.
6.In years ending with an even number the children are to spend time with the Father for the second half of the school holidays with the Father to be responsible for returning the children to school at the commencement of the new school term. The Father is to collect the children from the Mother at a time and place to be agreed and in the event they cannot agree then it is to be the place where the Mother collects the children on a Sunday afternoon during school term.
7.At all other times the children are to spend school holiday time with the Mother.
8.Each party shall advise the other party as to his or her current residential address, postal address, any residential telephone number, any mobile telephone number and any email address and shall further advise the other party within fourteen (14) days prior to any change and within two (2) days after any actual change to any such particulars.
9.That each party advise the other party as soon as practicable of any significant events in the children’s lives and, in particular, of any serious illness or injury which requires medical or hospital treatment.
10.That each party advise the other party as to the name, address and telephone number of any medical practitioner, health care provider, hospital, educational institution or government department or such like instrumentality with which the children come into contact and this Order shall enable and authorise any such person or body to communicate fully with each party and each party will sign all documents or authorities necessary to give effect to this clause.
Property Settlement
11.Within six (6) months from the date hereof the Husband is to pay the Mother sum of $65,000 by way of property settlement.
12.In the event the Husband for whatever reason fails to pay the whole of the moneys referred to in paragraph (11) above, then the property situated at [CC Street, G Town] is to be forthwith sold by the trustee for the sale appointed on terms as set out in paragraph (13) hereof.
13.If the property is to be sold pursuant to the terms of paragraph (12) hereof, the trustee for sale is to be such person as the parties may mutually agree in writing or in the event they are unable to agree then Mr Sheehy, solicitor of Brisbane shall be the trustee for sale and the property vest in the trustee for the purposes of sale.
Final Orders will issue from Chambers on 10 June 2011.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate:
Date: 9 June 2011
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Family Law
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