Naczek and Dowler (No. 5)

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER (NO. 5)

[2008] FamCA 1126

FAMILY LAW – CHILDREN – Parenting orders – Application by husband to change existing orders on the basis of wife’s abusive conduct in presence of children – Best interests principle applied having regard to the requirements of section 60CC – Wife suffering from Borderline Personality Disorder – orders for the wife to continue to undergo psychotherapy – Husband proposed change of residence for the children to live with him overseas at the start of his case but at then end, desired to produce evidence that he was no longer so employed – Equal shared parental responsibility concepts considered

Evidence Act 1995 (Cth
Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR 298
Payne v Parker [1976] 1 NSWLR 191
Teper v R (1952) AC 480

APPLICANT:

Mr Naczek

RESPONDENT:

Ms Dowler

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

1222

2006

DATE:

28 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

DATES OF HEARING:

16-20 April 2007; 18-22, 25-28 February 2008

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr St John SC with Mr Strum
SOLICITOR FOR THE APPLICANT:	Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirkham, QC with Mr Wood

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER

Ms Bender

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

That all previous parenting orders be discharged.
The parents have equal shared parental responsibility for the children of the marriage N born … March 1998 and L born … February 2001.
That the children live with the wife.
That pending further and final submissions based upon the findings and other orders made this day, if the husband is living outside of the O environs, the children spend time with him as follows:
a.On no less than two occasions and up to a maximum of four occasions per annum for up to three weeks on each occasion and the details of such times shall be agreed at least two months in advance and in accordance with paragraph (11).
b.Each alternate Christmas commencing in 2009 and each alternate year thereafter to be included in one of the three week periods the children are with the husband.
c.The husband shall collect the children from and return the children to, the wife’s usual place of residence in Australia;
d.On any weekend the husband is in Australia from after school Friday to before school Monday, and as otherwise agreed between the parties, upon the husband giving the wife 21 days notice of his intended travel to Australia
That pending further and final submissions based upon the findings and other orders made this day, the husband otherwise communicate with the children as follows:
a.During school terms by telephone to them at school by arrangement with the school’s principal and upon being so advised of such arrangement, the wife do all things necessary to facilitate the attendance of the children at the appointed time and place;
b.During school holidays when not with the husband, by the wife organizing the children to telephone the husband at the expense of the husband each Wednesday and Sunday between 5.30pm and 6.30pm Australian time and during such telephone calls, the wife be restrained by inunction from being in the immediate presence of the children or commenting to them whilst they are communicating with their father.
The wife continue to attend upon her psychotherapist Ms W or such other psychotherapist as recommended by Ms W as frequently and for as long as Ms W or her nominee shall direct.
The wife authorise her treating psychotherapist to advise the husband in writing of her failure to comply with paragraph (6).
When the children are spending time with the husband for periods longer than a weekend, the husband shall each Wednesday and Sunday organise the children to telephone the wife between 5.30pm and 6.30pm (Australian time) on the numbers nominated by the wife for such calls.
Whilst the children are in their care, both parents shall facilitate the children telephoning the other parent upon the children’s reasonable request to do so.
The wife shall authorise all schools attended by the children to provide to the husband at his expense, the school calendar, the children’s reports, school photograph order forms, newsletters, notices and all other information provided to parents and the husband shall be able to attend the children’s speech nights, concerts, sports events, parent/teacher interviews and all such other events usually attended by parents.
The husband shall no less than 2 months prior to his intended time with the children pursuant to paragraph (4a) provide the wife by e-mail with:
i.The intended dates of that time;
ii.A full itinerary setting out where he and the children are travelling including accommodation and contact details; and
iii.If travelling out of Australia, details of the flights upon which the children will be travelling to and from Australia.
If the wife is planning an extended holiday period with the children she shall advise the husband by e-mail of that intention no less than 2 months prior to such planned holiday and of the similar details required of the husband in paragraph (11).
The wife shall keep the husband advised at all times of her permanent residential address, contact telephone numbers and e-mail and that of the children.
That for the minimum purposes of compliance with paragraphs (4d), (11), (12), (13) and (16) to (18), all such communications shall be by email.
The husband shall retain the children’s US passports and the wife shall retain the children’s Australian passports and each shall complete and return all necessary renewal documentation immediately upon receipt of same from the other party.
The wife shall keep the husband advised of all medical, psychological or therapeutic professionals who see the children and shall authorise such professionals to speak to and provide the husband with copies of any reports, letters and any other documents in relation to the children’s treatment, progress or prognosis.
Each party shall immediately advise the other of any serious illness, accident or injury suffered by the children or either of them whilst they are in their care.
Each party shall immediately advise the other of any serious illness, accident or injury suffered by either of them that impacts on their ability to care for the children.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That save as to any application to determine the precise times and conditions of the husband’s time with the children as set out in paragraphs (4) and (5) which shall be by agreement between all parties and made through my Associate, and any application as to costs, all extant proceedings are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend, including senior counsel.
IT IS NOTED that publication of this judgment under the pseudonym Naczek & Dowler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1222 of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

This decision is about the future of N and L. Each parent of these children sees their role in the future very differently. The difficulty in making the decision is that the past and in particular, the behaviour and role of the parents is usually a reasonable guide as to what will happen. Here, I am not so sure.
The husband is an American citizen. He was born in July 1957. He has extensive experience in international business and has been employed in an international industry. His future is uncertain.
The wife is an Australian-born woman who was born in April 1960. She has lived in America and England.
The children who are not biological siblings, were adopted by the parties at a very young age. N has had significant development problems. His progress has required a speech pathologist, an occupational therapist, a paediatrician and a child and adolescent mental health assessment team.
The husband commenced the proceedings at a time when he was living with a partner who had been diagnosed and treated for bipolar disorder. During the hearing period, that relationship ceased. He has not repartnered.
The wife has been diagnosed as being afflicted by Borderline Personality Disorder.
The older child N has been diagnosed with Autism Spectrum Disorder.
The marriage broke down in England and financial proceedings occurred there which are currently awaiting an appeal from a trial judge’s hearing.
When their case was being conducted in the United Kingdom, the wife sought and was ultimately given permission with the husband’s consent to relocate the children to Australia. That was at a time when the husband was having difficulty getting contact with the children.
Significant undertakings were given by the wife to the English court about the husband’s ongoing telephone relationship with the children.
In addition to the significant orders made in England, mirror orders were made in this Court for enforcement purposes.
Upon the wife relocating to Australia with the children, the telephone arrangements clearly failed. The husband recorded all of the telephone conversations as a record of what had occurred. I listened to 15 hours of tapes.
The husband then brought proceedings in Australia to relocate the children into his care back to England. Those are the proceedings before me.
In the midst of these proceedings, Victoria’s Department of Human Services stepped into the children’s lives as a result of what was alleged to have been said by N to the husband’s then partner about the wife killing him. The investigation established no basis for an intervention.
Further, in the midst of these proceedings, I granted an adjournment which enabled the wife to engage with a psychotherapist to get control of her life afflicted by Borderline Personality Disorder. I initially ruled that that process was to be transparent but then faced the fact that no party was calling the psychotherapist and it was agreed that I could not or should not call her as a witness of the court.
The Australian proceedings before me were filed after 1 July 2006 so Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) applied but I ordered that the rules of evidence would apply to the husband and wife but not other parties because of the complexity of the issues involved. The parties had otherwise determined that they wished to call a variety of family and friends as witnesses.
After hearing all of the evidence, an application was made by the husband to reopen the proceedings on the basis that his employment position had been terminated. He had a number of proposals that he wanted to put before the Court in relation to how he would then care for the children as a consequence of the cessation of his employment. I refused the application to reopen the proceedings. That is a matter that I shall deal with in some detail below.

The witnesses

The main witnesses were the husband and the wife. Each gave extensive evidence and each was cross-examined. The other main witnesses were Dr M who is a child psychiatrist and the principal of the children’s school.
There were a number of other witnesses who gave limited evidence about a number of incidents involving the parties and the children. Amongst those witnesses were members of the wife’s family. The wife’s family members were split. In an unfortunate incident, the wife and one of her brothers had a falling out over what the wife alleged was an assault. The brother was a public servant and the wife’s report culminated in an investigation by the internal disciplinary committee. The wife withdrew her complaint but the brother swore an affidavit in these proceedings in this Court on behalf of the husband. The wife issued a subpoena to the Victorian public service seeking her brother’s file and the relevant department took no objection. However, the brother did object. I had to make rulings on the admissibility based on relevance of the evidence of these family members to the parenting proceedings.
One witness about whom I was interested to hear, went away to South America where I was told that that country’s government objected to witnesses giving evidence by even telephone in the way I had contemplated. That witness could not be called. I have given no weight to the evidence in that affidavit.
The school principal of the children’s private school came to court and in addition to giving evidence assisted the parties in a conciliatory way to determine that the youngest child L, should return to the grade below because of development and management concerns.
The hearing took place over a number of days in various parts. There were also a number of interim hearings. Notwithstanding the delay in time over which the hearing occurred, I had the benefit of a transcript ordered by one of the parties as well as a number of interim rulings along the way. Those matters enabled me to have a very good recollection of the issues in dispute and of the particular witnesses involved.

Material

Each of the parties relied on a variety of affidavits.
At the conclusion of the hearing, I ordered and then received written submissions as follows:
(a)from the Independent Children’s Lawyer, 43 pages filed on 28 March 2008;
(b)from the wife, 59 pages filed on 17 April 2008;
(c)from the husband, 186 pages filed on 26 August 2008;
(d)from the wife in responding to the submissions filed on behalf of the husband, 10 pages with annexures on 4 September 2008; and
(e)from the husband under protest in relation to the wife’s material to which I have just referred, 7 pages filed on 8 September 2008.
I have read all of this material.

Credit

The husband impressed me as an intense and forthright man who was well organised and preferred to have his life well ordered. The children were a significant part of his life. His focus on the children and what he saw as good for them, was clear. He described the relationship with the wife as being difficult from the day they married so it is hard to envisage much tenderness in his approach to family life. He was clearly angry and frustrated about the way in which the wife behaved because it affected not only his views about what was good for the children but also his own ordered life. In final submission, counsel for the husband submitted that there was no significant aspect of his evidence that had been shown to be incorrect, exaggerated or false. He was described by his counsel as “candid, credible and consistent”. Importantly, counsel asked me to say that he was a witness upon whose evidence I could confidently rely. In my reasons that follow, I will find the husband to be a witness of the truth. More often than not, it was not the truthfulness of his evidence that was challenged but rather his approach to the proceedings and more importantly, his attitude to the wife. In submissions, counsel for the wife described the husband’s approach as assuming an attitude of superiority over the wife and one in which he was self-righteous. I would not find that but I found him rigid. In respect of his evidence, I have no doubt he was telling me the truth as he saw it. I had the unusual benefit of being able to hear his dialogue with his children by listening to the many hours of taped conversation. All of the sentiments I have just expressed were evident in those conversations. In my reasons which follow, I will make criticisms of the husband about his approach to a number of matters.
What I suspect will be very difficult for these children in the future is the fact that their parents have totally different views about the way in which they are to be raised. The husband will raise the children in an ordered and organised way.
The wife was intense and defensive. In submissions, counsel for the husband described the wife’s evidence as being riddled with inconsistency, exaggeration and demonstrated untruths. Importantly, counsel urged me to find in a number of areas that the wife gave evidence that was patently wrong[1]. In respect of her explanation for her behaviour, counsel for the husband described her as unresponsive. I reject that on the basis that I accept that having regard to what she has been through and in particular her own behaviour, she could not give any plausible explanation as to why she behaved the way she did. There are times in the reasons that follow where I will find that she was not honest in respect of answers that she gave. Where her answers were inconsistent with evidence given previously or in documents produced to her, I accept that much of what she had originally done was unexplainable but most likely to have been directly related to her psychiatric illness. Ironically, in relation to the simple things such as the activities of the children, I found her responsive and forthright.
[1] See paragraphs 5 and 6 of the husband’s final submissions.
I am not prepared to find however that one party’s evidence is overall preferable to the other for the purpose of making findings.

The husband’s overall position

The husband’s argument is that the wife has behaved in an appalling way and endeavoured to destroy his relationship with the children. In addition, he believes that the children are at risk of both psychological and physical harm. He said it was therefore necessary for him to take over their care.

The wife’s overall position

The wife says that her behaviour is explained by a diagnosis of Borderline Personality Disorder. She is endeavouring to overcome that with psychotherapy. It is said that if the problem can be overcome, it will take between three and five years of therapy. The husband does not believe that the wife is serious about the therapy nor that she will continue it after the proceedings are concluded. On the evidence, I do not agree with the husband.
The unusual feature of this case to which I have already referred is the appalling conduct of the wife manifested in the telephone conversations between the husband and the children. The children at times became the mouthpiece of their mother’s vitriol towards the husband but the reaction of the children towards the husband on a face to face basis has been loving and enthusiastic. That must indicate to a large extent that the children have not been alienated from the husband by the wife.
It would be easy to simply refer to the wife’s language and behaviour as appalling. I witnessed her distress when one of the taped conversations was played in the courtroom and heard her remark about that behaviour being humiliating. Having regard to the duration over which this language and behaviour occurred, the husband’s frustration is understandable. I heard the whole of the tapes in the privacy of my chambers. Notwithstanding the wife’s distress, I think it is important to record some of the incidents to indicate how difficult a period this was for the husband and also to highlight the remarkable resilience of these children.

The behaviour of the wife

It was on 10 March 2006 that the husband formally put on record that he was taping the calls. He set out in his affidavit a number of incidents before that which were not and could not, seriously have been challenged.

In November 2005, upon returning the children to the wife, the wife spoke to her brother in the presence of the children and told him not to “talk to that piece of garbage or his fucking whore” referring to the husband.
On 7 December 2005 at an end of year activity at N’s school, in the presence of other parents and N, the wife called the husband “fucking stupid” and “pig”.
On 27 December 2005, the children were with the husband and his then partner. The wife telephoned the children who were in the car at that time. The wife asked N “who is driving, the pig or the whore?”
On 5 January 2006, the husband telephoned the children and in a variety of conversations, N called the husband a “pig” and said “You’re a dirty rat” and “You’re a pig”.
On 8 March 2006, N said to the husband “Hello dirty pig, your whore is stupid”.
On 30 April 2006, in a recorded conversation, the wife was heard saying to N “see I told you [N], see, it was a lie. Here you are, talk to him” whereupon the children call the husband a “pig” and asked “where’s our money”.
In May 2006, reference was again made to “pig”, “coward”, “I don’t like you”, “you’re mean”, and “Bye you stupid idiot” from the children. In addition, the wife said to the husband “what is wrong with you, you fucking put money in my account fucking now, you do it, you fucking piece of garbage”.
On 16 August 2006, the wife said to the husband “You’re a serious demented person”. The sarcasm in her voice was very much at odds with her calm and softly-spoken approach in the witness box.
On 20 August 2006, the wife was heard speaking to the children indicating that the husband had been in Australia and had not come to see them. It was an obvious criticism of him and totally inappropriate to say to these vulnerable children.
On 8 October 2006, L was heard yelling at the husband “You’re a maniac. Why are you making me cut my hair, you fathead”. That was not the calm voice of a placid child.
On 13 December 2006, when L eventually spoke to the husband, she used a phrase “What, are you sick?” The question was really a statement.
In May 2007 obviously after these proceedings had begun, N referred to the husband’s then partner Ms G as “stinky head”, “ugly” and “stupid bitch”. He terminated the call by saying “Goodbye ugly moron”. The tone was consistent with the type of words.
In June 2007, L described the husband as “an American” who is “loud and ugly”. She complained that he embarrassed her when he went to the school. All of the evidence of the school is completely contrary to that sort of comment. It is clearly demonstrated that at school, the children rush to and almost smother the husband with enthusiasm.
On 18 July 2007, the wife was heard in the background when the husband was speaking to the children asking “Why is he talking like a dickhead?”
Beyond the telephone calls, the husband says that the children have been subjected to constant involvement in issues associated with the breakdown of the marriage and as such, the only way to protect them is to make him the parent responsible for their future care. The extent of that involvement is limited. When the husband is not directly involved in their lives, the children seem happy and normal. As I said earlier, I do not find that the wife is deliberately endeavouring to alienate them.

The nature of the relationships

The relationship otherwise between the husband and the children is manifestly a close, affectionate, loving one and for them, an exciting relationship. Importantly, there is also a very close and loving relationship between the wife and the children and I find that they are very much dependent upon her.
N and L are foreign-born. As I have already said, they are not biological siblings. They were adopted by the husband and wife in July 1998 and August 2001 respectively from an orphanage. Each child knows not only of their cultural heritage but that they are adopted. In an illuminating piece of evidence, the wife told me that she reinforced the concept of the children being adopted. L has beautiful skin and can sing so the wife has told her that her birth mother must have been beautiful and talented. N’s hair is a similar subject of comment by the wife about his birth mother. I found this evidence important and enlightening showing that the wife has considerable insight into the needs of the children and that she acts responsibly in relation to their care. The contradiction arises when I come to deal with what I have already described as her appalling behaviour in relation to the children’s relationship from afar with the husband. There are matters that defy logic such as these horrible things were said when the wife fully knew they were being taped by the husband. They defy logic when one hears the measured evidence of the wife about her daily care of the children upon whom, I fully accept, she dotes. In defiance of logic, the behaviour is explainable by her disorder.
Notwithstanding all that the children have been through, their relationships with peers and their school behaviour seems to have remained largely unaffected. They have coped. I do not accept that the children use school as some form of safe haven.

The parties’ capacity in terms of time

On the evidence, the husband was employed by S Company and was a senior executive responsible for the company’s international affairs. This position commenced just after the parties’ separation. Before that, he was engaged in a similar position with another multinational company.
The past travel experiences of the husband would suggest his employment required much international travelling. That alone would not prevent him from being a caring responsible parent. I find that it is the combination of his travel, his commitment to his work and the responsibilities which he takes on that would make it difficult to allocate the very much greater time required for these two children to be properly cared for.
The husband was working about 50 hours per week and had the flexibility of being able to work from home because of his senior position and computer access but I was left with the very strong impression and it is a finding I now make, that with the responsibilities he always took on, full-time parenting could not be a significant focus.
After the close of all of the evidence and the filing of final written submissions by the Independent Children’s Lawyer, the husband sought leave to reopen his case to lead evidence about his future proposals for the children because, he said, he had lost his job. He was still employed at that stage but the reality was that his termination was some months away. I delivered written reasons why I did not accept it was appropriate to permit the husband to call further evidence. I said:
…the new evidence must have an impact on the proposals of the parties already put to the court. That impact must be so significant as to not only change the direction of a party’s case but also to require the trial judge to contemplate a different scenario to that determined during the trial. If the evidence fits into that category, there must be an obligation on the court to pursue it as a consideration of how it will impact upon the lives of the children.
…
[That] there was no certainty about the husband’s employment in Australia and therefore no certainty about what time he could spend here. Whilst the husband’s tourist visa clearly covered the problem of his temporary position, there was no suggestion that the husband could call evidence that would establish that he could provide a permanent full-time parenting role in Australia in the immediate future.
In summary there is no convincing argument here that any evidence could be forthcoming that would probably affect the result of the trial.
I am not convinced that the husband could do more than start from the premise that if he was in Australia, his proposals would be different from those that I had previously heard. His proposals for the care of the children albeit in a different country were well articulated in the trial. I have not heard his final address on those matters nor the comments on the opposing submissions but I am confident that no new evidence directed to matters in s 60CC could make any difference without the certainty of the husband’s residence being first determined. It is clearly not.
Having reviewed all of the evidence, I am satisfied that it is not important to know the precise details of the husband’s proposals. I am well aware of his general proposal that he care for the children on a full-time basis. In this case, nothing he could say now of a practical nature could alter the fact that:
(a)I find that the wife is the more child-focussed of the two parents;
(b)The children have a stronger need for daily care by their mother than their father; and
(c)On balance, it is in the best interests of the children that the wife remain their primary carer.
Having said that, I do propose to take up the submission of the husband through his counsel that upon determining the residential situation of the children, I give the parties an opportunity to tell me the practical orders that they seek. Whilst there are some restrictions on how that will be done, I am content to adopt that position.
Before doing so, it is important to observe that the husband has a very significant role to play in the development of the children. In so far as that role may, to some degree, have been thwarted by the wife, I propose to make orders that will endeavour to protect his relationship with the children.

The wife’s background

The wife is a nurse by profession and training but has not been in that field for over 12 years. She was born in Australia, received her primary tertiary qualifications here but had some overseas training as well. Since the adoption of N in 1998 and L in August 2001, the wife’s predominant role in the family has been occupied in home duties. She currently lives in the O area in a home she bought but which sadly as a result of this litigation seems likely to be sold. She gave evidence of her initial inquiries about rental properties and I am satisfied that she will remain living in the O area whether she sells the home and rents or endeavours to retain it. I have had the opportunity to look briefly at her financial position in so far as it relates to her capital position and I am satisfied that the sale is a real possibility.
Apart from the diagnosis of Borderline Personality Disorder, the wife enjoys good health. Her days are filled with the care of the children which includes attending health professionals and the children’s school.

The early part of the relationship

The parties met in 1994 and commenced living together then. They married in July 1995 and the following year, relocated to the United States of America for the husband’s employment obligations. In 2003, those obligations saw the parties move to London. By 2003, according to the husband, his relationship with the wife had deteriorated quite severely. He said the wife had been threatening to leave since before their first wedding anniversary, that is, before 1996. He said that they spent little time together and when the children were around, tended to spend time with them separately. He said that in November 2004, he told the wife that the marriage was at an end. It is interesting to note that the wife’s response was that she was not aware of how the husband felt about any of these matters. She did not say however that the relationship was filled with joy and happiness.

The adoption of L

The unusual feature of this case was that in April 2001, the parties applied to an international adoption agency to adopt L. Whilst it is a well recognised trait in troubled relationships to have another child in an attempt to somehow patch up the difficulties, that was not what occurred here. Each party was interviewed by a social worker and spoke in positive if not glowing, terms of the other as a parent. Importantly, the husband praised the efforts of the wife as a proposed carer of the child in circumstances where he was engaged in full time employment. Such compliments as “a good capacity to communicate” and “manage domestic disagreements” flowed. On the husband’s evidence, that could not have been true. The husband’s explanation was that it was necessary to lie because there were reasons to adopt L. He was careful to distinguish putting a positive spin on the story to the adoption agency and lying to a court.
Whatever may have been the motivation to adopt L, it is to be remembered that this adoption occurred when N was three. It is apparent on the evidence that N had recognisable developmental problems from the age of 18 months.
Whilst the wife endorsed and supported the adoption process, I am not at all sure I understand how she viewed the state of the marriage. Her evidence was that she was unaware of how the husband felt but she said it was her role to manage the household and care for the children.
The view I have taken of this particular period was that the husband did not act responsibly. I am critical about what both parties said to the adoption agency having regard to the difficulties of N and the acknowledged primary parenting role of the wife. To seek another child based on promotion of the wife’s capacities as a parent if he did not believe them, was irresponsible. It was put to the husband by senior counsel for the wife that he would say anything to get what he wanted and the husband denied that that was so. I do not accept that that is the way the husband acted nor the way he now thinks. Rather, I find that he focuses doggedly on an outcome and pursues it. In my view, that permeated what has occurred in this case. I agree with the view taken by Dr M that the husband has a limited view of what is necessary in and sustains, a relationship. I shall return to Dr M’s evidence below.

The wife’s role prior to separation

The wife’s view about the period in England until the time of separation was that the husband was rarely at home and that he travelled extensively. She said he rarely spent time with the children. At times he stayed at an hotel rather than at the family home 17 miles away. The wife described the husband as unhappy. The inference that the wife would have me draw was that the husband had a limited and reluctant role in the lives of the two children. Conversely, her role involved attention to all kindergarten, school and medical appointments. She said she attended to feeding the children, bathing them and putting them to bed. The parties engaged part time nannies and babysitters but I accept and find that the wife was predominately responsible for the care of the children.
The husband had a different view. He said he would “almost always” cook dinner, feed the family and put the children to bed. He claimed it was he and N who cooked together. This he said, occurred when he was at home. He said he made breakfast and put N on the school bus. He said his weekends were spent with the children swimming and shopping whilst the wife gardened. He said he attended the overwhelming majority of school plays and assemblies and planned his business activities around the children. He said he spoke to the teachers “with some frequency and assisted (them)”. In his evidence in chief, the husband tendered his work diaries from 2000 to 2005 albeit that he acknowledged that there were some data errors in them. The diaries suggest that he was not away as much as the wife suggested. However, the husband’s own summary shows that in the critical formative years of the lives of these children, he was away often about one-third of the time. If he was home at the time he postulated otherwise, it was not evident in the diary.
Whist I accept that the husband undertook many activities when he was at home, I find that he has exaggerated that role and has endeavoured to highlight those activities without acknowledging the wife’s far greater parenting role.
In proceedings in the United Kingdom the husband gave the wife credit for her parenting role. He was asked whether he had acknowledged in the United Kingdom proceedings that his wife should be given “full credit” for that role. He declined the “full” but acknowledged that credit was due saying that he had had a part as well in that role. I find that the wife was the predominant parent during the period of time up until separation. I am quite satisfied that there were difficulties for N that required something more than what would normally be expected of a parent and which provided quite a challenge.

Separation

Separation between the parties occurred finally in February 2005.
The period from separation until the wife left England was tumultuous. The parties had differing views about what happened.
The wife said that there was effectively a separation prior to February because the husband dropped in to do washing and collect a change of clothes at a time when the children were not present and that he had very little to do with them between December 2004 and February 2005. After February 2005, the husband said that he saw the children on each alternate weekend and for block periods during school holidays although the wife made his contact difficult. He pointed to the fact that initially, the wife insisted that his girlfriend be not present and that situation continued until the orders were made in November 2005. The wife was quite particular about the fact that N was troubled by the absence of his father. She made reference to the fact that the husband failed to contact N on his birthday in March 2005 but the husband’s response was that he was aware that the wife had organised a birthday party for N and that he was not welcome. The husband was travelling internationally that day and only arrived at the time that the party was due to commence. He said he made a conscious decision not to telephone because he did not want a confrontation with the wife whilst friends of N were present and he telephoned N the following day. It is easy to see each side of the story. I am unable to make any finding about that birthday party and I have no need to do so. What is apparent is that the wife carried the greater parenting burden around that period of time and I am conscious that she was unassisted by the husband.
Just over a week before the birthday incident, according to the wife, the husband attended at the home and demanded to see the children. She said he was angry and abusive and was kicking the door. She said that the neighbours came to see that everything was alright. In respect of the neighbours, the husband’s response was to formally object on the grounds that the wife’s evidence contained hearsay but he otherwise said that the assertions about his behaviour were a “concoction”. Neither party was cross-examined about this particular incident. However, the day after the incident, the wife’s English solicitor wrote directly to the husband describing his manner as “somewhat aggressive and threatening” and when the husband responded to the email he made no reference to the incident nor to the allegation. It is hard to know what to make of the incident save that with the acknowledged aggression of the wife at and subsequent to that time as well as the persistence and critical comments of the husband towards the wife, it is conceivable that the husband was aggressive and angry. Although it does not affect the outcome of these proceedings, I find that on balance, the husband did behave the way described by the wife.

Parenting after separation

The wife said she made offers to the husband to involve himself with N and with extra-curricular activities but they were declined on the basis of the husband’s travel or work commitments. In reply, the husband said that the offers were made but they were always last minute offers at a time when the wife knew that it was impracticable for him to attend. The importance of this evidence is that it highlights the description I have already set out about the husband’s work commitment or ethic. Having said that, I accept there were times when the husband was not available for children’s activities.

By August 2005, the husband had ceased his employment with B Company and was not re-employed until the following January. During those months, the husband continued the alternate weekend arrangement that then subsisted. The husband’s response was that he saw the children at school on the Friday before the weekend that he had them but otherwise had little extra time. His reasoning was that the wife had a relentless attitude to the amount of time that he could have. The wife complained that even when he did take the children, he failed to take them to their scheduled activities. The husband’s view was that the children often asked him not to go to those activities and on one occasion when he took the children to soccer, in November 2005, it was unusually cold and the children refused to get out of the car.
I raise these issues to highlight the different role that each parent played in the lives of the children at that particular time. It is clear that the wife was the parent most involved in not only the daily activities but in the extra-curricular activities of the children as well and that the husband spent leisure time with them without taking on the onerous responsibilities of ensuring that the extra-curricular activities were fulfilled. The dichotomy was clear. I find that not much has changed.

Ms G

At this same period of time, the husband had commenced a relationship with Ms G. There is little doubt in my mind that the extra-marital affair caused significant anguish in the wife’s life even if the marriage was as the husband had described it from the time of the first wedding anniversary. In her affidavit, the wife said that in July 2005, she received a number of telephone calls from the husband’s home and mobile telephone numbers the first of which was from a voice that she recognised as Ms G’s. A number of messages were left. The husband’s response was that this was just a complete fabrication. However, transcripts of messages left on the telephone answering machine in September 2005 apparently from Ms G were far from pleasant. For example, on 11 September 2005 at 8.05pm, the following recorded message was left:
Hello […] it’s [Ms G]. I really wish you would stop hanging up on me. I think it’s very important for you to realise how CAFCASS are going to receive your words and your actions and [N’s] words that were delivered from past Friday when you encountered [the husband] and I in the street as well as this evening.
It would be unwise to look at that particular message without the full context but on any view, the rest of the message goes on to be quite cryptic and critical of the wife. Minutes later a further message of a similar nature was left.
Notwithstanding the husband’s assertion that the evidence of the wife was fabricated, I reject that. It is clear that the relationship was tumultuous and that Ms G was very much embroiled in it. Most importantly, the children seemed to have been aware of it. In addition, I did not have the benefit of the evidence of Ms G.
In September 2005, after a contact period with the husband, N returned home with a large cut on the end of his index finger as a result of which, the wife took him for medical treatment. She said that she contacted the husband whose response was that he did not think that the cut was all that bad and that N had not been upset about it. The husband described the cut as minor. He said he put a bandaid around it and it stopped bleeding. He said that he was amazed to learn that N had had stitches. This particular incident highlights the level of communication between the parties at that time which sadly, continues until today.
Combined with what I now know and accept about the wife’s condition described as Borderline Personality Disorder, I find that the relationship between the husband and wife was as Dr M described, pathological.

Relocation UK to Australia

The parties then faced litigation in the United Kingdom because the wife applied to relocate to Australia and the husband’s reaction was to oppose that. A report equivalent to our Court’s family report was released on 27 October 2005. It recommended that the wife be allowed to relocate the children to Australia. The report writer said that the impact on the relationship between the children and the husband could not be underestimated. The overriding consideration however seemed to be that the wife’s extended family were in Australia and neither party had any such family in the United Kingdom. The writer queried just what the husband’s employment position would be and its impact upon his time with the children.
Subsequent to the release of that report, the husband expressed concerns about the wife’s behaviour but negotiations continued. High on the agenda were discussions about finances and in particular, maintenance of the wife and children. The parties compromised and in November 2005, Bracewell J in the High Court of Justice in the United Kingdom made orders amongst which was a requirement for the wife to obtain mirror orders in the Family Court of Australia.
The husband said that he was “reassured” by the advice he received and the mirror orders he would obtain, that the wife would not be able to do what he had asserted she was endeavouring to do namely, cut him out of the lives of the children. He said that the wife had put her position in writing and there was agreement about what he called “specific rights”. Before me, the husband conceded he was advised that Bracewell J would have let the children go to Australia anyway. Only days before those consent orders were made, the husband swore in his written evidence to the United Kingdom court that he did not accept that the wife’s statement that she had “moved on”. Thus, his “reassurance” was in reality, an acceptance of the inevitability of the outcome. In his evidence before me, the husband said that the relationship with the wife was difficult from a point only one year after the marriage. The move to Australia did nothing to assist that problem. Having said that, the husband acknowledged that the wife had been the primary carer of the children and in his words “up to a point” she had done a good job. At this same time, the husband had just obtained his new employment position at S Company. Those were all plausible reasons why the Court at that time might have allowed the children to go to Australia.
On 14 November 2005, the husband’s lawyers in a letter to the wife’s lawyers quoted Mrs Justice Baron as prophetically saying:
A hearing will do little to improve the relations between the parties who must continue to co-parent in the future. (Emphasis mine).
I find therefore that little turns on what the parties had agreed upon, culminating in orders, because the relationship between them was non-existent and accordingly, it was only a question of time before problems occurred. I do not accept that the husband had grounds for optimism in allowing the children to go to Australia. I could not find that the period subsequent to the children coming to Australia was very much different from that which prevailed up until the orders of Bracewell J.
It is important to stop at this point and examine two things. First, what were the orders governing the husband’s relationship with the children which have now clearly so broken down to the extent that the whole parenting issue requires determination and secondly, to what environment was the wife coming in Australia and how relevant is that to these proceedings.
The United Kingdom orders did not set out a time frame for the mirror orders to be made in this Court. My view is that the absence of particularity in the orders should have meant that it was a priority but having regard to what was on the wife’s plate at that time, I would not criticise her for her slowness to act. The importance of making the mirror orders lies in the fact that the husband had expressed serious concerns about the wife’s behaviour and how it would impact upon his relationship with the children from afar.
The United Kingdom orders provided firstly some undertakings by the wife. They were inter alia:
2.To reply within 7 days to the Respondent’s proposed dates for contact provided by him in accordance with his undertaking number 2 herein and not to unreasonably withhold her agreement to the Respondent’s proposed contact dates;
3.To provide the Respondent at all times with a contact telephone number for the children and details of their permanent address;
…
7.To inform the Respondent of the children’s progress at school and provide him promptly with school report cards and photographs;
8.To consult with the Respondent in relation to any decisions as to the children’s future schooling and to take any such decisions jointly with the Respondent;
9.To inform the Respondent forthwith of any significant medical problems experienced by the children and to provide prompt ongoing updates in this regard;
10.To keep the Respondent fully informed of any psychologists or therapists seen by either child and to provide the Respondent with concise quarterly updates in respect of [N’s] speech and occupational therapy and to provide promptly copies of any formal reports in this regard;
11.Not to change the children’s surnames or allow them to be known by any other surname;
…
13.To keep the Respondent informed of any major incident or event in the children’s lives or that of the Applicant, for example ill-health or re-marriage.
Orders were then made as follows based upon those undertakings:
3.Following removal the Applicant shall make the children available for staying contact with the Respondent as follows:
3.1On no fewer than two occasions per academic year for up to three weeks on each occasion. Dates and times of such contact to be agreed at least three months in advance and in accordance with the undertakings made herein;
3.2It is agreed that the Christmas contact that the Respondent will have with the children in alternate years will be included within one of these three week contact periods;
…
4.The Applicant shall facilitate indirect contact between the children and the Respondent as follows:
4.1By telephone or webcam twice a week on Wednesdays and Sundays times to be agreed;
4.2By e-mail (once the children are old enough) as frequently as the children wish;
4.3By annual Birthday, Christmas, Father’s Day and Holiday cards/postcards.
Upon the making of the orders, the wife then had to not only move to Australia but also find accommodation, schooling and complete various financial arrangements.
The very exit from Britain was complicated by the parties. It transpires that L did not have an Australian passport and as such could not obtain entry to Australia. Considerable time was spent during the hearing before me about the fact that L came to Australia on a “refugee status” and to even achieve that, she had to undergo medical tests. The wife could not obtain an Australian passport. The husband, pursuant to the United Kingdom orders, was entitled to retain the child’s United States passport. The husband candidly acknowledged that L could not travel and he had been given that advice. His position was that the wife left the process until it was too late and he felt that he was being blamed for that. His perception was that the wife sought assistance from him only three or four days before she left England. The wife’s position was that there would not have been a problem had the husband provided L’s United States passport because she could have travelled on that even though the husband was to hold it. She said that when finally the offer of the passport was made, it came with conditions.
Both parties saw the position through different eyes but their lack of cooperation was again indicative of the pathological relationship to which Dr M refers. What actually occurred seems clear from the correspondence that was tendered.
On 21 November 2005, the parenting orders were made. There was reference to the wife having the power to sign on behalf of the husband for the renewal of the children’s Australian passports. At that time, L did not have such a passport so that could have only applied for future circumstances. The wife gave an undertaking to the Court which included a provision that the husband was to retain the children’s United States passports but that was all to be done by 16 December 2005. The wife was due to leave the United Kingdom in early January 2006. On 15 December 2005, the wife’s solicitors said that the United States passport should be handed to the husband’s solicitors after L received her Australian passports. Problems had occurred after the court orders with the Australian embassy in London. The wife had made an application for Australian citizenship for L but immigration authorities who were aware that the child was adopted, required her to hold “an adoption visa or other permanent visa”. Medical checks were therefore mandatory. The United States passport was apparently needed to obtain the visa.
To meet the 16 December 2005 undertaking deadline would have meant that the Australian Embassy requirements could not be met. The husband’s lawyer’s response was to say that it would have been helpful if the issue had been looked into earlier but that they would seek instructions. Interestingly, the husband’s lawyers indicated that the wife could not “retract” her undertaking. That was not what she endeavouring to do nor was the criticism of the lateness warranted.
On 22 December 2005, pragmatism seems to have taken over and the lawyers began to cooperate to satisfy the Embassy requirements. The wife’s undertaking was extended to the end of March 2006 but it was on condition that the husband be kept informed of progress. The wife had maintained that the husband had placed “conditions” on her having access to the passport. That was an unreasonable view.
The husband maintained that the wife was lax in applying for the passport but it was the adoption requirements that delayed matters. His view was therefore unreasonable. The whole issue ironically was resolved by cooperation even if begrudgingly given. That permeates this whole case.
There was nothing specific in the original November orders about Australian schooling and accommodation. However it became an issue of argument before me. Senior counsel for the husband alleged to the wife that she had not organised things properly and by inference, had completely ignored everything she told the United Kingdom court she would do on arrival in Australia.
In the family report to the United Kingdom court, the wife told the reporter that her family and friends would provide her with emotional, practical and financial help in Australia. She also claimed to have better work prospects in Australia and after retraining, would seek permanent employment. The inference was clear that the wife would be commencing that very soon after arriving in Australia. She said she had been offered a friend’s home within a reasonable distance of Brighton. She provided information about Wesley College which had “offered places” to both children. None of this came to fruition if it was at all true. I do not however find that the outcome of the application before the United Kingdom court would have been any different had the wife indicated that she had no such plans because of what I have already set out as the basis behind the husband’s consent. What does arise is that the husband points to the wife’s lack of credibility about facts which support her cause. For example, can I accept her statement that she will encourage and foster the relationship between the husband and the children whilst at the same time continuing psychotherapy? Whilst I have a degree of scepticism about each of the issues that the wife told the United Kingdom family reporter, I would not be prepared to find that they are indicative of her simply lying to achieve an outcome she wanted. I do so because I am satisfied that she did make an inquiry of Wesley College before leaving the United Kingdom. I also accept her evidence that rental accommodation in the Brighton area was difficult to obtain because of the Commonwealth Games. However this issue was puzzling because the wife had led the reporter to understand that a friend had provided accommodation. That issue was not pursued.
In respect of Wesley College, I find that the wife did say to the English court that it was her intention to enrol the children and that the impression was created that there would be no problem with that. The wife set out in her affidavit that she spent the first week in Australia ringing schools and endeavouring to secure interviews for placements. School was to start only weeks later. Having ascertained the difficulties about the accommodation in the Brighton area which would have clearly suited schooling at Wesley, the wife began looking in the O area to live. It was at that point in time that the opportunity to go to O School occurred and the wife and children attended an interview with the school principal.
On 11 January 2006, the husband was advised by the wife’s solicitors in England that she was unable to obtain a place for the children at Wesley College. The wife said in cross-examination that she had applied to Wesley in August 2005 but that the reason Wesley ultimately did not keep a placement for the children was that an enrolment fee had not been paid. She was asked why that fee had not been paid and she said that she was not sure that N would be accepted. At that time, she thought that when she arrived in Australia she would be able to deal with the Wesley issue but that when she approached them, they were firm on denying entry. There is nothing dramatic about that. However, the wife clearly blamed the husband for not having paid the fee. By inference, she acknowledged that that was so because she said he was aware of what was needed to be done. That was an unreasonable view for the wife to adopt but consistent with the lack of communication between the parties.
There was no evidence before me of any inquiry made by the husband after the Wesley proposal became clear in the family report in the United Kingdom. Towards the end of January 2006, the wife had managed to obtain an interview with O School and the English practitioners advised the husband’s lawyers of that fact. The wife conceded that she had abandoned the Wesley plans because the situation had changed and it was clear that she and the children were not going to be living in the Melbourne environs. She was then living with her brother and unable to find temporary accommodation as a result of the Commonwealth Games as I have earlier mentioned. Peculiarly, the wife conceded that she had also made inquiries of O School prior to leaving the United Kingdom and that she had done that as a result of the Wesley College positions not being confirmed. Notwithstanding that the wife acted unilaterally, as soon as the husband was made aware of the O School enrolment, he provided the necessary funds to ensure the placement. He is to be given credit for that promptness.
In her evidence, the wife explained all of this confusion on the basis that she had only just arrived in Australia and there were accommodation problems but she ultimately claimed it was the husband’s fault because he had not paid the necessary enrolment fees. Having regard to the swiftness with which the husband paid the O School fees, I find that there could be no criticism of the husband about the Wesley enrolment. I accept that he did not know that arrangements had not been made and even though he would have been responsible for payment, it was the responsibility of the wife to make the arrangements.

O School

When the interview took place at O School, the wife and the children were interviewed by Ms Y who was then the head of the junior school. Her assessment was that L could start in the preparatory grade and N in Grade 2. An issue that became significant in the proceedings was that the wife did not provide to Ms Y a comprehensive report on N that had been done by a Dr B in England relating to his educational needs. The husband’s case was that the school was disadvantaged by not having the report and ultimately, it was the husband who provided it.

In her evidence to me, the wife pointed to the fact that Dr B’s report recommended that N be “isolated”. That terminology really misstates what Dr B’s report said. It was suggesting that N needed something equivalent to a special school environment. When asked even so, why she would not provide that report to the school so that they had all of the information they needed, the wife’s response was that perhaps it was “a barrier” but at the same time, she thought that she did not have the report in her possession. Again, much was made by the husband of the fact that this was a failure on the part of the wife in some way and as a result, N was disadvantaged in settling into the school and achieving the necessary assistance. I reject that. Ms Y gave evidence to me in April 2007 and confirmed that the wife gave her the necessary reports which enabled her to determine which class N was to be entered. The very subject of Dr B’s report and the concept of N attending a special school was something about which Ms Y had very strong views. In her view, it would have been “extremely detrimental” to go to any kind of special school and that what he needed was to remain in the main stream. She said he was always going to have developmental troubles but that was not a basis to isolate him.
Ms Y was not critical of the wife for failing to provide the report and I am satisfied on her evidence that a proper understanding of the needs of N was quickly obtained and the school did its own assessments anyway.

Speech Pathology/Occupational Therapy for N

In England, N was having speech pathology and the wife acknowledged that that was important. It was not just about his verbal skills but with the whole social issue that stemmed from his developmental problems. Unfortunately, O School did not have access to a speech pathologist although I am satisfied on the evidence that the wife was aware that the school was endeavouring to resolve that problem. As soon as speech therapist, Ms NE, became available, an appointment was made and N attended. This was about May or June of 2007. There had been difficulties obtaining a speech therapist over a number of months which the wife put down to obtaining someone in the area who worked the hours that suited keeping N in school. I accept all of that. A similar situation arose with an occupational therapist. N needed assistance in relation to things that would be accepted as simple and straightforward for a child who did not have his needs. An example which satisfied me that the wife has a very good understanding of the needs of N related to his learning to ride a bike. She pointed to the fact that N took a week to do that with her assistance whereas other children would manage it in much less time.
The wife was criticised for not getting quickly into speech pathology for N but having regard to the fact that she was in touch with O School whose pastoral care impressed me, I would not be prepared to criticise her diligence. I am satisfied as a result of cross-examination by the Independent Children’s Lawyer of the wife that she constantly works on things with N including ensuring eye contact, talking to him about how to act in particular social settings, assisting him with ball throwing, body movement management and arranging for him to attend such things as Auskick. The wife impressed me as having a very good understanding of the capacity of N to manage age-equivalent activities so that he does not seem to stand out amongst children and that there is some peer group acceptance. The wife was able to explain in very clear terms the things that she does with N including the bike riding example which I have already mentioned.
The wife said also that she attended an occupational therapist in the Geelong area. She was not able to tell me the name of the person nor any other significant details about the appointment. She said she was given strategies to deal with issues for N. When requested to provide details as to the name of the practice and its location, she was only able to say that she could not only not find any paperwork details but that the practice had moved and there was no record in any telephone book. Whilst this was shrouded in mystery, the more important aspect related to the issues of the strategies that the wife learned from the occupational therapist all of which she said she was then and is now, carrying out. I do not believe she made that up. A concern however arises from the wife’s failure to keep the husband informed of all of these details as was required of her by the English orders. I have already set out the orders of English court requiring the wife to communicate details to the husband about the children. The wife conceded that she did not report anything to the husband about speech difficulties for N. She acknowledged that she had an obligation to tell the husband but her standard answer was that he didn’t inquire and she didn’t tell him. That was a significant failure of parental responsibility but also symptomatic of the pathological relationship between the parties.

Paediatrician Dr R and Dr HN

During 2006, the wife attended upon paediatrician Dr F. According to the wife, Dr F considered N had ADHD. He recommended a full assessment by a child and adolescent mental health service of which Dr HN was a part. Dr F was unsure about N’s problem. The wife attended upon Dr HN in November 2006. What seemed to precipitate the appointment was an incident in which N threw a knife at L cutting her on the forehead above the eye. Dr HN ultimately diagnosed N as having autism spectrum disorder. Before that assessment was undertaken however, Dr HN told the wife that her assessment team required the permission of the husband. The wife conceded that she told Dr HN that she did not think that she would get the husband’s permission. The wife’s explanation for this view about the husband was that he had never agreed that N had developmental issues and accused her of mollycoddling the child. That view was consistent with the view the wife conveyed to O School about the need for any educational program to be successful for fear that her parenting would be criticised and that she would be blamed for the problem.
The odd thing about this evidence is that the wife conceded that the only time that the husband had ever been reticent about N attending any appointment was when he was 18 months of age. At that time, she said there were significant arguments. When Dr HN required the husband’s consent, the wife advised him of the detail through her lawyers. When the matter was brought to the husband’s attention, he was quick to agree in response. The assessment was then undertaken.
In so far as there were any disadvantages for N as a result of the delays in undertaking all of these issues, the report for 2008 for O School would suggest that there has been significant improvement.
The wife was criticised for failing to comply with her undertakings to provide the husband forthwith of any significant medical problems experienced by the children and to provide prompt ongoing updates. In the interview for the autism assessment, the wife is recorded as having said that N stuttered and had been known to “shake and throw himself”. It was said that she reported that he was not eating on the one hand and became ridiculously famished on the other. She raised sleep issues. When questioned why she had not told the husband about these things she disputed the use of the word “stutter” saying that she was referring to a slowness in N’s speech. In relation to other matters, they were not new so there was nothing to report. I would not be prepared to criticise the wife for failing to report those sorts of incidents on the basis that they were not new.
More importantly however, the wife’s initial contact with Dr HN’s organisation was in August 2006 and there was a significant appointment on 28 November 2006. When asked why the husband was not told about that having regard to the undertaking in Item 10 of her undertakings to the English court, she fell back on the statement that this was a matter done through lawyers. Notwithstanding the wife’s medical problem and her inability to deal with the husband, it is not appropriate for her to fail to keep the husband informed about significant issues associated with the welfare of the children. She is to be criticised for that failure. The failure amounts to poor parenting. It is one of the matters that I take into account in assessing what is in the best interests of these children. On the evidence as it currently stands, there is no prospect that the relationship between the husband and the wife will improve in the foreseeable future. As such, orders will be necessary to ensure that there is a methodology for the passing of information of the nature about which I am critical of the wife. The same applies to the husband.
Another issue of concern arose when the CAMHS organisation sought permission of the wife to contact the school. This arose because the Geelong Hospital noted that consent had been denied. The wife’s response was that she had not denied them such access but simply wanted more information because she did not want the school to “box” N in relation to his disability and she wanted information about what the assessment people were going to do. In fairness to the wife, after considerable discussion, permission was given.
By January 2007, Dr HN was recording that according to the wife an assessment had been “blocked” by the husband according to the wife and it was then that the wife said that she did not believe that consent would be forthcoming because the husband did not believe that there was anything wrong with N. I am satisfied her concern was that she would be criticised for her parenting. Dr HN closed her file just prior to Christmas 2006 on the basis that the Centre could not continue without the permission of the husband. There was then a period of holidays during which various lawyers were away so it was not until the end of January 2007 that the husband was formally requested through lawyers to consent to the assessment continuing. As I have indicated, as with other matters, the husband’s reaction was spontaneous and he agreed for the assessment to be done.
I do not find that N’s development was hampered or disadvantaged in any way notwithstanding the wife’s acceptance that he was “struggling”. The problem was symptomatic of the relationship between the parents notwithstanding that the ultimate responsibility for providing information fell to the wife with the husband being so far away. It was even more important having regard to the fact that the difficulties that the wife was encountering with N and the strategies or therapy that he was undertaking should have been known, accepted and worked upon by the husband who was to spend time with N at various stages around that time. That was not happening.

The surname issue

Another issue of concern relates to the use by the children of their surname. The undertaking of the wife to the English court was clear. She was not to change their Naczek surname and not to allow them to be known by any other name.
When the wife enrolled the children at O School in January 2006, she filled in the form as “Dowler-Nazcek”. She said she did that because she was no longer using the Naczek name for herself and wanted to identify herself. She faxed the form of the execution page of the application to the husband but not the main page and it was only at that point that the husband requested from the school the full page. He noticed the “Dowler-Naczek” and promptly scratched out the “Dowler” part. The wife said she wanted to ensure that the school knew she was the mother of the children notwithstanding their surname was Naczek. She swore in her affidavit filed on 1 February 2008 that she did not believe that the insertion of this name on an enrolment form was changing their name as it was for “administration purpose only”. She conceded however that this was not in keeping with the undertaking she had given to the English court. She went on to say that that was the only occasion upon which the children had been referred to other than as Naczek. I do not accept that evidence to be true. The husband gave another example of a photograph in the local newspaper in which the caption to the photograph read: “[the mother], [N] and [L] [Dowler] …” The wife’s response was that she described herself as “Dowler” and when asked for the names of the children, she replied “[N] and [L]”. That is a plausible explanation but for the fact that the issue had arisen before and has occurred on another occasion.
When the wife took N to Dr F, the surname Dowler was also noted on his records. She explained that as being necessary to identify herself because the children had different surnames. She said that Dr F knew she was the children’s mother but she did not want to be called Naczek. Her explanation was that she simply did it to identify her relationship with N but importantly, she acknowledged that she knew it was wrong. The doctor’s file shows a telephone message in November 2006 in which the wife insisted that the correspondence be addressed to “Naczek” because otherwise she would “go to gaol”.
In isolation, there might be nothing wrong with these name issues except that her undertaking was clear and the wife in evidence acknowledged that what she did was wrong. She is to be strongly criticised for that approach having regard to the evidence that I heard from Dr M that those sorts of things create confusion and identity crises later in life for the children. These are serious matters because they reflect on the wife’s view about the husband as a parent but also reflect on her parenting capacity.

L and the appropriate school level

During the 2006 year, the preparatory grade teacher of L expressed concern about L’s ability to cope having regard to her developmental age and level of maturity. The wife’s view at that time was that it was a combination of factors reflective of L’s relationship with her teacher. The school advised that L was not concentrating and they recommended that she undergo a reading recovery program. By July 2006, Ms Y became involved and raised the subject with the wife who told her that she could not afford for L to repeat the preparatory grade because the trip to Australia from England had to be seen as a success. When the school expressed concern about keeping L down for a second year, the wife said that she would take L to another school and that meant N as well. During all of this time, none of these difficulties was mentioned to the husband. The wife’s explanation was that she did not think that it was an issue because there was no formal recommendation from the school and in any event, the husband had direct access to Ms Y and was receiving regular reports.
I have the evidence of Ms Y who largely corroborates what the wife says about what occurred in 2006 and that it was not until near the end of Term 1 in 2007 that she spoke to the wife about the problem with L returning to the preparatory grade. L had been put up to Grade 1 in 2007 and was not coping. Because the wife had told the school that she would remove L and hence N, the school took the view that L’s happiness was the critical concern and the issue was not raised again during 2006. However, when the husband arrived at the school and spoke to L’s teacher, he immediately put in train sufficient activity in the school to bring the subject of L returning to preparatory grade to a head. This was a contentious issue just prior to the commencement of the hearing in April 2007. Ms Y attended to give evidence and managed to mediate or broker an arrangement under which the parents agreed to an order that L return to the preparatory grade for the rest of 2007. Hindsight shows that L has benefited from that extra time in the preparatory grade and has not been disadvantaged by that step. She has made significant progress.
The issue of L returning to the preparatory grade became important in the proceedings because of two things. The first was the wife’s concern to ensure that she could not be criticised in some way for a failure of her parenting skills but secondly the obstinacy of the wife in not following the advice of the school and threatening to take L out of the school if she did not get what she wanted. In respect of the first issue, because of the pathological relationship between the parents, I can understand the problem and have little to criticise the wife about. In respect of the second issue, it is important to understand that at the meeting that occurred at the court in April 2007 with Ms Y, the wife’s view was that she wanted to discuss the matter with Ms Y. I am sceptical about that attitude as it would be obvious that all of the evidence relating to L in April 2007 showed she should not have been in Grade 1. Whilst I accept the wife’s evidence that the issue was not raised again by the school until the start of 2007 and the school put L up to Grade 1 without raising any issue with the wife, once it was raised, it was most unfortunate and totally inappropriate for the matter to have to be resolved with the assistance of the school principal in a conference room outside of the courtroom itself. I do not think however that my scepticism affects the determination in this case. I accept that these issues associated with the wife’s behaviour relate to her relationship with the husband rather than either neglect or positively destructive behaviour relating to the welfare of the children. The consistency with which these matters occurred indicates that they all related to the pathological relationship between the husband and the wife fuelled by her borderline personality disorder. I find that despite the criticism of the wife’s parenting that I have set out, there is no evidence that the children’s developmental welfare has been prejudiced by what the wife did.
Ironically, had the wife been able to communicate with the husband about these issues, his co-operation would have followed, the children would have been involved in activities much quicker and the wife and probably the husband, would have had less anguish. Those are matters that I shall also take into account.

Ms G’s role in the life of the children and the end of the husband’s relationship with her

The husband acknowledged in cross-examination that he had begun to have concerns about Ms G in March 2007. It transpires that from that time onwards, the concerns increased, culminating in a termination of the relationship. Sadly, the children were not only witnesses to the breakdown of that relationship, they were also ultimately embroiled in it.
In the context of the involvement of the children in 2006, the husband described playful incidents in which N hurt Ms G in ways he described as unintentional. For example, he said N “grabbed her around the neck” and “mistakenly elbowed her”. The wife described the children as telling her about Ms G smashing on doors and acting aggressively. The husband’s response was that the wife had concocted the whole story.
The wife’s version of such a retelling by the children was corroborated by her brother T Dowler. He said in an affidavit that he was in the motor car with the wife when such comments were made by the children. When the husband was cross-examined about whether he stood by the assertion that the wife had fabricated the issue bearing in mind the affidavit of T Dowler, the husband declined to withdraw the word “fabrication” and said he would like to hear T Dowler say what he heard “under oath”. Ultimately, Mr Dowler was not called to give evidence and therefore I have little reason to doubt what he said.
More importantly, by April 2007, according to the husband, Ms G was drinking more than he was comfortable about as well as using his credit cards in a way that made him concerned and unhappy. He cancelled the credit cards.

Dealing first with the importance to the children of the relationship with each parent, counsel for the husband in final submission, argued that the husband was the person best suited to advance the interests of the children into the future as the residential parent because the wife’s Borderline Personality Disorder rendered her incapable of properly facilitating or encouraging the relationship between he and the children and as a consequence, the best protection of the relationship between father and children was to be away from the full-time care of the wife. In other words, his contemplated relationship would best benefit the children as between he and the wife. There is a flaw in that logic.
The proposal of the husband was that if the children lived with him, their mother could visit them frequently and participate in their lives.
The wife’s proposal was that she would be the primary parent as she has been to date and facilitate the time that the children spent with their father whenever he was to be in Australia. The area in which the wife’s approach to the husband’s parenting role was principally but not solely flawed related to his telephone communication with the children.
Looking first at the wife’s proposal, the evidence shows that whenever the husband is in Australia, he enjoys a strong and satisfying relationship with the children from which they benefit. Endeavours have been made and need to continue to be made, to overcome the telephone communication problem.
Looking then at the husband’s proposal, whilst I would conclude on the evidence that the wife would never abandon the children if they were living with the husband, I could not predict nor intuitively work out, what sort of a relationship they would have with their mother. The evidence is that they are currently strongly attached to and dependent upon her. As such, a change of the magnitude contemplated by the husband whether in Australia, overseas and on whatever conditions, leaves me with no confidence that the children would thrive and develop as they have to date. I say that having regard to the recent evidence of stable and settled behaviour at school.
S 60CC speaks of a “meaningful relationship” without defining it. It has been said to be synonymous with “significant”, “important” or “of consequence”[4]. I would add to those words such adjectives as healthy, worthwhile and advantageous to the child. Whilst all of these assessments are vague and very subjective, the bar is set very high. Which of the two proposals provides the best outcome for the children bearing in mind that I have not only heard what the parents espouse but also had the benefit of watching them over a number of days under intense cross-examination and scrutiny? What is it in the evidence and the findings made that distinguishes one parent’s proposal from the other?
[4] see Mazorski & Albright (2008) 37 Fam LR 518 per Brown J.
Having regard to the findings I have made about the assessment by Dr M of the needs of the children, I am not convinced that the relationship between the wife and the children envisaged by the husband would be meaningful and as a consequence, that the children would benefit from it. Subject to the telephone issue being resolved, I am convinced that the children can enjoy the benefits of a meaningful relationship with their father.
The second primary consideration relates to protection of children. It is clearly consistent with the objects set out in s 60B as well.
With the cessation of the relationship between the husband and Ms G, I am satisfied that any risk in the future of the children being subjected to family violence and all of its consequent psychological harm is minimised.
There is no doubt that the children have been subjected to the psychological harm of abuse perpetrated by the wife upon the husband. That issue has been ameliorated to a very large degree by the orders that I made rearranging the telephone communication. There is no doubt that children who witness that sort of abuse are psychologically damaged. Their self-esteem is affected and the security of the relationship with an adult whom they love and admire is destabilised. Psychological abuse of another parent has long-term consequences for children. The most unusual situation in this case is that the children, absent their mother, strongly enjoy the closeness with their father.
I have accepted the evidence of Dr M and the wife that there is no ongoing destabilisation of the relationship between the children and the husband as a matter of course during the daily lives of the children. The course of action undertaken by the wife therefore in endeavouring to overcome her Borderline Personality Disorder is an endeavour to address a significant flaw in her parenting.
When I therefore balance the parenting aspects of the husband and the wife in relation to the ability of each to protect the children from the harm that s 60CC(b) contemplates, I am satisfied that each understands the nature of the problem and would do everything within their power now to protect the children from those problems. I do not distinguish between them.
In addition to the primary considerations, there are others which act as a guide to balancing the distinctions between the parents. Section 60CC(3) requires that I consider them.
The first is the views of the children. Each child has expressed views but having regard to their ages and levels of maturity, I do not propose to give them serious consideration. Dr M reported what each child said about living in England and living with their respective parents. I do not think I could place much store in any of those statements.
Section 60CC(3)(a) contemplates a court listening to the voice of the children but ultimately, the court has the responsibility of weighing any such view up as part of the overall determination process. Having regard to the subjective requirement to give those views such weight as the court sees as relevant, it is more directed to children influencing the workability of any arrangement. Children can and should be heard even in an infantile way in relation to certain things such as here where they have understood the dilemma of their mother’s behaviour when they are talking on the telephone to their father. For whatever reason, the children understand that what their mother says about their father is not good and they simply want to be left undistracted by that behaviour. Notwithstanding their young ages those are views that I will take into account in endeavouring to craft parenting orders.
Another legislative direction is to contemplate the nature of the relationship of the children with each of the parents. My understanding of that is that I need to examine within the confines of the findings I have made, just how each party relates to the children. Here, the children have a good relationship with each parent but each in a totally different way. The wife is very much a “hands-on” day to day manager. There is no evidence of any failing there. The School Principal’s evidence is the best objective evidence of the fact that the children are well-cared for in a physical sense. Notwithstanding the husband’s criticism of the wife’s approach to health professional appointments, as I have said, I would not adopt that criticism. I find that the wife is a competent and caring parent.
The husband has not had the same experience as the wife. He has been the primary breadwinner and significantly involved in that role all of the lives of the children. He has not fulfilled the same role as the wife and I have made findings about that. Of necessity, the husband has been the leisure time parent in whom the children find excitement. They look forward to his visits and he provides them things that the wife cannot. Dr M expressed some concern about the children spending their holiday time with the husband in hotel rooms and it follows that they have had a lifestyle of affluence. When Dr M raised the subject, the husband was able to point to the activities that showed he has the capacity to undertake simpler activities. I have heard the evidence of the telephone taped conversations and the way in which the husband talked about material things to the children under very strained circumstances. Having regard to the tyranny of distance and the frustrations the husband endured in endeavouring to communicate with the children, I have found that that is his way of doings things.
The relationship therefore between the children and the parents is sound.
I am also obliged to consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. In this case, that is directed towards the question of how each parent will involve the other as a significant part of the lives of the children. As a broad-brush generalisation, each parent espouses a desire for the other to be involved but each has also failed in specific areas as I have found.
The evidence is that the children are very much attached to their mother and very strongly enjoy the relationship with their father. There is a contrast in respect of the wife’s behaviour relating to the telephone calls with the evidence about her getting the children ready for their father’s time with them.
The children’s behaviour towards their father in the most derogatory terms has to be contrasted against the behaviour of the children when their father materialised at their school and their excitement could not be contained.
The husband’s cynicism about the wife’s attitude towards him is abundantly clear from his counsel’s final submissions (paragraph 414-416) but I am not convinced that the wife’s intentions were to cut the children out of his life. I have made that finding.
Dr M highlighted not only the importance of the reduction of conflict but also the desirability of improving the parental relationship. Dr M described the relationship between the parties as pathological. In his view, and I agree, it is not one-sided.
Counsel for the husband queried how change was possible when the wife refused to be in the same room with the husband. The parties have endeavoured to undertake mediation and each blames the other for its failure.
The husband argued that rather than involving him in the lives of these children, the wife had failed in a fundamental way, to comply with orders designed to provide him with important information.
To a very large degree, both examples just mentioned are symptoms of both the wife’s Borderline Personality Disorder and the husband’s frustrations in the wife not communicating the way he saw as appropriate.
The ability of each parent to foster the relationship of the children with the other is compromised but ultimately, it is a factor that I have to weigh up in determining what is best for these children. Along the way and in making my assessment, I am looking for solutions that I can put into orders to endeavour to resolve the impasse. Whilst it was urged by the Independent Children’s Lawyer, I would not order that the parties engage in some form of therapeutic mediation in the future. It would be counter-productive at the moment for the parties to do that; they need time to digest my views.
At the moment therefore, I do not see how the parents’ relationship could be improved to the extent that they could communicate with one another freely about the children. Leaving aside the scars of litigation, the evidence I have found about the wife’s Borderline Personality Disorder is such that it would be inappropriate for her to be in the same room as the husband. That was evident by her reaction to the husband even in the court room.
Having said that, each of the parties was content for the other to have equal shared parental responsibility. That in itself will require ongoing communication in one form or another about the children’s development and decisions about things for their future. Both parents have the best interests of their children at heart but they will have to find ways of communicating about the children. The wife indicated in evidence that there were signs of change albeit modest ones. Equally however, the husband has to change and be prepared to talk to the wife as an equal parent. I have made findings in which I have been critical of his approach. His explanations about not contacting the wife because of her past response are not acceptable notwithstanding his frustrations.
I have considered the likely effect of any changes in the circumstances of the children including the effect upon the children of a separation from either of their parents. In that regard, I have considered the prospect of the children living in a variety of circumstances with their father but away from the full-time care of their mother. As I have already said, in this case, it matters little whether the husband is living in Australia or overseas. The evidence convinces me that separation from their mother could have detrimental effects upon the development of the children. Many of their support systems, schooling and friends may have to change even if the husband was living in Australia. I accept what the Independent Children’s Lawyer points out (page 14 of the final submission) that the children’s school has done a wonderful job in meeting the needs of N where he is making good progress and is beginning to interact well with his peers.
Even were the husband living in Australia, because of his significant attachment to his career and employment, I do not have the confidence that he could continue all of the day to day management activities in which the wife has involved herself for the benefit of the children.
At the time of hearing the majority of the evidence, the husband had contemplated taking the children away from Australia and would have been relying upon assistance as well as juggling his employment obligations. I do not accept that for these two children, that situation would be as good for their development as would having their mother there on a fulltime and committed basis.
It is not just the physical capacity to care for the children on a daily basis that matters here. Children in many Australian families have two parents working and are happy and stable. These two children have only ever known the major parenting role that their mother has fulfilled. The evidence of the importance of that comes from Dr M who evaluated both of the parents and found that the wife had a close and intuitive understanding of the children and their needs. I am not confident that the husband has a similar relationship with the children and thus, the separation of them from the wife could affect their future development.
It also goes without saying that a change of residence for these children to live with the husband could have a severe psychological impact upon the wife. Her inability to care for the children in ways that she has fulfilled appropriately in the past may suffer. The evidence is overwhelming that the children are her life and they benefit from that in a very significant way. To change that in the way contemplated by the husband would not be in their best interests.
Section 60CC also requires that I contemplate the practical difficulty of the children spending time with and maintaining personal relationships with, each of the parents. Just how that relationship to which I have earlier referred between the wife and the children would continue if they were removed from her particularly if taken away from the Geelong area, is not known. The husband thought about and consented to the removal of the children to Australia from England whilst putting in place some orders which he thought would work. Notwithstanding his frustrations, apart from the telephone communication, his relationship with the children has otherwise flourished. There is therefore no practical difficulty and certainly no expense involved for that sort of relationship to continue.
An interesting feature of this case but not significantly highlighted, was the background of the children prior to their adoption. Dr M was concerned about the fact that there was a psychological imperative for the children to understand their natural heritage notwithstanding they were not related by blood. I have very strong evidence from the wife which she volunteered and about which I have complimented her indicating a good understanding of that cultural heritage. I am convinced of the two parents, the wife is better able to promote that background and culture from which the children can only benefit in their growing years. That evidence is consistent with the view of Dr M that the wife is more intuitive in her understanding of the children than is the husband. That is an important aspect of this case.
Section 60CC requires me to contemplate the attitude towards the children and the responsibilities of parenthood, demonstrated by each parent. That broad and general issue is very similar to the requirement that the court consider the willingness and ability of each parent to facilitate and encourage the relationship with the other parent. The overlap is almost self-evident.
Each parent espouses a very strong desire to have the responsibility for the primary care of the children. History demonstrates very much what is likely to happen in the future. Although these proceedings really began on the basis of the frustrations of the husband, my findings indicate that each party has particular flaws when it comes to demonstrating responsible parenting. I have already highlighted the wife’s inability to cope with the end of the relationship with the husband and his inability to communicate at a reasonable level with the wife in relation to aspects of parenting.
Leaving aside the negative aspects of their parenting, I accept that each has the interest of the children at heart, would do anything for them and would not deliberately harm them. Parenthood has many aspects to it and each parent needs to contemplate how they could have done better for the benefit of the children having regard to the findings that I have made.
I have already mentioned that it is a fundamental provision of Part VII of the Act that children be protected from physical and psychological harm. In this case, I am satisfied that notwithstanding some of the evidence led, there are no family violence issues that have any impact upon the decision I have to make.
The lives and development of young children change constantly. No party suggested that I should do anything other than make final orders. A trial period to see whether the wife’s improved health and the easing of the husband’s frustrations is the alternative. This case has taken a long time from its start and no doubt had a significant and stressful impact upon both parents. I am very conscious that it has been a very expensive exercise and one at times affected by frustrations for both parties as things changed. Whilst the children have probably had little understanding of the ebbs and flows of the litigation, it is clearly in their best interests to have both parents know with certainty just what role each is going to play into the future.
I propose to make orders about the wife continuing her therapy and not just in a half-hearted way. I propose to do that on the basis that I have found that it is in the best interests of these children that their relationship with both parents be enhanced by the wife coming to grips with the fact that she has contributed to the frustrations of the husband in his desire to be a significant part of the children’s lives. I am not hanging the Sword of Damocles over her head but she having recognised and been told of the impact of her behaviour upon the children, any change of her current direction or lack of desire to continue that treatment could only have a negative impact in one form or another in the future for these children.

There was also a temptation to see whether the husband could come up with a clearer picture of how he would care for the children in the future having regard to his indicated change of financial circumstances. That too would create uncertainty and instability for the children whilst that unfolded. In my view these children need to know what their life is going to be in the foreseeable future and what role each parent will play. In those circumstances, in my view, it is preferable to make an order which is least likely to continue the litigation path that both parents have been on for a long time.
I have already mentioned the subjectivity of the question of the determination of what is in the best interests of these children. To a very large degree, the parties themselves set the agenda when they agreed that the children could come to Australia with the wife. The parameters of the relationship were set by the parties themselves in the orders of the English court which were to be mirrored in Australia. Those orders failed to quell the controversy between the parties. It is my intention by these orders to do just that on the basis that in an effort to work out what is best for the children in the future, the orders I propose are the best I can subjectively determine.
Section 60CC(4) also requires me to consider the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent. My findings in relation to that are set above. There is little more that I can say. It is clear that subsequent to coming to Australia, the husband unfailingly wanted to participate in the lives of the children and in the decision-making processes that affected them. There have clearly been times where the wife has failed to facilitate the husband’s role. It is important to note that pursuant to the provisions of s 65DAC, any decision relating to the long term benefit of the children must be made jointly by the husband and wife and in doing so, they are required to consult with one another and make a genuine effort to come to a decision jointly. That does not mean that they have to meet and even converse but they are required to come up with a methodology by which information and concepts are exchanged. Having regard to the findings that I have made about their respective capacities to deal with each other and communicate with one another, each will need to give that some serious thought for the future about how that could be implemented.
I find therefore that having assessed all of the mandatory considerations, it is in the best interests of the children that I make parenting orders that they live with their mother who should be responsible for their daily management and that they have a relationship with their father where they spend time with him.
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 parties agree on that concept.
Notwithstanding the agreement, a court is still obliged to consider whether it is best for the children to spend equal time with the parents and if not, whether spending substantial and significant time is in their best interests.
Pursuant to s 65DAA(1) I find that it is not reasonably practicable nor in the best interests of the children that they spend equal time with their parents. There are two reasons for that. The first is that the precise details of how it could work with the current and future geographical problems is not known. The second is that I am satisfied that it is the wife who has undertaken all of the daily management tasks associated with the children and it is in their best interests for that to continue.
Section 65DAA(2) provides that if I am not to make an equal time order, I have to consider the children spending substantial and significant time with each parent. That too creates difficulty because the definition of substantial and significant time includes time outside of leisure time or weekend time and holiday time. I am satisfied that it would not be in the best interests of the children for that to occur at this stage of their development having regard to all of the matters that I have set out above.
I propose making orders that will contemplate the husband living overseas and within Australia.

I certify that the preceding Three Hundred and Thirty Four (334) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cronin

Associate: Elizabeth Hore

Date: 28 November 2008

[2008] FamCA 1126

28 November 2008

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