Injunctions – best interests not paramount

Injunctions – best interests not paramount

Towers & Atkins (No.2) [2015] FCCA 3537 (17 December 2015)

Last Updated: 19 January 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

Catchwords: FAMILY LAW – Children – parenting orders – interim orders – application to vary interim parenting orders – application for injunction – where mother has not informed father of location of child’s day-care or treating medical practitioner – equal shared parental responsibility – effect of parenting order that provides for shared parental responsibility – insufficient evidence to justify injunction under  Family Law Act 1975  (Cth), s.68B. PRACTICE AND PROCEDURE – Aggressive and discourteous correspondence from one party’s solicitor to another – impolite letters to other legal practitioners a matter for disapproval by the Court.

Legislation:  Family Law Act 1975  (Cth), ss.60CA, 60CC, 65DAC, 65DAE, 68B

Injunctions under section 68B of the  Family Law Act 

14. Section 68B of the  Family Law Act  provides:
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    68B(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:

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    (a) an injunction for the personal protection of the child; or

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(b) an injunction for the personal protection of:

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(i) a parent of the child; or

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(ii) a person with whom the child is to live under a parenting order; or

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(iii) a person with whom a child is to spend time under a parenting order; or

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(iv) a person with whom the child is to communicate under a parenting order; or

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(v) a person who has parental responsibility for the child; or

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(c) an injunction restraining a person from entering or remaining in:

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(i) a place of residence, employment or education of the child; or

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(ii) a specified area that remains a place of a kind referred to in subparagraph (i); or

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(d) an injunction restraining a person from entering or remaining in:

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(i) a place of residence, employment or education of a person referred to in paragraph (b); or

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(ii) a specified area that contains a place of a kind referred to in subparagraph (i).

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68B(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.

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68B(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

15. The learned authors of Australian Family Law^[5] summarise the principles relating to the exercise of the Court’s discretion to grant an injunction as:
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    …under s 68B(1) it is necessary that the order or injunction be appropriate for the welfare of the child. However the child’s interests need not be treated as the paramount consideration. While in many cases they might be of great, even overwhelming importance, it is open to the court to take into account other interests, against which the child’s interests may not necessarily prevail.^[6]