Batkin and Batkin

[2014] FamCA 462

FAMILY COURT OF AUSTRALIA

BATKIN & BATKIN [2014] FamCA 462

FAMILY LAW – CHILDREN – With whom the children live and spend time – Where the parties have reached consent in relation to final parenting orders – Where the Mother has entrenched views about the Father not spending time with the children – Where the expert evidence indicates that the children’s expressed views not to see or have a relationship with the Father  are not the product of their own experiences but of the influence of their Mother – Where it is more likely than not that the children’s alienation from the Father is complete and entrenched

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725
APPLICANT:	Ms Batkin

RESPONDENT:	Mr Batkin
INDEPENDENT CHILDREN’S LAWYER:	Barbara Fox

FILE NUMBER: LEC 196 of 2008

DATE DELIVERED: 16 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Crane Paskins Law

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Andrew

Orders

It is ordered by consent that

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

It is ordered that

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

2. The matter be removed from the pending cases list.

It is directed that

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

1. That all previous parenting plans and children’s Orders be discharged

2. That the children B (DOB …/2001), N (DOB …/2002) and J (DOB …/2004) live with the Mother.           

3. That the Mother have sole parental responsibility for the children’s long term welfare care and development provided that prior to any long term decision being made the Mother advise the Father in writing of such decision. 

4. That the children spend time with and communicate with the Father at all times as agreed between the Mother and the Father but failing agreement at least:

   (a)Supervised at the [Town C] Contact Centre on each of the following occasions:

   (i)On the last Saturday prior to Christmas Day each year

   (ii)On the last Saturday prior to each child’s birthday each year

   (iii)On the last Saturday prior to the Easter holidays each year

   (b)That the Father be permitted to provide presents to the children at each of the visits as provided for in Order 4 i, ii and iii.

5. That for the purpose of the visits as provided for in Order 4i, ii and iii the Mother not personally deliver the children to the Contact Centre but arrange for a suitable adult to deliver the children to and collect them from the Contact Centre.

6. That the Father be responsible for any costs associated with the Contact Centre.

7. That pursuant to S121 of the Act the Independent Children’s Lawyer be permitted to provide a copy of these Orders to the Contact Centre.

8. That each party do all acts and sign all documents necessary to enable the Contact Centre to facilitate the supervised visits.

9. That the Mother and the Father keep each other advised of their current residential address, contact telephone numbers and email address (if any) and advise of any change within seven (7) days.

10. That the Mother forward to the Father copies of the children’s school progress reports as soon as practicable after receiving same.

11. That the Mother undertake and complete the program Parents not Partners with Interrelate (…, [Town C] Telephone …) and forward a copy of her Certificate of Completion to the Independent Children’s Lawyer and the Father.

12. That the Mother advise the Father as soon as reasonably practicable should any of the children require emergency medical treatment of a life threatening nature.

13. That neither party denigrate the other to or in the presence or hearing of the children.

14. That the Mother not discuss these proceedings to or in the presence or hearing of the children.

15. That the Order for the appointment of the Independent Children’s Lawyer be discharged upon one of the following events taking place:

    (a)The expiry of six (6) months from the date of Order; or

    (b)Upon the Mother’s completion of the Parents not Partners program.

16. That in relation to Order 3 above, in the exercise of her sole parental responsibility:

    (i)Consent of the Father be dispensed with by the Department of Immigration or other relevant Government agency in the issue of Australian Passports for either child

    (ii)That should the children be traveling outside the Commonwealth of Australia the Mother shall inform the Father of such travel plans prior to departure from Australia.

NOTATION

Should the time ordered between the children and the Father not occur without reasonable excuse the Father shall have liberty to re list the matter with a view to altering the parenting arrangements.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Batkin & Batkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 196 of 2008

Ms Batkin

Applicant

And

Mr Batkin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings within the meaning of Part VII of the Family Law Act 1975 (Cth) concern three children, namely B, born in 2001 who is now 13 years of age; N, born in 2002 now 11 years of age and J, born in 2004 now nine years of age. The parties married in March 2001 and finally separated as long ago as October 2007. Their relationship thus subsisted for about six years and produced the three children referred to.

2. These proceedings have been on foot for a long time.  They have been subject to a number of interventions by Court order but more particularly by involvement of experts.  The family report most recently obtained from the psychologist Mr S sets out the feature that he himself completed a report entitled “A Child and Parent Assessment” on 12 March 2010.  There have also been two family reports completed in the matter by Mr D, dated 26 August 2010 and 18 July 2011. 

3. Reasons for judgment in the matter along the way have been delivered by each of Demack FM (as her Honour then was); by Murphy J and by me.  These collectively record the relevant history.  There has been a counselling report completed by the psychologist Ms P on 30 March 2012 and two memoranda to the Court by the family consultant Ms A on each of 28 October 2013 and 18 March 2014.  As Mr S notes, each of these documents contain extensive histories on this matter.

4. Mr S’s report adds to that history by setting out in detail the issues surrounding this case.  It is the Mother’s case that during the relationship the Father perpetrated family violence upon her.  The Father denies that.  It is the Mother’s case that the refusal of the children to see or spend time with the Father is because of, amongst other things, their witnessing his conduct towards her during the relationship and other matters she alleges, such as an assertion that he attempted to interfere with vehicles, potentially putting the lives of her and the children at risk, that he removed assets from her, including a vehicle and other like conduct.  Of course, it is the Father’s case that all of those allegations are in issue. 

5. The trial set down for today ultimately did not proceed as a trial, because the parties have reached substantial agreement on consent orders, thus the allegations historically advanced are not to be tested in a trial process.  However, what is striking about this case is that each and every expert who has reviewed the matter, with the benefit of interviews of the parties and of the children, seems to have reached a firm conclusion that the children’s responses, in terms of their refusal to see the Father or expressed views not to have a relationship with him, are the product not of their own experiences but of the influence of their Mother.

6. It is to be noted that at the time these parties separated the boys were respectively six, five and three years of age.  In particular, for the youngest son the proposition that at the age of three he brings to mind thereafter matters he himself is said to have observed is preposterous. 

7. The Family Law Act 1975 (Cth), like any legislation, is passed by the Parliament as a reflection of community standards. Part VII, importantly, sets out in s 60B the objects of Part VII and the principles which underline those objects. Section 60B(1) records that the object of Part VII is to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

8. In the provision that governs how the court determines the best interests of children, one of the primary considerations the court must have regard to, set out in s 60CC(2), is the benefit to the child of having a meaningful relationship with both of the child’s parents.  It needs to be understood that these are not some highfaluting kinds of expressions of aims that are not based in reality.  We know in this Court from an abundance of social science evidence that there are serious risks to the healthy development of children if they are denied a relationship with both of their parents or with one parent.  We know that a particular view one parent may have of the other must give way in the interests of the children when the Court comes to formulate orders to be made in the best interests of those children.

9. Counsel for the Independent Children’s Lawyer has drawn the Court’s attention to a number of paragraphs of the current family report.  Read as a whole, the message loud and clear through the family report is that yet again, and by that I mean on top of the earlier expert commentary throughout the currency of this matter, there are observations to the effect that whatever may have been the dynamics of the parental relationship, it is patently obvious that the Mother has had a determined approach to ensure that these boys adopt her view of the world and her view of the Father and what role he should play in their lives, namely little or none. 

10. The Mother ought carefully read Mr S’s commentary concerning the future for her in terms of its potential, so far as these boys are concerned.  Again, from experience in many cases, we know that parents often reap what they sow.  That is, if they act to alienate children from another parent by imposing upon their children their own views of that parent and their own views of the world, increasingly as their children age and become independent and become capable of forming their own views, children may come to realise that they have lost an important relationship to them through nothing other than the conduct of the parent who has perpetrated that kind of conduct.

11. I have no doubt that the Mother will walk away from this case feeling vindicated in terms of her conduct.  She will walk away thinking that she was perfectly justified in all that she has done because there is no real benefit for these children to have a relationship with their Father.  However, I am satisfied on the expert evidence produced, including that of Mr S, untested as it is, that there is good reason for the Mother to pause for thought for what the future may hold when her boys are able to form their own views independently of her. 

12. The proposed consent orders by no means represent an optimal outcome for these boys.  They provide for only modest visits and then only supervised at a contact centre three times a year prior to Christmas and Easter and each of the children’s birthdays.  There cannot be any question that by reason of the Mother’s conduct these boys do not currently have what could be described as a meaningful relationship with their Father and it is unlikely they will be able to establish one, even if these orders are complied with.  All that these orders achieve is the prospect that at least by having some contact or connection with the Father, the boys may well be able to form their own views when they reach an age and level of maturity to do so as to the nature of their relationships with the Father.

13. It is for those reasons that I make orders in terms of the consent orders that have been signed by the parties, now initialled by me and placed with the file. 

14. The tragic feature of this case is that the Court was not asked to intervene at an earlier stage than occurred and did not have a trial of the issues at an earlier stage, where the outcome might have been different to the outcome now represented by these Court orders.  To the extent that the Mother leaves this Court feeling that she has triumphed, I would suggest that what she has won for these boys is the prospect of compromise for the healthy development of her children, by reason of this outcome. 

15. The Notation to the Orders reflects that there ought be no barrier, in terms of what is known as the “rule” in Rice & Asplund (1979) FLC 90-725, should the Mother fail to comply with these limited time Orders. That is, that the Father be at liberty to reactivate parenting proceedings if the Mother contravenes without reasonable excuse.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 June 2014.

Associate:

Date: 16 June 2014