Paunga v Paunga [2000] TOSC 10; F 791 1999 (31 March 2000)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU'ALOFA REGISTRY

NO.F.791/99

BETWEEN:

GIULIO MASASSO TU'IKOLONGAHAU PAUNGA
Petitioner;

AND:

TANIA LAUMANU-LUPE-'O-TRAFALGAR SQUARE TUPOU PAUNGA
Respondent.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Niu for Petitioner
Mr Tu'utafaiva for Respondent

Date of hearing: 24^th March 2000.
Date of ruling: 31^st March 2000.

RULING OF WARD CJ

The parties were married on 28 July 1995 and, on 9 May 1996, a daughter, Sinaitakala was born in New Zealand.

In September 1996 the wife/respondent went to the United States of America after being appointed to a post in the Tongan Consulate in San Francisco. The husband/plaintiff had, by then, been appointed a Cabinet Minister and needed to stay in Tonga to carry out his duties in that office.

By May 1997 they were still living apart and had agreed to separate.

In July 1999, the husband filed for divorce on the grounds of separation for more than two years. The children statement filed with the petition stated that the child was living with the wife's parents in Tonga. The proffered arrangement was that the wife should have the custody of the child with reasonable access to the petitioner. The wife should be responsible for the maintenance of the child but that the petitioner should bear all expenses relating to the child's education

The wife did not oppose the divorce but filed a Notice of Opposition to the proposals for the maintenance of the child. She accepted the proposal that the respondent should pay the education expenses of the child but suggested that should include accommodation and travelling costs. She sought an order that he should pay medical insurance of the child and make her one of the beneficiaries of his life insurance. She asked for maintenance for the child of $700.00 per month and, having alleged that the petitioner had neglected sufficiently to support her and the child since they parted, an order also that the petitioner pay past maintenance for herself and the child at the rate of $1,000.00 per month for the period from September 1996 until the filing of the petition. This would amount to a total sum of arrears of $34,000.00. This claim for past maintenance is the only claim with regard to herself; the remainder of the maintenance is claimed for the child only.

Faced with this the petitioner applied for the custody of the child rather than pay the sum of maintenance sought by his wife. He filed an affidavit in which he pointed out, in relation to the past maintenance that, since they had agreed to separate, the respondent had never demanded maintenance until it was included in the Notice of Opposition.

Since then the custody issue has been resolved by the parties who have agreed that the respondent should have the custody of Sinai with reasonable access to the petitioner. Sadly, however, the good sense that led to that decision has not extended sufficiently to produce a workable arrangement for access and the court is asked to make an order for such access. Similarly, the question of maintenance is also unresolved.

It is important to remember throughout that there is a little girl at the centre of this case the welfare and interests of whom are the first and paramount concern of the court. I accept that both parties have been aware of this and I hope it will continue to guide them in the implementation of any orders this court makes. It is also right to keep in mind that both the parents have the right to establish as normal a relationship with this child as the consequences of a broken home allow. Inevitably the parent with actual custody has an advantage over the other because the day to day contact must inevitably establish a much closer bond. That is a factor to be borne in mind when allowing access because the other parent must have a reasonable opportunity to establish a normal parent child bond.

I deal first with access. As I have said, the respondent's parents have the care of the child at present and have had since July 1998. Prior to that the child had been in San Francisco with her mother and was looked after by the respondent's grandmother and another relative. When the grandmother died and the relative left, the respondent sent the child to her parents in Tonga against the known wishes of the petitioner. The respondent is due to return to Tonga in September of this year and it is expected that this arrangement will change in that she will be able to resume actual custody.

In the meantime, the petitioner asks the court to make an order for access because he has been unable to see the child. He complains that, whenever he has attempted to arrange to see the child, the parents of the respondent have prevented him from doing so.

The mother of the respondent has filed a detailed affidavit in which she agrees there has been little or no access but denies trying to stop the petitioner seeing Sinai. She suggests the petitioner has only very rarely tried to make contact and there has been good reason on each of those occasions why he has not been able to see the child. She also objects to him sending a relative to collect the child instead of coming personally.

I have no doubt, she is genuinely concerned for the child. I also believe that the strong bond that has developed between the respondent's parents and the child has added an element of protective anxiety to her assessment of the interests of the child.

However, the child's father is entitled to reasonable access. Every day that passes without contact with his daughter makes it more difficult for him to establish a normal relationship. As it becomes more difficult for him, it becomes correspondingly easier to find apparent justification for keeping him and the child apart but this must not happen.

It is rarely a happy situation for the court to have to enforce rights of access by rigid orders. Such arrangements have the best chance of working if everyone tries equally to make them work. Nonetheless, if one party is being denied his undoubted right to access the court will enforce that right.

I have no doubt of the deep love between the respondent's parents and this little girl. It is they who have effectively brought her up for much of her young life. Inevitably the responsibilities they have borne for that time give added weight to their opinions and I bear them I mind. I hope the agreement between the parties that the custody of Sinai shall remain with the respondent will give them a greater feeling of security than hitherto. The respondent will be working when she returns and it is clear that her mother will be able to continue a very close relationship with this child. With that security of mind, she must now work to ensure the success of the arrangements for the father to have regular access.

I am told by counsel that it has been agreed by the parents that he should have access on Saturday each week. In his affidavit, the petitioner has suggested how it might work.

"5. In respect of my having access to the child, I did arrange with the respondent before for me to see the child on Saturday of each week from 9.00am to 3.00pm at the residential house of the Respondent's father situated at Fanga. Furthermore, the child may be accompanied by one or two people as may be assigned by the Respondent's parents in order to introduce or familiarise the child to the circumstances of the proposed access. (The times were changed, at the request of counsel, to commence at 10:00 am).

6. Therefore, I respectfully ask the Honourable Chief Justice to allow me access to the child according to the above proposed arrangements or otherwise as may be agreed for the child's best interest.
   
7. I also respectfully ask to allow me to decide how long I keep the child in the beginning (which may start, for example, with only an hour or two depending on the child's mood and circumstances most suitable for her right at such time). I also ask that I be given liberty to drive with the child during the time of access and together with the people assigned to be with her and also with my dependent "children" so as to develop our relationship with her."
   

I consider that is a reasonable and sensible approach. The father has had virtually no access to his daughter for at least a year. There is no benefit in assigning blame for that at this stage but it means that the first steps in building a relationship must now be difficult. The child's reaction to him will inevitably vary from one occasion to the next and it would be unfortunate if the court made a rigid arrangement that would force the situation. But the child has a right to know her father and it is not in her interests if the attempts to make contact are structured in such a way that it becomes a time of upset or dread. If that is to be avoided, the petitioner must be given considerable scope to adjust according to the way the arrangements are working on any particular occasion. Everyone must strive to make it work so that this little girl's life can continue on an even and happy course without the conflicts of emotion that can only too easily arise if, for example, the build up to her father's visit is not one of happy anticipation.

I order therefore that the petitioner shall have access to the child every Saturday from 10.0am to 5.0pm. He shall collect her from the respondent's parents home in Fanga and shall be free to decide the nature and form of his access subject to being accompanied by such person or persons as the respondent's parents consider advisable during all visits in the first six weeks. Any unavoidable variation of the time he collects the child must be communicated to the respondent's parents before the time for collection and as long in advance as circumstances allow. Whilst I would suggest he collects her himself, I do not make that part of my order. I do however, order that if he is unable to collect her personally, the respondent's parents must be advised beforehand.

I pass to the claims for past and future maintenance.

I can deal with the claim for past maintenance shortly. The petitioner claims that, when they separated in May 1997, they agreed to live independently without one being liable or obligated to the other. The respondent denies any such agreement. I do not need to resolve that issue.

Whilst the respondent was in San Francisco, she was in receipt of an income that, in broad terms, matched that of her husband and both were subject to social and customary obligations that dug deeply into their finances. The respondent also points out that she had expenses for the fares of her mother and herself and the child to and from Tonga. I do not consider they should be placed in the equation. They were made necessary by the respondent's unilateral decision to send the child to her parents in Tonga. Whilst she had the child with her in the United States, she received a child allowance of approximately $3560.00pa. Of course, when she sent the child to Tonga, that ceased.

That would have been the time to seek some form of financial provision for the child from its father but she did not. Only when the divorce papers were filed did this request appear.

Although the court has received affidavits including evidence of means, there has been no real attempt to quantify this sum of $1000 per month. Whilst in the United States, the respondent has managed to live within her income. There is no suggestion the sum is necessary to pay substantial bills she has had to meet because the petitioner has left her without adequate support. I see no justification in penalising the petitioner, for that is what it would be, in such a large sum for no clear reason. Counsel for the petitioner suggests, with some cause, such a sum will simply enrich the mother rather than repay money already spent on the respondent and the child.

The claim for past maintenance is refused.

The future maintenance is a different matter and, as I have stated, is only sought for the child. The mother should be able to look to the petitioner to help her with the expenses of the child of which she has the custody. Already the petitioner has agreed to pay for the child's medical insurance and has made her the beneficiary of a modest life insurance policy. He has agreed that he will pay all her education expenses and, as it is likely this will involve schooling abroad at least from the secondary level, he will be wise to start making some financial provision.

Although the respondent's income is reasonably close to that of the petitioner at present, when she returns to the Kingdom in September and resumes, it is hoped, her work in the Ministry of Foreign Affairs, her salary will drop to $8769.00. She seeks an order for maintenance for the child of $700.00 per month.

The petitioner's income will remain at the same level. He has a total income of $54,577.00pa. From that are deducted various expenses I do not need to set out in detail but which leave a net income of $20,407.00 pa.

I do not accept all the deductions made to reach that figure should be given priority over provision for his own child. He has deducted an estimated figure of $15,000.00 for church donations and community activities. I appreciate that his position as a Cabinet Minister requires him to be seen to be unstinting in many such things but they are still voluntary in the sense that he is able to determine the level and scale. I do not accept that a reasonable parent should ever put such things before the welfare and requirements of his child. For that reason, I regard that figure as providing, to some extent, a reserve that can be drawn on if necessary.

He has also deducted the repayments of a loan from the ANZ bank. I do not know the nature of the loan but I do not consider that should be taken out of the income against which I must measure his ability to pay a proper level of maintenance.

I note he has assumed financial liability for relatives and I accept that is a factor that is reasonably taken into account in determining his ability to pay.

In order to decide how much should be spent on the child, it is not realistic simply to add up the cost of the various necessities. A married couple in Tonga with a joint income of the level the parties would have had if they were still together would inevitably provide their child with more than the bare necessities. A child is entitled to continue to be maintained at a similar level where possible.

As with the claim for past maintenance, I have been given no information as to how the figure of $700.00 has been reached but I note that, when he was seeking custody, the petitioner did not dispute the sum and indicated his willingness to pay it if he had custody. I therefore work on the basis of such a sum.

From September, the father will have and will continue to have an income substantially higher than that of the respondent but he should not have to shoulder the whole burden. The respondent must expect to contribute and I bear in mind that it is she who has the privilege and joy of the day to day care of their daughter.

The petitioner has agreed to pay education expenses and, whilst they are likely to be small for the next few years, he will need to make some provision for substantial future payments. If done wisely at this stage, he should not need to commit a great deal each month. Once the child is studying abroad, those expenses should include the cost of air fares and accommodation but the maintenance payments should be reduced accordingly. He is also already paying on his life policy and will have to start to pay for medical insurance. I have been provided with no figure for the latter and assess it at present at $500.00 pa for a child joining such a scheme at this age.

Taking all those matters into account, I consider a fair sum would be for the petitioner to pay $500.00 per month such order to continue until and unless there is a major change of circumstances of either of the parties or of the child and further application is made to the court. Although the respondent will continue with her higher income until September, I consider this order should commence approximately three months before her return.

Counsel for the respondent also asks for costs. I find it hard to see any reason why one party should pay the costs of the other. The respondent has failed in her claim for past maintenance. Had that claim not been pursued, I consider this may well have been resolved sooner. Equally, the claim by the petitioner for custody in answer to that claim was an unfortunate response and could have helped to harden attitudes and also prolong the proceedings.

I make no order for costs.

Therefore I order as follows:

1. By consent the respondent shall have the custody of the child, Sinaitakala, with reasonable access to the petitioner.
   
2. The petitioner shall have access on the following terms:
   

(i) The petitioner shall have the care of the child every Saturday between 10.0am and 5.0pm. He shall have the sole right to decide the manner in which he entertains the child during that time subject to the right of the respondent's parents to nominate up to two suitable persons to accompany them on any visit within the first six weeks from the date of this order if they consider that will make the arrangement easier for the child.

(ii) The petitioner shall collect the child from the respondent's parent's home.

(iii) The petitioner shall give the respondent's parents notice of any change in the time he intends to collect the child as much in advance as circumstances allow but, in any event, not later than 9.30am on the day he is to have access.

(iv) If the petitioner is unable to collect the child personally he must advise the respondent's parents of the identity of the person who will collect the child before 9.30am on the day he is to have access.

3. The terms for access in the preceding paragraph shall continue in force until the respondent returns to Tonga when they may be varied by written agreement of the parties or by further order of this court on the application of either party.
   
4. The claim for past maintenance for the respondent and the child is refused.
   
5. The petitioner shall pay $500.00 per month to the respondent for the maintenance of the child. The first payment shall be on the first working day of June.
   
6. The petitioner shall pay all the costs of the child's education now and in the future. If the child attends an educational establishment abroad, such costs shall include accommodation and necessary airfares provided that he shall pay only half the cost of the maintenance ordered in the preceding paragraph at all times the child is abroad attending such educational establishment.
   
7. Within three months of this order, the petitioner shall arrange and bear the cost of medical insurance for the child including provision for treatment abroad if not available in Tonga and for emergency evacuation.
   
8. The petitioner shall pay the premiums to maintain the policy of life insurance taken out with Grand Pacific Life Insurance Ltd to which the child is the primary beneficiary.
   
9. There shall be no order for costs.
   

NUKU'ALOFA: 31 March 2000.

CHIEF JUSTICE