FAMILY LAW – APPEAL – Parenting – Where the mother appeals final parenting orders – Where the orders conditioned the circumstances under which the children could spend time with the mother, required her to seek therapeutic treatment and imposed conditions which must be met before she may file fresh proceedings to seek a variation of the orders – Procedural fairness – Where orders are not vitiated because they do not match those devised by the parties – Where an order unconditionally forbids the mother from bringing fresh proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) for two years and thereafter without providing expert psychiatric evidence – Where the primary judge did not identify the source of power for the order – Where the order is styled as an injunction but could not have been made pursuant to ss 68B, 114 or 102QB of the Act – Where the order cannot be a parenting order within the meaning of s 64B(2) of the Act – Where the conditions imposed by the order are ill-defined and misconceived – Where the order is not an order within the contemplation of s 64B(2)(g) – Where no statutory power existed for the order impeding the mother’s entitlement to commence fresh proceedings under Pt VII of the Act – Where the mother appeals an order requiring her to seek therapeutic treatment – Where the order is a self-standing order untethered from any parenting order – Where the “unique circumstances” required to support such an order under s 67ZC of the Act are not present – Order made without power – Where the appeal succeeds – Re-exercise of discretion – Vitiated orders quashed – Costs certificates granted.
[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 Oberlin & Infeld
Sign in free to access the full text
Details
AGLC
Overlin & Infeld [2021] FamCAFC 66
Case
[2021] FamCAFC 66
Decision Date
CaseChat Overview and Summary
The mother appealed final parenting orders made by the Federal Circuit Court of Australia, which conditioned the circumstances under which the children could spend time with her, required her to seek therapeutic treatment and imposed conditions which must be met before she may file fresh proceedings to seek a variation of the orders. The primary judge concluded that the mother’s psychological ill health and her escalating conduct posed an unacceptable risk of harm to the children, and that she had not demonstrated the capacity to put the needs of the children ahead of her own. The mother argued that the orders were made without statutory power, were unfair, and were not supported by the evidence.
The court held that the orders were made without statutory power and were therefore invalid. The order conditionally forbidding the mother from bringing fresh proceedings under Part VII of the Family Law Act 1975 (Cth) for two years and thereafter without providing expert psychiatric evidence was styled as an injunction but could not have been made pursuant to sections 68B, 114 or 102QB of the Act. The order was not a parenting order within the meaning of section 64B(2) of the Act and the conditions imposed by the order were ill-defined and misconceived. The order requiring the mother to seek therapeutic treatment was a self-standing order untethered from any parenting order and the "unique circumstances" required to support such an order under section 67ZC of the Act were not present. The court quashed the orders and allowed the appeal.
The court held that the mother was entitled to a costs certificate for the costs incurred in relation to the appeal and that the father was also entitled to a costs certificate for the costs incurred in relation to the appeal. The court made orders accordingly.
Orders
Orders of the court
SOA 83 of 2020
DGC 1833 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS OBERLIN
Appellant
AND:
MR INFELD
First Respondent
MS B OBERLIN
Second Respondent
MR OBERLIN
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, AUSTIN & TREE JJ
DATE OF ORDER:
7 MAY 2021
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. Orders 19, 20 and 21 made by the Federal Circuit Court of Australia on 10 September 2020 are quashed.
3. The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
4.
The first respondent is granted a costs certificate pursuant to the provisions of
s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by him in relation to the appeal.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
For the reasons which follow, the appeal should be allowed and the demonstrated errors rectified by certain orders being quashed in the re-exercise of discretion.BACKGROUND The spouses separated in November 2017, whereupon the mother vacated the former family home and commenced to live with the maternal grandparents. The father and three children remained living at the former family home, but later moved to other accommodation. Proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were commenced by the father in June 2018. Subsequently, the proceedings expanded to include relief sought under Part VIII of the Act, but no more need be said about that aspect of the litigation since the property settlement orders are not the subject of this appeal. The central dispute in the parenting proceedings concerned the mother’s psychological ill health and the extent to which it posed any risk of harm to the children and thereby affected the manner in which they could or should spend time with her. The father contended the mother’s unstable psychological state poses an unacceptable risk of psychological harm to the children, which risk can only be satisfactorily attenuated (at least until such time as the mother develops insight into her condition and takes positive steps to address it) by ensuring the time spent by them with her is supervised by the maternal grandparents (at [187]). Conversely, while the mother admitted she had suffered “ill mental health”, she contended she had not and did not pose any risk of harm to the children and, furthermore, her condition did not impair her parenting capacity (at [11], [98], [106] and [188]). The mother’s diagnosis with one or more psychological conditions was contentious, but the primary judge acknowledged that any diagnosis with a particular psychological condition does not of itself necessarily mean the party lacks sufficient parenting capacity (at [14]–[15]) and therefore analysed the evidence to determine if and how the mother’s condition and behaviour influenced the findings under s 60CC of the Act about the children’s best interests. Having exhaustively evaluated the evidence, her Honour relevantly concluded:190.I also accept that both [the second and third children] love their mother and want to spend time with her. However, I also find on the basis of the totality of the evidence that they have experienced the mother’s behaviour, particularly in late 2017, 2018 and early 2019 as disturbing. Various incidents, including but not limited to:a)the mother’s attendance at the father’s home when she knew that she was not allowed to be there;b)the mother’s conduct in leaving [the second child] with the maternal grandfather after an argument;c)her forced removal from the school or home by police on numerous occasions; andd)her attendance at [the third child’s] school causing the school to be forced into lock down,would reasonably have led the boys to develop concerns about being safe in their mother’s care. Of equal concern is the mother’s failure to accept that her conduct and behaviour in the presence of the children may have contributed to their view of feeling unsafe in her care.…279.Moreover, the mother’s escalating conduct, including often in the presence of the children, together with her lack of insight into the impact of her escalating behaviour post-separation placed the children at risk of psychological harm in her care.…368.On the basis of the totality of the evidence, I am satisfied 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. This is 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.…378.The mother’s evidence at trial is that since engaging with [a therapist], she has not displayed the types of behaviours which have culminated in involuntary hospital admissions or coming to the attention of the police. I am not satisfied on the evidence before me that the mother’s condition has stabilised or indeed, that she is getting the support she needs to mitigate the risks identified above.…384.On balance, when having regard to:a)the mother’s florid behaviour throughout late 2017, 2018 and early 2019;b)the mother’s lack of insight into the impact of that behaviour on the children;c)the uncertainty on the available evidence as to whether the mother is receiving appropriate treatment and whether the treatment she is receiving will help her to modify her behaviour; andd)the mother’s escalating behaviour when she feels that she is not being ‘heard’ by authorities, including police, DHHS and medical providers;the court has a residual concern about her capacity to care for the children, without the support of her parents.…414.… the mother has not demonstrated the capacity to put the needs of the children ahead of her own. In saying this, I acknowledge that the mother’s capacity to make choices which are in the children’s best interests has been significantly impacted by her ill mental health. However, whilst she has strongly maintained throughout these proceedings that she has at all times been motivated by the need to protect her children, it is the mother’s actions and conduct which have, in large part, placed the children’s wellbeing at risk.