Oberlin v Infeld 2021 FamCAFC 66

In the case of Oberlin v Infeld [2021] FamCAFC 66, the Full Court dealt with an appeal from parenting orders.

The mother appealed final parenting orders.

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”.

The appeal was allowed and three of the Federal Circuit Court orders made 10 September 2020 were quashed.

The mother did not seek to appeal the order making provision for the children to live with the father and for him to have sole parental responsibility.

Order 6, Order 19 and Order 20 were the subject of the appeal.

The mother’s psychological ill-health and the extent “to which it posed any risk of harm to the children” was the central dispute between the parties in parenting proceedings.

The father saw her as an unacceptable risk of psychological harm to the children. The mother accepted that she did have periods of ill mental health, but that she was not impaired in her parenting capacity.

The appeal was pitched at the orders that the Primary Judge put in place “to ameliorate the risk of harm”.

Grounds 4 and 5 of the appeal attacked Order 20.

Order 20 was made in the following terms:

“(20)    Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement of order 6 above, upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:

(a)     [The single expert psychiatrist’s] report;

(b)     [The Family Consultant’s] family report; and

(c)     these reasons for judgment.”

A notation was made to deal with a Rice & Asplund argument in the future saying:

“The mother, father and maternal grandparents shall not raise a Rice & Asplund argument in relation to any proceedings initiated by the mother pursuant to order 20 herein.”

The ICL had proposed an order in injunctive terms as follows:

“The mother, the father and the maternal grandparents shall not raise a Rice and Asplund argument in relation to future proceedings on the basis that, save for emergency situations there shall be no parenting applications for two years from the date of these orders.”

The mother complained that she hadn’t been provided with procedural fairness in relation to the order.  The Full Court said:

“Once judgment was reserved and it occurred to the primary judge that an order in the terms of Order 20 ought to be made, it was not incumbent upon her Honour to re-list the proceedings and offer the parties and the ICL the chance to make more submissions about it. They already had that chance in final submissions when the issue of the ICL’s proposed notation was live. When critical issues in the subject proceedings are well known to the parties, the judge is not required to expose his or her thought processes or provisional views to the parties for their comment before making the decision (case cited Minister for Immigration and Citizenship v SZGUR [2011] HCA 1“.

The procedural fairness argument failed.

The mother then complained in Ground 5 of the appeal that Order 20 “was made without power”.

The Primary Judge “did not identify the source of power for the order”.

At paragraph 30, the Full Court said:

“Order 20 is styled as an injunction, but it could not have been made pursuant to ss 68B or 114(1) of the Act because it was not made for anyone’s personal protection, to restrain entry upon certain premises, or to protect the marital relationship…. Absent any discussion and finding in the reasons for judgment about why the order would be “just or convenient”, nor could it have been an injunction under s 114(3) of the Act.”

At paragraph 31, the Full Court said:

“Neither could the order have been made pursuant to s 102QB(2)(b) of the Act… because no essential finding was made that the mother frequently instituted or conducted vexatious proceedings.”

The Full Court found that if it was intended to be made as a parenting order within the meaning of section 64B(2)(g)(ii) of the Act, “then the order goes further than that provision enables”.   

In Betros & Betros [2017] FamCAFC 90, the Full Court considered an order made by a judge “restricting a litigant’s ability to commence fresh parenting proceedings without first undertaking therapy for two years and said this:

“˜…it is unnecessary to say much more than that caution should be exercised in crafting orders that are intended to delineate circumstances which arguably condition a party’s right to institute fresh proceedings to enable re-consideration of parenting orders.’

At paragraph 40, a discussion of the intention of section 64B(2)(g) of the Act was undertaken.

The Full Court decided:

“It is presently unnecessary to express concluded views on the breadth and complexity of orders which may be made in the form of parenting orders under s 64B(2)(g) of the Act because Order 20 is certainly not an order within the contemplation of that provision“.

The fifth ground of the appeal succeeded because it was accepted that Order 20 was ostensibly made “without power”.

There was then a comment about notations.

“Notations are not orders. The judgment of the primary judge is embodied only in the orders, which are explained in the reasons for judgment.” 

The court said:

“Clearly, the terms of the notation cannot preclude a party’s legitimate recourse to applicable legal principles.”

The court also accepted that Order 19 was made without power.  The basis was that the order “mandates the mother must receive counselling from the therapist recommended by the Family Consultant rather than by a therapist chosen by her in consultation with her own doctors”.

This is an interesting Judgement as it is now not unusual for parenting proceedings to be concluded on the basis that one parent or the other may engage in therapeutic assistance before being able to ask the court to reconsider the impact of their parenting and mental health interaction.