Oberlin & Infeld [2021] FamCAFC 66 (7 May 2021)

Last Updated: 11 May 2021

FAMILY COURT OF AUSTRALIA

Oberlin & Infeld [2021] FamCAFC 66

Appeal from:	Infeld & Oberlin and Ors [2020] FCCA 2305
Appeal number(s):	SOA 83 of 2020
File number(s):	DGC 1833 of 2018
Judgment of:	ALSTERGREN CJ, AUSTIN & tree JJ
Date of judgment:	7 May 2021
Catchwords:	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.
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB Family Law Act 1975 (Cth) Pts VII, VIII, XIB, Div 13A, ss 60CC, 64B(1), 64B(2)(g), 65D(2), 67ZC, 68B, 102QB, 114 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Federal Circuit Court Rules 2001 (Cth) Div 15.2 Federal Proceedings (Costs) Act 1981 (Cth) Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Cases cited:	Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 Betros & Betros [2017] FamCAFC 90 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173 Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104 L v T (1999) FLC 92-875; [1999] FamCA 1699 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29 RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47 Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 355 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 U v U (2002) 211 CLR 238; [2002] HCA 36 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Division:	Appeal Division
Number of paragraphs:	74
Date of hearing:	29 April 2021
Place:	Heard in Melbourne, delivered in Newcastle
Counsel for the Appellant:	Ms Borger
Solicitor for the Appellant:	Sayer Jones
Counsel for the First Respondent:	Mr Testart
Solicitor for the First Respondent:	Scammell Black Mileo
Second and Third Respondents:	No appearance
Independent Children's Lawyer:	No appearance

ORDERS

		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).


IT IS NOTED that publication of this judgment by this Court under the pseudonym Oberlin & Infeld has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALSTERGREN CJ, AUSTIN & TREE JJ:

1. By way of an Amended Notice of Appeal filed on 2 March 2021, the mother appeals from final parenting orders made in respect of the spouses’ three children on 10 September 2020 by a judge of the Federal Circuit Court of Australia.
2. The appealed orders made provision for the children to live with the father and for him to have sole parental responsibility for them, but those aspects of the orders are not the subject of challenge. Rather, the focus of the mother’s appeal was upon specific orders conditioning the circumstances under which the children could spend time with her (Order 6), imposing the need for her to undertake counselling and treatment (Order 19), and imposing conditions which must be met before she can file fresh proceedings to vary the circumstances under which the children may spend time with her (Order 20).
3. 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

4. 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.
5. 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.
6. 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.
7. 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]).
8. 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]).
9. 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:
        1. the mother’s attendance at the father’s home when she knew that she was not allowed to be there;
        2. the mother’s conduct in leaving [the second child] with the maternal grandfather after an argument;
        100. her forced removal from the school or home by police on numerous occasions; and
        4. 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:
     1. the mother’s florid behaviour throughout late 2017, 2018 and early 2019;
     2. the mother’s lack of insight into the impact of that behaviour on the children;
     100. 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; and
     4. 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.
10. None of those findings about the risk of harm posed to the children by the mother is the subject of challenge in the appeal.
11. The primary judge then turned to consider the type of orders which were needed to ameliorate the risk of harm. Her Honour considered it was necessary to ensure the children only spend time with the mother when the maternal grandparents are in “substantial attendance” (whatever that may actually mean), about which requirement the mother does not cavil. However, the mother takes issue with other orders which she perceives unreasonably block or impede her relationships with the children and her access to the Court for varied orders.
12. The contentious orders require the maternal grandparents to inform the father of the mother’s hospitalisation for “mental treatment”, her detention by police, or her charge with any criminal offence (Orders 6(b)(iii) and 6(b)(iv)), require the mother to undertake counselling and treatment (Order 19), and impose conditions which must be satisfied before the mother can apply to vary the orders restricting the children’s interaction with her (Order 20).
13. The father opposed the appeal. The maternal grandparents were joined to the proceedings below as the second and third respondents, but they did not participate in the appeal. Nor did the Independent Children’s Lawyer (“the ICL”).

THE APPEAL

14. Grounds 1, 6 and 7 were abandoned well before the appeal hearing commenced.
15. Ground 4 comprises a complaint about the denial of procedural fairness, which must be considered first (Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]), but it is addressed in conjunction with Ground 5 because both grounds are directed to the same order.

Grounds 4 and 5

16. These grounds collectively attack Order 20, which 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.

17. The order was attended by a notation made in these terms:
    2. 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.
18. The subject order was reasoned by the primary judge as follows:
    193. The ICL has also included a notation in the proposed orders which would allow the mother, after seeking appropriate care and treatment, to seek a variation to these orders after a period of two years. I agree that it is appropriate to allow the mother to seek a variation to these orders if and when she can demonstrate proper engagement with appropriate treatment, and further that the treatment has stabilised her mental health. I have included such a provision in the orders as set out at the beginning of these reasons for judgment.

...

371. The ICL’s position is that the mother’s time with [the second and third children] (and [the eldest child], if he wishes to attend) occur with the maternal grandparents, either of them or another agreed person, in substantial attendance. The ICL further proposes that the mother effectively be permitted to make an application to vary this requirement in no less than two years’ time, without the need to raise a Rice & Asplund argument.

...

379. However, if [her therapist’s] support, together with a health practitioner as recommended by [the Family Consultant], assists the mother’s condition to stabilise, she should be permitted to seek a variation to these orders to remove the substantial attendance requirement during her time with the children.
380. These proceedings were last before the Court in February 2020. I therefore propose including an order permitting the mother to bring a fresh application before this court, not before September 2022, if she is able to file material addressing her mental health and the risk issues identified in these reasons. I will also include a notation that the mother, father and maternal grandparents will not be permitted to raise a Rice & Asplund argument in response to any such application.
381. The ICL has sought a notation to this effect. I am of the view that this ought to be specified in an order.

...

426. Although the ICL’s proposal, which I have accepted, does not foreclose on the prospect of future litigation if the mother is able to address some of the concerns raised in these proceedings, given the age of the younger children, especially [the youngest child], I am satisfied that this approach is in their best interests.
427. It is sincerely hoped that in reading these reasons for judgment, the mother will appreciate that the Court has had regard to her submissions, but is required by law to view these submissions against the totality of the evidence. That evidence includes the comments made to [the Family Consultant] by her children. It is hoped that the mother is able to give due weight to those views, engage with her medical practitioners and address the legitimate concerns raised about her behaviour which have led this court to make its findings and orders.
428. The orders proposed by the ICL:

...

100. provide a mechanism for the mother to return to court within two years and seek a variation to these orders without having to address the principles in Rice & Asplund. This will allow the mother sufficient time to focus on her mental health rehabilitation.

19. As can be seen, her Honour envisaged the mother could institute fresh proceedings seeking new orders to relax the tight restrictions imposed upon the children’s interaction with her, subject to the fulfilment of two conditions: first, the effluxion of time (being about two years); and secondly, the production of expert evidence commenting upon the mother’s treatment, her current psychological condition, and the “risk issues” raised in the expert evidence at trial.
20. Neither the father nor the ICL sought an order like Order 20, though the ICL curiously proposed that a notation to the orders be made in these similar injunctive terms:

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.

21. The mother’s first complaint is that she was denied procedural fairness by the primary judge’s conversion of the proposed notation into an order, when not given an opportunity to comment upon it (Ground 4).
22. The mother correctly acknowledged the primary judge was not bound to conclude the case by selecting between the suites of orders propounded respectively by the parties and the ICL. Once they failed to reach a compromise, the paramount consideration in the litigation was the children’s best interests and the orders which were most suited to achieve that purpose were the product of the primary judge’s exercise of discretion, irrespective of the competing orders for which the parties and the ICL advocated. Orders are not vitiated merely because they do not match the orders devised by the parties or the ICL (U v U [2002] HCA 36; (2002) 211 CLR 238 at 284–285 and 263).
23. Notwithstanding the acknowledgement, the mother submitted the primary judge ought not have converted the ICL’s proposed notation into an order unless and until she had been given the chance to be heard on the issue because the order represented a “substantial deviation” from any of the applications made by the parties and the ICL.
24. There can be no argument that the mother was entitled to procedural fairness, since it is an essential characteristic of any judicial proceeding (see RCB v The Honourable Justice Forrest [2012] HCA 47; (2012) 247 CLR 304 at 309 and 321). As in many cases, the argument here devolves to the actual content of the essential requirement in the circumstances of this particular case, since the rules of procedural fairness do not have immutably fixed content in all situations (Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38, at [156]; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 312).
25. Significantly, in this instance, the mother knew several important things: her psychological stability was a critical contested issue; the father was contending the children’s interaction with her should be substantially curtailed and made the subject of numerous conditions because of her unstable psychological state; and the ICL was seeking, in some form or other, her restriction from commencing fresh proceedings to vary the orders for two years. The mother therefore knew the case she had to meet. She was not unfairly deprived of the chance to do so, either by obstruction of the evidence she adduced, by limitation of the questions asked of witnesses in cross-examination, or by confinement of the final submissions she made.
26. By the end of the trial, the mother could have been in no doubt that the asserted need for the therapeutic improvement of her psychological instability was critical to the outcome – at least from the perspectives of the father and the ICL. Nonetheless, in her final submissions, the mother chose not to address the issue of her future application to the Court to mollify the restrictive conditions under which the children would spend time with her if the case advanced by both the father and the ICL was accepted. Instead, she focussed entirely upon asserting her parenting credentials, denying any psychological impairment, and contending for the father’s alienation of the children against her.
27. 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 (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at 599). Ground 4 must fail.
28. The mother’s second complaint is that Order 20 was made without power (Ground 5). The primary judge did not identify the source of power for the order – either within the order itself or in the reasons explaining it – so, if it exists, the source must be inferred.
29. The terms of the order unconditionally forbid the mother from bringing fresh proceedings under Part VII of the Act to vary Orders 5 and 6 for a period of approximately two years and, thereafter, still purport to forbid her from instituting fresh proceedings unless armed with expert psychiatric evidence of a certain character. The father submitted in the appeal that was not the intended meaning of Order 20, but the submission is rejected because that is plainly its meaning when construed objectively, whether or not by reference to the reasons for judgment (Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25 at 33–34; Lim v Comcare [2019] FCAFC 104; (2019) 165 ALD 217 at [40]–[41]).
30. 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. Nor did it relate to the spouses’ property or to the use or occupancy of the matrimonial home. Absent any discussion and finding in the reasons for judgment about why the order would be “just or convenient” (of which there was none), nor could it have been an injunction under s 114(3) of the Act.
31. Neither could the order have been made pursuant to s 102QB(2)(b) of the Act, even if the primary judge purported to act on her Honour’s own initiative in the absence of an application under Pt XIB of the Act (s 102QB(3)), because no essential finding was made that the mother frequently instituted or conducted vexatious proceedings.
32. If, alternatively, the order was made in the guise of a parenting order, within the meaning of s 64B(2)(g)(ii) of the Act, then the order goes further than that provision enables.
33. Section 64B(2)(g) provides:

(2) A parenting order may deal with one or more of the following:
...

(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs of circumstances of:

(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;

34. But Order 20 does not merely “deal” with the “steps to be taken” before the mother is able to apply to vary the orders on account of her “changing needs or circumstances”. It positively forbids her from bringing any variation application for a period of two years, regardless of her changing needs and circumstances. The order purports, therefore, to be something other than a “parenting order” within the meaning of s 64B(2)(g) of the Act. Rather, it is an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit.
35. Sections 64B(1)(b) and 65D(2) of the Act expressly envisage that, on the application of a party, the Court is able to discharge, vary, suspend or revive some or all of an earlier parenting order. Parties are ordinarily able to freely resort to fresh applications for parenting orders, subject to them being able to meet the requirement of demonstrating materially changed circumstances so as to warrant revision of the earlier parenting orders in accordance with the guideline principle enunciated in Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725.
36. In Betros & Betros [2017] FamCAFC 90, the Full Court (Thackray, Murphy and Austin JJ) considered an order made by a judge restricting a litigant’s ability to commence fresh parenting proceedings without first undertaking therapy for two years (at [9]–[12]) 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.

37. Such caution is warranted because, unless the restriction is validly imposed by an injunction (such as one made pursuant to s 102QB(2)(b) of the Act or, more unusually, perhaps pursuant to s 114(3) of the Act) or by an order requiring preliminary steps to be taken before a new application is made (pursuant to s 64B(2)(g) of the Act), no statutory power exists for an order to be made impeding a litigant’s entitlement to commence fresh proceedings under Part VII of the Act. Once any such fresh application is filed, the question of whether it may then be prosecuted depends upon the applicant’s ability to demonstrate compliance with the guideline principle in Rice and Asplund.
38. What then is the permissible scope of s 64B(2)(g) of the Act for that purpose? The answer is not straightforward. The provision was enacted as part of the legislative reform comprising the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The Revised Explanatory Memorandum accompanying the Bill, the recourse to which is permissible so as to assist in ascertainment of statutory meaning (s 15AB of the Acts Interpretation Act 1901 (Cth)), said only this in respect of the new provision (at [173]):

New subsection 64B(2) provides greater detail and clarity about the matters that a parenting order can deal with. These matters include who a child is to live with, the time and other communications the child is to have with another person or persons, the allocation of parental responsibility and the form of consultations persons with parental responsibility are to have with one another. In particular, paragraph 64B(2)(g) provides that a parenting order may deal with the steps that should be taken before an application is made to a court for a variation of the order. Paragraph 64B(2)(h) provides that a parenting order may deal with the process to be used for resolving disputes about the terms or operation of the order. The aim is to ensure orders are appropriately framed and flexible to reduce the need for people to go to court about the operation or variation of parenting orders.
(Emphasis added)

39. Section 64B of the Act was subsequently amended to include sub-section (4A) in these terms:

(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:

(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.

40. The evident intention of s 64B(2)(g) of the Act is to enable orders to be made defining the steps which must be taken before fresh proceedings may be commenced under Part VII of the Act, which such steps are ordinarily directed to the parties’ initial resort to some form of alternate dispute resolution before the immediate commencement of adversarial litigation. But, even if the provision contemplates much more comprehensive conditions being imposed, then before any more expansive orders could be considered as being “appropriately framed” they must still be prescriptive and enforceable, not aspirational and productive of further controversy.
41. 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. Aside from the order impermissibly restraining any fresh proceedings for some two years, the conditions it then imposes as steps to be taken before any variation application is made are ill-defined and misconceived.
42. For example: In respect of the future affidavit required of the mother’s treating psychiatrist, what does it mean that the psychiatrist must “address” the “risk issues” referred to in both the reasons for judgment and the expert evidence adduced before the primary judge? How comprehensive must the psychiatrist’s “address” be? Who decides whether it is sufficiently comprehensive? Is it expected that the psychiatrist will express an opinion about whether or not the risk of harm the mother was formerly found to pose to the children has since abated? Is it expected that the psychiatrist’s opinion would then be dispositive of the mother’s variation application? If so, how could that be correct, since it would be tantamount to improperly reposing judicial power in the psychiatrist? If not, what is the point of the order, since in any fresh proceedings the mother would be able to adduce expert evidence from her treating psychiatrist under Division 15.2 of the Federal Circuit Court Rules 2001 (Cth) and the father’s right to verify the reliability of such expert evidence must be preserved, for otherwise he would be denied procedural fairness? At the very least, the order inferentially posits that in any new litigation the mother’s treating psychiatrist would be cast as an expert witness on the ultimate issue without any discussion in the reasons for judgment of the propriety of that course.
43. Ground 5 succeeds because Order 20 was ostensibly made without power.
44. One final comment should be made. Notation B made by the primary judge is meaningless. Notations are not orders. The judgment of the primary judge is embodied only in the orders (Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45 at 64), which are explained in the reasons for judgment. Apparently, the notation is intended to record an admission that the parties will not raise Rice and Asplund as an impediment to the mother’s institution of fresh proceedings after the elapse of about two years. In the first place, it is not at all clear from the transcript that the father ever even made such an admission. In fact, the reasons for judgment firmly imply that he did not (at [380]). But even if he did, admissions can be recanted. They do not endure indefinitely. If it be imagined that, in two years’ time, the mother commences fresh proceedings but the expert evidence which is then available tends to show her psychological condition has not improved and the circumstances have therefore not materially changed, why would it not be proper for a party to contend for the invocation of the Rice and Asplund guideline and seek dismissal of the mother’s fresh application, regardless of what is recorded in Notation B? Clearly, the terms of the notation cannot preclude a party’s legitimate recourse to applicable legal principles.

Ground 3

45. This ground attacks Order 19, which was made in these terms:

(19) The mother undertake counselling and treatment from a suitably qualified professional as recommended by [the Family Consultant], and is at liberty to provide a copy of the following documents to such qualified professional:

(a) the family report prepared by [the Family Consultant] on 4 October 2018... ;
(b) the [single expert psychiatrist’s] report dated 30 January 2019... ; and
(c) the final orders and reasons for judgment.

46. This ground of appeal contended the primary judge’s discretion miscarried by making the order, though the discretionary error alleged in the ground of appeal was different from the errors argued in the Summary of Argument.
47. The solitary complaint in the ground of appeal is 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. It is convenient to add at this point that the complaint articulated in the ground of appeal is not a competent ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505).
48. The complaints within the Summary of Argument, however, expanded to include these: the order is unspecific about the length or purpose of the mother’s treatment; the order was made without power; the order was made without consideration of relevant evidence; and the order was made without affording the mother procedural fairness.
49. The last two complaints can be immediately rejected. The mother did not identify the evidence which was allegedly not taken into account and the complaint of procedural unfairness does not legitimately fall for consideration under this ground of appeal. In any event, the latter complaint is not dissimilar from that raised under Ground 4, which has already been dismissed.
50. The order was, however, made without power. Even though this contention is not encompassed by the ground of appeal as it is articulated, it is an error which nonetheless requires correction when identified in an appeal such as this conducted as a re-hearing (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 553; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [30]–[32]).
51. Order 19 is unlike Orders 6(b)(iii) and 6(b)(iv), which were the subject of separate complaint under Ground 2. Those sub-orders condition the operation of Order 5, which is undoubtedly a parenting order because it stipulates how and when the children are to spend time with the mother. Orders 5 and 6 are thereby interlinked. By contrast, Order 19 is a self-standing order, untethered from any particular parenting order. It is not itself a parenting order under s 64B(2) of the Act, in which case the only other conceivable source of power for it is s 67ZC of the Act, but the limits of the power reposing in s 67ZC are not entirely unconfined (L v T [1999] FamCA 1699; (1999) FLC 92-875 at [51] and [55]–[60]; Jacks & Samson [2008] FamCAFC 173; (2008) FLC 93-387 at [200]–[203], [216], [219]–[222], [224] and [226]).
52. We endorse the serious reservations expressed there by the Full Court as to how self-standing orders directing a party to accept therapeutic treatment are not usually made conformably with s 67ZC of the Act. As the Full Court earlier observed in Jacks & Samson (at [226]), that would take “unique circumstances”, which we are satisfied are not present here. This ground therefore succeeds because Order 19 was made without power.
53. Hence, it becomes unnecessary to consider the allied complaint about the inherent lack of prescription within Order 19.

Ground 2

54. This ground attacks the conditions contained within sub-paragraphs (b)(iii) and (b)(iv) of Order 6, which was made in the following terms:

(6) The mother’s time with the children pursuant to order 5 herein be subject to the following conditions:

(a) the maternal grandparents or either of them or such other person agreed in writing with the father, are in substantial attendance; and
(b) the maternal grandparents (or such other person as agreed) ensure that:

(i) the children are not video recorded during time with the mother or maternal grandparents;
(ii) changeovers are not video recorded;
(iii) they promptly advise the father of any hospitalisation of which they are aware, of the mother for mental treatment; and
(iv) they promptly advise the father of any police charges or of any time the mother spends in police detention, of which they are aware.

55. By its terms, Order 6 sets up the conditions under which the children are to spend time with the mother pursuant to Order 5.
56. The mother conceded in her Summary of Argument that:

The conditions on the appellant’s time with the children in orders 6(a) and 6(b)(i) to (ii) of the final parenting orders, adequately mitigate any risk to the children of the mother’s mental health deteriorating...

57. Therefore, this ground of appeal is confined to sub-orders (b)(iii) and (b)(iv), averring that the primary judge’s discretion miscarried by making them. In the mother’s Summary of Argument, the alleged miscarriage was particularised to be an absence of power to make those particular sub-orders or, alternatively, that they are characteristically injunctions and went beyond what was “just or convenient”.
58. Dealing firstly with the complaint about the absence of power, correctly, the mother observed this in her Summary of Argument:

...The orders are also phrased such that it is a condition precedent to the appellant spending time with the children....

59. Section 64B(2) of the Act enables a parenting order to “deal with” the time a child is to spend with a party and any aspect of a child’s care, welfare or development. Given the primary judge’s unchallenged and therefore undisturbed findings about the mother’s impaired psychological condition and her apparent refusal to acknowledge the extent of her impairment, sub-orders (b)(iii) and (b)(iv) are evidently the manifestation of her Honour’s conclusion concerning the safeguards needed to condition the way in which the children spend time with the mother so as to promote their best interests. The children’s welfare is liable to be compromised if the mother suffers psychological degradation, as would be implied by her future hospitalisation for psychological ill-health or her criminal prosecution. As such, sub-orders (b)(iii) and (b)(iv) were made within power as integral parts of the parenting orders (L v T at [49]–[60]; Jacks & Samson at [200]–[203], [210], [219]–[222], [224], [226]).
60. Once it is accepted that sub-orders (b)(iii) and (b)(iv) are integral parts of the parenting orders, it is immaterial whether or not they could also have been made in the exercise of power which reposes within s 67ZC of the Act; an issue the mother sought to debate in her Summary of Argument.
61. Sub-orders (b)(iii) and (b)(iv) were proposed in almost identical terms by the ICL and the primary judge consequently said this of the need for Order 6:
    189. In support of his position, the father and the ICL pointed to evidence of the mother’s mental health, her actions and interactions with police, DHHS and medical providers. The mother contends that her actions were at all times motivated by the desperation she felt at not being able to see her children. As stated earlier, I accept that this is how the mother genuinely felt. However, in making parenting orders, the paramount consideration is what is in the best interests of the children, not the mother’s motivations.

...

418. Whilst the maternal grandparents are clearly supportive of the mother in her dispute with the father, I accept their evidence that they will:

a) always act in the children’s best interests;

2. be in substantial attendance for any time spent with the children and their mother; and

100. provide an appropriate and proportionate check on the mother’s condition deteriorating.

62. As to the content of sub-orders (b)(iii) and (b)(iv), the mother submitted:

..The effect of the orders is that they are coercive in nature and requires the second and third respondents.... to provide information of a sensitive nature about the appellant...

63. The submission is rejected, since the sub-orders do not have that effect at all. They do not oblige the maternal grandparents to do anything. The maternal grandparents may choose whether or not they divulge such information to the father, but there may be consequences for their choice of silence. If the maternal grandparents are aware of the mother’s hospitalisation for “mental treatment” or of her detention or prosecution by the police, but do not promptly advise the father of it, then the cumulative conditions of Order 6 will be unfulfilled and (subject to the father becoming aware of it) the children’s expenditure of time with the mother pursuant to Order 5 may be consequently suspended. In the absence of agreement between the parties about what should then occur, it seems inevitable that fresh litigation would be commenced to determine what variation to Orders 5 and 6 would be required.
64. To illustrate the point, sub-orders (b)(iii) and (b)(iv) may be contrasted with other stand-alone injunctions which actually do impose positive obligations upon the maternal grandparents. Order 13 stipulates the maternal grandparents “will ensure” the mother is not in their company when the eldest child is present without the father’s prior written agreement and Order 15 actively restrains the maternal grandparents from denigrating the spouses in the presence or hearing of the children and from discussing the proceedings with the children.
65. The distinction can be emphasised in another way. If the maternal grandparents breach their duties under Orders 13 or 15, they are liable to be sanctioned for their contravention under Division 13A of Part VII of the Act. By contrast, if they do not fulfil the obligations under Orders 6(b)(iii) and 6(b)(iv), then the only consequence will be the inability of the children to spend time with the mother pursuant to Order 5.
66. The mother’s counsel commendably accepted those propositions during the hearing of the appeal and, as a consequence, this ground was eventually abandoned.

DISPOSITION

67. Grounds 3 and 5 succeed in relation to Orders 19 and 20 made by the primary judge.
68. If the appeal succeeded, the mother did not seek a re-hearing. Rather, her Amended Notice of Appeal filed on 2 March 2021 indicates her desire for this Court to re-exercise discretion by:

(a) quashing Orders 6(b)(iii) and 6(b)(iv);
(b) quashing Orders 19 and 20; and
(c) amending Order 21, including by deleting the reference within it to Order 20.

69. Similarly, the mother submitted in her Summary of Argument that the errors could be solved by the vitiated orders being “struck out”. The father’s counsel conceded the re-exercise of discretion was a preferable option to remitter of the proceedings.
70. We accept the appealable errors can be rectified by the re-exercise of discretion, but not in the precise way the mother sought.
71. No error in making Order 6 was demonstrated, so it will remain intact.
72. Orders 19 and 20 will be quashed because they are both infected by error.
73. Order 21 will also be quashed, since it only conditions the operation of Order 20. If Order 20 is quashed, Order 21 has no work to do and is nugatory, which the mother conceded.
74. In the event of the appeal being upheld, the mother sought a costs certificate for the appeal pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), as did the father if the appeal succeeded for an error of law. The appeal succeeded only because of errors of law and both parties should have costs certificates for the appeal.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Justice Austin & Justice Tree.

Associate:

Dated: 7 May 2021