Wenben & Larkins
[2022] FedCFamC1F 68
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wenben & Larkins [2022] FedCFamC1F 68
File number(s): SYC 6703 of 2008 Judgment of: MCGUIRE J Date of judgment: 21 February 2022 (Amended pursuant to rr 10.13 and 10.14(b) on 25 March 2022) Catchwords: FAMILY LAW – CHILDREN - INJUNCTIONS - Application for an injunction restraining the father from being provided with mother’s residential address or attending the child’s school and/or sporting activities without the child’s request or consent – Application opposed by the father – Failure to discharge evidentiary onus required for the making of injunctive orders - Application dismissed
FAMILY LAW – ADDENDUM – Correction of the Orders for Judgment pursuant to r 10.13 and 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – addition of addendum explaining the correction
Legislation: Family Law Act 1975 (Cth) s 68B
Family Law Reform Act 1995 (Cth)
Cases cited: Bennett v Bennett (2001) FLC 93-088
CDJ v VAL (1998) 197 CLR 172
EJK v TSL (2006) FLC 93-287
Flanagan & Handcock (2001) FLC 93-074
Fletcher v Bealey (1885) 28 Ch.D 688
Hedlund & Hedlund [2021] FedCFamC1A 84
Monticelli v McTiernan (1995) FLC 92-617
White & Green and Ors (No.2) [2009] FamCA 237
Division: Division 1 First Instance Number of paragraphs: 48 and 7 in the addendum Date of last submission/s: Final written submissions forwarded to Chambers on 9 December 2021 Date of hearing: 10 September 2021 Place: Launceston Solicitor for the Applicant: Barkus Doolan Solicitor for the Respondent: Croker Edwards Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central ORDERS
SYC 6703 of 2008 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WENBEN
Applicant
AND: MR LARKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
21 FEBRUARY 2022
THE COURT ORDERS THAT:
1.THAT the application filed by the mother, Ms Wenben, in the then Federal Circuit Court, transferred to the Family Court of Australia on 29 September 2016, seeking specific injunctive orders be dismissed.
ORDER MADE 25 MARCH 2022
2.THAT the mother keep the father, Mr Larkins, informed of her home address where the father can send letters, cards, and gifts to the child, X born 2007, with the mother to notify the father within one week of a change of her address.
THE COURT NOTES THAT
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Wenben & Larkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 25 March 2022)
McGUIRE J
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child, X, born in 2007 (aged 14 years).
The litigation between these parents has been lengthy and consistent over many years and undoubtedly has highlighted X's almost 15 years. The parents, Ms Wenben and Mr Larkins, separated when X was just seven months old. X's relationship with his father since has been minimal, sporadic, and with no direct contact since 2015 and no productive communication for the past three or so years.
To their credit but with obvious and stated reluctance on the part of the father, the parents reached agreement as to final parenting orders in October 2021 with those orders providing inter-alia:
(i)that the mother have sole parental responsibility for X;
(ii)that X live with the mother;
(iii)that X spend time with the father in accordance with X's wishes and that the father communicate by card, letter or gift on a minimum of six (6) occasions annually with an obligation on the mother to provide such communications to X; and
(iv)that the father be able to receive copies of X's school reports, school photographs, and other communications usually provided to parents with the mother to keep the father informed as to X's enrolment.
The recitals to the consent orders provide inter-alia:
(i)that the father has considered X's expressed wishes; and
(ii)that the father welcomes contact with X whenever X wishes.
Two distinct issues were left for my determination on the basis of written submissions on behalf of each of the parents and the Independent Children's Lawyer (ICL). Where the mother seeks injunctive orders, those issues are:
(i)whether the father be provided with the mothers current residential address for the purposes of the father sending letters, gifts or cards or, as the mother proposes, the father be provided with a postal address only; and
(ii)whether the father be permitted to attend on X's school premises and/or sporting activities without X's request or consent?
THE FATHER’S CASE
The father argues that X has been subjected to parental alienation from him by the mother. He gleaned support from the court-appointed expert, Dr C, citing [51] of the experts report that X:
… has been exposed to an ongoing campaign of disenfranchisement of his father by (the mother) … which some clinical researchers have described as 'psychological abuse'.
Dr C was forthright in his conclusions and recommendations over three separate reports and consistent with the factual propositions postulated by the father in the many affidavits deposed by him over some years.
The father, whilst relying heavily on Dr C report, urges the Court to discount or ignore the reports of Ms B and Dr D, both psychologists and in the case of Dr D a court-appointed family therapist, as being reports obtained contrary to the rules of this Court and/or not being independent in the sense of inclusion of the father in the process.
The father says that he has been aware of the mother’s residential address for the past nine years and has not abused that knowledge or privilege. He says that he has not attended uninvited. He says that he, having this knowledge, has not exposed X to any overt conflict between the parents. He says that he has attended the mother’s address on only one occasion being to drop a birthday card and gift to X in the letterbox.
The father says that there is no current restraint upon him attending X's school or sporting events. He says that he has, in fact, not attended either the school or sporting events for X since at least March 2019 and despite not being bound by order or injunction.
The father cites Dr C’s report of 2019 at [25]:
Although unwilling to spend time with his father, X stated begrudging willingness to spend time with his father during Saturday Sport and possibly having lunch with him afterwards.
At paragraph [23] of the same report Dr C observes and comments:
… [X] was unable to articulate why he no longer spent time with his father. This narrative differed significantly from his previous reasonings on why he did not wish to spend time with his father, stating that he perceived his father to have been previously ‘abusive’ towards him… He was unable to outline a specific event or memory however, where he felt that his father had physically hurt him… Given his use of the word ‘abusive’, he was then prompted for a definition of the word, but was unable to articulate one… Importantly, X clarified that he was not afraid of his father (emphasis added) he merely did not wish to have contact as he perceived that his father had hurt him and slighted his mother.
The father relies on the comments and findings in the judgment of Judge Walker at a defended hearing in 2014 when her Honour found that “The mother over time has failed to recognise the father's role in X's life and has made it difficult for X and his father to develop a relationship”. Her Honour did not accede to the mother’s application then to keep her residential details from the father.
The implication of the most recent consent orders in the father conceding sole parental responsibility to the mother and his relationship with X being limited to being “in accordance with the child's wishes” is that X has successfully been alienated from him due to the unavailability of early trial dates for the testing of the evidence but where he is frustrated with a conundrum whereby he acknowledges the extreme alienation by the mother but cannot reconcile his continuing litigation as being in X's best interests.
The father says that there is no justification for the making of injunctive orders sought by the mother where there has been no act or behaviour by him such that should ground the remedy of injunction. To the contrary, he argues that the imposition of injunctions will give a form of legitimacy to the mother’s alienation of X from him and/or send a baseless message of legitimacy to the child where the father harbours a hope that maturity and independence in X will lead to a reconciliation of their relationship.
THE MOTHER’S CASE
The mother argues simply that the injunctive orders she seeks are necessary in order to prevent emotional distress and anxiety, actual or potential, for X. She asks the Court to consider the contents of reports from Ms B, clinical psychologist, dated June 2020 and a report of Dr D, clinical psychologist and appointed family therapist for this family. The mother relies on the opinions of Ms B and Dr D, which postdate those of Dr C, as to the delicate mental state of X including his anxieties following X's interviews for Dr C’s report with the general theme and conclusions of Ms B and Dr D being that X must feel safe.
The mother says that she can and will comply with her obligations under the court orders for the provision of communication by the father to X should such be forwarded via a postal address. She argues that inadvertent receipt by X of such communications from her post box without appropriate preparation and context by her are potentially damaging to his emotional health.
The mother says that she has historically demonstrated a capacity and compliance for providing communications from the father to X and further says that she has, in fact, been supportive of therapeutic assistance towards reconciling the relationship between X and the father with the strong implication that she rejects the allegations by the father and conclusions by Dr C of alienation.
The mother says that the X's emotional health and anxieties are directly linked to his relationship with his father evidenced by his refusal to have contact with his father and hence his emotional health dictates that he feels safe and secure at his school and in his extra curricula activities.
The mother argues that the consent orders provide the opportunity for the father to attend X’s school sporting events should X make a specific request and that the injunctive orders she seeks are consistent with the spirit of the general consent orders made in October 2021 and not prohibitive per se.
THE ICL’S CASE
The ICL supports the mother’s position. She says that the Court should consider the evidence, untested as it is, of Ms B and Dr D as these reports were prepared and obtained by court orders made by consent as long ago as 14 October 2019 and specifically after the release of Dr C's latest report of September 2019.
The ICL notes that there has been one incident of X apparently receiving a card from the father, without the mother being an intermediary, and where X responded with an inappropriate message and drawing and that the possibility of X inadvertently coming across correspondence from the father in his home letterbox should be avoided.
The experts concur broadly that X wishes no contact with his father and that there is emotional anxiety in the child connected with X's relationship with his father although, Dr C may differ from his successors as to the root cause of the child's anxieties.
The ICL argues that to permit a situation where X and the father are in close proximity at school or sporting events with such contact being out of the control of X sits inconsistently and contrary to the concessions made by the father in the consent orders of October 2021 where the future of any such contact rests on the initiative of X.
THE RELEVANT LAW
The power to make injunctive orders in respect of children is found at Division 9 of Part VII of the Family Law Act 1975 (Cth) (‘the Act’). Section 68B provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
It is clear that the exercise of the power provided in the Act is by its wording discretionary and also broad by reference to the word “including” but then with specific references in the sub paragraphs (a) – (d).[1]
[1] White & Green and Ors (No.2) [2009] FamCA 237 at [125].
There has been judicial debate and perhaps not yet resolved with any certainty as to whether the phrase at s 68B (1) being “… as it considers appropriate for the welfare of the child” is synonymous with the paramountcy principle of the best interests of the child found elsewhere at Part VII of the Act.
In Flanagan & Handcock[2] the Full Court considered whether or not the paramountcy principle of best interests applied to s 68B with reference to a previous Full Court decision of Bennett v Bennett.[3] In Flanagan Kay and Holden JJ in a joint judgment were of the view that the best interests and paramountcy principles found elsewhere in the Act were not applicable in Division 9 thereby finding that previous determinations such as Monticelli v McTiernan[4] no longer represented good law and noting relevant amendments to the Act in the Family Law Reform Act 1995 (Cth). Their Honours were, however, of the view that the best interest principle should still be given consideration following the decision of the High Court in CDJ v VAJ.[5] Finn J in Flanagan took a broader view noting that it could be that the welfare of the child is a paramount or essential test for the exercise of the discretion under s 68B(1), thereby leaving the matter unresolved.
[2] (2001) FLC 93-074.
[3] (2001) FLC 93-088.
[4] (1995) FLC 92-617.
[5] (1998) 197 CLR 172.
This issue was recently considered by the Full Court in Hedlund & Hedlund[6] where their Honours noted a Full Court in EJK v TSL[7] where that Court (Holden, Coleman and Boland JJ) observed:
[52]Under the present legislation, in contrast to the Act prior to the introduction of the Family Law Reform Act 1995 (Cth) (‘the Reform Act’), not all orders made under Part VII are subject to the ‘best interests’ test, for example, the power to make orders in respect of child maintenance and/or injunctions concerning a child (see Bennett v Bennett (2001) FLC 93-088 and Flanagan and Handcock (2001) FLC 93-074, and in the High Court S258/2000).
[6] [2021] FedCFamC1A 84 at [116].
[7] (2006) FLC 93-287.
At [118] their Honours in Hedlund conclude:
It was not argued in this appeal that such long-standing authority should be rejected, and accordingly it should be accepted that an injunction made under s 68B of the Act is not a “parenting order” as defined in s 64B of that Act.
The injunction sought here is of a prohibitory or restrictive type and “perpetual” in the sense that it is not sought to be an interlocutory injunction only. Although not argued specifically before me, I take the view that, if granted, the duration of the injunction would extend to but then extinguish upon the child attaining 18 years of age given that the power to make the injunction comes from an Act dealing with the children. Again, this issue was considered by the Full Court in Hedlund where their Honours, after finding that an order under s 68B of the Act is not a “parenting order” noted at [123] – [124]:
[123]The s 68B orders are here made in respect of the children the subject of the parenting orders and, consequentially their mother. They are made in aid of the orders that provide for no contact with the father. The parenting orders that the injunctions are in aid of will cease to operate on the children becoming adult, pursuant to s 65H of the Act. The necessary implication is that the s 68B orders, made for the welfare of the children, and made in aid of the parenting orders, also lapse in the same manner.
[124]It is these matters that set out the relevant context for understanding the duration of the injunctive orders. That context points to the cessation of the injunctions when the children become adults. That conclusion is fortified by consideration of avoiding a construction that leads to invalidity. Here there is a strong argument that the extension of the injunctive relief into the adulthood of the children ranges beyond the power conferred by s 68B of the Act. The corollary is that, where available, a construction should be preferred that avoids such extension. Consistent with the context identified above, that construction is one that relies upon a necessary implication that the injunctions will not continue indefinitely, but will lapse on the ending of the parenting orders that they support.
The orders sought in the application before me are quia timet injunctions where the applicant mother complains of no relevant act or infringement on the part of the father to attract the remedy sought but where she argues for injunction to prevent an infringement of the child's rights where the infringement is threatened or anticipated but has not yet occurred. In respect of such injunctions it is the incumbent upon an applicant to show a strong probability of future infringement and ensuing damage.[8]
[8] Fletcher v Bealey (1885) 28 Ch.D 688.
CONSIDERATION
I am comfortably satisfied, therefore, that s 68B provides a broad discretion to make injunctive orders but based on the welfare of the child where such orders are not strictly speaking parenting orders subject to the paramountcy principal of the child's best interests. The applicant for the injunctive orders carries an onus where in this case the orders sought are quia timet injunctions and such applicant is to give or adduce evidence so as to prove such injunctions to be necessary and just and specifically with an onus to prove two limbs being, firstly, that an infringement or act is threatened or anticipated and, secondly, with a strong probability of ensuing damage of requisite seriousness to lay a foundation for the injunctive orders.
On the evidence, I am satisfied that the current relationship between X and the father is effectively non – existent by reason of the orders of October 2021. That is, there is no direct contact between the father and X and any future contact is subject to X's wishes and preferences. There is provision for written and gift communication but without direct contact between X and the father.
There seems to be general agreement between the parties that X suffers anxieties and emotional health issues. On the evidence, it does not seem disputed as to the source of these anxieties being X's relationship with his father but where the parties differ as to the initiative for those anxieties where the father argues, with support from the single expert, that X has been subjected to alienation from him by the mother and apparently successfully so.
The reports of Ms B and Dr D, albeit untested, satisfy me on the balance of probabilities that X continues to suffer these anxieties and that they are related to his relationship with his father.
The father's concessions made in the consent orders of October 2021 effectively remove the ability for this Court to test the allegations, assertions and counter assertions of each of the parties. Nevertheless, and as mentioned above, I find the concessions made by the father to be child focused and objective given his understanding of X's anxieties.
X is soon to be 15 years of age. The evidence before me satisfies me that he has consistently articulated a preference not to have a direct contact relationship with his father albeit with at least one equivocal statement made to Dr C.
The litigation between these parents has been lengthy and has effectively dominated X's life. In circumstances where alienation is alleged and denied and given X's age, I can be reasonably satisfied that X is aware of the conflict between his parents and that he is the subject of that conflict and that his anxieties must be considered accordingly.
The substantive orders made by consent in October 2021 leave the onus for any direct relationship between X and the father resting with X himself.
Consequently, I can be comfortably satisfied on the evidence and my findings above, that any inadvertent or other direct contact between X and the father which does not come as a result of X's express preference will be likely to impact on his current mental or emotional state including his anxieties. It follows that I am satisfied that the mother has proven on the balance of probabilities that damage would likely flow in the event of an act or infringement by the father in the terms of the injunctions sought.
I am more troubled by the first limb for my consideration as to whether or not an injunction is necessary on the basis of any threatened or anticipated infringement or act by the father. Undoubtedly, any injunctive order must have a factual basis for the remedy provided. It is axiomatic that the power to grant injunction, whilst discretionary, must be necessary and just and not simply by way of convenience where the remedy sought is prohibitive and/or restrictive.
It is not enough for the applicant to argue that there is no prejudice to the respondent in the granting of the injunctive order where, such as here, the father says that he has no intention of acting in ways against which the applicant seeks remedy. This is particularly so in noting the responses available to the Courts akin to the criminal law in respect of alleged breaches of injunctive orders.[9]
[9] Section 68C of the Act – Powers of arrest.
Similarly, the orders sought should not be made on the basis that there has been no undertaking provided by the father where I have no evidence before me of either request or offer of such undertakings.
The unchallenged evidence of the father is that he has not visited the child’s school or sporting events for some years. Similarly, it is his unchallenged evidence that he has not attended at the mother's home uninvited despite being apprised of her residential address with perhaps the one exception of leaving a gift for X in her letterbox.
The father specifically says that he has no intention to visit X's school or sporting events without the invitation. The mother does not claim any abuse by the father of the privilege of having known her address for the past nine years. She does not dispute his contention that he has known her of her address. She does not allege threat or indication by the father to attend the child’s school or sports. Again, it is not enough to say that there is no prejudice to the father in the making of the orders.
Where the onus sits with the applicant to give or adduce evidence to cause the Court to activate its discretion to make the orders, the mother does not, in my view, discharge this onus. The fundamental question is whether there is any evidence of any intent by the father to act in ways that the mother seeks to remedy? It is not enough that she simply has a “fear or apprehensive fear” that he might so act. She must show that any fear or danger is real and not illusory. She must establish a factual basis. In this matter, however, the father says that he will not attend the child's school or sporting events. He says that he has not abused the privilege of knowing the mother’s address. He has entered into orders which give X himself the onus for re-establishing a direct relationship. There is no evidence of any breach of those orders. There is no evidence given or adduced by the mother that the father has threatened or given any indication of acting in the way in which she seeks to remedy. The high water mark of the mother's evidence is that she has an apprehended fear as to the consequences of the father so acting. In my view this does not discharge her evidentiary onus and there is therefore no basis for the making of injunctive orders which prima facie are therefore neither necessary nor just.
The application for injunctive orders will be dismissed.
ADDENDUM
These are Addendum Reasons to those supporting orders handed down by me on 21 February 2022 and should be read together with those Reasons.
By way of short repetition, the parents agreed final parenting orders in respect of their one child, X, born in 2007 (aged 15 years) by consent orders in October 2021. Two issues were left for my determination being whether, on the mother's application, there be injunctive orders preventing the father from attending at X's school or sporting activities without X specific request and consent. Secondly, where there existed an extant order that the mother keep the father apprised of her residential address for the purposes of the father sending letters, gifts, and cards pursuant to the October 2021 orders, the mother sought to be relieved of this obligation. Alternatively, the father sought an assertive order confirming the mother's obligation to keep him apprised of her current residential address.
The arguments of the parties and the ICL are set out in detail in my Reasons of 21 February 2022. The father argued broadly that he has never abused the privilege of knowing the mother’s residential address over a number of years. The mother and the ICL jointly argue that the father having such knowledge leaves open the possibility of X inadvertently receiving correspondence from the father at that address where there is some evidence that X suffers anxiety by reason of his relationship with the father. The father argued in the substantive application and in the more discrete application before me that X's reluctance is by reason of alienation of X from the father by the mother. In any event, the father consented in the substantive orders to contact limited by correspondence or gift.
My Reasons of 21 February 2022 discuss the relevant law and authorities in respect of these applications concluding at [41]:
… that any inadvertent or other direct contact between [X] and the father which does not come as a result of [X]'s express preference will be likely to impact on his current mental or emotional state including his anxieties.
I did not, however, grant the injunctions sought by the mother on the basis that, on the evidence, the imposing of an injunction was not necessary on the basis of any threatened or anticipated infringement. That is, I was satisfied that the father had not attended at X's school or his home (with one possible exception) although not bound by injunction where the granting of that remedy is discretionary but also prohibitive, restrictive, and potentially consequential on a breach.
In respect of the father's application that he remain apprised of the mother’s residential address, the considerations are, in my view, analogous. He has not breached the mother’s privacy. There has been no threat by him to breach that privacy. He has had knowledge of the mother’s residential address for a number of years. This issue has previously been agitated before a judicial officer who determined against the mother's application to keep her residential circumstances secret from the father. On the evidence, there has been no change or substantial change in circumstances since the making of those orders. In a situation where there is no evidence of the father abusing what may be seen as a privilege in knowing the residential circumstances of his son, but where one can imagine a situation or emergency requiring immediate contact, the mother’s option of a post box address or similar could be seen as potentially contrary to the child's best interests.
In all of those circumstances, and again to be read consistent with my reasons of 21 February 2022, I am of the view that it is in the child's best interests that the mother, as the primary parent, keep the father advised of X's primary residential address. I will order accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire delivered on the 21 February 2022 and amended with a seven (7) paragraph addendum on 25 March 2022 Associate:
Dated: 21 February 2022
Date of addendum: 25 March 2022
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