Messina & Obelink
[2021] FamCA 471
•30 June 2021
FAMILY COURT OF AUSTRALIA
Messina & Obelink [2021] FamCA 471
File number(s): DGC 944 of 2015 Judgment of: BENNETT J Date of judgment: 30 June 2021 Catchwords: FAMILY LAW – PARENTING – high parental conflict.
FAMILY LAW – PARENTING – urgent parenting injunction sought in context of COVID-19 pandemic – where mother seeks to restrain father from removing child from Victoria whilst spending school holiday time with child.
FAMILY LAW – INJUNCTION – where scope of court’s injunctive power in relation to children is confined by requirements that the injunction be made with the best interests of the child as the paramount consideration and that the injunction is appropriate.
FAMILY LAW – INJUNCTION – where mothers concerned about risk to child of contracting COVID-19 in transit and within a zone designated as active for COVID-19 infection – where removing child outside Victoria will make mother anxious and may require her to quarantine child at home once child is returned to her care – where injunction granted.
FAMILY LAW – PARENTING – where parents required to give one another at least 7 days’ notice prior to any change of residential address or contact details.
Legislation: Family Law Act 1975 (Cth) Cases cited: Kardos & Harmon [2020] FamCA 328
Oberlin & Infeld [2021] FamCAFC 66
Number of paragraphs: [35] Date of hearing: 30 June 2021 Place: Melbourne Solicitor for the Applicant: Mr Messina In Person Solicitor for the Respondent: Ms Obelink In Person ORDERS
DGC 944 of 2015 BETWEEN: MR MESSINA
Applicant
AND: MS OBELINK
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
30 JUNE 2021
IT IS ORDERED THAT:
1.There be permission for the mother to make an oral application to enjoin the father from causing permitting or suffering the removal of the child B born … 2014 (“B”) from Victoria during the upcoming period of school holiday time to which the father is entitled pursuant to paragraph 10(b) of the Order made on 4 October 2019, being from 10 a.m. on Saturday 3 July 2021 to 5:00 p.m. on Sunday 11 July 2021, and I hereby waive compliance by the mother and the father with the Family Law Rules 2004 which require that an application or response thereto be in a prescribed form and filed with the Court.
2.The email from the mother dated today at 1:15pm be marked “Exhibit C1” and remain on the Court file.
3.The email from the father dated Tuesday 28 June 2021 at 11:10pm be marked “Exhibit C2” and remain on the Court file.
4.The father be and is hereby restrained by injunction from causing permitting or suffering the removal of B from the State of Victoria during the upcoming period of school holiday time to which the father is entitled pursuant to paragraph 10(b) of the Order made on 4 October 2019, being from 10 a.m. on Saturday 3 July 2021 to 5:00 p.m. on Sunday 11 July 2021.
5.Notwithstanding any earlier order, the parents each notify the other of any change in his/her residential address and contact details (including email, mobile telephone, landline) within 7 days prior to such change AND IT IS NOTED that the father has today notified the mother of his new residential address as from 2 July 2021 and is excused from compliance with this Order as to 7 days’ notice of his change of residence in this instance.
6.The parents are each entitled to share these reasons for decision with members of their household as well as the maternal and paternal grandparents but are otherwise aware of s121 of the Family Law Act 1975.
7.Paragraphs 1 to 11 and 13 to 14 of the Order made on 11 June 2021 continue in full force and effect AND IT IS NOTED for case management purposes that:
(a)A Family Dispute Resolution Conference is appointed for 2 and 4 August 2021;
(b)The matter is otherwise adjourned to 16 August 2021 at 2:00 p.m.
8.My reason for decisions be transcribed.
9.That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
AND IT IS NOTED THAT the mother has sought details of other occupants of the residents of the father on an ongoing basis.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Messina & Obelink has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
EX TEMPORE REASONS FOR JUDGMENT
Bennett J:
This matter comes before me on an urgent oral application of the mother for an injunction to restrain the father from taking their child, B, who is six and a-half years old, out of Victoria during his entitlement to spend a week of school term holiday time with B. The father’s time is to commence at 10 am on Saturday 3 July and conclude at 5 pm on Sunday 11 July 2021. The application was initiated by the mother by email to my associate today, received at 1.15 pm and it is being at heard at 4 pm. The email will be marked exhibit “C1” and remain on the court file.
The injunction is opposed by the father who says that it is unnecessary, restrictive and that he does not, in any event, still intend to take the child to Town X in Queensland, although he is considering taking the child to South Australia.
It is necessary to provide some context to the application and therefore my determination of the current application for urgent injunctive relief.
Wilson J transferred this matter from his judicial duty list in June 2021 as the family then required a defended hearing which I could accommodate on 11 June 2021. That was the family’s 27th court hearing and, I think, the first time I had dealt with the file. Both parents were, and remain, self-represented. The father’s application is for 515.5 hours of makeup time with B. The mother opposes the application but in the running of the matter was amenable to some extra time occurring.
The father is 44 years old and is employed in hospitality in Town K, earning, he says, $30,000 per annum. The father is moving into handyman work on a self-employment basis and expects business to be brisk, given the property damage recently caused by storms in Victoria. He and his partner, Ms Q, also operate a business at a Sunday market. Ms Q is 50 years old and the husband says she is a specialist educator who’s employed internationally. Ms Q has no formal qualifications. She’s working in retail because she cannot fly overseas due to the pandemic. The father is assessed to pay $55 per annum in child support for B. He has not put in a tax return for 10 years, notwithstanding that he has lived and worked in Australia for at least the last six years.
The mother is 39 years old. She’s a full-time mother and student and has other tertiary degrees. The mother and B reside with the maternal grandparents, Mr L Obelink, who is 67 years old, and Ms M Obelink, who is 65 years old, in Town J. The mother has not repartnered. The mother was under the treatment of a psychologist or mental health professional until approximately three years ago when she moved to Town J and was told that she no longer required mental health support.
B is the only child of either parent. He has a medical condition which is under control at the moment. B was previously attending speech pathology sessions each fortnight, but the mother has now altered that arrangement. The speech pathology has been integrated with some kind of literacy intervention, and B has those sessions each week on a Thursday afternoon. B attends Grade 1 at the local government school, F Primary School. He is doing mathematics at an accelerated level. As best I could understand when the matter was before me on 11 June, there were no relevant religious or cultural conflicts between the parents or affecting B.
B is clearly loved and cherished as the only child of both parents.
By way of further background, the parents met on the internet in Easter 2013. They commenced cohabitation in December 2013. They separated in February 2015 when the mother took B and went to live in a property owned by her parents in Melbourne. Proceedings were instituted in the Federal Circuit Court of Australia in April 2015, at which time, I calculate, B would have been approximately six months old. His interests were represented by an independent children’s lawyer. Final parenting orders were made on 1 October 2015 (Judge Curtain). A further set of final parenting orders were made on 4 October 2019. As indicated, there have been many applications and hearings about B in both family courts.
As at 11 June 2021, the parents lived at considerable distance from one another, the mother and B live in Town J and the father has been living at Town H near Town K. During the hearing on 11 June 2021 the father informed the mother, for the first time, that he was using the paternal grandfather’s home which is close to the mother’s residence. This was because of storm damage and interrupted services to his home in Town H. The mother was amenable to some mid-week time as a special event. The mother has a sound and positive relationship with the paternal grandfather. Whilst the paternal grandfather is selling his property near the mother and is currently boating in Queensland, I gather that the paternal grandfather’s home is familiar to B.
On 11 June 2021 I made orders which, inter alia, provided:
10. The father spend additional time with B from after school until 6:30pm on Wednesday 16 June, 23 June, 14 July, 21 July 2021 subject to the following conditions;
a. the father be responsible for collecting B from school and, if B is not at school from the mother’s residence at BB Street, Town J;
b. the father be entitled to take B to Town CC or Town DD not frequently than on half of the occasions and otherwise the time be exercised in Mornington;
11. The father spend time with B, being additional to paragraph 10(a) of the Order made 4 October 2019, from 5pm on Sunday 13 June to 5pm on Monday 14 June 2021.
12. The father spend time with B during the upcoming school holiday, additional to the time provided for in paragraph 10 (b) of the Order made on 4 October 2019 from 10am on Thursday 1 July 2021 until 10am on Saturday 3 July 2021 subject to the following conditions;
a. The border between Queensland and Victoria being open for flights from Melbourne as at 12 noon on Monday 28 June 2021;
b. There being no requirement for persons travelling from Queensland to Victoria or Victoria to Queensland to serve any period of quarantine, including home quarantine, as at 10 am on Thursday 1 July 2021;
c. The father having provided to the mother in writing and itinerary for himself and B by not later than 10am on Saturday 26 June 2021 disclosing flight details, daily accommodation and contact details -
And in the event that any condition is not met the father have the school holiday time from 10am on Saturday 3 July to 5pm on Sunday 11 July 2021.
The restriction on midweek visits being used to go to Town DD or Town CC was because, when pressed, the father said that he would likely take B to visit his friends and their families in nearby towns. The mother cannot dictate what the father does when B is in his care. However, a feature of the extra time which I ordered, after extensive discussions with the parents, is that it can be enjoyed easily and locally to where B resides as opposed to the father’s alternate weekend time which involves a many hours in the car for B. I understand that the paternal grandfather’s home is available to the father until such time as it is sold, subject to it being kept in good order for inspections. The father should be careful not to dilute this extra time with B by introducing his adult friends and their families into the mix.
Notably, on 11 June 2021, the parents self-identified as parties to a highly conflictual relationship of toxic intensity. One commented that the private family report writer, Mr D, described them as the worst case of high parental conflict he had seen. Also notably, the father commented that the mother’s attitude had improved, which I took to mean that he thought that she had relaxed somewhat since 2019. The parental relationship is obviously problematic. It is a large court file. There are numerous social science reports on the court file. There is a report from Dr E, psychologist, dated 29 November 2017, a report Dr U, psychiatrist, dated 13 November 2017, and four reports by Mr D, consultant psychologist and family report writer, dated 31 August 2015, 31 May 2017, 20 November 2017 and 13 June 2018. There was also oral evidence by some of those practitioners – including Mr D’s report at final hearing, which was oral. I will order a transcript of Mr D’s oral evidence at the final hearing if the transcript is not already on the file.
Relevantly, when the matter was before me on 11 June 2021, the father informed the mother for the first time that he intended to take B to Town X in Queensland during the upcoming school holidays. He did this in the context of wanting to enlarge his school holiday time with B, to enable B to go sailing with the paternal grandfather on the grandfather’s yacht which is moored at Town X. This was in addition to the father’s arrangements for him and B to travel with two of the father’s friends and their respective families, stay at the Gold Coast, go to a theme park near Brisbane and then holiday in Town X.
The Order of 11 June 2021 made provision for extra time between the father and B to sail with the paternal grandfather, but put in place a self-executing regime to allow for possible shutdowns of parts of Victoria or Queensland due to the COVID-19 pandemic. South East Queensland is currently designated a red zone. To re-enter Victoria, having been in a red zone, there is a requirement to travel directly home, be tested for COVID-19 and quarantine for 14 days.
It is apparently common ground now that the father’s time will commence on 3 July 2021. The mother brought her application urgently because she was concerned that the father will still take B to Queensland during his holiday time which commences on 3 July 2021.
The immediate background to the mother’s application for an urgent injunction is contained in email communications. On Tuesday, 29 June 2021 at 1.08 pm the mother wrote to the father asking the following:
Hi [Mr Messina], further to last night’s email and based on the most recent update regarding Australia’s COVID situation – that is Queensland lockdown beginning at 6 pm tonight and going until 6 pm on Friday – and Victoria’s unchanged quarantine requirements, etcetera, please confirm in writing via reply to this email that you consent to spending your term 2 holiday time with [B] exclusively in Victoria. As you know orders 12(b) and 12(c) means that your Queensland holiday may not proceed and [B’s] time with you will commence at 10 am on Saturday, 3 July 2021.
The father’s response was made last night, Tuesday, 29 June 202 at 11.10 pm, and is interspersed into the mother’s communication to him, which is marked exhibit “C2”. Extracted, the father’s response was as follows:
At this time neither Queensland nor Victoria are implementing any quarantine. COVID rules in any state are fluid. In Court we weren’t sure if Greater Melbourne would be allowed to go to Queensland for the holidays. And now we are faced with a decision of whether, as a Melbournian, you would want to go – you’d want to! Not being a lawyer, I’m not sure this is true. But legally or not I’m not prepared to take [B] to Queensland under current circumstances on the 1st [1st July 2021]. I’m pretty sure this was the spirit of the order and as such I understand our time starts Saturday.
My observation is that the mother asked a straightforward question seeking an assurance from the father that B would not be taken out of Victoria during the forthcoming school holiday period. However, the father elected not to give a direct response, to the effect that he had cancelled the trip to Queensland and/or that they would not leave Victoria during the holidays.
Today, before me, the father said that he is proposing not to take the child to Queensland for any part of the forthcoming school holidays. It was not suggested that he had ever told the mother or given the mother that assurance. I asked him what objection he has to being restrained from taking the child outside Victoria. He responded with words to the effect that, “Well I’m going to talk to B tonight about where he might like to go.” The father suggested they may go to Town FF in South Australia or Town GG, dependent upon whether B said he wanted to go to a beach.
When the matter was before me on 11 June 2021 I explained to the parents that it would be reasonable and responsible for each to notify the other of special places to which they might take B rather than leave B to tell the other parent himself. This is to avoid the child being put in the position of conflict or embarrassment when he had, for instance, to tell the mother that his father was taking him to Queensland. It is the cognitive dissonance which besets children in cases of high parental conflict, such as this case. As it turned out, B had not mentioned to his mother that the father was taking him to Queensland. The father agreed that B knew that he would be going to Queensland and that B would have felt nervous about disclosing those plans to the mother. It is an invidious and entirely inappropriate position in which to put the child. It appears, as the father was considering discussing a trip to Town FF with B tonight by telephone (without notice to the mother), that the father has missed this point about easing the emotional burden on B of his parents’ conflictual relationship.
The basis for the mother’s concerns about going to Queensland are consistent with the concerns which are all over our print media, aired on television and on the radio.
·Taking a child interstate exposes a child to a risk of infection in transit and at the destination.
·In the event that the father was to take the child out of Victoria or into a zone where COVID-19 has been detected, it may also render the mother to whom the child is returned responsible for putting the child into quarantine at home for some specific days – and/or having the child undergo a COVID-19 test which is not a pleasant experience.
·No one knows where the next zones of COVID-19 infection will be.
Taking the child outside Victoria at this stage is likely to cause the mother anxiety which is not in the best interests of the child because it is likely to impact on the child’s relationship with the mother and, indeed, the child’s relationship with the father upon the child being returned to the mother.
This matter comes before me as a Division 12A matter under Part VII of the Family Law Act 1975. Therefore, the rules in relation to evidence are somewhat relaxed. Apart from that there is the recent and helpful decision by the Deputy Chief Justice in the matter of Kardos & Harmon [2020] FamCA 328 in which the Deputy Chief Justice discusses the applicability of section 144 of the Evidence Act and the Court’s entitlement to take into account matters of common knowledge in the location in which the proceeding is being held or generally:
67.As I have noted, in bringing these proceedings, the father has relied upon “information he has obtained from government bodies.” In appropriate circumstances, such information is potentially admissible in Court proceedings.
68. Section 144 of the Evidence Act provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
I am satisfied that the restrictions about where Victorian children can be taken during this current term school holiday is a matter of common knowledge in Melbourne (where this proceeding is being held). Indeed, one cannot avoid commentary about border closures and restrictions and conditions on movement between states when turning on any local news medium. Each state and territory has a Chief Medical Officer who gives directions which have the force of law. Those directions are communicated through the media.
Turning to the legal considerations, today’s dispute between the parents is confined to this current school holiday and where it will be spent. The mother has sole parental responsibility for major long term decisions in relation to B’s health and education but is not placing reliance on that responsibility in this application. Neither is the father seeking to alter the current order about parental responsibility. Accordingly, considerations under s61DA, as to a presumption in favour of equal shared parental responsibility, do not arise.
The injunction ought by the mother is an injunction that the court has power to make pursuant to Section 68B(1) of the Act which provides, inter alia, that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child including an injunction for the personal protection of the child. The prerequisites for exercise of the injunctive power in children’s cases are that in making the order I must have regard to B’s best interests as the paramount consideration, within the meaning of s60CA of the Act and that I be satisfied that the injunction as “appropriate” within the meaning of s68B of the Act.
There is a recently published decision of the Full Court of this Court in Oberlin & Infeld [2021] FamCAFC 66. In my opinion, insofar as the Full Court in Oberlin & Infeld discusses the breadth of the court’s power under s68B, I would confine their Honours’ comments in that case to the facts of the case.
In determining what is in B’s best interests, I take into account the s60CC considerations. I have regard to the need to protect B from harm including unnecessary exposure to the COVID-19 virus and its successive strains[1]. I have regard to the potentially negative impact on the mother’s parenting capacity of her anxiety about B travelling in and out of orange and red zones. I have regard to each parent lacking the capacity to shield B from parental conflict[2]. I have regard to the father’s refusal to put the mother’s mind at rest by saying, when asked, that he had cancelled the arrangements to take B to South East Queensland. It would have been such an easy step for him to take and the fact that he did not do so reflects somewhat poorly on his responsibilities toward parenthood[3]. I am satisfied that B is looking forward to spending time with the father. Given that he is only six years old, I would not accord B’s views about holiday destination any weight[4]. B’s relationship with each parent is such that he will enjoy this holiday in their company[5].
[1] S.60CC(2)(b) of the Act.
[2] S.60CC(3)(f) of the Act.
[3] S.60CC(3)(i) of the Act.
[4] S.60CC(3)(a) of the Act.
[5]S.60CC(3)(b) of the Act.
I am satisfied that it is appropriate to enjoin the father from taking B out of Victoria and I will do so.
Insofar as the injunction precludes the father from taking B across state borders this holiday, it is an injunction as described in s68B(1)(a) for B’s personal protection from the risk of infection from COVID-19 and related virus. However, it is also an injunction which is appropriate for the welfare of the child within the meaning of s68B(1) and otherwise than as described in sub-paragraphs (a) to (d) of s68B(1). I am satisfied that it is appropriate to protect B’s usual routine with the mother and to avoid a situation where the mother is required to home quarantine B, herself and possibly her parents on B’s return from spending time with the father in an infected zone, which would also impede his ability to start Term 3 with other students. It is appropriate for B’s welfare that he be protected from the discomfort of a COVID-19 test unless such a test is necessary. It is positive for B’s welfare that the mother not be made unduly anxious. S68B(1) is a standalone power. Sub-paragraphs (a) to (d) of s68B(1) are examples of orders or injunctions which the court may “consider appropriate for the welfare of the child”. Those sub-paragraphs are to be read inclusively and not as limiting the operation of the court’s broad, standalone power to make orders or injunctions which it is satisfied are “appropriate for the welfare of the child”.
The mother also raised the issue of the husband’s place of abode. Final orders made in 2019 (McEvoy J) apparently require the parents to notify each other of a change in their residential address or telephone details or email particulars within 48 hours. Unfortunately, that order only requires notification to be given up to 48 hours following any change. It is reasonable, where time permits, that the other parent would know as soon as possible of a change in those details concerning the other parent’s place of residence. Accordingly, I have altered the order to require that not less than seven days’ notice be given by one parent to the other of changes of residence or contact details prior to such change. There is an exception in this case because, as he informed the court and the mother today, he proposes to leave his current residence near Town K in only two days and by 2 July 2021 he will be residing temporarily at HH Street, Suburb JJ until he secures and moves into some private rental accommodation in the area of Suburb KK or Town J. The father is obliged to give not less than seven days’ notice of his change of address. Presumably, the father will commit to living in a certain property when he signs the lease for that property. He may be in a position to provide the mother with considerably more notice than the seven days required by my order.
The father tried to make an oral application that the mother be similarly restrained by injunction from removing B from Victoria. I take it that he was referring cross border movement during the current school term holidays. The mother has stated that she has no intention of removing the child from Victoria for the current school holidays. No part of the extensive discussion between the parties and the court, either today or on 11 June 2021, has disclosed that interstate travel is being contemplated by the mother. I will not grant leave to the father to make an oral application for an injunction in those terms. It is not appropriate to have a tit-for-tat injunction. An injunction should address a real and present need. In this case the real and present need that requires the father to be enjoined is that he did not give the mother a straight answer when he could have last night by email and, today, indicated that he was considering going to Town FF. He will now stay within Victoria. The father has stated that he will be able to have a very happy time with B, and B with him, in Victoria. The father’s relationship with B is meaningful and their time together will be meaningful[6].
[6]S.60CC(2)(a) of the Act.
Finally, the mother has raised whether she is entitled to know with whom the child is residing when in the care of the father. I am not going to make any further orders at this hearing, which has been convened urgently and has gone well past normal court hours. This is one of the matters that the parties can discuss at the upcoming family dispute resolution conference. The father’s application for 515.5 hours of make-up time with B is still pending. On 11 June 2021 I ordered, inter alia:
2.Pursuant to Section 13C(1)(b) of the Family Law Act 1975, the parties and their legal representatives (if any) shall attend a confidential Family Dispute Resolution Conference between 9.00am and 4.00pm on 5 August 2021 with a Registrar (Family Dispute Resolution Practitioner) and Family Counsellor of the Family Court of Australia.
3.The parties and their legal representatives (if any) shall attend Part 1 of the confidential Family Dispute Resolution Conference with a registrar (Family Dispute Resolution Practitioner) or Family Counsellor on 2 August 2021 at the following times:
a. the Applicant at 2.30 pm ;
b. the Respondent at 3.15 pm.
[…]
AND IT IS NOTED that the mother’s response to the father’s Application in a Case is that, having regard to the extra time provided for in paragraphs 10, 11 and 12 of this Order, no further make up time between the father and the child, B born … 2014, should be ordered.
9.The further hearing of the father’s application and the mother’s response be adjourned to me on 16 August 2021 at 2pm for final determination.
For the above reasons, I make the Order set out at the commencement of this decisions and do so with B’s best interests as the paramount consideration.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 5 July 2021
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