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…
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CaseChat Overview and Summary
The court was required to determine whether to grant an urgent injunction restraining the father from removing the child from Victoria during the school holidays. This involved considering the scope of the court's injunctive power in relation to children, which is confined by the paramount consideration of the child's best interests and the appropriateness of the injunction. The court also had to assess the mother's concerns regarding the COVID-19 pandemic and its potential impact on the child.
Bennett J reasoned that the mother's concerns about the risk of COVID-19 transmission during travel and within an active COVID-19 zone were legitimate and warranted consideration in light of the child's best interests. The court found that granting the injunction was appropriate in the circumstances, particularly given the heightened anxiety the mother experienced and the potential need for quarantine. The court also made orders regarding parental notification of address changes, noting the father's compliance in this instance. The father was restrained by injunction from removing B from Victoria during the specified school holiday period.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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