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
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…
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CaseChat Overview and Summary
The legal issues before the court included whether the mother had satisfied the necessary burden of proof for obtaining quia timet injunctions. This required the mother to demonstrate that an infringement was threatened or anticipated, and that there was a strong probability of serious damage if the injunctions were not granted. The court also needed to consider the father's concessions made in previous orders, which affected the ability to test the allegations and counter-allegations of both parties.
The court found that the mother had not met the necessary burden of proof for obtaining the quia timet injunctions. The court was satisfied that the child had articulated a preference against direct contact with the father, but this did not constitute sufficient evidence of a strong probability of future infringement and damage. The court was also influenced by the father's concessions in previous orders, which removed the ability to test the allegations of alienation. The court emphasised that the child's welfare was paramount, and any injunctive orders should be based on the child's best interests.
The court ultimately dismissed the mother's application for quia timet injunctions. The court found that the mother had not provided sufficient evidence to meet the necessary burden of proof for obtaining the injunctions, and that the father's concessions in previous orders had removed the ability to test the allegations of alienation. The court emphasised that any injunctive orders should be based on the welfare of the child, and that the child's best interests were paramount in any decision-making.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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.