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

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”).
The Applicant shall file and serve any amended application and affidavit in support within 14 days herein.
The Respondent shall file and serve any amended response and affidavit in support within 14 days thereafter.
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.
Pursuant to Section 91B of the Family Law Act 1975 it is requested the Department of Human Services Victoria intervene in these proceedings.
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.
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.
The question of the Applicant’s costs of this day be reserved.
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)

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…

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 Isaac and Isaac (No.2)

Details

AGLC: Isaac and Isaac (No.2) [2014] FCCA 3174
Case: [2014] FCCA 3174
Decision Date: 24 October 2014

CaseChat Overview and Summary

This matter came before Judge O’Sullivan of the Federal Circuit Court of Australia concerning parenting arrangements for two children. The dispute involved the father (Applicant) and the mother (Respondent).

The court was required to determine the future arrangements for the children, taking into account the orders sought by both parents. The court also considered the potential intervention of the Department of Human Services Victoria in the proceedings.

Judge O’Sullivan granted leave for the Respondent’s former solicitor to withdraw. The court then directed the Applicant to file and serve any amended application and supporting affidavit within 14 days, followed by the Respondent filing and serving any amended response and supporting affidavit within a further 14 days. Crucially, the court requested the Department of Human Services Victoria to provide a report with recommendations for the children's future arrangements, considering the parents' respective orders sought. Furthermore, the court requested the Department to intervene in the proceedings pursuant to section 91B of the *Family Law Act 1975*, and to be provided with relevant documentation upon request. The matter was adjourned for a mention on 26 February 2015, with the question of the Applicant’s costs reserved. The orders also included particulars of obligations and consequences of contravention pursuant to s 65DA(2) of the *Family Law Act 1975*.

Orders

Orders of the court

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”).

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

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

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.

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

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.

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.

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

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.

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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