OBERLE and OBERLE - [2012] FMCAfam 875

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OBERLE & OBERLE

[2012] FMCAfam 875

FAMILY LAW – Parenting – Interim orders – Notice of discontinuance filed by both parties – parties appear to have reconciled – Independent Children’s Lawyer opposes discontinuance – risks to the child – matter adjourned and further notifications made to Department of Human Services.

Family Law Act 1975 (Cth) ss.11F, 60B(1), (2), 60CC, 68L, 69ZN(2)-(6)

Lancet & Lancet [2008] FMCAfam 525
Re K [1994] FamCA 21

Applicant:

MS OBERLE

Respondent:

MR OBERLE

File Number:

DGC 1331 of 2012

Judgment of:

O’Sullivan FM

Hearing date:

21 August 2012

Date of Last Submission:

21 August 2012

Delivered at:

Melbourne

Delivered on:

21 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms Bowden

Solicitors for the Applicant:

Quintessential Lawyers

Counsel for the Respondent:

Ms Vienna

Solicitors for the Respondent:

Perisic Thomas Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Mulvany

Solicitors for the Independent Children’s Lawyer:

T.J Mulvany & Co

ORDERS UNTIL FURTHER ORDER:

The mother exercise sole parental responsibility for the child, X born (omitted) 2007 (“X”).
X live with the mother at (omitted).
X spend time and communicate with his father by agreement with the mother, the Court noting that the mother and father as at the date of these orders are cohabitating.
Within seven (7) days the father retain for immediate professional assistance a psychologist to assist the father generally and in relation to his parenting for such purposes:
4.1.the father provide to the said psychologist a copy of this Order, the memorandum of the Family Consultant, Ms V dated 1 August 2012;
4.2.the psychiatrist assessment of the father by Dr W dated 15 August 2012;
4.3.subject to the practicalities of the psychologist retained, the father consult the psychologist at least fortnightly.
4.4.the Independent Children’s Lawyer be at liberty to communicate with the psychologist and to discuss matters generally with the psychologist and the father do all acts and things necessary to authorise the psychologist to speak with any health or allied health professionals retained by the mother and/or any education and/or health professional associated with X.
The father for himself, his servants and agents be and is hereby restrained from initiating and/or continuing and/or participating in any Facebook including but not limited to “Father’s hard done by in Court” and/or any similar Facebook facility and/or any other form of social media and it is directed that any image and/or name of X in isolation shall if practicable be removed and there be no image and/or reference to X in any form of social medial save that the father’s “(omitted) Club” is excluded.
The mother:
6.1.continue to attend upon her treating psychologist (Ms R) and provide to such psychologist a copy of this order, the memorandum of the Family Consultant, Ms V dated 1 August 2012, the psychiatric assessment of the father dated 15 August 2012, the psychiatric assessment of the mother by Dr W dated 17 August 2012;
6.2.sign such authorisation as Ms R shall reasonably require to…

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 OBERLE and OBERLE

Details

AGLC: OBERLE and OBERLE [2012] FMCAfam 875
Case: [2012] FMCAfam 875
Decision Date

CaseChat Overview and Summary

In the matter of Oberle and Oberle, the Federal Magistrates Court of Australia heard a case involving parenting orders for a child named X, born in 2007, between the parents MS OBERLE (mother) and MR OBERLE (father). The parents had separated, with differing accounts of the timing, and filed various allegations against each other, raising concerns about the child's best interests. The court had previously made interim orders, including requesting intervention from the Department of Human Services and appointing an Independent Children’s Lawyer (ICL).

The ICL raised significant concerns about the child's safety and recommended specific interim orders to protect X. Despite the parents' notices of discontinuance, the ICL opposed the discontinuance due to the serious allegations and potential risks to the child. The court, considering the complex nature of the case and the ICL's recommendations, decided to proceed with interim orders to ensure the child's safety and well-being.

The court made several interim orders, including granting sole parental responsibility to the mother, allowing the father supervised contact with the child, and requiring both parents to undergo psychological assessments. The court also restrained the parents from using social media to discuss the case and ordered them to cooperate with the ICL and other professionals involved in the case. The matter was adjourned to allow for further assessments and to determine whether the Department of Human Services would intervene.

The court emphasized the importance of the ICL's role in advocating for the child's best interests and highlighted the need for the Department of Human Services to address the serious concerns raised about the child's safety. The court made it clear that it expected the Department to become involved in the proceedings to ensure the child's welfare was properly safeguarded.

Orders