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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Infeld & Oberlin

Details

AGLC: Infeld & Oberlin [2022] FedCFamC2F 1584
Case: [2022] FedCFamC2F 1584
Decision Date

CaseChat Overview and Summary

In Infeld & Oberlin, the Federal Circuit and Family Court of Australia considered an application by the mother, Ms Oberlin, to vary existing parenting orders. The father, Mr Infeld, opposed the application, arguing it should be dismissed under the principles in Rice v Asplund. The Court had to determine whether the application should be dismissed and, if not, what interim orders were in the children's best interests.

The Court first assessed whether Ms Oberlin's application should be dismissed under the Rice v Asplund principles. These principles emphasise the importance of the paramountcy of the children's best interests and the undesirability of repeated litigation. However, the Court found that Ms Oberlin's application met the threshold for reconsideration because of significant changes in circumstances, particularly her improved mental health and the inability of her parents to supervise the children during her time with them.

The Court then considered what interim orders were in the children's best interests. Given Ms Oberlin's improved mental health and the children's desire to spend more time with her, the Court concluded that it was in their best interests to suspend the existing orders and allow them to spend more time with their mother. The Court also found that it was no longer in the children's best interests for Mr Infeld to have sole parental responsibility, as he had not complied with orders to share information with Ms Oberlin. Therefore, both parents should have parental responsibility.

The Court ordered that the existing parenting orders be suspended and that the children live with their father. The children will spend time with their mother according to a detailed schedule, increasing to alternate weekend time from the start of the next school term. Both parents were ordered to have parental responsibility for the children, and the parties were directed to attend a Dispute Resolution Conference.

Orders