Isaac and Isaac (No.2)

[2014] FCCA 3174

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISAAC & ISAAC (No.2) [2014] FCCA 3174

Catchwords:
FAMILY LAW – Parenting orders – application filed at the same time as proceedings on foot in the Victorian Children’s Court – final parenting orders made in 2013 – subsequent Children’s Court proceedings – applicant seeks adjournment until after Children’s Court proceedings.

Legislation:

Family Law Act 1975 (Cth) ss.
Federal Circuit Court Rules 2001 (Cth) r.

Isaac & Isaac [2013] FCCA 136
Isaac & Isaac [2014] FCCA 3173

Applicant: MR ISAAC

Respondent: MS ISAAC

File Number: DGC400 of 2012

Judgment of: Judge O’Sullivan

Hearing date: 24 October 2014

Date of Last Submission: 24 October 2014

Delivered at: Melbourne

Delivered on: 24 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Gough

Solicitors for the Applicant: Macpherson & Kelley Lawyers Pty Ltd

The Respondent: Appeared in Person

ORDERS

1. The Respondent’s former solicitor, Mirabella Solicitors has leave to withdraw from the proceedings and file a Notice of Ceasing to Act in Court this day pursuant to Rule 9.03 of the Federal Circuit Court Rules 2001 (“the Rules”).

2. The Applicant shall file and serve any amended application and affidavit in support within 14 days herein.

3. The Respondent shall file and serve any amended response and affidavit in support within 14 days thereafter.

4. Pursuant to sections 69ZW, 2(a) and (b) and of the Family Law Act 1975 it is requested the Department of Human Services Victoria provide a report, setting out recommendations for the future arrangements for the said children, X born (omitted) 2001 and Y born (omitted) 2005 (“the children”) taking into account the orders sought by the father and the mother in these proceedings.

5. Pursuant to Section 91B of the Family Law Act 1975 it is requested the Department of Human Services Victoria intervene in these proceedings.

6. Upon request from the said Department the Court do provide to it copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in the proceedings.

7. The matter be adjourned for a mention on 26 February 2015 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.

8. The question of the Applicant’s costs of this day be reserved.

9. Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

DGC 400 of 2012

MR ISAAC

Applicant

And

MS ISAAC

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before the Court today are proceedings between Mr Isaac (“the father”) and Ms Isaac (“the mother”). The background to these proceedings is set out in Isaac & Isaac [2013] FCCA 136 and Isaac & Isaac [2014] FCCA 3173. The proceedings return to Court today pursuant to Orders made on 4 August 2014 which provided:

   “THE COURT ORDERS THAT:

   1.The matter be adjourned for a mention on 24 October 2014 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.

   AND THE COURT NOTES:

   A.There are proceedings on foot in the Victorian Children’s Court.

   B.The proceedings in the Victorian Children’s Court are listed for a 7 day hearing commencing on 25 August 2014.

   C.Section 69ZK of the Family Law Act 1975.”

2. Today Mr Gough has appeared on behalf of the father. Solicitors who had filed notices of address for service on behalf of the mother appeared and sought leave to withdraw. An order was made giving leave for them to withdraw pursuant to Rule 9.03 of the Federal Circuit Court Rules 2001 (“the Rules”).

3. The Court has been handed a copy of an order made on 25 August 2014 in the Victorian Children’s Court.[1]

4. The order was marked as exhibit A1. The order indicates the proceedings in that court between these parties and the Department of Human Services (“DHS”) return to that court on 24 November 2014. It is not disputed that the provisions of section 69ZK of the Family Law Act 1975 (“the Act”) means that this Court has no power to make a parenting order for the children the subject of these proceedings.

5. The parties believe that the proceedings in the Victorian Children’s Court may come to a conclusion sooner rather than later. In those circumstances, there is no dispute that the Court should consider inviting DHS to provide the Court with information and/or the opportunity to intervene in these proceedings pursuant to section 69ZW and/or section 91B of the Act.

6. On 4 August 2014 orders were made adjourning the matter to today for the reasons given ex tempore. It seems that subsequent events have overtaken the position of the parties in the initiating application and response.  In those circumstances, it would be prudent for the parties, if they wished to, to update the orders that they seek.  They will each have, in the applicant’s case, 14 days from today, and the respondent 14 days thereafter, to file and serve any amended application or response. I will make those orders and the matter will be adjourned to 26 February 2015.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan

Date:  24 October 2014