Oberlin v Infeld

1. IT IS DECLARED that pursuant to the Final Orders made on 26 March 2024, the Mother be permitted to travel overseas with the child X born in 2020 between September and October 2025, notwithstanding any other Court order to the contrary.
2. The mother, MS SENG ('the Mother'), advise the father, MR MINH ('the Father') in writing as soon as practicable when the child has returned to the Commonwealth of Australia.
3. The Mother be and is permitted to provide a copy of these Orders to the Australian Federal Police and any other government department or agency as may be necessary.
4. The application of the Father to restrain the Mother from travelling overseas with the child, and for a watchlist order be and is dismissed.
5. By no later than 28 days from the date of these orders, both parents enrol in a Parenting After Separation program.
6. The Father do all acts and things forthwith to contact the liaison with Australian Federal Police ('the AFP') to advise that his application for a watchlist order should be vacated and to provide the AFP with a copy of these orders.
7. The Father confirm with Mother in writing as soon as he has complied with order 7 herein.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, to add observations inadvertently omitted due to the pressure of time and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.

1. In the matter of Seng & Minh, final orders were made by consent on 26 March 2024 ('the Final Orders'). In regard to parenting, those Final Orders included the following:

2. At all times not specified for in Order 3, the child shall live with the Mother.

1. The child live with the Father at such times to be agreed between the parties, and failing agreement as follows:

DURING THE GAZETTED VICTORIAN SCHOOL TERMS

(a) Commencing from the date of these orders until 31 May 2024:

(i) In week one, from 8.00am on Sunday until Monday 7.30pm (1 overnight); and

(ii) In week 2, from 8.00am on Saturday until Monday 7.30pm (2 overnights).

(b) Commencing from 1 June 2024 until conclusion of Term 1 in 2025, in a rotating fortnightly cycle as follows,

(i) In week one, on Saturday from 8:00am to Monday 8:00pm (2 overnights);

(ii) In week two, on Sunday from 8:00am to Tuesday 8:00am (2 overnights).

(c) Commencing conclusion of Term 1 in 2025 until conclusion of Term 1 in 2026, in a rotating fortnightly cycle as follows,

(i) In week one, on Saturday from 8:00am to Tuesday 8:00am (3 overnights);

(ii) In week two, on Sunday from 8:00am to Tuesday 8:00am (2 overnights).

(d) Commencing conclusion of Term 1 in 2026 until conclusion of Term 1 in 2028,

(i) Every Monday afterschool (or 3.00pm on a non-school day) to Wednesday before school (or 8.00am on non-school day);

(ii) Every second Friday afterschool (or 3.00pm on a non-school day) to Monday before school (or 8.00am on non-school day);

(e) Commencing conclusion of Term 1 in 2028 and onwards, in a rotating fortnightly cycle being from Monday 8:30am to the following Monday 8:30am (7 overnights).

...

School holidays

7. For purposes of the gazetted Victorian school term holidays:

(a) in 2024, the child's periods of care with the father be extended for the purposes of holidays so as to extend the period referred to in Order 3(a) and 3(b) hereof respectively by 24 hours on each occasion of care ordered therein;

(b) in 2025, so as to extend the period referred to in Order 3(b) and 3(c) hereof respectively, the child's period of care with the father be extended by 24 hours on each occasion of care ordered therein;

(c) Commencing in 2026 and each year thereafter, the child live with each parent for half of the said holidays as agreed between the parties in writing, and failing agreement:

(i) the first half in even numbered years from the conclusion of the last day of school term until 3.30pm on the middle Saturday; and

(ii) the second half in odd numbered years from 3.30pm on the middle Saturday until the commencement of the next school term.

8. For purposes of the gazetted Victorian long summer school holidays:

(a) the child's periods of care with the father be extended for the purposes of the said holidays:

(i) in December 2024 / January 2025, summer holidays the spend time arrangements in Orders 3(a) and 3(b) herein be extended by 48 hours on each occasion of care;

(ii) in December 2025 / January 2026 summer holidays the spend time arrangements in Order 3(b) and 3(c) herein be extended by 48 hours on each occasion of care;

(b) commencing in December 2026 / January 2027 and each year thereafter, time that would otherwise occur pursuant to Order 3 be suspended and the child live with each parent for half of the said holidays to be exercised on a week about basis as agreed between the parties in writing, and failing agreement:

(i) in odd numbered years from the conclusion of the school year for 7 consecutive nights commencing from the conclusion of the last day of school in Term 4 until 3.30pm on the 7th day of the said holiday and each alternate 7 days thereafter with the cycle of time to conclude at 3.30pm on the day before the commencement of the new school year, notwithstanding that the cycle may be less or more than 7 nights.

(ii) in even numbered years for 7 consecutive nights commencing from the 3.30pm on the 7th day following the last day of school in Term 4 and each alternate 7 days thereafter with the cycle of time to conclude at 3.30pm on the day before the commencement of the new school year, notwithstanding that the cycle may be less or more than 7 nights.

...

Passport and International Travel

1. The parties be permitted to travel with the child overseas during any period the child is in their care pursuant to these Orders or by agreement between them, on the basis that:

(a) The travelling parent provides the non-travelling parent with not less than 60 days written notice of their intention to travel overseas with the child, with that notice to include the destination/s and proposed dates of travel;

(b) The travelling parent provides to the non-travelling parent with not less than 30 days prior to departure, a copy of the itinerary including the confirmed destination/s, transport and accommodation details, confirmed dates of travel, copies of the return tickets for the child and contact details for the child for the duration of the travel including the address and contact telephone number for where the child will be staying;

(c) The travelling parent ensures that any periods of travel occur during the child's usual scheduled time with the travelling party and during the school term holidays unless otherwise agreed between the parties in writing;

(d) Commencing from the date of this Court Order until the child commences Primary School, each party be permitted to travel with the child for a period seven days once per calendar year and in the event that the interstate/overseas travel impedes on the time that the non-travelling parent would otherwise have had with the child, then make up time with the non-travelling parent be provided with dates to be agreed in writing prior to the travel occurring; and

(e) From 1 January 2028, each party be permitted to travel with the child for a period of up to two weeks once per calendar year (with such travel not to occur during any special occasion times unless agreed) and in the event that the interstate/overseas travel impedes on the time that the non-travelling parent would otherwise have had with the child, then make up time with the non-travelling parent be provided with dates to be agreed in writing prior to the travel occurring;

(f) Until the child commences primary school, the travelling parent shall facilitate telephone contact between the child and the non-travelling parent at least every second day with such communication to be at a mutually agreed time and failing agreement at 5:00pm (Melbourne, Australia time); and

(g) Upon the child commencing primary school, the travelling parent shall facilitate telephone contact between the child and the non-travelling parent for not less than twice a week during overseas travel.

...

1. What has occurred in this case is that the applicant mother, Ms Seng ('the Mother'), has given timely notice of an intention to travel overseas for an entirely reasonable and legitimate purpose in a timely manner and attempted to reach agreement with the respondent father, Mr Minh ('the Father'), as to make up time. It is also clear that the Father has interpreted 10(d) of the Final Orders as meaning that the make up time must be agreed beforehand, otherwise the trip is not permitted.
2. I am satisfied that the scheme of the Final Orders was that until X commences school (when each parent would be able to travel overseas without interfering with the other's time because of the school holiday provisions), it was intended that each parent be able to travel for seven days regardless of the other arrangements. However, those matters were strictly governed by 10(a), 60 days' notice being provided, and 10(a), 30 days' notice of the exact departure, itinerary, etcetera. In this case, it is clear that the Mother has provided more than 60 days' notice and provided notice within 30 days of intended travel of the itinerary. It is also clear that the Mother has attempted to reach agreement about make up time.
3. That scheme was an entirely sensible one, but it had implicit in it that there would be reasonable attempts to reach agreement about the make up time. I am satisfied, taking the scheme of the orders as a whole, that it was not intended that either party had a veto over the travel on the basis of refusing to negotiate about make up time or refusing reasonable propositions for makeup time. On a strict or literal reading of the orders, it is possible for a party to discern the veto interpretation. But I am satisfied that the orders were intended to read such that there be an attempt to reach agreement about the make-up time.
4. The orders had implicit in them the safety valve, or amelioration of risk, of harm by travel overseas to an unsafe location, or in unreasonable circumstances, by the provision of the 60 days' notice and the 30 days' notice of itinerary provision. If there was anything unreasonable about the travel proposal, each party had the time to make application to the Court on an urgent basis to prevent such unsafe travel. There is nothing suggested to be unsafe about the Mother's intended trip to City B for seven days for the purpose of visiting a step-great-grandmother. Rather, the Father is concerned at what he sees as a tendency towards unilateral decision-making by the Mother. It is unnecessary that I determine those matters (the allegation of the Mother's "tendency") without a full hearing, and there is no application to vary the order about that.

1. My decision is that the Mother should be permitted to take the child, X, overseas for seven days as she seeks. Orders 10(d) and 10(e) of the Final Orders should be varied by the minor variation so that the words "attempted to be" are inserted before the word "agreed". And I will vary order 10(d) and (e) accordingly. And that may avoid further trouble in the future.
2. I will also order that the application of Mr Minh, X's father, to restrain the Mother from travelling overseas and for what is known as a "watch-list order" be dismissed. I am not satisfied there is a proper basis for making either of those orders, and ultimately, the Father sensibly agreed that such order were "heavy-handed".
3. It is unnecessary that I proceed to decide as to why the Father has taken the approach that he has. However, on a literal meaning of the orders as drafted, it is easy to see why he may have thought that he was entitled to take the stance that he did.
4. In terms of the Court's power to vary the Final Orders, I am satisfied that the controversy that has broken out between the parties and the dispute between them about what the order meant and the reasonable interpretations that each had of the existing order is a new fact and circumstance as required to be found under section 65DAAA of the Family Law Act 1975 (Cth) ('the Act'), before a final order can be reconsidered. That section is as follows:

65DAAA Reconsideration of final parenting orders

(1) If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:

(a) the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and

(b) the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.

(2) For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:

(a) the reasons for the final parenting order and the material on which it was based;

(b) whether there is any material available that was not available to the court that made the final parenting order;

(c) the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);

(d) any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.

(3) Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.

(4) The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.

1. It is important to note that in Radecki & Radecki [2024] FedCFamC1A 246, (2024) FLC 94-232, (2024) 70 Fam LR 172 ('Radecki'), the Full Court determined that the word "consider" does not take a literal or everyday meaning but, in effect means, "consider and if determined that there has been a change of circumstances then...". Hence not the literal meaning and not the meaning described in Goode & Goode [2006] FLC 93-286 at [82].

[82] In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

1. The Full Court observed in Radecki:
   1. The decisive factor in rejecting the literal interpretation of "consider" is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.
   2. We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of "consider" should not be a literal one. The word "consider" in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
2. I am otherwise satisfied that, in accordance with the provisions of section 60CC of the Act, that the variation of this order promotes the best interests of X.

1. In the event that I am wrong about the controversy about what the orders mean is not a change of circumstances, or a sufficient change of circumstances to justify revisiting the Final Orders, I am satisfied that this is a case where paragraph 83 of SPS & PLS (2008) FLC93-363 ('SPS & PLS') applies:
   1. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
2. That is, this change is minor change of the final orders such that it is unnecessary to embark on a full or protracted hearing. I am not satisfied that would be in X's interests. Hence, by application of paragraph 83 of SPS & PLS, the provisions of 65DAAA do not apply, in the sense of it is necessary to find a significant change of circumstances, because, as explained in Radecki, notwithstanding the literal meaning of section 65DAAA, that section actually replicated or codified the scheme of the jurisprudence known as the rule or guideline in Rice & Asplund [1978] FamCAFC 128; (1978) 6 FamLR 570, (1979) FLC 90-725, and the many decisions of the Family Law Act Courts building jurisprudence since, including the decision of Warnick J and SPS & PLS.

Further parenting after separation course ('PAS')

1. Section 13C of the Act provides:

Section 13C Court may refer parties to family counselling, family dispute resolution and other family services

(1) A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

(a) that one or more of the parties to the proceedings attend family counselling;

(b) that the parties to the proceedings attend family dispute resolution;

(ba) that one or more of the parties to the proceedings make use of children's contact services provided by CCS businesses;

(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

1. I am troubled at the growing potential for dispute between the otherwise two perfectly good and reasonable parents. In varying this order, I am also satisfied that each of these parents should undertake a further parenting after separation program and that each parent should enrol within 28 days of my orders. I am satisfied that these two good, capable parents, who are on a journey to a court-ordered regime of equal time, would be assisted by such a course. In the circumstances although the completion of such course is not a condition of the operation of the orders, I am satisfied it is "tethered" to the continual operation of the Final Orders. Hence, I am satisfied there is jurisdiction to make such an order by section 13C of the Act. Following the logic of Oberlin v Infeld [2021] FamCAFC 66 ('Oberlin') it is clear enough that the exercise of the jurisdiction must relate to orders or purpose under the Act.
2. I am unable to determine, and nor is it necessary to determine, whether either party has acted unreasonably in regard to any parenting matter, such as arranging important medical appointments that the child attends before the other parent is aware of it, or dealing with pyjamas, or whether a feeling that a parent has that he or she the individual is being controlled or coerced is reasonable or not. And I make no such finding one way or the other. But I am satisfied that each of the parents and, most importantly, X's welfare, would be assisted by each of the parents being reminded of the importance of peace and harmony and, in particular, parental peace and harmony in X's life and so to again undertake the PAS.

1. I am further satisfied that I have power to vary the final orders, to relieve these parents from the agony of a dispute about what a parenting order means, when, on the face of it, neither parent is acting unreasonably. One is attempting to apply the spirit of the orders, and the other attempting to apply the literal meaning as he sees it, such that this is a gap or lacuna in the orders, and it is necessary for the Court to resolve that controversy or difficulty.
2. Those are my reasons.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.