Isaac and Isaac (No.3)
[2015] FCCA 1747
•26 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC (No.3) | [2015] FCCA 1747 |
| Catchwords: FAMILY LAW – Application for parenting orders – proceedings in Victorian Children’s Court – report from Department of Human Services – dispute between parties over interim parenting orders. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Isaac & Isaac [2013] FCCA 136 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 26 February 2015 |
| Date of Last Submission: | 26 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Gough |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers Pty Ltd |
| The Respondent: | Appeared in person |
ORDERS
Pursuant to section 68L(2) of the Family Law Act1975 (Cth) the said children, children Y, born (omitted) 2001 and X, born (omitted) 2005 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
The Applicant shall file and serve any further amended application particularising the interim orders sought on the adjourned date and outline of submissions having regard to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) as to why those interim orders sought are in the children’s best interests by not later than 28 days prior to the adjourned date.
The Respondent shall file and serve any response particularising the interim orders sought on the adjourned date and outline of submissions having regard to the provisions of Part VII of the Act as to why those interim orders sought are in the children’s best interests by not later than 14 days prior to the adjourned date.
The matter be adjourned for interim hearing on 24 June 2015 commencing at 10:00 am at the Federal Circuit Court of Australia at Dandenong.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth) 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.3) 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 are proceedings between Mr Isaac (“the father”) and Ms Isaac (“the mother”). The proceedings return to Court pursuant to Orders made on 24 October 2014. Those Orders provided:
“THE COURT ORDERS THAT:
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, Y born (omitted) 2001 and X 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.”
These proceedings concern an application for parenting orders under the Family Law Act 1975 (“the Act”) for two children of the parties marriage namely, Y born (omitted) 2001 and X born (omitted) 2005 (“the children”).
The background to these proceedings is set out in Isaac & Isaac [2013] FCCA 136.
For the reasons set out in that decision, the Court made final parenting orders on 24 June 2013. Since those orders were made, the parties came to the attention of the Department of Human Services and proceedings were commenced in the Children’s Court of Victoria (“the Children’s Court”).
The father’s application was filed on 27 June 2014. In that application the following interim orders were sought:
“Interim or procedural orders sought
1.That pursuant to s 45(2) of the Family Law Act 1975 (Cth) (“the Act”) the whole of these proceedings be transferred from the Melbourne Children’s Court (Family Division) to the Federal Circuit Court before Judge O’Sullivan, at the earliest available opportunity.
2.That all time be abridged to enable this matter to be heard before 28 July 2014.
3.That pursuant to s 91B of the Act, the court requests the intervention in the proceedings of the Secretary to the Department of Human Services (“the Department”) and that a return date be set which allows the Department sufficient time to adequately respond to the court’s request to intervene.
OR IN THE ALTERNATIVE
That pursuant to s 92A of the Act, the court direct the Department to make an Application to join the proceedings in the Federal Circuit Court.
4.That pursuant to s 69ZW(2) of the Act, the court make an order requiring the Department to provide the court with any documents, recordings or information in its possession regarding the children, known as Y born, (omitted) 2001 and X born, (sic) (omitted) 2005 for the period 1 November 2013 to the date of this Order and in particular:
(a)Any notifications to the agency of suspected abuse of the children or of suspected family violence affecting the children;
(b)Any assessment by the Department of investigations into a notification of that kind or the findings or outcome of those investigations; and
(c)Any reports commissioned by the Department in the course of investigating a notification.
5.That the wife pay the husband’s costs of and incidental to this application.
6.Such further and other Orders as this Honourable Court considers appropriate.”
The mother filed a response to that application on 31 July 2014. In that response the following orders were sought:
“1. To dismiss Husbands application.”
The current application came before the Court for a first court date on 4 August 2014. On that occasion, the father was represented by his solicitor and the mother appeared in person. For the reasons given ex tempore on that day in Isaac & Isaac [2014] FCCA 3173, the matter was adjourned for mention to 24 October 2014. It was noted that there were proceedings on foot in the Children’s Court and those proceedings were listed for a seven day hearing commencing on 25 August 2014. Those Orders also noted section 69ZK of the Act.
The proceedings returned to Court on 24 October 2014. On 24 October 2014, the father was represented by his solicitor and the mother appeared again in person. On that occasion, the Court was provided by way of an exhibit, marked as exhibit A1, with a copy of the then current orders made in the Children’s Court.
The Court was told on 24 October 2014 that the parties believed the Children’s Court proceedings would be concluded by the end of November 2014. The Court requested the Department of Human Services to provide information to the Court pursuant to s.69ZW. Given this, the matter was adjourned and orders were made to allow the parties to join issue on appropriate interim parenting orders in the children’s best interests they wanted made.
Accordingly, the orders referred to earlier in these reasons were made for the reasons set in Isaac & Isaac (No.2) [2014] FCCA 3174. The father filed the amended application on 7 November 2014. In the amended initiating application, he sought the following interim orders:
“1.That the wife forthwith attend upon Dr T at her expense to obtain a report as to her current mental state and any psychiatric issues she may be suffering, and any immediate and ongoing treatment she required, such report to be provided to the Court and to the Husband.
2.That the Wife comply fully with any treatment recommendations made by Dr T and keep the Husband advised of that treatment and provide evidence of her compliance with same.
3.That pursuant to s 69ZW(2) of the Act, the court make an order requiring the Department to provide the court with any documents, recordings or information in its possession regarding the children, known as Y born, (omitted) 2001 and X born, (sic) (omitted) 2005 for the period 1 November 2013 to the date of this Order and in particular:
(a)Any notifications to the agency of suspected abuse of the children or of suspected family violence affecting the children;
(b)Any assessment by the Department of investigations into a notification of that kind or the findings or outcome of those investigations; and
(c)Any reports commissioned by the Department in the course of investigating a notification.
4.That the wife pay the husband’s costs of and incidental to this application.
5.Such further and other Orders as this Honourable Court considers appropriate.”
The mother filed an amended response on 20 November 2014.
The mother sought the following interim orders:
“1. Dr S to attend and give evidence.”
The mother also filed two further affidavits annexing correspondence from her psychiatrist and otherwise referring to the proceedings in the Children’s Court. The mother also filed undercover of an affidavit a Court report from the Children’s Court proceedings and a further letter from her psychiatrist.
The proceedings returned to Court today. The Department of Human Services has provided the Court with a report in response to the orders made by the Court on 24 October 2014. The report provided:
(notes omitted)
Today the father is represented by his solicitor and the mother has appeared in person.
The father told the Court that, when the matter was last before the Children's Court, there were orders made on 24 November 2014. The Court has been provided with what was said to be both a copy of those orders as well as an undertaking upon which those orders were made. Those orders and that undertaking was marked as exhibit A2 which stated:
(notes omitted)
The father has told the Court that, arguably, the rule of Rice & Asplund is engaged. The father submitted that having regard to both the orders made in the Children's Court and the undertaking that the parties gave to the Children's Court on 24 November 2014, the orders made by this Court back in June 2013 are still in the children’s best interests.
The father submitted that in order for this Court to be satisfied that those orders should be charged (or that consideration should be given to whether those orders should be changed) a significant change in circumstances was required. It was submitted on behalf of the father that whilst the mother may say (that she says on the basis of her psychiatrist’s correspondence) that her mental health has improved, that may not be a significant change in circumstances. In any event, it was submitted on behalf of the father that given the Department of Human Services report, the Department have absolutely no concerns with the children living with the father and spending time with the mother which was what the existing orders provided.
It was conceded on the father’s part that his application for interim orders did not raise as an objection to any further orders relying on the rule in Rice & Asplund (1979) FLC 90-725. The final orders sought in the amended initiating application, specifically seek as an order that all existing orders be discharged. In the face of this the father retreated to seeking that the Court consider making the interim orders in his amended initiating application. Given the report provided by the Department of Human Services in response to the order made by the Court on 24 October 2014, the only other interim order that the father could seek was an order that the mother attend upon Dr T. The mother did not agree to that.
In the mother’s amended response, the only interim orders sought were that her psychiatrist be able to give evidence. The mother told the Court that this was a mistake. The mother said she thought that she could today ask the Court to make final orders. The mother said this on the one hand and then said on the other that she thought the matter was only listed for a mention today.
Given the mother was unrepresented the matter was stood down so she could see the duty lawyer. The parties returned to Court after lunch. After seeing the duty lawyer the mother told the Court she is not happy. The mother said she has been told she ‘should follow orders and be a good girl’. The mother told the Court she does not understand why she cannot have what she wants.
It would appear notwithstanding the orders made on 24 October 2014 and the filing of the amended application and the amended response for interim orders, the interim orders sought by the parties today are now different to that set out in their Court documents. Also this is a matter which I am comfortably satisfied warrants the appointment of an Independent Children’s Lawyer pursuant to s.68L of the Act.
It would appear from the positions of the parties today that there needs to be an interim hearing so that some interim orders can be put in place by this Court. Accordingly, I will list this matter for an interim hearing on 24 June 2015.
I will make an order that the father file and serve any further amended initiating application along with an outline of submissions. I will make an order that the mother file and serve any further amended response along with an outline of submissions.
The matter will be adjourned on that basis and orders and directions made for those reasons.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 26 February 2015
2
3
2