PETERS & LAMBERT
[2016] FamCA 993
•23 November 2016
FAMILY COURT OF AUSTRALIA
| PETERS & LAMBERT | [2016] FamCA 993 |
| FAMILY LAW – CHILDREN – Parenting order – Whether the mother should be permitted to relocate with the children to New Zealand – Whether the children’s relationships with their father will be maintained if the children move to New Zealand – Where the father does not pay child support – Where the existence of family violence rebuts the presumption of equal shared parental responsibility – Where it is in the best interests of the children for the mother to have sole parental responsibility FAMILY LAW – CHILD SUPPORT – Enforcement – Where the mother seeks to enforce a child support debt of $4,379.82 against the father – Where the mother has not complied with legislative requirements to enforce a child support debt – Application dismissed |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 65DAC Child Support (Registration and Collection) Act 1988 (Cth) ss 30 and 113A |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Good & Goode (2006) FLC 93-286 SCVG & KLD (2014) FLC 93-582 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Peters |
| RESPONDENT: | Ms Lambert |
| INDEPENDENT CHILDREN’S LAWYER: | Sarah Eve Cleeland |
| FILE NUMBER: | BRC | 11523 | of | 2014 |
| DATE DELIVERED: | 23 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 16 - 18 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Carlton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sarah Cleeland Family Lawyers |
Orders
Parental responsibility
The mother has sole parental responsibility for B born … 2010 and C born … 2007 (“the children”) for major long term issues.
The mother shall communicate with the father about decisions to be made in the exercise of her sole parental responsibility as follows:
(a)The mother shall inform the father about the issue for which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision in writing; and
(b)The mother shall give the father 14 days to respond; and
(c)The mother shall consider the father’s views/response when coming to her decision; and
(d)The mother shall inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Children to live with the mother
The children shall live with the mother and the mother is at liberty to relocate with the children to New Zealand.
Children to spend time with and communicate with the father
If the mother relocates with the children to New Zealand
The children shall spend time and communicate with the father at all times as may be agreed between the parents and failing agreement as follows:
(a)For 7 nights (8 days) during the children’s end of Term 1, 2 and 3 school holiday periods; and
(b)For 14 nights during the Christmas school holiday period as follows:
(i)In even numbered years from the first Monday following the end of Term 4 for a period of 14 nights (to include Christmas Day);
(ii)In odd numbered years from the first Monday of January for a period of 14 nights;
(c)By Skype on one night each week to be facilitated by the parents and in addition on the following occasions:
(i)Father’s Day;
(ii)The father’s birthday;
(iii)The children’s birthdays;
(iv)Christmas Day in odd numbered years; and
(v)Easter Sunday.
For the purpose of giving effect to paragraph 4 (a) and (b) the mother shall deliver the children to the airport in sufficient time for them to travel to Brisbane on the flight booked by the father and the father shall deliver the children to the Brisbane International Airport in sufficient time for them to travel to City D on the flight booked by the mother.
For the purpose of giving effect to paragraph 4 (c) the mother shall ensure the children have access to a computer or mobile device so that they can receive and participate in Skype calls with the father and if the mother becomes aware that the children have missed a call from the father pursuant to this Order she shall ensure the children return the call as soon as reasonably practicable.
Changeovers
The father shall book and pay for airfare tickets for the children from City D to Brisbane and notify the mother no later than 28 days prior to departure and provide the mother with details of date, time and a copy of the departure tickets.
Upon the mother receiving the notice as per the preceding paragraph the mother shall book and pay for the children’s return airfare tickets from Brisbane to City D and provide the father with details of date, time and a copy of the return tickets.
In the event the father travels to New Zealand
In the event the father travels to New Zealand he shall provide 14 days notice to the mother and the children shall spend time with the father as agreed while he is in New Zealand but not less than each alternate weekend from 5:00pm Friday to 5:00pm Sunday and each Wednesday from after school to 7:30pm for the duration of his stay.
If the mother and children remain living in Queensland, Australia
The children shall spend time and communicate with the father at all times as may be agreed between the parents and failing agreement as follows:
(a)During school term, each alternate weekend from after school Friday until 5:00pm Sunday;
(b)During school term, each Wednesday from after school until 7:30pm;
(c)For 7 nights (8 days) during the children’s end of Term 1, 2 and 3 school holiday periods;
(d)For 14 nights during the Christmas school holiday period as follows:
(i)In even numbered years from the first Monday following the end of Term 4 for a period of 14 nights (to include Christmas Day);
(ii)In odd numbered years from the first Monday of January for a period of 14 nights;
(e)By Skype or mobile device on one night each week to be facilitated by the parents and in addition on the following occasions:
(i)Father’s Day;
(ii)The father’s birthday;
(iii)The children’s birthdays;
(iv)Christmas Day in odd numbered years; and
(v)Easter Sunday.
For the purpose of giving effect to paragraph 10 (d) the mother shall ensure the children have access to a computer or mobile device so that they can receive and participate in Skype or voice calls with the father and if the mother becomes aware that the children have missed a call from the father pursuant to this Order she shall ensure the children return the call as soon as reasonably practicable.
Changeovers
During school term the father shall collect the children from school at the commencement of the time the children are spending with him and return the children to the mother’s residence at the conclusion of the time.
At the commencement of the father’s time with the children during holiday periods the mother shall deliver the children to the father’s residence at the commencement of the time they are to spend with him and the father shall return the children to the mother’s residence at the conclusion of the time.
Exchange of information
The parents shall:
(a)Keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers and email addresses;
(b)Keep each other informed as to the names and addresses of any treating medical or healthcare practitioners who come into any contact with the children and this Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the children; and
(c)Inform the other parent as soon as practicable of any injury or illness affecting the children that requires any medical or hospital attention. This Order authorise any such medical practitioner or hospital to release the children’s information to the other parent.
Education
Any educational institutions attended by the children are hereby authorised and empowered to provide to both parents any information about the children’s educational progress and school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children upon that parent’s request. Any out of pocket expense connected to any such request shall be the responsibility of the parent who made such request.
Miscellaneous
All outstanding applications are dismissed and removed from the list of cases awaiting finalisation.
The appointment of the Independent Children’s Lawyer is discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order, and details of who can assist parties adjust to and comply with this Order are set out in the fact sheet attached hereto. And these particulars are included in this Order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Lambert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11523 of 2014
| Mr Peters |
Applicant
And
| Ms Lambert |
Respondent
REASONS FOR JUDGMENT
Mr Peters (“the father”) is the applicant for a parenting order and an injunction for personal protection and Ms Lambert (“the mother”) is the respondent. The mother also seeks to enforce a child support debt.
The father is seeking inter alia an order for equal shared parental responsibility and equal time with B born in 2004 and C born in 2007 (“the children”). The mother is seeking inter alia an order for sole parental responsibility and to be at liberty to relocate with the children to New Zealand. She proposes the children spend holiday periods with the father in Australia should she be able to relocate.
relevant background facts
The father was born in 1975 and operates his own business. The mother was born in 1973 and is employed full time at a local factory.
The parties commenced a relationship in or about 1994 and finally separated after many previous separations in or about 2011.
They have two other children together, namely, Ms E aged twenty-two and Ms F aged eighteen. Ms E has a child aged two and a half. Ms E struggled with drug abuse and was in an abusive relationship for a period. She is now engaged to be married and proposes to move to Melbourne sometime next year. She appears to be doing well now and has qualifications in health. Ms F works locally but intends relocating to New Zealand next year to undertake university studies. Ms E sees her father from time to time but Ms F has no current relationship with her father. The father concedes that his own actions are likely to have contributed to this situation.
The father has re-partnered with Ms G (“Ms G”). They have a child together, H, aged about seventeen months.
The father moved to Australia from New Zealand in 2005 and has lived here since. The mother is also from New Zealand and has lived in Australia during 2006 to 2009 and since 2011.
The father had no contact with the children during the following periods:
a)May 2005 to May 2006;
b)November 2008 to August 2010;
c)December 2011 to March 2012; and
d)April 2012 to February 2014.
These proceedings were commenced in the Federal Circuit Court in December 2014 and transferred to this Court on 13 July 2016. Pursuant to an interim Order made by consent on 8 July 2015 (as amended) the children live with the mother and spend alternate weekend time with the father from Friday to Sunday. Pursuant to that Order the father was to ensure the children attended their art classes and swimming lessons when they were in his care. The children have also spent some holiday time with the father pursuant to the Order.
In November 2008 a Protection Order was made in favour of the mother against the father and was in place for about twelve months. A second Protection Order was made against the father in favour of the mother in February 2011 and was in place for two years. There is no current Protection Order in place.
There were previous Protection Orders made in New Zealand in favour of the mother. There were previous parenting proceedings in New Zealand prior to 2005.
issues to be determined
The significant issues to be determined in this case are as follows:
a)Is it reasonably practicable for the mother to remain in Australia with the children;
b)Can the children’s relationship with the father be maintained if they move to New Zealand;
c)How should the history of alleged violence or the history of alleged fabrication of violence impact on the order to be made;
d)What order, if any, should be made in relation to the outstanding Australian child support debt due to the mother.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
‘Abuse’ in relation to a child, is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(emphasis in original)
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
In Zahawi & Rayne[4] the Full Court reiterated:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.[4] [2016] FamCAFC 90 and reference to U v U[2002] HCA 36 at [92]; (2002) 211 CLR 238; (2002) FLC 93-112
the father’s case
The father contends that the mother has attempted to turn the children against him and if she relocates to New Zealand with the children he will have no relationship with them. He accuses the mother of emotionally abusing the children by lying to them about him and fabricating allegations of family violence.
Conversely, he contends that he currently has a good relationship with the children and that they are progressing well at school and generally. I accept that to be the case.
The father, Ms G and H live in a two bedroom home in the northern suburbs of Brisbane. The home is owned by the father and is unencumbered.
He proposes that the mother and children continue to live in Australia and that the children live in a week about arrangement with each parent. The children and H would share a bedroom.
The father is unable to leave Australia because of a prohibition on his travelling arising from a child support debt owing to the Commonwealth. He can obtain special dispensation in extraordinary circumstances and was able to return to New Zealand for a funeral.
The father accepts the relationship with the mother was peppered with frequent loud arguments and that on occasion he pushed the mother but says that he and the mother were equally to blame for exposing the children to such situations. He says - “I regret to say I participated in the arguments”. He refers to neighbours calling the police on occasion. The police attended the parties’ home in New Zealand and Australia on numerous occasions. The father denies physically abusing the mother other than pushing her aside to try and remove himself from ‘the situation’. He concedes verbally abusing the mother but says it was mutual. He blames himself for continuing to reconcile with the mother thus causing the children to be repeatedly exposed to the arguments.
The father denies that he has failed to support the children historically although concedes that he has been unable to pay anything much this year because of his dire financial circumstances. Exhibit 10 indicates that he has paid four payments of $300 to ‘CSA’ this year (the father did not cavil with the mother’s evidence that this was in fact a payment made to the New Zealand Child Support Agency in reduction of his debt there). He currently earns only about $20,000 per annum from his business and his attempts to find employment have been unsuccessful to date. He previously worked as an academic for four years. Ms G has a trade qualification and is usually employed earning $35,000 per annum although she is currently out of work. In 2014 she was also studying.
The father received a payout from a personal injury settlement in 2012 from which he purchased a unit, a utility motor vehicle and a motor bike. The sum he received was $600,000.
The father contends that there is $2,900 standing to the mother’s credit with the Child Support Agency which she refuses to claim. He says that he plans on bringing an application to challenge the current child support debt because certain payments made by him in the past have not been credited.
The father seeks an order for his personal protection from the mother.
the mother’s case
The mother does not really want to move back to New Zealand. She has made a life here for herself and the children but simply cannot afford to continue to live here. She submitted that her application to relocate was “one hundred percent financial”. She acknowledges that the children are doing well at school and are settled.
She made it abundantly clear in her submissions that if the father contributed financially to the children’s living costs she would stay in Australia. The mother is currently working full time and starts work between 4.00 and 5.00 am Monday to Friday. She finishes work in time to collect the children from school. As Ms F is working, the mother organises for the children to be transported to school via an Uber ride share service. This costs her between $7 to $10 per day. The mother has been unable to continue to pay for the children’s extracurricular activities such as golf, music and swimming. They currently undertake no such activities.
The mother says that there have been days when she has no money for the children’s lunches. This occurs particularly towards the end of her fortnightly pay period. On occasion she has obtained food parcels from the Salvation Army. She says she receives a wage of $31,000 per annum and pays rent of $540 per week. She contends that she has repeatedly sought financial assistance from the father. If he responds at all it is to dismiss her request with the comment “get fucked”. Despite her financial struggle she maintains that she has done her best to provide for the children. I accept her evidence.
The children have missed quite a lot of school. She says that there are days when she is just too tired to get the children to school. That said, she has worked hard to secure the assistance that B needs at school and agrees with the father that the children are progressing well at school.
She has limited work prospects in Australia and is not eligible for any government financial assistance other than Family Tax Benefit A for which she receives about $109 per fortnight.
Although not opposing the father spending time with the children the mother alleges that the father was a violent man. She does not allege any physical violence in recent years. She says that during the relationship she stood up for herself and agrees that the children were regularly exposed to loud arguments which involved physical assaults of her by the father.
The mother contends that she will have better support both financial and emotional in New Zealand and her children will have better education and employment prospects. The mother proposes to obtain employment but will also be eligible for government financial support which will significantly improve her circumstances.
The mother proposes to live in a township about one and a half hours south of City D, New Zealand, in a home owned by her parents. She will not have to pay rent. Her parents and siblings and their families all live within an hour or so from where she proposes to live. The father’s parents and sister also live within that radius. The mother has no family support in Australia.
I accept the mother’s financial circumstances will be much improved if she is able to relocate to New Zealand.
The mother says that if she is able to relocate with the children she will facilitate the children spending half of the school holidays with the father and will pay for one half of the airfares.
If she is not able to relocate with the children she will remain in Queensland but fears she will be homeless. She proposes that the children spend time with the father each weekend and each Wednesday evening.
The current child support assessment is nil. The mother has elected to personally collect significant debt owing by the father pursuant to child support assessments and despite the sums that appear to have been owing in the past elects to pursue only a sum of $4,379.82.
The mother contends that the father has had the money to pay his child support but has chosen not to and instead has used the money on his own lifestyle including buying a property, motor vehicles, an engagement ring and travelling on holidays to various destinations.
evidence from Mr I – family report writer
Mr I is a social worker who has prepared three family reports in this matter. The first report is dated 6 July 2015, the second is dated 28 June 2016 and the last report is dated 1 November 2016.
For the purposes of his first report Mr I conducted a home visit at each parent’s property. In an interview with Ms F he noted her comments that her parents “just clash” and that the father “gets quiet (sic) aggressive and starts yelling” and that both her parents are “pretty stubborn and they clash… my parents have never gotten on, ever since I was little they would argue and then split up and then get back together”. B is noted to have said that he loves his father but he would like to see him “not so angry all the time”.
For the purposes of his second report Mr I noted that B was “very articulate and direct when it came to voicing his wishes”. B told Mr I that he had witnessed a fight between the father and Ms F and when describing the father yelling at her, said “he was very bad”. B does not want to live with his father in a week about arrangement. He would like to see his father on alternate weekends for one night and alternate Wednesdays. When asked what he would do if his mother went back to New Zealand he said he wanted to go with his mother. B told Mr I that the mother “makes us go” to see the father “not that I don’t want to go sometimes”. C said she was happy seeing the father every second weekend and would also like to see him on alternate Wednesdays. She was very excited when talking about her baby brother, H. She adamantly stated that she preferred to live with the mother.
In his oral evidence Mr I expressed the view that, if the mother and children relocated, the children’s relationship with the father could be maintained by the children spending holiday time with him supplemented with communication via Skype or something similar.
evidence from Dr J – psychiatrist
Dr J undertook a psychiatric assessment of each party and concluded that neither of them suffers from a major mental illness.
I note the concessions of the parties to Dr J that their relationship was “volatile and unstable” and that there was “considerable verbal abuse and conflict and the children were exposed to this, both whilst they were in a relationship and during periods of separation”.
discussion
Given the admissions made by each party and the evidence before me from police records, there are reasonable grounds to believe that a parent has engaged in family violence and exposed the children to family violence. I am satisfied that the family violence involved at the very least frequent loud arguments in which either or both sought to control or coerce the other from time to time. Accordingly, the presumption that equal shared parental responsibility is in the best interests of the children does not apply. In any event the presumption is rebutted because, while each parent individually has the capacity to make decisions about the children’s long term issues, they have very little capacity to communicate let alone agree on anything. It will not be in the children’s best interests for the parents to have equal shared parental responsibility.
The children have lived all their lives with the mother. Mr I notes that the children’s attachment to the mother is very secure. There have been significant periods when they have had no contact at all with their father. The mother has made all decisions relating to the children’s upbringing. The father has had limited involvement in the children’s schooling or extracurricular activities. When asked, he did not know what grades the children were in and despite an Order that he ensure the children attend their art and swimming lessons when spending time with him he did not do so.
Each party contends that the children should continue to have a meaningful relationship with the other parent. Mr I supports this. I accept it is in their best interests to have a meaningful relationship with each parent.
Although there is a long history of police involvement with this family and each parent acknowledges the presence of verbal abuse in their relationship to which the children have been exposed, and the mother alleges physical abuse of her by the father, neither party argues that physical or verbal abuse is a current feature of their relationship as they rarely communicate (other than in writing) or come into contact. There is no current Protection Order in place. Neither party contends that the other should be precluded from enjoying a meaningful relationship with the children by reason of this history of family violence. I have no doubt the children are acutely aware of the toxic relationship the mother and father have with each other. That much is clear from the admissions made by each party as to the presence of the children during their arguments and the comments made by the children to Mr I. I note B’s comment to Ms K, the school guidance officer, in June 2016 that “he just wished his mum and dad would get on but that he was safe”. I find that the children can continue to have a meaningful relationship with each parent without there being an unacceptable risk of exposure to family violence.
So much of the father’s focus in this case related to ‘proving’ the mother lied about the extent of the violence in the relationship. It is clear that he feels very aggrieved about the allegations the mother has made against him over the years but it is not the primary function of this Court to make findings of fact about the numerous incidents that have occurred between these parties over the last twenty years. The bickering between them in court was unedifying and unhelpful. Each of them demonstrated an impressive capacity for focussing on themselves rather than their children.
The primary task of this Court is to make an Order that is in the best interests of the children, given the circumstances presented. No doubt the father will find that particularly frustrating but one can only hope that he is able to put the past behind him and focus on providing both emotionally and financially for the children to the best of his ability.
Both children wish to remain living predominantly with the mother and if she moves to New Zealand have expressed a wish to move with her. The mother will not move without the children. I accept that the children understand the consequences of a move to New Zealand both in terms of impact on the time they spend with the father and change in schooling.
Ms F, who currently lives with the mother and children is returning to New Zealand next year to undertake study in City D. Ms E will be moving to Melbourne with her partner and baby next year. If the mother relocates to New Zealand the children will spend time with H and Ms G on occasions they spend holiday time with the father.
The father’s living circumstances are modest and his proposal for week about time would require his nearly thirteen year old son to share a bedroom with his nine year old sister and toddler half-brother. Given the extreme reaction by B even to walk to school with the father (he said he would prefer to drink bleach than do so) it is inconceivable that he would relish the proposed living arrangements. In short, it would be a recipe for disaster. Ms G recognised it as an issue only having two bedrooms in her interview with Mr I in June 2016 particularly given her opinion that C is very messy. The father ruled out the likelihood of any renovations in the foreseeable future.
For so long as the mother remains in Queensland with the children she proposes they spend time with the father each weekend and on a Wednesday evening. This would involve three overnight stays and regular day time each fortnight. According to the father the children have been enjoying alternate weekends with him. I accept that to be the case.
Upon her departure to New Zealand there will of necessity be a significant decrease in the time the children are able to spend with the father because of the distance. Mr I was confident the children would be able to maintain a meaningful relationship with the father by spending holiday time with him on four occasions each year supplemented with Skype or FaceTime communication. I accept this evidence.
There will be a cost associated with travel from and to New Zealand which the mother proposes be shared equally. I infer from the father’s proposal for week about time that he has the financial capacity to provide for the children at the times they are living with him. If they move to New Zealand he will not have that weekly cost and accordingly will be able to use the money saved for airfares for the children to spend time with him.
B’s performance at school has improved greatly this year and it would be preferable for him to remain at his current school but even if the mother remains in Queensland there seems little prospect of that occurring given the mother’s dire financial circumstances and the likelihood of her having to move to cheaper accommodation at some distance from the current school. She has a current income of about $31,000 per annum plus a small sum from Family Tax Benefit A and her rent alone is about $28,000. Despite the mother making her predicament clear during submissions viz she would stay in Queensland if the father provided some financial support, no proposal by the father was forthcoming. It might be observed that the outcome is squarely in the father’s hands. He has assets he could sell or a property upon which he might seek to obtain a loan. No evidence of any such attempt was provided by him.
In my view the mother has taken all reasonable steps to provide for the financial needs of the children by obtaining employment. I am not at all surprised that she is tired and is finding it difficult to cope financially. Her work day starts at 4.00am. She is not eligible for any government benefits other than a modest Family Tax Benefit.
The father received a considerable sum of money in 2012 and chose to make no provision for child support for the children from that sum or to repay the child support debt which currently prohibits him leaving Australia. He instead bought a property, car, motor bike and a $10,000 engagement ring. He did not fully account for the sum received but in the absence of evidence to the contrary I cannot find he has funds remaining.
The most recent child support assessment is dated 20 July 2016 and is for the period 21 December 2016 to 30 November 2017. The provisional income relied upon for the father is $20,996 and the adjusted taxable income relied upon for the mother is $31,537. The father is assessed to pay no child support.
conclusion in relation to parenting matters
There is no capacity for the parties to make joint decisions about their children. Accordingly, the mother will have sole parental responsibility for major long term issues but will have to inform the father of her proposed decisions and invite and consider his input.
The children have lived all of their lives with the mother and are secure in their relationship with her. They both want to remain living primarily with the mother but want to spend time with their father. While not optimal, they will be able to retain a meaningful relationship with the father even if they relocate to New Zealand. The most significant factor weighing in favour of the relocation is the mother’s dire financial circumstances and the impact her attempts to provide for the children is having on her as a parent. I accept there are days when she is so tired she cannot get the children to school. There are some days when she does not know how she will feed them. She does not have the safety net of government assistance and the father has been unable to assist her financially at least this year.
The children will remain primarily in the care of the mother and spend time with the father on alternate weekends and alternate Wednesdays for so long as the mother and children remain in Australia. I do not propose to order that he spend time with the children on every weekend because I consider it important for the children to have weekend time with the mother. In the event the mother relocates to New Zealand with the children they will spend time with the father during each school holiday period and the parties will each pay one half of the cost of the flights.
injunction
On the father’s own case he and the mother have almost no contact. I am not satisfied on the evidence that there is any basis to make an order for his personal protection from the mother.
child support
The mother seeks to enforce a child support debt of $4,379.82. The father opposes any order for enforcement on the basis that he intends to challenge the debt.
I observe that the material annexed to the father’s affidavits indicate that he previously objected to assessments and the failure to acknowledge non-agency payments in 2012. Exhibit 10 also indicates that an application for a departure authorisation certificate was refused in January 2015. No proceedings are currently on foot. Exhibit 10 also indicates that the father has a child support debt as at 18 June 2016 of $59,375.34. The parties agree that there is currently a departure prohibition in place that prevents the father from leaving Australia because of his child support debt.
The mother relies only on evidence of the alleged current debt in Exhibit 7 which is an unsigned document that is not on letterhead and states:
I hereby certify that the sum of $4379.82 is due and payable by [MR PETERS] and remains unpaid as at 6 October 2016 in respect of registered maintenance liabilities to the payee, [MS LAMBERT], being:
·Child support debt of $4,379.82
This amount is payable to the Commonwealth in relation to a registrable maintenance liability under section 30 (child support debt) of the Child Support (Registration and Collection) Act 1988.
[Mr L], General Manager
Child Support Smart Centres
Quite apart from not being able to be satisfied as to the providence of the document relied upon by the mother, I note that the document states the debt is a debt payable to the Commonwealth. Pursuant to s 30 of the Child Support (Registration and Collection) Act 1988 (Cth) a payee is not entitled to, and may not enforce payment of, amounts payable under the liability other than by instituting a proceeding under s 113A of that Act.
Section 113A requires the mother to notify the Child Support Registrar in writing of her intention to institute a proceeding to recover the debt. There is no evidence of compliance with that section. Accordingly, the mother’s application will be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 November 2016.
Associate:
Date: 23 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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