DALAL & DALAL (No.2) - [2019] FCCA 3332

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
Family Law Act 1975 (Cth) ss.11F, 69ZN, pt.VII
Federal Circuit CourtRules 2001 (Cth) r.13.01

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…

Grounds of appeal

[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 DALAL & DALAL (No.2)

Details

AGLC: DALAL & DALAL (No.2) [2019] FCCA 3332
Case: [2019] FCCA 3332
Decision Date: 20 November 2019

CaseChat Overview and Summary

In the matter of *Dalal & Dalal (No.2)*, Judge Harland of the Federal Circuit and Family Court of Australia considered an application to set aside a notice of discontinuance. The dispute concerned parenting arrangements for two children, X and Y, and the father's ability to obtain Australian passports for them.

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

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.

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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