Wells and Roberts (No. 2)

FAMILY COURT OF AUSTRALIA

WELLS & ROBERTS (NO.2)

[2008] FamCA 1110

FAMILY LAW – CHILDREN – Rebutted presumption of s 61DA – best interest of the children of the marriage for s 61DA(4) – with whom the children shall live – undefended continuation of the trial – ancillary matters

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 61DA(4)

APPLICANT:

Mr Wells

RESPONDENT:

Ms Roberts

INDEPENDENT CHILDREN’S LAWYER:

Rowley and Associates

FILE NUMBER:

SYC

3493

2007

DATE DELIVERED:

9 December 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

8 & 9 December 2008

REPRESENTATION

APPLICANT IN PERSON:

No appearance

COUNSEL FOR THE RESPONDENT:	M Cleary
SOLICITOR FOR THE RESPONDENT:	Watts McCray

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	K Rowley

Orders

That the respondent (“the mother”) have sole parental responsibility for the two children of the parties C born … May 1995 and E born … December 1997 (“the children”) AND THAT pursuant to s.65DA(2) and s.62B Family Law Act 1975 (Cth) 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 the children live with the mother.
That the applicant (“the father”) may spend supervised periods of time with the children in Australia on such terms and conditions as may be agreed upon between the parties in writing.
That the father be at liberty to telephone the children or contact them via webcam once a week on Sunday evenings.
That the independent children’s lawyer furnish copies of the following as soon as possible to the Proper Officer, the Child Abduction Unit, the Central Authority for England and Wales:
(a)      the Orders made this day;
(b)      the Reasons for Judgment given this day;
(c)      the Orders made on 17 July 2003 in the Guildford County Court;
(d)the Orders made on 21 February 2006 in the High Court of Justice Family Division.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Wells & Roberts is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3493 of 2007

MR WELLS

Applicant

And

MS ROBERTS

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant (who for convenience I shall refer to as “the father”) sought parenting orders pursuant to his Application filed in the Federal Magistrates Court of Australia on 30 November 2006. The orders sought were in relation to the two children of the parties, namely, C, born in May 1995 (who for convenience I shall refer to as “[C]”), and E, born in December 1997 (who for convenience I shall refer to as “[E]”). They will be referred to collectively as the “two children”.
The orders so sought provided for the parties to have, what is described, as joint parental responsibility for the children, and that they spend periods of time with the father both in New South Wales and in the United Kingdom. Ancillary orders were also sought. Implicitly, that application was amended in the terms of the document described as a “Minute of Order”, filed in Court on behalf of the husband on 18 February 2008.
In relation to that document, the father sought orders which, in substance, provided for the parties to have equal shared parental responsibility for the two children, and that they live with the father in the United Kingdom. In addition, orders were sought that the children spend time with the respondent (who for convenience I shall refer to as “the mother”) “as ordered by the court or agreed.”
Orders were also sought in the alternative, in the event that an order is not made for the two children to live with the father in the United Kingdom. In that event, the further orders sought were that the children spend time with the father both in Australia and in the United Kingdom. Various orders, by way of injunctions, were also sought. An order for costs was sought.
The mother opposed the orders sought by the father in her Response filed 7 December 2006. She sought orders that the two children live with her and that they spend periods of time with the father in the United Kingdom as well as in Sydney. The orders sought in that regard were on terms that the periods of time be supervised by a supervisor agreed to between the parties.
The Response was subsequently amended in the terms of the Amended Response, filed 21 November 2008. The orders sought by the mother are that the Application of the father, filed 30 November 2006, be dismissed; that the mother have sole parental responsibility in relation to the care, welfare and development of the children so far as major issues are concerned (implicitly being major issues as defined in the Family Law Act) and that there not be an order for the father to spend periods of time with the children.
In addition, an order was sought that the father be at liberty to communicate with the two children by telephone or via webcam once a week on Sunday evenings. An order for costs was also sought. I am satisfied, on the evidence that has been adduced, that the Amended Response was served upon the father and that he is aware of it, especially in view of the oral evidence given by the mother yesterday in relation to the telephone conversation that she had with the father during the previous evening.
In addition, I will refer to certain procedural matters that arose as a result of my attention being drawn to “Exhibit P” to the Affidavit of the mother, sworn 21 November 2008. Exhibit P contains an email from the father to the mother's solicitor. In that document the father states:
“I have been in direct contact with Judge Rose and the Family Court to ask him why he made orders that he knew were utterly impossible for me to comply with and thus make any hearing on 8 December an inevitable mistrial. I have also asked him to confirm that he stated that he could not be bothered to find the time to read the court papers from the UK, as I am unaware of any hearing in history when an absence of information to the court has resulted in a fair trial and the correct judgment whilst history is littered with examples where the opposite is the case.”
I repeat the remarks that I made to Counsel at the outset of the hearing yesterday which are in substance as follows:
“I have not had any contact with the father as alleged by him. The basis upon which he has made that extraordinary statement is not apparent from his email or from any other document adduced in evidence. As to communications with the Family Court, that may have been the case, but I am unaware of the contents. Indeed, as a matter of procedure, litigation in this court is not conducted by correspondence or by any other means of communication. In the event that some matter was raised with a staff member of this court that is a matter between the husband and that staff member and/or the registry manager.”
As to the extraordinary statement that I allegedly stated that I “could not be bothered to find to time to read the court papers from the United Kingdom” that is a statement which is without foundation. In endeavouring to make some sense of that statement I recollect that I did inform either the father and/or those representing him that the evidence that would be adduced, which would be relevant in the hearing in the proceedings in Australia, was the affidavit evidence and oral evidence that would be adduced in these proceedings.
It may be that the father came to the conclusion, however misguided, that this meant that Court papers from the United Kingdom would not be read. As to the pejorative statement that I “could not be bothered” I propose only to say that that is offensive and I will not make any further comment about it.
So far as the reference by the father, in documents before me, of his foreshadowed application pursuant to The Hague Convention is concerned, that is a matter upon which I will direct some observations in the course of this judgment.
The matter proceeded before me yesterday and today without any appearance by or for the father. That occurred against a background of the father being well aware of the dates fixed for hearing which were fixed, ironically, to accommodate his convenience in view of the past submissions made to me that dates for hearing fixed at this time of year would coincide with his proposed visits to Australia in order to see the two children.
Recently, an application was made by the father and, through his then solicitor, for the father to appear in these proceedings by electronic communication. That application was dismissed to which subsequent reference will be made. I further note that the father has been legally represented throughout until a Notice of Ceasing to Act was filed on 20 November 2008.

Historical background

The father continues to live in England where he is employed as a school teacher. He is 54 years of age.
The mother is 42 years of age and employed as a school teacher at a school in Sydney.
The mother has resided with the two children in Sydney since August 2003.
The parties had married in July 1992 in the United Kingdom.
They separated on 27 October 1998.
A decree nisi dissolution of the marriage was made during May 2000. I do not have any evidence before me, nor was any information provided to me in the course of the hearing, as to whether or not that decree nisi was made absolute.
The mother lives in Sydney with her partner, Ms M, who is 55 years of age. The mother and Ms M have been in a relationship since late 2003. Ms M has three sons, aged 28, 26, and 24; two of whom live in Australia.

UK orders

Other relevant brief historical matters are as follows.
On 12 July 1999, orders were made by consent in a court in the United Kingdom which provided for the mother to have residence of the two children with weekend and mid week contact to them by the father. A family report was ordered and a further hearing set down for April 2000.
On 17 February 2000 an order was made in a court in the United Kingdom which provided for contact that the father might have with the two children to be suspended. An urgent report was ordered to be provided by a social worker.
On 25 February 2000, a further order was made in a court in the United Kingdom discharging the order that suspended contact and a further report ordered.
On 13 April 2000, an order was made for what is described as “staying” contact two nights per week and midweek “visiting” contact.
On 12 May 2000, an order was made by a court in the United Kingdom varying the orders made in July 1999. Those orders provided for “staying” contact three weekends out of four, and leave was granted to the mother to take the two children on overseas holidays.
On 26 June 2001, the application of the father to restrain the mother from taking the children to Portugal for holidays and from sending C to a particular preparatory school was dismissed.
On 10 May 2002, property settlement proceedings between the parties were determined in the Guildford County Court during the course of which findings as to the husband being a credible witness were made adversely to him.
On 22 July 2002, interim orders were made in the Guildford County Court limiting “visiting” contact to that being in the supervision of the mother.
On 19 November 2002, parenting orders were made in the Guildford County Court. In the course of the Reasons for Judgment, the trial Judge found that the father’s conduct in relation to at least one of the two children amounted to “sexually inappropriate behaviour” although a finding was expressly not made that such behaviour was deliberately instigated for sexual gratification or otherwise.
In addition, findings were made that the two children had been placed at the risk of emotional harm, implicitly by actions of the father, and further findings as to credit were made adversely to the father.
On 19 November 2002, in the Guildford County Court, the father's application for residence was dismissed, orders were made for him to have supervised contact with the two children.
On 17 July 2003, orders were made in the same court which gave leave to the mother to remove the two children permanently from the jurisdiction of that court to reside with her in Australia.
In addition, orders were made to enable the father to have “visiting” contact with the two children on certain terms which included that such contact be supervised.
On 15 August 2003, the father's application for leave to appeal from the orders made on 17 July 2003 was dismissed.
On or about 21 February 2006, further orders were made in relation to the father having contact with the two children. It was noted in that court, namely, the High Court of Justice Family Division, that the father was not making an application for residence order in respect of the two children and his agreement that future applications or proceedings that may be made would be made and determined in the Family Court of Australia, the Australian jurisdiction being the appropriate forum.

The current proceedings

On 18 December 2006, following the institution of parenting proceedings by the father in the Federal Magistrates Court, the independent children's lawyer was appointed.
On 10 May 2007, the father was ordered to pay the mother’s costs of the application heard on 22 December 2006 when on that occasion the father’s application for interim orders was dismissed the proceedings were subsequently transferred to this court.
On 18 February 2008, day one (1) of the Less Adversarial Trial procedure for parenting proceedings commenced before me.
I heard evidence from each of the parties and I also received their completed Parenting Questionnaires. Procedural orders were made by me and the proceedings were stood over for further directions on 22 February 2008 for the purpose of hearing submissions and making orders in relation to the appointment of a child and family psychiatrist so that an expert’s report might be completed and provided to the court and the parties.
On 5 March 2008, an order was made by me appointing Dr W, consultant psychiatrist, as the court expert.
On 12 March 2008, I made orders in relation to payment by the parties of Dr W’s fees and the provision of documents to him.
On 26 August 2008, following the receipt and release to the parties of Dr W’s report. I determined the issues for the continuing trial and made procedural orders. On that occasion the continuation of the hearing was fixed for four days commencing at 10.00 am, 8 December 2008.
On 21 October 2008, the application by the father to vacate the December hearing dates was dismissed. The application by the father to appear at the continued hearing and give oral evidence by electronic communication was also dismissed.
I made a further order that the father pay the mother's costs of and incidental to his applications to which I have referred in the sum of $450.00 payable on or before 5.00 pm, 11 November 2008.
I have been informed by counsel that the father has failed to comply with that order. Nonetheless, the matter proceeded before me yesterday and continues today, absent any application that a difference course be adopted, having regard to the failure by the father to comply with that order for costs. In relation to compliance to orders for costs I was also informed by counsel that, notwithstanding information given to me on previous occasions by the father and/or those instructed by him, that all orders for costs made in courts in the United Kingdom have been complied with by him, that in fact the reverse was the true situation.

Relevant legal principles pursuant to the Family Law Act 1975 as amended (“the act”)

The relevant legal principles in relation to determination of parenting proceedings in this court may be summarised as follows.
Section 60CA makes it clear that any parenting order must be made on the basis that “it is in the best interests of the child” for an order to be made and that “the matter of the best interests of the child is the paramount consideration”.[1]
[1] Section 60CA
The objects and principles which are required to be taken into consideration are set forth in Part VII to the Family Law Act which provides for the rights of the child to have the benefit of the involvement by both parents in the child’s upbringing, education, and all other matters affecting the child's welfare. That will include, amongst other things, regular periods of time to be spent by a child with each parent in order to have the benefit of his or her involvement in the child’s ongoing care.
Those rights of the child, set out in more detail in the objects and principles set forth in Part VII to the Act, are subject to an important exception which, in my experience, is often overlooked. That exception is that those objects and principles should be implemented when it is in the best interests of the child to do so.
For the purpose of determining what is in the child’s best interests I am required to have regard to the considerations set forth in section 60CC of the Family Law Act.
Those considerations are in two categories. The first category is what is referred to as the primary considerations, namely, the benefit to a child of having a meaningful relationship with each of the child’s parents and the need to protect the child from family violence or being exposed to family violence and abuse.
There are then a series of what are described as “additional considerations” to which I will make reference so far as they are relevant in these proceedings and having regard also to the issues that I have previously determined, required consideration for the continuation of these proceedings. Those issues were so determined on 26 August 2008, after hearing submissions on behalf of each of the parties, as well as the independent children’s lawyer.
So far as parental responsibility is concerned, section 61DA provides that the parties being parents of the two children are presumed to have equal shared parental responsibility. That presumption may be rebutted on one or more of a number of grounds.
The ground relied upon in these proceedings by the mother and urged upon me also by the independent children's lawyer is the ground set forth in section 61DA(4), namely, the best interests of the two children. I will refer to those matters subsequently.
Matters which impact upon those best interests will also be touched upon as part of the factual substratum for the considerations to which I have earlier referred.

Section 60CC relevant matters

So far as the views of the two children are concerned, the evidence of the mother is that the children have consistently reacted negatively to both spending time with the father and/or communication with him. The reasons for that response by the two children are set forth in considerable detail in her Affidavit, sworn on 21 November 2008.
I should add, at this point, that given the failure of the father to appear in these proceedings or to instruct counsel or a solicitor to appear for him, neither the mother or her witness, Ms M, or the witness Ms T the principal of the school attended by the two children, were cross-examined. The Affidavits by the mother and those two witnesses were each sworn on 21 November 2008.
I received the report of Dr W, dated 2 June 2008, as Exhibit 4. Dr W’s conclusions in relation to the views of the children were, in effect, that there were some inherent contradictions. On the one hand, they made it clear to him that they preferred to see the father on less occasions than has occurred in the past and yet his conclusions, based on observations of the manner in which they interacted with the father during the course of the interview, showed both an attachment to him and a positive approach to their relationship with him.

The aspect of the children's reactions to the father, on the occasions of the interview with Dr W, is the subject of part of the evidence given by the mother in her Affidavit of 21 November 2008. I accept the evidence of the mother to the extent to which it qualifies material which Dr W referred to in his report.
It must be remembered that in relation to the issue of the views of the children as well as a number of other issues, Dr W did not have, for his consideration, a copy of the affidavit of the mother nor of the other two witnesses to whom I referred, for obvious reasons, given that they were sworn some months subsequent to Exhibit 4.
In those circumstances, I find that the children have expressed a view which is negative to spending periods of time with the father and, perhaps not so clearly but nonetheless with some negative aspects to it, of communicating with him.
So far as the nature of the relationship between the two children with each of the parties, the mother's partner and members of the father's extended family are concerned, it is clear that the two children have a close and loving relationship with the mother and with her partner.
The children have, at best, an ambivalent relationship with the father and, at worst, a negative relationship with him.
So far as members of the father’s extended family are concerned, the anticipated evidence that the father was to have provided by way of affidavits from them was not subsequently adduced. Indeed, the father failed to comply with the directions for filing and service of further affidavits which, absent any information to the contrary, could have been attended to by him, with or without legal representation by preparation of the documents in the United Kingdom and sending them to the Sydney Registry of this Court for filing and for him to also attend to service of the sealed copies.
For reasons best known to him and which were not made clear to me, he has failed to do so. His focus seemed to have been entirely upon the manner in which he might be able to appear in the proceedings before me to which I have made earlier reference.
With regard to the capacity of each of the parties to provide for the physical, emotional, and intellectual needs of the two children, on the evidence before me I find that the mother has the capacity to provide for all of those needs. The father, on some of the material before me, has endeavoured to denigrate her capacity in a number of aspects, particularly, so far as the children's emotional needs are concerned. I find that his allegations, on the evidence before me, do not have any substance.
So far as the father’s capacity is concerned, there is no evidence to suggest that he is unable to provide for the physical needs of the two children. With regard to their emotional needs, that is an entirely different matter. The father has embarked upon years of litigation with the mother. All of his applications have been dismissed.
Disturbingly for the mother and no doubt for the two children, the father has also flagged his proposal to endeavour to have proceedings instituted pursuant to The Hague Convention given that the United Kingdom and Australia are signatories to that Convention.
That raises the prospect of further pressure and tension upon the two children, which can hardly be in their best interests so far as their emotional needs are concerned, and conceivably could impact upon them fulfilling their intellectual ability to the best of their capability to do so.
The father has engaged in abusive email with the principal of the school attended by the children. That is clear from the Affidavit of the principal, sworn on 21 November 2008. His focus in that email does not appear to be concerned with the academic progress of the children or their general development in the school so far as their relationship with the staff and their fellow pupils are concerned, but rather dedicated to criticisms of the principal and threats to her, as well as criticisms of the mother. He considered it appropriate, apparently, to provide his version of matters which are strictly personal so far as he and the mother are concerned in the course of his email to the principal. Understandably, the principal informed the father that she no longer would participate in email communication with him.
The other aspect of his capacity to provide for the emotional needs of the children, in terms of providing mature and sensitive consideration of the effect of ongoing litigation, is that he may well have mislead the Central Authority for England and Wales in terms of the proposed proceedings pursuant to The Hague Convention.
On the assumption that with respect there are, no doubt, competent lawyers employed in the Central Authority for England and Wales, I can only assume that if the father’s information is accurate, in that regard there may well be some qualification in that he may have failed to draw their attention to the orders made in the Courts of the United Kingdom which enable the mother to leave the United Kingdom to live with the two children permanently in Australia following contested proceedings in which the father appeared, as well as the notation, by consent, that subsequent proceedings between the parties would be determined in Australia as the appropriate forum. These are matters to which I will subsequently refer in my conclusion.
Consequently, I find that the father seriously lacks the appropriate capacity to provide for the benefit of the two children in relation to their emotional needs. As a consequence, there are also serious qualifications as to his lack of capacity to appreciate the impact on the emotional needs of the two children and so far as their intellectual needs are concerned, due to the ongoing pressure and tension which he has created due to the continuation of the litigation between the parties and the threat of further litigation unless his terms, as unilaterally determined by him, are met.
A further example in that regard is that the father has sought that the children live with him in the United Kingdom. On the evidence of the mother, which I have accepted, in relation to the telephone conversation that she had with the father on the evening of Sunday 7 December 2008, the father had abandoned his application for such an order and that his focus, amongst other things, was on financial matters which had long since been determined in the appropriate court in the United Kingdom.
With regard to the likely effect upon the two children of being separated from the mother and commencing to live with the father in the United Kingdom, Exhibit 4 contemplates that the two children would be able to adjust to them being relocated.
It is a source of bemusement to me that Dr W did not consider in any depth the emotional impact upon the two children of ceasing to live with the mother, who has been their primary carer almost all of their lives, not to mention the disruption to the relationship with the mother’s partner and the pleasing and good progress that they have made at their current school.
I can only conclude that perhaps that has been brought about by the paucity of information that Dr W had to consider, apart from his observations of the children for the purpose of preparation of Exhibit 4.
Consequently, I find that the likely effect upon the two children being separated from the mother, having regard to the commendable progress that they have made both in their development, in their education and generally, very much to the credit of the mother assisted by her partner, is such that the effect is likely to be one of great stress and detriment to the two children should such an order be made.
So far as the parental attitude of each of the parties is concerned, the parental attitude of the mother has been exemplary. She has provided the daily care and support of the two children against a background of much stress due to the conflicted relationship between the parties and the litigation that has continued both in the United Kingdom and in Australia on the applications of the father.
In addition, notwithstanding the father's professed concern to provide parental guidance and care for the two children, his provision of financial support by way of child support has been appalling. He has not paid one dollar for many months. There is no evidence before me from him which explains why that lamentable situation has developed. It is very much a case of the father making impressive statements as to his concern for the care and upbringing of the two children, but failing to back up those statements with meaningful action.
With regard to the proposals for the parties for the future care and upbringing of the two children and time and communication to be spent between them, on one aspect of the evidence the father still proposes that the two children live with him in the United Kingdom. On another aspect of the evidence, particularly that given by the mother, the father no longer seeks such an order.
Whilst his email, to which I have earlier referred, as one which is replete with criticisms, he fails to mention this particular matter unless it should be inferred that the proposal for a Hague Convention application is one which implicitly means that he desires the two children to live with him in the United Kingdom. However, on the other hand, he claims that not only can he not afford to take part in the proceedings in Australia, despite the fact that the proceedings were fixed to take place at a time to suit him, his email suggests that he is in a parlous financial position. If that is indeed true, then he can hardly afford to support the two children or either of them by them living with him in the United Kingdom. Consequently, the proposal of the father is one which I do not consider has any merit.
The mother's proposal is that the two children continue to live with her in their current environment. The children have progressed well in that regard and I consider her proposal to be one which is of merit, so far as the best interests of the two children are concerned. The mother also seeks an order that the father be able to communicate with them by telephone or webcam. That would seem to be appropriate, given that the father has had telephone communication with the children from time to time.
With regard to communication by way of correspondence, the father's correspondence in terms of sending the children food parcels and other small gifts, especially by sending them to the children care of the school that they attend, has been a source of stress for the two children or, at least one of them. Consequently, if that is indeed his proposal to continue to do so, then it is a proposal which I do not consider to be in the best interests of the children, given the nature of the communications, the manner in which they have been furnished and the gifts that have accompanied them.
With regard to supervised time I consider that one of the matters to take into account is the father's emotional abuse, or if not abuse, distress that he has created especially for E. He has a history of referring to her as a “monster” and otherwise using other terms of description to her which have caused her stress and upset. Whilst one can appreciate that, perhaps initially those descriptions were used in a humorous context, the fact that he has persisted with it, notwithstanding the affect upon the child and those matters having been drawn to his attention also by the mother, shows an insensitive obstinacy which is not in their best interests. I noted that he proceeded with that approach in terms of the “gift” that he provided to E during or at the conclusion of the interview with Dr W.
In addition, there has been his unbridled and unrestrained denigration of the mother as is evident from the email passing between himself and the principal of the school attended by the children, not to mention other evidence that is before me.
The benefits of supervised time will be that a supervisor may well have a moderating influence on the father so far as the manner in which he converses with the two children or either of them. That can only be for their benefit.

Conclusion

My conclusion is as follows.
The proposals of the parties are that so far as the mother is concerned she have sole parental responsibility for the two children relying upon the best interest ground in sub-section 4 of section 61DA. The father, for his part, seeks to maintain the presumption of equal shared parental responsibility provided in accordance with the provisions of section 61DA. I have determined that the mother will have sole parental responsibility on the basis that the ground in section 61DA(4) has been established. That is due to the following reasons.
There are concerns in relation to the father’s emotional health. On the evidence that I have accepted from the mother in relation to her telephone conversation with the father on 8 December 2008, he is or may be suffering from an advanced state of depression and/or anxiety. He has consulted a psychiatrist, presumably for advice and/or treatment and otherwise there is evidence to suggest that he is no longer acting in a rational manner. Exhibit 5 contains a part of the evidence to which I have referred.
In February 2006, it is recorded in the orders and/or judgment of the appropriate court in the United Kingdom, that the father would not seek residence. Yet nine months later, a residence application is made. There is no evidence before me to explain the change of approach which may have justified that application being made. As against that, there is oral evidence of the mother to which I have referred and which I have accepted, that the father was no longer seeking residence of the two children, but instead much of his focus was upon financial issues between the parties which had long since been determined by a court in the United Kingdom.
I accept the submission that the father appears to have used the litigation between the parties as a war of attrition on the mother in terms of the focus upon her, rather than being dedicated to the best interests of the children. That litigation has been continuing since 1999, as a result in each instance of an application made by the father. Whilst he was perfectly at liberty to make such applications as he considered appropriate, surely there has come a time when it required a mature, responsible and sensitive parent to consider the effects upon the two children, who he professes to love, of continuing litigation not to mention the threat of further litigation.
So far as parental responsibility is concerned, particularly so far as financial support of the two children, there has been a long period of time without payment of child support made by the father. The full burden of child support for the two children ranging from their living expenses to education and extra curricular activities has been solely born by the mother.
With regard to education, the mother has been the sole decision maker and supporter of the children in terms of their progress at their school and overcoming some past difficulties, especially so far as E is concerned. All of the school expenses have been made by her.
Communication between the parties has been poor. On the matter of the father spending time with the two children upon visits to Australia, he has not deemed it appropriate to give reasonable notice to the mother so that both the arrangements that the mother and/or the children may have made or, might have contemplated, could be varied to accommodate the periods of time that the father might wish to spend with them.
Rather on one occasion, having arrived at the mother's residence and finding that the mother and children were not there, they having still been on a holiday prior to the date on which the father might indeed have arrived to spend time with the children, his apparent reaction was to call the police. That resulted in much embarrassment for the mother and, no doubt, the children as well upon learning of the father's actions in that regard.
Recently, the mother emailed the father providing information to him in relation to a number of matters affecting the children and especially the progress that E, pleasingly, had made at school. The father’s response was one of a patronising or dominating nature and absent any response so far as the issue of E’s progress at school was concerned.
The mother has complied with parenting orders that have been made in the United Kingdom and has ensured that the children have been available to spend periods of time with the father in recent years in that country. The father’s lack of considered action in that regard so far as his visits to Australia are concerned, has been the subject of previous findings made by me.
Consequently, I have determined, as already indicated, that the ground set forth in section 61DA(4) has been established. As a result, I will make an order that the mother have sole parental responsibility for the two children.
With regard the matters of with whom the children should live and periods of time to be spent with the other parent I have determined that the children continue to live with the mother and that the father be able to have supervised periods of time with them as maybe agreed upon between the parties.
My reasons for reaching those conclusions are as follows.
The mother has been the primary carer of the two children for almost all of their lives. Despite the difficulties which may have arisen in terms of adjustment to establishing themselves in a settled environment in Australia and meeting the changes inherent in a new school and establishing a social peer network, the children have made very good progress. That is the evidence from the affidavit of the school principal to which I have earlier referred. There is no evidence to the contrary.
Apart from the daily parental support that the mother has provided and the support for the two children in terms of their education and other sporting and extra curricular activities are concerned, the mother has also been the parent to provide the financial support for the children with no contribution by the father at all for a considerable period of time.
Indeed, there is an absence of evidence from the father as to his proposals in that regard. If what he has said is correct regarding his current financial position, then quite clearly he does not have the capacity to provide for ongoing financial support for the two children, whether they live in Australia or the United Kingdom.
I am satisfied on the evidence before me that the mother will continue to provide the beneficial daily care and support for the two children that she has provided, and especially since August 2003 when they commenced to live with the mother in Australia. The children are living in a stable, positive and loving environment. There is no evidence to suggest that this is likely to change. Indeed, should they be compelled to break that nexus and those relationships and move to the United Kingdom, then I am satisfied on the evidence before me that is likely to be very much to their detriment.
With regard to periods of time that might be spent with the father, there had been previous finding, which is disturbing, of sexually inappropriate behaviour. I accept the evidence of Dr W that such a conclusion cannot be drawn so far as the current relationship between the two children and the father is concerned. However, in my view, supervision of periods of time with the father is in the best interests of the children having regard to the manner in which he has obviously determined to continue to address or refer to E, and his apparent dedication to continued denigration of or, criticisms of the mother and/or her partner.
Supervision, as has occurred for some considerable time, may result in that behaviour being more under control or, if it is not under control by the father then at least the periods of time involved can be terminated.

With regard to the terms and conditions upon which supervised periods of time might take place, I consider it is in the children’s interests for that to simply lie on the basis of the agreement, if any, reached by the parties in that respect.
The father has had opportunities to spend time with the two children in Australia this year. He has not been responsible enough to consider that he needed to provide reasonable notice. In that regard, a day or two before his intended visit is clearly unreasonable. These children are now 13 and 10. They have their own ongoing lives to lead. The mother has her own life to lead. It would seem only fundamental that some reasonable notice should be provided by the father as to his proposals in that regard so that suitable arrangements can be made by the mother and the children.
Consequently, I will leave it to the parents to make such agreement, if any, that they are able to arrive at. No doubt, if the father is able to conduct himself in a more sensitive and responsible way in the future, then such an agreement should not be difficult to conclude.
I have earlier referred to the prospect of Hague Convention proceedings. Given the orders made both in the Guildford County Court on 17 July 2003 and 21 February 2006, it would seem that if indeed the Central Authority for England and Wales is considering the father's application, then they will need their attention to drawn to those orders.
As previously referred to, it can hardly be in the children's best interests to face the prospect of further pressure and tension being heaped upon their mother with the consequential stress and anxiety that that will create for the parent who is their primary carer. In addition, it is a matter of public interest that the funds and resources of the Central Authority should not be needlessly wasted in relation to possible proceedings which, having regard to the orders to which I have referred, would not have any legal basis. Indeed, no doubt, such public resources could be better utilised for other people.
Consequently, I will make orders that the independent children’s lawyer furnish to the Central Authority for England and Wales copies of the orders that I will make today, the Reasons for Judgment, and the orders made in the Guildford County Court and the High Court of Justice Family Division on 17 July 2003 and 21 February 2006 respectively.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 18 December 2008

[2008] FamCA 1110

9 December 2008

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