IRHAAN & IRHAAN

[2012] FamCA 432

FAMILY COURT OF AUSTRALIA

IRHAAN & IRHAAN [2012] FamCA 432

FAMILY LAW - CHILDREN – where the mother was self-represented – where the best interests of the children is the paramount consideration – where the mother has not spent time with the children for several years - where there was an attempt by a family therapist to reintroduce the mother to the children soon after separation –  where that failed due to the mother’s rejection of the supervised process – where the mother travelled overseas for a long time and made no apparent effort to contact the children – whether upon her return, after so many years, it is in the best interests of the children, who do not want to see the mother, for orders to be made providing for that -  where the father has, on all the evidence, parented the children well - whether it is in the best interests of the children to make an order for equal shared parental responsibility – where the mother has a lack of insight into the impact of her behaviour on the children – where the rejection of the mother by the children mitigates against any benefit  to them in seeing and spending time with the mother – where it is not in the best interests of the children to risk their current stability and well-being by attempting to establish a meaningful relationship with the mother – whether an order prohibiting the mother from making any further applications to this court without leave should be made –  where such a case is not made out - where the father is permitted to relocate to another country for employment purposes if he so decides

Family Law Act 1975 (Cth) s 118

Preston v Preston  [2011] FamCA 618
Heath v Hemming (No 2) 2011 FamCA 749
Cowley & Mendoza (2010) 43 Fam LR 436

APPLICANT: Ms Irhaan

RESPONDENT: Mr Irhaan

FILE NUMBER: BRC 9916 of 2010

DATE DELIVERED: 8 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 June 2011

REPRESENTATION

FOR THE APPLICANT: Ms Irhaan in Person

FOR THE RESPONDENT: Mr Dickie of Counsel

Orders

1. That all previous parenting orders are discharged.

2. That the father shall have sole parental responsibility for the children, T born … April, 1997, K born … December 1998 and B born … October 2002.

3. That the said children shall live with the father and the father shall be at liberty to take them to live with him in the United Arab Emirates if he decides to take up employment and move there.

4. That the said children shall spend time with the mother only as agreed in writing between the father and the mother.

5. That the mother shall provide the father’s solicitors with her postal address and keep the father advised, through his solicitors or their successors in practice (or through such other medium as the mother may be advised by the father), of any change from time to time in her postal address until the youngest child turns 18 years of age.

6. That any letters, cards or gifts the mother wishes to send to the children shall be sent by her to them through the father’s solicitors or their successors in practice (or through such other medium as the mother may be advised by the father), and given to the children at the discretion of the father.  

7. That the father shall:

   (i)inform the mother in writing, prior to departure,  if he is going to take the children to live in the United Arab Emirates and include details of their approximate date of departure and the expected duration of their stay in that country and the approximate date of their expected return to live in Australia;

   (ii)inform the mother in writing as soon as he and the children return to live in Australia;

   (iii)inform the mother in writing of any serious illness or injury any of the children suffer from time to time;

   (iv)send the mother copies of each child’s school reports as and when they are received until each child completes High School;

   (v)send the mother copies of each child’s annual school photograph as and when they are received until each child completes High School;

   (vi)send the mother copies of other current photographs of each of the children (either individually or as a group) on at least one occasion per year until each of the children turns 18 years of age;

   (vii)inform each child of the mother’s postal address as known to him upon each child turning 18 years of age.

8. That the father’s application for an order that the mother not be permitted to institute or prosecute any application in relation to the said children, the father or his wife is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Irhaan & Irhaan has 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 9916 of 2010

Ms Irhaan

Applicant

And

Mr Irhaan

Respondent

REASONS FOR JUDGMENT

introduction

1. Ms Irhaan and Mr Irhaan married in 1995 and separated in December 2003.  During their eight year cohabitation they had three children, all boys. They were aged 6, 4 and 1 at the time of their parents’ separation and they continued to live with the father after that separation.

2. The parties’ separation was not amicable and their disagreements quickly brought them before this Court. In March 2004, Judicial Registrar Smith of this Court made interim orders that the mother have contact with the two eldest boys as recommended and arranged by Ms C, a psychologist with an extensive practice in family therapy, counselling, assessment and report writing. The Judicial Registrar’s orders also provided for the mother to have contact with the youngest boy from Tuesday morning to Thursday afternoon each week.

3. Those arrangements were put in place and the matter was before JR Smith again for a further interim determination on 4 October 2004. The Judicial Registrar had a written report from Ms C in evidence before her that day. Ms C’s observations caused JR Smith to continue supervised contact orders in respect of the two older boys, remarking in her judgment that there was a real question as to whether ongoing contact with their mother was going to be in their best interests unless and until the mother considered her behaviour and its impact on the young boys. The Judicial Registrar’s orders did permit the youngest child to continue spending time with the mother.

4. In a further report dated 15 February 2005, Ms C updated her observations and opinions, reporting that the mother appeared to be “impulsive and inappropriate in her behaviour toward her sons at times.”  On 21 January 2005, says Ms C, the mother told her that she would not be attending for contact in future because it was wrong that it had to be supervised.

5. The proceedings then before the Court were finalised by an order made with the consent of the mother, the father and an Independent Children’s Lawyer on 11 March 2005. The mother was represented by a solicitor at that time who was very experienced in family law. The father represented himself. The ICL was also an experienced family law practitioner.

6. Those parenting orders do not expressly make it clear, but according to the father, the orders were agreed to on the factual premise that the mother was going to be returning to live in her country of origin, Egypt, at around that time. They provided for the mother to have contact with the children by telephone three times per week and by writing and sending cards and presents to the children at her discretion. They also provided for physical contact between the mother and the children to differ depending on whether the mother lived within 150 kms of the children, or beyond that distance but still within Australia, or outside of Australia. That appears consistent with the father’s evidence about the mother’s expressed intentions at that time.

7. The orders specifically provided for the youngest boy to spend time with the mother during the week and on alternate weekends and for half of the school holidays if she lived within 150 kms, on two weekends a term and half of the school holidays if she lived outside that distance within Australia and for two holiday visits a year if she lived outside Australia. Her physical contact with the two eldest boys was restricted to that which might be agreed between the boys and the mother regardless of where she lived.

8. According to the mother she travelled to Egypt in October 2005. The father says she left when the orders were made in March that year. One thing that is not in dispute between them is that the mother has had no contact with the three boys pursuant to those orders since those orders were made.

9. In October 2010, the mother commenced proceedings in the Federal Magistrates Court seeking orders for equal shared parental responsibility and for the children to spend time with her on a regular basis. The father opposed the mother’s application, proposing the children not spend time with the mother at all and that he be granted sole parental responsibility. The father also sought the Court’s sanction to his taking the children with him to live in the United Arab Emirates for around four years at some point in the near future where the father can potentially obtain employment. The Federal Magistrate in whose docket the matter was placed ordered a family report to be prepared by Ms C to assist the Court. That was completed, after a number of interviews, on 24 February 2011.

10. The matter was transferred to this Court for hearing and I heard it on 10 June 2011.  At the time of the trial, the children were 14, 12 and 8 years old and had not spent time with their mother, other than by way of a few isolated meetings that I shall refer to later in these reasons, for over six years.  

11. At the trial, the mother appeared with an interpreter but without legal representation. She had been represented by a solicitor when she commenced the proceedings but by the time of the trial she was no longer in receipt of legal aid. The father was represented by a solicitor and barrister. The mother was very emotional and expressive in the presentation of her case. As the mother was, of course, completely lacking in any legal training or advocacy skills, the presentation of her case became, effectively, a simple plea by her to the Court to be allowed to see her children.  At the conclusion of the case, I reserved my decision.

12. I regret that my workload has prevented me from making orders and delivering my reasons for judgement before now. I am conscious that waiting for my judgment has probably caused the parties anguish and, perhaps, inconvenience.

13. Of course, in determining whether to make a particular parenting order in relation to a child or children, the Court must regard the best interests of the child as the paramount consideration.

14. In accordance with my findings as to what is in the best interests of the three children in this case, I have determined to make orders largely in accordance with those proposed by the father. I will not be making orders providing for the children to spend time with the mother. Of course, that is a decision that can never be lightly made, but, in this case, it is one that I consider meets the best interests of the three children at this point in time.[1]

    [1]          I refer to my discussion of the principles to be applied in cases where parenting orders are to be determined and where relocation, particularly to another country, is being considered in Preston v Preston [2011] FamCA 618 at [31] to [53] and to the discussion about the application of the same principles by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 at [63] to [105] and by Murphy J in Cowley & Mendoza (2010) 43 Fam LR 436 at [17] to [44]. I do not consider it necessary to set out all that discussion again in this case.

some further relevant history

1. Although the mother said in her affidavit of evidence filed 22 October 2010 that she relied on at the trial that she travelled to Egypt in approximately October 2005 and lived there for approximately five months, Ms C reports in her February 2011 report, upon which she was not cross-examined or challenged at all at the trial, that the mother told her she travelled to Egypt in February 2005 following the completion of the earlier proceedings in this Court and remained there until August 2005.

2. I am satisfied that the mother, more probably, did leave Australia just after the orders were made in the beginning of March 2005 and remained in Egypt for a period of several months, perhaps almost a year. Other documentary evidence in the case that I will refer to later tends to support such a finding.  

3. Then, in her affidavit evidence, the mother said that she went back to Egypt again in 2009 and lived there for about seven months before returning to Australia. However, Ms C, in her report, again records that the mother told her it was November 2008 that she went back to Egypt again for a stay of only two months. The difference in the two positions does not, I find, matter much overall, save for what it reflects about the lack of clarity and the inconsistency in the mother’s presentation of relevant facts over time in this matter. It quickly became clear to me during the trial that the mother was not a very reliable historian.

4. Ms C records in her February 2011 report that the mother told her that she had unsuccessfully applied to Legal Aid Queensland to assist her in seeing the children shortly after her return to Australia in 2005 and that she enlisted the support of friends who unsuccessfully made requests on her behalf of the father to let her see the children between 2005 and 2008. The mother says nothing of any of that in her trial affidavit. The father denies receiving any communications specifically about the mother’s contact with the boys during that period. He denies ever receiving any telephone communications from the mother or that he prevented her from having contact during that period. He said that during that period he continued to live and work as a professional on the Gold Coast with his work and phone numbers published in the local telephone directory and could easily have been found by the mother if she wanted to contact him.

5. The father adduced evidence of what he says were the only communications between him and the mother in the relevant period. They were:

   (i)an email dated  22 March 2006 from him to the solicitor who had acted for the mother in the earlier court proceedings in which the father informed the solicitor there had been no contact between the mother and the children in that year since the orders had been made;

   (ii)a letter dated 15 November 2006 from the father to the same solicitor informing him of a change in the father’s  address and contact details;

   (iii)a letter dated 21 April 2008 from the Citizens Advice Bureau & Gold Coast Legal Service (signed by a solicitor) to the father informing him they had been approached by the mother for advice and assistance and that the mother had advised them she had flown from Egypt on 27 March 2006 (2 years before the date of the letter) for the purposes of having contact with the children and requesting that he pay her the cost of her airfare. I note the letter makes no request to see or spend time with the children and no reference to any previous requests alleged to have been denied by the father;

   (iv)a letter dated 29 April 2008 from the father to the solicitor at the Citizens Advice Bureau & Gold Coast Legal Service asking about the request to pay the wife’s airfare two years after the said return to Australia and asking for them to call him to discuss the matter;

   (v)a letter dated 17 June 2008 from a firm of solicitors on the Gold Coast to the father in which they advised they represented the mother on a grant of legal aid and requested that he pay the cost of her airfare back to Australia from Egypt on “27^th March, 2005” (seemingly an incorrect date) which he had failed to pay. Again, there was no request for the mother to see the children;

   (vi)a letter dated 19 June 2008 from the father to that same firm of solicitors asking for a copy of the receipt from the travel agent for the amount claimed;

   (vii)a letter dated 19 September 2008 from the father to that same firm of solicitors referring to his previous letter and the fact that he had not received a reply and requesting one;

   (viii)a letter dated 24 September 2008 from that firm of solicitors to the father telling him that the mother had returned to Egypt and that they had not been contacted by her with a follow up address and, accordingly, they could do nothing further.

6. The mother did not adduce any cogent evidence that contradicted any of the father’s evidence, nor did she challenge his evidence in a meaningful way at the trial. I was left quite satisfied that the father was being honest about these matters and unable to accept the truth of the mother’s evidence that she had made efforts to contact the children and to spend time with them in that period of time between the making of the consent order in March 2005 and late 2008.

7. The evidence actually supports a finding that the mother was principally interested in pursuing property division related matters back in Egypt rather than seeking to spend time with and build relationships with the three children.

8. The father re-partnered and remarried after his marriage to the mother was dissolved. Together with his current wife he has two more children. He and his wife and family, including the three boys, travelled to the United Arab Emirates in November 2008 where they lived for a year and he worked as a professional there. There was absolutely no evidence before me as to whether the father knew where the mother was living at that time or as to whether the mother knew the father and children were in the United Arab Emirates for that year. Clearly, there was no contact between the mother and the three children during that year.

9. The mother does adduce evidence that the parties attended family dispute resolution through the Legal Aid Office in March 2010 and that it was unsuccessful. There is no evidence as to how that came about but it was presumably that which then led to the mother commencing these proceedings later in 2010.  The implication in that evidence is that sometime after the father and his wife and the children returned to Australia from the United Arab Emirates the mother did apply for Legal Aid assistance in seeking to have her children spend time with her.  There was evidence that the family dispute resolution conference was terminated due to the mother’s poor behaviour on the day.

10. At the time of the trial, the father, his wife and the five children were living on a property at Suburb Z that the father owned. He conducted his profession out of rooms at the same premises. The mother was living in rental accommodation at Suburb S.

11. The father’s evidence included the observation that he and the children had seen the mother by chance on a couple of occasions since they returned from the United Arab Emirates. The first time had been at or around the end of 2009. He was with  the three boys in an amusement arcade at Suburb P. He says the mother saw them there and began behaving in a concerning way, first walking around them in a circle, then laughing loudly before spitting on the ground near them and saying words in Arabic meaning “damn you”. After that, the father says, the mother attended the mosque the family attends in Suburb S during the Ramadan observance days in August 2010. The mother attended at the mosque on a number of those days and, according to the father, caused quite a scene around the boys and around him and his current wife. He adduced into evidence a letter from the Secretary of the mosque warning the mother that a repeat of her unacceptable behaviour would result in her being banned from the mosque.

1. The evidence establishes that the mother actually brought proceedings against the father and his current wife pursuant to the Queensland domestic violence family protection legislation in the local Magistrates Court after the events at the Suburb S mosque during August, 2010. Ms C records in her 2011 report that the mother told her the father’s current wife had assaulted her at the mosque.  Ms C records that the mother told her that there was a problem with her application and it had been dismissed. At the trial there was no challenge by the mother to the father’s evidence that the proceedings against the father’s current wife were dismissed by the magistrate as vexatious and the mother ordered to pay $1,000 costs. The evidence was that the proceedings against the father were being defended by him and were still pending. When the mother was asked during the trial why she had brought these proceedings she could not even answer the question. On the limited evidence she put before the Court for the trial, she made out no case of the father being violent towards her.

THE CENTRAL ISSUES

1. The mother presented her case to the Court in the same way as Ms C recorded her as having presented it to her for the 2011 reporting process, namely alleging that the children have been alienated from her by the actions and words of the father and that she is a good person who should be allowed to spend time with her three children as she misses them.

2. The father, on the other hand, asserts that the mother has no child focus and offers little in the way of relationships that could be meaningful to the children, reflected now in the views of the children themselves wanting to have nothing to do with her. He asserts that whilst she was back in Egypt she perpetrated an assault on his mother and was charged and convicted of the assault but fled the country back to Australia to avoid the consequences and that if she returns to Egypt she will be imprisoned.

3. Ms C identified the issues that needed further consideration in this matter as:

   a)The children’s perceptions, attachments and expressed views in relation to their relationships with their parents;

   b)The children’s estrangement from their mother;

   c)The mother’s inability to respond to the children’s needs;

   d)The length of time that has lapsed between the children’s contact with their mother and the parent’s divergent accounts of the reasons why;

   e)The mother’s uncontained anger and possible criminal history in Egypt;

   f)The mother’s claims that he father has failed to support her ongoing contact with the children and has denigrated her to the children and to the Muslim community;

   g)The mother’s claim that the father failed to honour his notated intention for her to access a unit in Egypt;

   h)The father’s claims that the mother has been convicted in Egypt of assaulting the paternal grandmother and faces imprisonment should she return to Egypt;

   i)The father’s transparency with the children in relation to his ongoing issues with their mother.

4. I do not disagree with Ms C’s assessment of the issues. Consideration of the evidence going to these issues within the statutory framework, particularly the provisions of s60CC of the FLA is what has lead me to my conclusion that it is not in the best interests of the children, at this point in time, to be required by order to spend time with the mother.

THE EXPERT’S EVIDENCE

1. Ms C’s observations and opinions, in respect of which, I again stress, she was not challenged, are very important in the determination of this case. It is worth remembering that Ms C played an integral role over several months in 2004/2005 attempting to reintroduce the mother to the children after the parental separation and then saw the parties and the children again several years later in the process of preparing a report for the assistance of the Court.

2. Ms C was clearly impressed with the father. She observed him to be “a quiet refined man who spoke calmly and clearly of his experiences of [the mother] along with his frustration in being required to endure further litigation. He was observed to engage with the children in a loving and calm manner… His presentation on the day is incongruent with that alleged by [the mother], that being that he is angry and continually goes out of his way to harass her and make her life difficult.”She considered the father to be a loving and devoted father to the children and that they are attached to him and respect him. Although she thought he might have been a little too transparent with the children in respect of his feelings towards the mother, Ms C did not consider that he demonstrated any alienating behaviour.  

3. In contrast, Ms C observed the mother to present as “an angry, impulsive and uncontained woman who struggled to focus on the questions asked during interview.”  She went on to observe that the mother’s presentation on the day of the report interviews “appears to be congruent with the behaviours described by [the father] and the separately rendered accounts provided by the children.” She said that the mother was “loudly spoken, agitated and emotionally uncontained … at times uncooperative with the Report process.”

4. Ms C recorded that all three of the children refused to be seen or interviewed by her in the presence of the mother and that all three informed her that they did not want to spend time with their mother. Ms C noted in some detail the matters of concern about their mother the children discussed with her.

5. Ms C’s recorded observations just referred to are all consistent with what I observed of the parties in the Court room during the trial. Indeed, just as Ms C observed, I, too, was left far short of being satisfied that the mother’s mental health and psychological wellbeing was not in need of being addressed by treatment. I accept Ms C’s opinion that the co-parenting relationship, as totally dysfunctional as it is, is unlikely to improve unless the mother is successfully treated for her personal and psychological issues.

6. I have absolutely no reason not to accept Ms C’s assessment that the three children are developing well in all areas and that they present as well behaved children who interact well with each other, their father, their step-mother and their half-siblings. Similarly, I accept her assessment that the 14 year old is of sufficient maturity to express views independently of the adults. Ms C acknowledged the impact on the two eldest boys of their long standing experiences of their mother’s abusive and inappropriate behaviour towards them and in their presence. She also acknowledged that the youngest child would have no memory of his mother from before the separation of his parents and pointed out that he is content in his relationship with his step-mother as his mother figure.

7. Ms C recalled that the father appeared to support the earlier attempts to reconcile the relationships between the children and their mother but that reconciliation was unable to be achieved due to the mother’s inability to respond to the children’s needs and her rejection of them at that time. The mother, she opines, has not developed any insight into the way in which her behaviour exacerbates the children’s negative feelings towards her and the way in which things have become worse over the years as the children have matured. Ms C was clear that all three children were firm in their views that they do not want to see their mother.

8. Critically, in my view, Ms C said at paragraph 72 of her 2011 report:

   This is a matter that would be best served by the mother being assessed and treated psychiatrically to address her personal and psychological functioning including what may be her propensity to violence and for the reported behaviours which the children find embarrassing. Unless there is active and sustained treatment and she generates the capacity to understand the impact of her behaviour upon others, the Report is unable to support there being any contact between her and the children. In the event that she does manage to generate self responsibility and insight, the Report suggests that she initially writes to the children conveying an acceptance of self responsibility and an understanding or their past experiences, perhaps with the support of her treating professional. Should this occur, the Report suggests that the children are supported psychologically in reading and responding to her correspondence. If the children experience their mother to have developed an appropriate level of compassion and insight, it is possible they may wish to see her at some future time. However, they are unlikely to do so in the event she continues to seek a litigated outcome to the mother/children issues. Unless [the mother] is able to demonstrate significant changes in her behaviours, the Report is unable to recommend any contact whatsoever between mother and children.

9. Ms C’s report which concluded in that way was completed in late February 2011. The trial took place in early June the same year. The mother had around three months to consider, take advice about and, if she determined it appropriate, act on Ms C’s observations and conclusions. However, at the trial the mother made it clear that she was unimpressed with Ms C’s opinion and that she had not sought psychiatric assessment and/or treatment and that she did not consider it necessary. Ms C’s assessment of the mother as lacking insight appeared to me to be a sound one.

MY FINDINGS

1. I am satisfied that the mother chose in early 2005 to remove herself from the lives of the three young children and to return to Egypt to pursue matters pertaining to property. Although she returned to Queensland and apparently spent some time here before again returning to Egypt in 2008, I am not convinced that she made any effort to find the father for the purposes of spending any time with the boys during the period of her time back in Australia. By her own actions, the mother failed to spend time with the children or to communicate with them.

2. After her latest return to Australia, the mother has, after apparently running into the father and the boys by chance, determined to pursue the issue of having the boys spend time with her. She has though, demonstrated no insight into the impact of her behaviour on her children, her estrangement from them and their rejection of her.  She continues to blame the father for the current state of her relationship with the children, whilst I am satisfied that he is a devoted, caring father who has continued to provide appropriately for all of the children’s needs since the separation from their mother. I accept that he is not responsible for the estranged relationships between mother and children and that he would appropriately facilitate and support the relationships if he considered the mother demonstrated suitable behavioural and attitudinal change.

3. The mother is clearly very angry with the father about matters of property. She asserts he has deprived her of her entitlements in that regard. I am simply not in a position to properly assess the merits of her assertion, and, in any event, do not accept that it is a reasonable explanation, if true, for the mother’s behaviour in respect of her relationships with the children.

4. The mother’s anger with the father, her singular interest in property matters, her lack of insight into the impact of her own behaviour on the children and the children’s current rejection of their mother all combine in such a way as to mitigate against there being any benefit to the children in seeing and spending time with the mother at this point in time. All of their needs, including their emotional and intellectual needs, are being satisfactorily met at this point in time by their father and their step-mother.

5. Whilst it is axiomatic that the development of a meaningful relationship with their mother as they grow into adulthood would, if possible, be in their interests, the need to protect these three children from psychological harm is also a primary consideration for the Court. That consideration mitigates against making orders that they start spending time with their mother whilst she remains without appropriate therapeutic treatment to address her current dysfunction and before she demonstrates significant change in her behaviour.  The children currently do not have meaningful relationships with their mother. It is, I am satisfied, not in their best interests to risk their current stability and well-being by attempting to establish meaningful relationships when the evidence satisfies me that the mother’s current psychological state is such that any attempts would most probably prove futile.

PARENTAL RESPONSIBILITY

1. Although a presumption that it is in the best interests of children for the children’s parents to have equal shared parental responsibility for the children applies when making a parenting order in relation to those children, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of those children for their parents to have equal shared parental responsibility for them.

2. The evidence in this case, particularly the expert opinion of Ms C, satisfies me that it is not in the best interests of the three children to make an order that their parents have equal shared parental responsibility for them. The mother’s personality and psychological difficulties and her absence of any involvement in parental decision making in the six years from separation to trial causes me to find that meeting the statutorily mandated requirement to consult the other parent in relation to decisions to be made about major long-term issues in respect of the children and to make genuine effort to come to a joint decision would be an unfair and irresponsible burden to impose upon the father. By all the evidence, he has been responsibly making these decisions in the best interests of the children by himself for a long time now. The orders I will make will allow that to continue.

SPENDING TIME WITH THE MOTHER

1. Having determined not to make a shared parental responsibility order, I am not mandatorily required to give consideration to whether or not the children spending equal time or substantial and significant time with each of the parents is reasonably practicable and in the best interests of the children.

2. As to whether they spend any time at all with their mother, even on a supervised basis, it is no doubt clear from all I have already said, that I have concluded that it would not be in their best interests to do so at this point in time. Neither party sought orders providing for any form of supervised time. The mother rejected supervised time with the older two boys in the past. I am not sufficiently persuaded that it offers any positive benefits to the children to put it in place at the moment.

3. Indeed, the father presented his case to the Court prefaced upon a desire to possibly travel back to the United Arab Emirates to take up employment again in the near future if the Court would sanction that. His plan included taking all three children along with his current wife and their two children. He anticipated staying there for about four years if he did decide to go and was able to secure employment. The boys all reported to Ms C that they were happy to go back to the United Arab Emirates to live if that is what their father decided to do. Providing for the children to spend time with the mother on a supervised basis, so as to attempt some reconciliation between them, would, in any event, not be practicable in the context of the father and his family relocating to the United Arab Emirates.

4. I am satisfied that there should be no impediment placed in the way of the father taking his family, including the three subject children, to the United Arab Emirates again to live and work there if that is what he and his wife determine is in the best interests of the family and the three children, in particular. The orders I will make shall permit that to happen if the father determines that.

5. Being satisfied that the father is well motivated and appropriately concerned for the health and happiness of the children, I expect he would be prepared to consider reintroducing the children to the mother if he was satisfied that the mother had generated insight and demonstrated behavioural and attitudinal change. Accordingly, my orders will provide for the children to spend time with the mother only as agreed between the parents in writing. The mother will be able to write to the father through his current solicitors or their successors in practice or such other medium as the father may advise her. She shall be obliged to keep the father informed as to her own postal address as well until the youngest child turns 18 years of age.

WHAT OTHER PARENTING ORDERS, IF ANY, SHOULD BE MADE?

1. My orders will also permit the mother to be able to send letters, cards or gifts to the children through the father’s solicitors, their successors in practice or such other medium as she may be advised by the father. The father shall have the discretion to pass on those letters, cards or gifts to the children, giving him the right to read and consider the nature and contents of those things before determining if they are appropriate to pass to the children.

2. My orders will also oblige the father to keep the mother informed in respect of the proposed relocation to the United Arab Emirates and the return from there, any serious illness or injury suffered by the children, and the children’s educational progress through their school reports. The father shall also be obliged to send photographs of the children to the mother each year and to provide each child with the mother’s postal address known to him as each child turns 18 years of age. I am satisfied that all of these matters are appropriate having regard to the best interests of the boys being paramount. These reasons for judgment combined with these orders may give the mother the incentive she needs to seek out and obtain the appropriate therapeutic treatment required for her to make the changes necessary if she is to ever have meaningful relationships with the children.

SHOULD THE MOTHER ONLY BE PERMITTED TO COMMENCE PROCEEDINGS IN RELATION TO THE CHILDREN WITH THE LEAVE OF THE COURT?

1. The father filed an amended Response just a few weeks before the trial in which he also asks the Court to make an order prohibiting the mother from instituting or prosecuting any application in relation to the Children or him or the father’s current wife without the leave of the Court. His barrister handed up written submissions at the trial which made it clear this application was brought pursuant to s 118(1) of the Family Law Act 1975 (Cth).

2. That section provides:

   The Court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious –

   (a)dismiss the proceedings;

   (b)make such order as to costs as the court considers just; and

   (c)if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,

   and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.

3. For the father, it was submitted that the father finds the proceedings that the mother has instituted against him in this Court and in the State Magistrates Court to be frivolous and vexatious and he believes them to be motivated by the mother’s allegations about property matters. The father finds the proceedings against him “onerous, unnecessary and unreasonable” and therefore, it is submitted for him, the order he seeks should be made.

4. I do not consider that I can make the order the father seeks. The power in s118 to order that a person shall not institute further proceedings without leave can only be exercised where the Court has already dismissed or is simultaneously dismissing proceedings which it was satisfied are frivolous or vexatious instituted by the person against whom the order is to be made. See Vlug v Poulos (1997) FLC 92-778

1. I have not already dismissed proceedings which I was satisfied were frivolous or vexatious that were instituted by the mother. I am not dismissing the mother’s parenting orders application because I am satisfied that it is frivolous or vexatious. I have made particular parenting orders in relation to the three subject children regarding the best interests of the child as the paramount consideration.  I had no sense that the mother’s application to the Court and her pleas to be allowed to see her children were motivated by anything other than a genuine desire to see the children, albeit a desire lacking in insight, as already discussed.

2. This particular part of the father’s application is dismissed.

3. I make the orders that are set out at the outset of these reasons.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 8 June 2012.

Associate: 

Date:  8 June 2012