Brunton and Reik

[2014] FamCA 1045

FAMILY COURT OF AUSTRALIA

BRUNTON & REIK [2014] FamCA 1045

FAMILY LAW – Injunction re schooling – Refused.

Family Law Act 1975 (Cth)

APPLICANT: Mr Brunton

RESPONDENT: Ms Reik

FILE NUMBER: MLC 7374 of 2013

DATE DELIVERED: 3 October 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Ms Byrnes

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

1. That BY CONSENT there be interim orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That the application for injunctive relief by the husband is otherwise dismissed.

4. That the interim applications of both parties are otherwise dismissed.

5. That all extant applications for final orders are listed to a FIRST DAY before the Honourable Justice Cronin at 2.15 pm on 3 November 2014 for the purposes of listing the matter for final hearing.

6. That the parties and if represented, their legal practitioners, attend the first day of hearing.

7. That notwithstanding applications/responses have already been filed:

8. by 4 pm on 17 October 2014, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

9. by 4 pm on 30 October 2014, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

10. That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

11. That pursuant to s.65DA(2) and s.62B, 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Reik 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 MELBOURNE

FILE NUMBER: MLC 7374 of 2013

Mr Brunton

Applicant

And

Ms Reik

Respondent

REASONS FOR JUDGMENT

1. This is a matter that came out of the judicial duty list.  As a result of some sensible discussion, not only between the parties and counsel, many of the issues that started the proceedings have now evaporated and the parties will focus on getting on with the rest of their lives and ending this dispute within a very short space of time.

2. I have two sets of minutes that either contain consent agreements and the matters are not proceeding.  The one specific issue that requires determination for the court is whether or not the court should grant an injunction precluding the wife from removing the children from their schools.

3. The wife’s position is relatively simple.  She says she does not intend to.  The husband points to a statement that was apparently made in a confidential conference, which the registrar has noted on the order, that the wife did not intend, in the near future, to make any alteration to schooling.

4. It does not seem to me that this really is an injunction that fits within s 114 and it clearly is not an injunction relating to the child in s 68B.  Therefore, it must fit within the definition of a parenting order and s 64B(2)(i), which relates to the aspects of care, welfare and development of the child or any other issue relating to parental responsibility.

5. There is a power to make that sort of injunctive order.  But an injunction should only be made if it is proper.

6. The evidence here shows a lack of trust of the parties in relation to each other.  The husband says the wife said she was not going to move away but did.  The children are about to embark, at least, on the last term of this year, on a trip from Suburb B across to north eastern areas of Melbourne.

7. The difficulty with an injunction of that nature, is that it must be based on evidence that has an impact on the welfare of the child.  Supposition, in my view, is not sufficient.  There is no evidence in this case, that these children will be adversely affected by that trip.

8. It is not the time that you spend with a child but what you do with the child that counts.  Children learn from their parents.  If a parent is driving a child for two hours on a contact collection or drop off visit, so much depends on how the child is organised and the sorts of conversations that take place.

9. In my view, there would not be sufficient evidence to say it is proper to make the injunction even though there has been a consensus, some time in February, that the wife was not going to move.  The Full Court said in Goode & Goode, in a parenting issue, the court should not endeavour to try and guess at what actually happened.  I will not do so here. In my view, there is not sufficient evidence to grant the order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 October 2014.

Associate: 

Date:  14 November 2014