Infeld & Oberlin
[2022] FedCFamC2F 1584
Federal Circuit and Family Court of Australia
(DIVISION 2)
Infeld & Oberlin [2022] FedCFamC2F 1584
File number(s): DGC 1833 of 2018 Judgment of: JUDGE GLASS Date of judgment: 1 December 2022 Catchwords: FAMILY LAW – PARENTING - application to reopen proceedings – application opposed on Rice v Asplund principles – where the mother’s mental health has materially improved – where the maternal grandparents can no longer comply with orders requiring them to be in substantial attendance during the children’s time with the mother – application meets the threshold Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA(2), 102Q Cases cited: Cannon & Acres [2014] FamCA 104
Cao & Cao (2018) FLC 93-880
Defrey & Radnor [2021] FamCAFC 67
Defrey & Radnor (No 2) (2021) FLC 94-044
Grace & Grace (2020) FLC 93-996
Rice v Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
Shan & Prasad (2020) FLC 93-980
SPS & PLS (2008) FLC 93-363
Division: Division 2 Family Law Number of paragraphs: 44 Date of last submission/s: 17 November 2022 Date of hearing: 17 November 2022 Place: Melbourne Counsel for the Applicant: Mr Hannan Solicitor for the Applicant: Sayer Jones Counsel for the Frist Respondent: Mr Testart Solicitor for the First Respondent: Scammell Black Mileo Counsel for the Second & Third Respondents: Ms Devine Solicitor for the Second & Third Respondents: Smith Family Law ORDERS
DGC 1833 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OBERLIN
Applicant
AND: MR INFELD
First Respondent
MR OBERLIN
Second Respondent
MS B OBERLIN
Third Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
1 December 2022
THE COURT ORDERS THAT:
1.The Final Orders made on 10 September 2022 be suspended.
2.Until further Order, the children, X born in 2005 ("X"), Y born in 2007 (''Y") and Z born in 2010 ("Z") (collectively "the children") live with the Father.
3.X will spend time and communicate with the Mother in accordance with his wishes.
4.Until further Order, Y and Z spend time and communicate with the Mother as follows:
(a)From the date of these Orders, and during school Term 4 2022, each Sunday from 10:00am until 7:00pm;
(b)During the 2022/2023 long summer holidays:
(i)Each Thursday from 10:00am until 7:00pm;
(ii)Each Saturday from 10:00am until 7:00pm; and
(iii)Each Sunday from 10:00am until 7:00pm.
(c)Commencing from School Term 1 2023, each alternate weekend from 10:00am on Saturday until 7:00pm on Sunday;
(d)During the Term 1 2023 school term holidays, each alternate weekend from 10:00am Friday to 7:00pm on Sunday;
(e)From Term 2 2023, each alternate weekend from the conclusion of school on Friday (or 10:00am if a non-school day) to 7:00pm on Sunday; and
(f)At such other times as may be agreed between the parties in writing.
5.Notwithstanding any previous provisions, Y and Z spend time with the parties on special occasions as follows:
(a)If they are not otherwise in the Mother's care:
(i)From 10:00am until 7:00pm on Mother's Day;
(ii)For 7 hours to be agreed on Christmas Day and in default of agreement, from 10:00am until 5:00pm in odd numbered years and from 2:00pm until 9:00pm in even numbered years;
(iii)On each of Y and Z’s birthdays:
A.If a school day, for three hours at times to be agreed and in default of agreement, from the conclusion of school until 7:00pm; or
B.If a non-school day, for six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm;
(iv)On the Mother's birthday:
A.If a school day, for three hours at times to be agreed and in default of agreement, from the conclusion of school until 7:00pm; or
B.If a non-school day, for six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm;
(b)If Y and Z are not otherwise in the Father's care:
(i)From 10:00am until 7:00pm on Father's Day;
(ii)For 7 hours to be agreed on Christmas Day and in default of agreement, from 10:00am until 5:00pm in even numbered years and from 2:00pm until 9:00pm in odd numbered years;
(iii)On the Father’s birthday:
A.If a school day, for three hours at times to be agreed and in default of agreement, from the conclusion of school until 6:30pm; or
B.If a non-school day, for six hours at times to be agreed and in default of agreement, from 10:00am until 4:00pm; and
(c)At such other times as may be agreed between the parties in writing
6.The children or any of them shall be at liberty to communicate by telephone or other electronic means with the party with whom they are not spending time at any reasonable time and the party with the care of the children or any of them shall facilitate the children or any of them doing so.
7.For the purpose of changeovers, the Father shall deliver the children to the maternal grandparents' residence at the commencement of time and collect the children from the maternal grandparents' residence at the conclusion of time.
8.The Father shall do all acts and things to encourage X to attend for time when his siblings spend time with the Mother pursuant to paragraphs 4 and 5(a) of these Orders.
9.At the discretion of any treating professional appointed to provide treatment to X, the Mother be permitted to attend sessions with X in the event the treating professional forms the view that such attendance would be beneficial to facilitate a reunification between X and the Mother.
10.The Mother be permitted to communicate with X by way of SMS as follows:
(a)The Mother may initiate SMS communications with X on up to ten occasions per year; and
(b)The Mother may respond with one SMS only to any SMS message sent to her by X.
11.The Mother be permitted to send cards, letters or gifts to X on up to ten occasions per year, with the Father to facilitate this occurring.
12.Within 7 days of the date of these Orders, the Father provide the Mother with the following information:
(a)X’s current education status, including whether he is currently enrolled in and attending any formal education programs and, if so, where and how often he is attending this;
(b)Whether X is currently engaged in formal employment in lieu of studies; and
(c)A list of the medical professionals and professionals services X has attended upon for the period 1 January 2021 to date, including:
(i)The duration of his engagement with each of the professionals and/or services, and whether he continues to engage with them;
(ii)The contact information for these professionals and/or services; and
(iii)How often X is attending upon the professionals and/or services (as applicable).
13.For the purpose of communication on issues of the children's care, health or development, the parties shall communicate with each other in a respectful and child focused manner via the parenting application "Our Family Wizard".
14.Unless the children's school policy otherwise directs, the Mother be permitted to:
(a)Receive information from the school usually forwarded to parents in relation to the children including registered on the school website, if any; and
(b)Attend parent teacher interviews and other school events which parents are normally invited to attend in relation to Y and Z.
15.The Father shall do all acts and things and sign all documents as required to authorise the Mother to liaise and communicate with the children's school/s.
16.Within 7 days, the Father provide all necessary consents and/or authorisations for any treater involved with the children or any of them to liaise and communicate with the Mother for the purpose of advising as to the children's current treatment and progress.
17.The Mother be permitted to consult with any medical practitioner providing treatment to the children about the children's treatment, at her expense if any, but she shall not attend any medical appointments with the children unless:
(a)In the case of emergency; or
(b)As agreed in writing by the Father; or
(c)Expressly recommended by an agreed treating medical practitioner.
18.Each party keep the other informed of:
(a)Their current residential address and provide the other with written notice of any changes in their residential address at least 14 days prior; and
(b)Email address and telephone numbers, including mobile numbers, and provide the other with written notice of any change within 24 hours of such change.
19.The parties, their servants and/or agents be and are hereby restrained from:
(a)Denigrating each other or members of their respective families, including the Wife's partner, Mr EB, within the hearing and/or presence of the children or any of them; or
(b)Discussing these proceedings with or within the hearing of the children or any of them.
DRC-P
20.Pursuant to Section 13C(1)(b) of the Family Law Act 1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference (as a Family Dispute Resolution Practitioner) on a date to be fixed with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and at a time to be fixed but not later than 7 days after the date referred to in order 20(a), for a half day conference.
21.The matter shall be referred to the Executive Director – National Registrar Operations and Practice for allocation and listing of the FDR Conference dates.
Part 1 of the FDR Conference
22.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within 2 days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
23.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
24.Not later than 4.00 pm 7 days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
25.The parties shall otherwise comply with any other necessary orders, direction or request made by the Registrar to facilitate the FDR Conference.
26.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
Dismissal of Applications
27.All extant interim applications be dismissed.
THE COURT NOTES THAT:
A.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners, including any Independent Children’s Lawyer, at the email address noted on the Court file.
B.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court as set out in the email confirming the FDR Conference dates and times.
C.Not later than 4.00pm 7 days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
D.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act1975 (Cth) and to the Court’s Family Dispute Resolution Fact Sheet.
E.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
F.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
G.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
H.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in short (four hour) conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
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 Infeld & Oberlin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, born in 2005, Y, born in 2007 and Z, born in 2010. The children are aged 17, 15 and 12 years respectively.
Final Parenting Orders were made by the Court on 10 September 2020 after a contested hearing which proceeded over 9 days from July 2019 until February 2020. On 7 May 2021, several of those Orders were quashed on appeal.
The extant orders relevantly provide for the children’s father, Mr Infeld, to have sole parental responsibility for them, subject to various conditions, and for the children to live with him. The children are to spend time with their mother, Ms Oberlin, subject to the children’s maternal grandparents or such other agreed person being in substantial attendance. In the case of X, he is to spend time with Ms Oberlin in accordance with his wishes. In the case of Y and Z, they are to spend time with her each Sunday from 10:30am until 6:00pm and each Thursday from after school (or 10:00am if not a school day) until 7:00pm.
Relief sought
Ms Oberlin seeks to discharge those orders and proposes that the children continue living with Mr Infeld and gradually increase Y and Z’s time with her to up to alternate weekends from after school Friday until 7:00pm Sunday without the need for another person to be in substantial attendance. The particulars of her application are contained in her Outline of Case filed 15 November 2022.
Mr Infeld seeks the dismissal of that application pursuant to the “rule” in Rice v Asplund.[1] That position advanced is inconsistent with the formal relief proposed by him which is in the following form:[2]
[1] (1979) FLC 90-725 (“Rice v Asplund”)
[2] Grace & Grace (2020) FLC 93-996 at [23].
1.A summary order pursuant to r 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules") dismissing the proceeding.
2.Alternatively, an order pursuant to r 10.10 of the Rules disposing of the proceeding.
3.Pursuant to s102QB2 of the Family Law Act 1975:
a.The mother's amended application filed 25 July 2022 be permanently stayed or alternatively dismissed;
b.The mother be prohibited from instituting proceedings under the Family Law Act in any Court having jurisdiction under that Act; and
c.Such further or other order that the Court considers appropriate.
4.In the alternative to 1, 2 and 3, the proceeding be stayed pending a determination of any Rice and Asplund issues.[3]
[3] Mr Infeld’s Application in a Proceeding filed 26 August 2022.
No specific submissions were advanced by Mr Infeld in relation to paragraphs 1 and 2. I am not satisfied that any of the conditions prescribed by sub-rule 10.09(1) are satisfied, certainly none were articulated. Accordingly, the discretion to grant the relief prescribed by paragraphs 1 and 2 is not enlivened.
Paragraph 3 was only faintly pressed in response to enquiries from the Court. Mr Infeld submits that the current proceedings are vexatious. He did not submit that earlier proceedings were vexatious in themselves. The fact that there have been multiple proceedings does not render them vexatious. Mr Infeld has not established that Ms Oberlin has frequently instituted or conducted vexatious proceedings. The discretion to grant relief pursuant to section 102QB of the Family Law Act 1975 (Cth) (“the Act”) is accordingly not enlivened. Contrary to Mr Infeld’s submissions, nothing said by the Court in Cannon & Acres[4] leads to a different conclusion. In relation to the current proceedings, Mr Infeld did not articulate why they are vexatious. I have found merit in Ms Oberlin’s application and am not satisfied it constitutes a vexatious proceeding as that term is defined in section 102Q of the Act.
[4] [2014] FamCA 104.
Paragraph 4 is inconsistent with the detailed submissions advanced by Mr Infeld in support of a dismissal of the application pursuant to the “rule” in Rice v Asplund. No application was made to adjourn determination of that question and so I take paragraph 4 to be abandoned.
Applicable principles
Effectively Mr Infeld submits that Ms Oberlin’s application ought be dismissed as any change in circumstances does not justify further litigation in relation to the children. He relies on the following statement of principle:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order.[5]
[5] Rice v Asplund at 78,905.
The essential question is whether the new events are sufficient to provoke a new enquiry into the children’s best interests, noting that alternative formulations emphasise the establishment of a prima facie case of change of circumstances.[6] The “rule” in Rice v Asplund is merely a manifestation of the principle that the children’s best interests are paramount.[7] I am to focus on whether any change in circumstances outweighs the negative impact of reopening litigation. Unless other considerations are more weighty, it is not in the children’s best interests to be subject to repeated litigation between their parents.[8]
[6] Defrey & Radnor [2021] FamCAFC 67 (“Defrey & Radnor”) at [16] and the cases there cited, quoted in Defrey & Radnor (No 2) (2021) FLC 94-044 at [14]; see also Shan & Prasad (2020) FLC 93-980 (“Shan & Prasad”) at [41].
[7] Defrey & Radnor at [21]; SPS & PLS (2008) FLC 93-363 at [86]; Family Law Act 1975 (Cth), s 60CA.
[8] Defrey & Radnor at [21].
It is well established that Ms Oberlin’s evidence is to be taken at its highest,[9] although not only her evidence is to be considered.[10]
[9] Defrey & Radnor at [14, 21]; Shan & Prasad at [41]; Searson & Searson (2017) FLC 93-788 per Kent J at [60].
[10] Defrey & Radnor at [21].
Statutory considerations
In determining the children’s best interests, I am to have regard to the two primary and fourteen additional considerations prescribed by section 60CC of the Act. Because all matters are to be considered to the extent relevant based on the material before the Court,[11] it is convenient to now address them. I will first address the second primary consideration, which is to be given greater weight than the first.[12]
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[11] Defrey & Radnor at [21].
[12] Family Law Act 1975 (Cth), ss 60CC(2A).
Central to the Court’s determination in 2020 was the finding that “the mother’s behaviour and her lack of insight into the impact of this behaviour on the children poses an unacceptable risk of harm to the children”.[13] The Court found she had suffered from ill mental health prior to her relationship with Mr Infeld in 1998 and had a mental health admission in 2003 following an overdose of Panadol and antidepressants. However, it was her behaviour in the period from late 2017 until 2019 that was the focus of the Court’s determination. That behaviour included:
[13] Reasons for Judgment dated 10 September 2020, paragraph 368.
(a)In August 2017, Ms Oberlin took an overdose of Ritalin and was involuntarily hospitalised.
(b)From October 2017, the Department of Health and Human Services (as it was then known) became involved and was concerned about the safety of the children, given reports of Ms Oberlin’s aggressive behaviour as well as her mental health and its impact on the children.
(c)In November 2017, Ms Oberlin took an overdose of Diazepam and was subsequently hospitalised on both voluntary and involuntary bases.
(d)On 12 December 2017, Ms Oberlin attended the former matrimonial home at a time she was not supposed to be there. She told the children she was going to kill herself and wanted to say goodbye to them for the last time. She left them home with some of the children’s medication which she subsequently consumed. Police took her to hospital for a mental health assessment.
(e)On 29 April 2018, Ms Oberlin was found at the Suburb F Police Station lying on the ground with cuts to her forearm and blood on the floor. She had written on the window of the police station ‘give me my children’ in her own blood. She had written similar messages in chalk outside the front of the same police station and the Magistrates’ Court.
(f)In May and June 2018, Ms Oberlin attended Z’s school on a number of occasions in breach of an Intervention Order. On at least one occasion, the school went into lockdown as a result and Police attended. Ms Oberlin was arrested and handcuffed by Police on 4 June 2018 and subsequently taken to Region J Emergency Department. Later that month, she attended the father’s home and was taken to Region G Health by Police.
(g)In October 2018, Ms Oberlin attended the police station intoxicated and was taken to hospital.
(h)In November 2018, Ms Oberlin again attended a police station and apparently attempted to self-harm in the toilet by taking tablets. She was then taken for a mental health assessment. Later that month, she was again taken to Region G Health for assessment on two further occasions. That same month, she urinated in a waste paper basket while refusing to leave a meeting at the Department of Health and Human Services.
(i)On a number of occasions in November 2018 and January 2019, Ms Oberlin knowingly breached an Intervention Order by attending the father’s home.
(j)In December 2018, Ms Oberlin keyed the words “perpetrator” and “child abuser” into Mr Infeld’s car.
(k)On the Australia Day weekend in 2019, Ms Oberlin again attended the father’s home and tried to talk to X. She was subsequently held in custody for approximately five days at Suburb E Police Station on a charge of persistent breach of an Intervention Order.
The Court’s ultimate conclusion in 2020 that Ms Oberlin posed an unacceptable risk of harm to the children was said to be “particularly so in circumstances where at trial, there was insufficient evidence to establish that the mother was seeking or obtaining the necessary treatment to recover and stabilise her ill mental health.”[14] The Court found that the children experienced their mother’s behaviour, particularly in late 2017, 2018 and early 2019 as disturbing.
[14] Reasons for Judgment dated 10 September 2020, paragraph 368.
Ms Oberlin has now engaged in extensive mental health treatment. She gives evidence that she has “obtained treatment that is tailored to my circumstances and mental health needs”.[15] She attended upon Ms O at the ED Care Team at Region J Health on a weekly basis from April 2019 for approximately 12 months before the frequency of those appointments was reduced. Ms Oberlin continues to attend upon Ms O as directed. Professor EC, the Program Director at Region J Health, observes that Ms Oberlin has accepted all recommendations for treatment and that she has had no unscheduled presentations to the service since August 2019.
[15] Ms Oberlin’s Affidavit filed 5 October 2022, paragraph 16.
Mr Infeld submits, in effect, that I cannot be satisfied that Ms Oberlin’s treatment is appropriate because Professor EC does not agree with the opinion of Dr D who diagnosed Ms Oberlin with Borderline Personality Disorder. Dr D’s unchallenged opinion was previously accepted by the Court. Contrary to Mr Infeld’s submission, Professor EC carefully considered the earlier psychiatric and psychological evidence, as well as the Court’s reasons, before explaining why he has come to a different conclusion with respect to Ms Oberlin’s diagnosis. I do not accept that the factual basis for his opinion is inadequately set out by him.
In effect, Mr Infeld seeks to challenge the opinions of Professor EC, a psychiatrist whose evidence must be taken at its highest. It is not open for me to do so in the context of making this determination.[16]
[16] Shan & Prasad at [37-8].
Mr Infeld submits that because Ms Oberlin “chooses to ignore (and actively dispute) that diagnosis (as she did throughout the contested hearing), only reinforces the risk presented by her mental health issues; it does not allay those risks”.[17] The submission appears to amount to a contention that because Ms Oberlin did not receive specific treatment for Borderline Personality Disorder, her extensive mental health treatment is ineffectual, and indeed, perhaps inappropriate. The submission is inconsistent with Ms Oberlin’s evidence that she has obtained treatment tailored to her circumstances regardless of her diagnosis. That evidence is to be taken at its highest.
[17] Mr Infeld’s submissions filed 16 November 2022, paragraph 25.
Importantly, despite an extensive history of poor mental health, particularly during the period after the parties’ separation and prior to the previous trial, Ms Oberlin has not required any urgent mental health care or been hospitalised since August 2019. She has no ongoing involvement with Victoria Police or the Department of Families, Fairness and Housing, as she had previously. No behavioural concerns about Ms Oberlin have been raised after the final hearing. So much supports a conclusion that Ms Oberlin’s mental health treatment has been efficacious in a way that previous treatment was not.
Ms Oberlin’s mental health has substantially improved. Contrary to the Court’s previous finding that her condition had not then stabilised, the evidence supports a conclusion that it now has. The treatment she has received has helped her modify her behaviour, something about which the Court previously expressed uncertainty on the then available evidence. The evidence before me satisfies me that her behaviour no longer poses an unacceptable risk of harm to the children. That is of course not to say there is no such risk, merely that its severity is not unacceptable.
The benefit to the children of having a meaningful relationship with both of their parents
Despite the Court’s conclusions in relation to the unacceptable risk posed by Ms Oberlin’s behaviour on the children, Orders were made providing for Y and X to spend time with her twice per week with their maternal grandparents or such other agreed person being in substantial attendance. The Court then found that the maternal grandparents “are prepared to continue supervising the mother’s time if that were ordered by the court.”[18]
[18] Reasons for Judgment dated 10 September 2020, paragraph 410.
The children’s maternal grandparents are no longer able to be in substantial attendance. They are in their 70s, in poor health and wishing to prioritise their own plans. In October 2021, the children ceased spending time with Ms Oberlin on Thursdays in accordance with the Orders, because of their inability to undertake the travel required to be in substantial attendance on those days. Accordingly, the children are not spending the time with Ms Oberlin that was previously found to be in their best interests.
Mr Infeld points to the fact that despite Ms Oberlin’s evidence in relation to her parents’ ongoing inability to be in substantial attendance during the children’s time with her, they have continued to do so. That may be so, but it does not establish that they are able to continue to do so. Further, such a conclusion would be inconsistent with taking Ms Oberlin’s case at its highest.
Mr Infeld submits that the Orders are capable of continued operation despite the maternal grandparents’ unavailability, through the engagement of an alternate person as contemplated by the final Orders. He accepts there is no such agreed person, but submits that Ms Oberlin can simply nominate somebody. He identified no person who is available to undertake the role. His submission relies on somebody being available to do so. Absent their identification, I cannot be so satisfied. None of the maternal family members he has previously suggested are able to undertake the role.
The unavailability of the maternal grandparents or any other agreed person to be in substantial attendance throughout the ordered time between the children and Ms Oberlin leaves them without the benefit of a meaningful relationship with both of their parents, consistent with previous findings of the Court.
Additional Considerations
Ms Oberlin gives uncontradicted evidence that:
The boys have expressed to me over the course of the past 6 months they wish to take trips with me and spend time away from their maternal grandparents’ home for longer periods of time. For example, the boys have spoken to me about going away overnight with me, possibly to the [Region EF]. [Z] has adopted a [animal] at the [EF Zoo] and told me he would love to visit there with me.[19]
[19] Ms Oberlin’s Affidavit filed 5 October 2022, paragraph 26.
Those views differ slightly from the Court’s earlier findings that Y enjoyed the time he spends with the mother, but felt comforted by the maternal grandparents’ presence. However, in the case of Z, they are consistent with his previous indication that he wanted to spend some additional time with his mother.
The Court previously concluded that Y and Z were observed to have a positive and loving bond with their mother. There is no evidence to now support a different conclusion.
The Court previously found that its Orders would allow Y and Z to “continue to develop and maintain their relationship with both the mother and the maternal family”.[20] I have already observed that the Orders have not been complied with for an extended period in the sense of providing for the children to spend time with Ms Oberlin twice each week.
[20] Reasons for Judgment dated 10 September 2020, paragraph 400.
Z has not seen his mother since the end of January 2018. No change is proposed to the existing order providing for him to spend time with Ms Oberlin in accordance with his wishes.
Ms Oberlin was found by the Court to lack insight into the impact of her previous behaviour on the children. There is limited evidence that she has now acquired any such insight, although I acknowledge this determination is being undertaken with limited evidence.
Amongst others, the Court previously recorded the following recommendations of the appointed Single Expert Witness:
…
b)that the children’s time progress from supervised time to time with another adult in substantial attendance, and then ultimately to alternate weekend time with the mother, if time is progressing well; and
c) some 12 to 18 months would be required for progression in time with the mother and dependent upon there being an improvement in the relationship.[21]
[21] Reasons for Judgment dated 10 September 2020, paragraph 363.
That recommendation informed the Court’s impermissible determination that Ms Oberlin be permitted to file an application to extend her time or discharge the requirement for substantial attendance after 1 September 2022.
Is a re-opening of the parenting proceedings in the children’s best interests?
The dismissal of Ms Oberlin’s application at this stage would have the consequence that Y and Z will not spend the time with Ms Oberlin that was contemplated by the final Orders. The unavailability of any agreed person to be in substantial attendance during that time results in an inability to give effect to the balance previously struck between facilitating the children’s meaningful relationship with their mother and their protection from harm.
Ms Oberlin’s mental health has substantially improved. She is no longer presenting floridly and has engaged in an extended period of mental health treatment as recommended to her. She no longer poses an unacceptable risk of psychological harm to the children as a result of what was previously found to have been her escalating behaviour post-separation.
The children’s best interests are not now met by a dismissal of Ms Oberlin’s application. The undesirability of subjecting the children to further litigation is not more powerfully in their interests than allowing the application to continue.
What Interim Orders are in the children’s best interests?
In moving from a determination of whether Ms Oberlin’s application should be dismissed pursuant to the “rule” in Rice v Asplund to a consideration of what interim orders are in the children’s best interests, I am no longer to take Ms Oberlin’s evidence at its highest. Rather, I am to remain alive to factual controversies, the ultimate resolution of which may have a significant bearing upon orders that will meet the children’s best interests.[22] However, Mr Infeld essentially does not contradict Ms Oberlin’s evidence, with the result that the distinction is of limited significance.
[22] Cao & Cao (2018) FLC 93-880 at [28] and the cases there cited.
Despite an invitation from the Court, Mr Infeld elected to make no substantive submissions with respect to the interim relief sought by Ms Oberlin, other than to apparently suggest that further expert reports should be obtained prior to the parties attending mediation. However, he made no application to adjourn Ms Oberlin’s application for interim parenting orders. Consistent with the Court’s case management pathway, I consider that the interim applications should be determined prior to the parties’ attending dispute resolution. I do not accept that any suggested failure by Ms Oberlin to follow the Court’s pre-action procedures leads to a different conclusion.
Ms Oberlin seeks the discharge of all previous parenting orders, although concedes that her application can really be characterised as seeking their suspension at this interim stage. She seeks the suspension of the previous Order providing for Mr Infeld to have sole parental responsibility for the children. I do not accept his contention that so much would leave the parties’ in an inchoate position with respect to parental responsibility, given it would then operate in accordance with section 61C of the Act.
Previous findings of family violence have been made by the Court, with the result that the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility is inapplicable,[23] although I note it was the Court’s previous conclusion that the presumption was rebutted because such an order would not be in the children’s best interests. That conclusion was reached in light of a finding that the parents did not “have the capacity to make joint child focused decisions”.[24] The current evidence before the Court does not support a different conclusion being reached.
[23] Family Law Act 1975 (Cth), ss 61DA(2).
[24] Reasons for Judgment dated 10 September 2020, paragraph 178.
The final Orders providing for Mr Infeld’s sole parental responsibility were to be exercised conditional upon him consulting with Ms Oberlin in relation to decisions regarding the children’s long term welfare. He was also required to advise Ms Oberlin of the children’s medical practitioners and provide details of the children’s progress at school. Ms Oberlin gives uncontradicted evidence that Mr Infeld has not complied with those Orders, including not providing her with any update as to Z’s education, nor provided details of the children’s medical practitioners. He has failed to facilitate medical practitioners providing information to Ms Oberlin, to which she is entitled pursuant to the Orders. In circumstances where Mr Infeld has failed to ensure compliance with Orders for Ms Oberlin to obtain information in relation to major long term issues affecting the children, I conclude it is no longer in their best interests for him to have sole parental responsibility for the children. I consider their best interests are now met by both parties having parental responsibility for the children, such that both can directly access relevant information in relation to them.
Ms Oberlin proposes that Y and Z’s time with her continue essentially in accordance with the previously ordered time without any person in substantial attendance and increasing to alternate weekend overnight time from the commencement of Term 1 next year. That proposal is consistent with the opinion of the single expert witness during the previous proceedings. Given the psychological stability now evident in Ms Oberlin’s behaviour, I am satisfied that her proposal is in the children’s best interests and will promote the benefit to them of having a meaningful relationship with their mother.
Ms Oberlin sought some variation to other obligations imposed by the final Orders, including providing for communication between Z and herself and the provision of more particularised information relating to the children. Mr Infeld made no submissions with respect to that particularised relief sought by Ms Oberlin. I find it to be in the children’s best interests in light of the changed circumstances.
The parties jointly propose to attend mediation. I will make usual Orders for them to attend upon a Dispute Resolution Conference. Mr Infeld proposes that the parties and the children attend upon a Court Child Expert for the preparation of a Child Impact Report. Given that the interim applications have now been determined, I am not satisfied that intervention is appropriate. Absent any application in proper form, I decline to require the preparation of any other expert evidence prior to the Dispute Resolution event.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 1 December 2022
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