FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALAL & DALAL (No.2) | [2019] FCCA 3332 |
| Catchwords: FAMILY LAW – Practice and procedure – application to set aside notice of discontinuance. |
| Legislation: Australian Passports Act 2005 (Cth) s.11 |
| Cases cited: Cao & Trong [2019] FamCA 336 Laramie & Caul [2018] FCCA 1371 Maddison v Qualtime Association Inc [2010] FMCA 25 MZZIO v Minister for Immigration and Anor [2014] FCCA 618 Norton & Locke [2013] FamCAFC 202 Rice & Asplund (1976) FLC 90-725 |
| Other resources: School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) < |
| Applicant: | MR DALAL |
| Respondent: | MS DALAL |
| File Number: | MLC 2803 of 2017 |
| Judgment of: | Judge Harland |
| Hearing date: | 8 November 2019 |
| Date of Last Submission: | 8 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2019 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Ms McNamee |
| Solicitors for the Respondent: | Trapski Family Law |
| Solicitors for the Independent Children's Lawyer: | Ms Corridon of Cathleen Corridon and Associates |
ORDERS
The application in a case filed on 22 October 2019, amended on 1 November 2019 be dismissed.
All previous orders be discharged.
The mother have sole parental responsibility for X born … 2006 and Y born … 2011 (“the children”).
The children live with the mother.
The father’s time with the children be reserved.
The mother is authorised to apply for (and extend) and receive an Australian passport for the children X born … 2006 and Y born … 2011 pursuant to s.11 of the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
The Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Dalal & Dalal (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2803 of 2017
| MR DALAL |
Applicant
And
| MS DALAL |
Respondent
REASONS FOR JUDGMENT
On 13 June 2019 the father filed two notices of discontinuance of his interim and final parenting applications after interim consent orders were made earlier that day. The father was legally represented by his solicitor and counsel when those consent orders were negotiated.
Sometime after the father filed a notice of discontinuance, the mother’s lawyers sought to have the mention date brought forward for the final parenting orders to be made on an undefended basis. The Court could not accommodate this request due to the volume of matters already listed in the Court’s heavy workload. I observe that the orders the mother seeks mirror the final orders made on 12 January 2018 apart from adding the words “and extend” to the order permitting the mother to apply for passports for the children. Given this, the mother could have simply sought that the proceedings be dismissed and sought the Independent Children’s Lawyer’s (“ICL”) consent to this course enabling the matter to be finalised in chambers without further court…
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- AGLC
- DALAL & DALAL (No.2) [2019] FCCA 3332
- Case
- [2019] FCCA 3332
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the notice of discontinuance, filed by the mother, should be set aside. This required the court to consider the circumstances surrounding the filing of the notice and its potential impact on the children's welfare and the father's parental rights.
Judge Harland dismissed the application to set aside the notice of discontinuance. The court's reasoning, though not detailed in the provided text, led to orders that discharged previous orders and granted the mother sole parental responsibility for the children. The children were ordered to live with the mother, with the father's time with them being reserved. Crucially, the mother was authorised to apply for and extend Australian passports for the children without the father's consent, and the Independent Children's Lawyer was discharged.
Orders
Orders of the court
1.
The application in a case filed on 22 October 2019, amended on 1 November 2019 be dismissed.
2.
All previous orders be discharged.
3.
The mother have sole parental responsibility for X born … 2006 and Y born … 2011 (“the children”).
4.
The children live with the mother.
5.
The father’s time with the children be reserved.
6.
The mother is authorised to apply for (and extend) and receive an Australian passport for the children X born … 2006 and Y born … 2011 pursuant to s.11 of the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
7.
The Independent Children’s Lawyer be discharged.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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