FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC (No.4) | [2015] FCCA 1845 |
| Catchwords: FAMILY LAW – Parenting − application to dismiss parenting proceedings replying on principles set out in Rice & Asplund (1979) FLC 90-725. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Rice & Asplund (1979) FLC 90-725 Isaac & Isaac [2013] FCCA 136 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 25 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Byrnes |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Taghdir |
| Solicitors for the Independent Children’s Lawyer: | Taft Lawyers |
ORDERS
The proceedings be dismissed pursuant to Rice & Asplund (1979) FLC 90-725 and the proceedings be removed from the Pending Cases List.
The order appointing the Independent Children’s Lawyer be discharged.
Pursuant to s.65DA(2) of the Family Law Act1975 (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.
AND THE COURT NOTES
A.The orders made on 24 June 2013 remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT DANDENONG |
DGC 400 of 2012
| MR ISAAC |
Applicant
And
| MS ISAAC |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), Evatt CJ said that a Court should not lightly entertain an application to reverse an earlier custody order, as to do so would be to invite endless litigation as change is an ever present factor in human affairs.
As has been said in Langmeil & Grange (2013) FamCAFC 31 (“Langmeil & Grange”), what is referred to as the rule in Rice & Asplund is founded on the notion that continuous litigation over a child or children is generally not in their interests. In these proceedings that issue arises squarely for consideration.
Background
These proceedings concern Y born (omitted) 2001 and X born (omitted) 2005 (“the children”). The parties to these proceedings are Mr Isaac (“the father”) and Ms Isaac (“the mother”).
The historical background to these proceedings is set out in Isaac & Isaac [2013] FCCA 136.[1] For those reasons, over the course of 120 pages, the Court explained the…
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- AGLC
- Isaac and Isaac (No.4) [2015] FCCA 1845
- Case
- [2015] FCCA 1845
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the proceedings should be dismissed, and consequently, whether the appointment of an Independent Children’s Lawyer should be discharged. Furthermore, the court needed to consider the inclusion of specific particulars regarding obligations and consequences of contravention within its orders, pursuant to section 65DA(2) of the *Family Law Act 1975* (Cth).
The court's decision to dismiss the proceedings was made pursuant to the principles established in *Rice & Asplund* (1979) FLC 90-725. This suggests the court found the proceedings to be an abuse of process or otherwise without merit, leading to their removal from the Pending Cases List. The court also discharged the order appointing the Independent Children’s Lawyer, a common consequence when proceedings are dismissed. Finally, the court ordered that specific details of obligations and potential contravention consequences be included in its orders, as mandated by section 65DA(2) of the *Family Law Act 1975* (Cth). The court explicitly noted that existing orders made on 24 June 2013 were to remain in full force and effect.
Orders
Orders of the court
1.
The proceedings be dismissed pursuant to Rice & Asplund (1979) FLC 90-725 and the proceedings be removed from the Pending Cases List.
2.
The order appointing the Independent Children’s Lawyer be discharged.
3.
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.
AND THE COURT NOTES
A. The orders made on 24 June 2013 remain in full force and effect.
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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