Isaac and Isaac (No.3) - [2015] FCCA 1747

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
Isaac & Isaac [2014] FCCA 3173
Isaac v Isaac (No.2) [2014] FCCA 3174

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…

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.3)

Details

AGLC: Isaac and Isaac (No.3) [2015] FCCA 1747
Case: [2015] FCCA 1747
Decision Date: 26 February 2015

CaseChat Overview and Summary

In the matter of *Isaac and Isaac (No.3)*, Judge O’Sullivan of the Federal Circuit Court of Australia considered an application concerning the children, Y and X. The dispute involved interim orders sought by the Applicant and Respondent, with a significant focus on the children's welfare and representation.

The court was required to determine the appropriate interim orders for the children, particularly in light of the provisions of Part VII of the *Family Law Act 1975* (Cth), which deals with children's matters. A key issue was the independent representation of the children, necessitating the appointment of an Independent Children’s Lawyer (ICL).

The court ordered that the children be independently represented pursuant to section 68L(2) of the *Family Law Act 1975* (Cth), requesting Victoria Legal Aid to arrange such representation. The ICL was directed to file a Notice of Address for Service, receive relevant documents from the parties' solicitors within 48 hours of appointment, and adhere to specific guidelines for the child's representative, including tasks related to assessment and recommendation. The ICL was also to prepare a minute of proposed final orders reflecting their preliminary views. The Applicant and Respondent were each ordered to file and serve their respective applications and submissions regarding interim orders, demonstrating why such orders are in the children's best interests, by specific deadlines prior to the adjourned hearing. The matter was adjourned for an interim hearing on 24 June 2015.

Orders

Orders of the court

Pursuant to section 68L(2) of the Family Law Act 1975 (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.

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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