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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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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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