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Batkin & Batkin: Mother to be arrested if she continues to disobey orders

The recent family law case of Batkin & Batkin [2013] FamCA 44 involved a separated couple and three children that had been born of the relationship.

The trial initially came before Justice Murphy in November 2011.  At the time, Murphy J adjourned the parenting trial until February 2013, and made interim parenting orders by consent of the parties (referred to as the 2011 Orders).

The aim of the 2011 Orders was to reintroduce the father into the lives of the children; they’d had no direct time with him for over four years, due to a “longstanding dysfunctional relationship” between the parents.

The 2011 Orders included orders to engage with a therapist, and follow directions given by the therapist, with a view to re-establishing the relationship between the children and the father.

However, at the commencement of the final trial of parenting proceedings in February 2013, affidavit evidence submitted by the therapist disclosed that:

 

  • the mother had opted out of the counselling process following the 2011 Orders, and that she had indicated to the therapist by way of SMS message that this was “because the boys do not wish to see their father”; and
  • the boys did not express any concern about spending time with their father, they appeared more to be echoing the views of their mother rather than expressing their own independently-formed opinions.

In reviewing the evidence, the Court observed that the mother “appears to have a complete block so far as recognising the needs of [the] children to be able to form their own views of their father”.

As a result, Justice Kent was concerned that the boys had no opportunity to form their own views of the father; they had simply “regurgitate[d] the views expressed by the mother…and…her negative views of [the father].”

As a consequence, Justice Kent was concerned not to make final parenting orders in the matter until the father had a proper opportunity to re-engage with the lives of his sons, and to demonstrate to the Court that spending unsupervised time with them was in their best interests.

The Court therefore adjourned the final hearing and made interim parenting orders, which included:

  • the father would spend four hours per month supervised time with the boys at a nominated contact centre; and
  • at the end of six months, a report would be produced about the outcome of the father’s time with the boys to assess the father’s wish to graduate ultimately to unsupervised time with the boys each alternate weekend.

To ensure that the mother did not continue to obstruct the process, Kent J also included orders which provided that a warrant be issued for the mother’s arrest should she not deliver the boys to the contact centre at the times required.

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Allenby & Kimble: De facto relationship declared to have existed

On 2 August 2012, the Family Court of Australia handed down the decision of Allenby & Kimble [2012] FamCA 614 (referred to as A & K).

A & K involved competing declarations sought by each party under s90RD Family Law Act 1975 (Cth) (FL Act); essentially, the court had to determine whether their relationship constituted a proper de facto relationship under the FL Act.

Courts are generally asked to determine this issue in the context of property claims made by one party against the other party to the relationship. However, property settlement claims cannot be made unless the parties were either married or in a de facto relationship.

 

The FL Act provides that two people will be in a de facto relationship if they lived “together as a couple on a genuine domestic basis”.

The legislation does not define precisely what constitutes a ‘genuine domestic relationship’; however, when determining the issue a court will have regard to various matters, such as the duration of the relationship, the nature and extent of their common residence, the care and support of children and several other factors which you can read about here.

In A & K, Ms Allenby sought a declaration from the Family Court that her relationship with Mr Kimble was a de facto relationship; Mr Kimble disputed that they had a de facto relationship of the kind contemplated by the F L Act.

Ms Allenby and Mr Kimble had been in a relationship for approximately 10 years, but only lived together over the last five of those years. They did not own property together, nor did they pool resources, but they did attend family events together, spend time with each other’s family and travel together.

Upon reviewing the legislation, case law and evidence, Justice Murphy concluded that the parties were in a de facto relationship, and that such relationship had subsisted for a period which included two continuous years up to the date of separation.

His Honour attached particular weight to factors such as that the couple had shared the master bedroom, and that the relationship moved from ‘separateness’ to a cohabitation.

Having overcome this threshold issue, Ms Allenby was free to pursue her property claims against Mr Kimble under the property settlement provisions of the FL Act.

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