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Roberts & Waters: Risk of harm to the child

On the 31st of January, 2014, the Family Court handed down the decision of Roberts & Waters [2014] FAMCA 34 (referred to as R & W); it involved the best interests of the child, and determined whether the father posed an unacceptable risk of harm to the child.

The Family Law Act 1975 (Cth) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated – unless, of course, it is contrary to the child’s best interests. That said, an important aspect of this objective is protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This very issue of family violence was a concern in R&W.

R&W involved a separated couple and their child from the relationship, a five-and-a-half-year-old boy. The couple met while the father was a prison inmate, serving time for a charge relating to attempted murder; he also had a lengthy criminal history, including two convictions for assault. Once he was released from prison in 2005, R & W were in a relationship for a few years, but separated in 2009.

The child continued to live with the mother after the separation, and at one point the mother sought an AVO against the father for her protection, which he was charged with contravening. Various interim orders were made for the father to spend time with the child; however, only one overnight visit with the father was permitted by the mother.

Ultimately, the mother and father did agree that once the child was of school age, overnight visits with his father were in his best interest; the mother had no concern that the father would ever harm his child. However in the meantime, “she did not believe that he had any understanding of the emotional and developmental needs of young children”.

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that while the child had developed a good relationship with his father, she had serious concerns about the father’s parenting capacity and – without a psychiatric assessment- could not make recommendations about the time that the child should spend with him.

Justice Kent considered the submission made by the Family Consultant, as well as the submission made by a consultant psychiatrist who carried out a psychiatric assessment on each of the parents.

His Honour said that he was “not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child”, and noted that the mother had ultimately consented to the child having overnight time with the father.

While Justice Kent still considered whether the father’s behaviour raised concerns about an unacceptable risk of harm to the child, he determined that he was not satisfied that the father’s time with the child should be restricted because of his behaviour.

As a result, it was ordered that the child was to live with the mother, while also spending regular weekends and time during the school holidays with the father.

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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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