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Isaac and Isaac (No.4)

Isaac and Isaac (No.4)

Case [2015] FCCA 1845 25 June 2015

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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
Langmeil & Grange [2013] FamCAFC 31
Marsden & Winch (2009) FamCAFC 152
SPS & PLS [2008] FamCAFC 16
Miller & Harrington [2008] FamCAFC 150
DL & W (2012) FLC 93-496
Poisat & Poisat (2014) FLC93-597
Carriel & Lendrum [2015] FamCAFC 43
In the marriage ofZabaneh (1986) 11FamLR 167

Isaac & Isaac [2013] FCCA 136
Isaac & Isaac [2014] FCCA 3173
Isaac & Isaac (No.2) [2014] FCCA 3174
Isaac & Isaac (No.3) [2015] FCCA 1747

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
OF AUSTRALIA

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…

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.4)

Details

AGLC: Isaac and Isaac (No.4) [2015] FCCA 1845
Case: [2015] FCCA 1845
Decision Date: 25 June 2015

CaseChat Overview and Summary

In the matter of *Isaac and Isaac (No.4)*, Judge O’Sullivan of the Family Court of Australia considered a dispute between the parties, Isaac and Isaac. The specific nature of the dispute is not detailed in the provided text, but the court's orders indicate it involved parenting arrangements and potentially contraventions of previous orders.

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

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 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Isaac and Isaac (No.4) [2015] FCCA 1845

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 20 of 20 shown

Carriel & Lendrum
[2015] FamCAFC 43 Para 1

…7]; Carriel & Lendrum [2015] FamCAFC 43 at [49] – [58] and specifically [56] The Full Court in Poisat held that an order dismissing the proceedings is not a parenting order. [43] The Full Court in Carriel & Lendrum did not have to decide this question but said it seriously doubted that an order dismissing the applic…
Isaac and Isaac (No.3)
[2015] FCCA 1747 Para 3

…ns referred to as Isaac & Isaac [2014] FCCA 3173 on 4 August 2014, Isaac & Isaac (No.2) [2014] FCCA 3174 on 24 October 2014 and Isaac & Isaac (No. 3) [2015] FCCA 1747 on 26 February 2015.…
Isaac and Isaac (No.2)
[2014] FCCA 3174 Para 3

…er and the mother is set out in a number of ex tempore decisions referred to as Isaac & Isaac [2014] FCCA 3173 on 4 August 2014, Isaac & Isaac (No.2) [2014] FCCA 3174 on 24 October 2014 and Isaac & Isaac (No. 3) [2015] FCCA 1747 on 26 February 2015.…
Morton & Berry
[2014] FamCAFC 208 Para 1

…y) Act 2006 (Cth). [6] [4] Poisat & Poisat [2014] FamCAFC 128 at [8] (“ Poisat”) ; Morton & Berry [2014] FamCAFC 208 at [22]. [5] Langham and Langham (1981) FLC 91-014; Newling and Mole (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383; SPS & PLS (2008) FLC 93-363; [6] Ma…
Isaac & Isaac
[2014] FCCA 3173 Para 3

…und to this latest round of proceedings between the father and the mother is set out in a number of ex tempore decisions referred to as Isaac & Isaac [2014] FCCA 3173 on 4 August 2014, Isaac & Isaac (No.2) [2014] FCCA 3174 on 24 October 2014 and Isaac & Isaac (No. 3) [2015] FCCA 1747 on 26 February 2015.…
Poisat & Poisat
[2014] FamCAFC 128 Para 1

…ter the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). [6] [4] Poisat & Poisat [2014] FamCAFC 128 at [8] (“ Poisat”) ; Morton & Berry [2014] FamCAFC 208 at [22]. [5] Langham and Langham (1981) FLC 91-014; Newling and Mole (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; Miller & Harrin…
Isaac & Isaac
[2013] FCCA 136 Para 2

…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 reasons why final parenting orders under the Family Law Act 1975 (Cth) (“the Act”) were made for the children on 24 June 2013 (“the June 2013 order…
Langmeil & Grange
[2013] FamCAFC 31 Para 3

…There have been more recent Full Court decisions that have considered the rule in Rice & Asplund (supra). In Langmeil & Grange [2013] FamCAFC 31 (“ Langmeil & Grange ”) the Full Court said: “43.The rule in Rice & Asplund was recently considered in DL & W [2012] FamCAFC 5 ; (2012) FLC 93-496 per May, Thackray & Stric…
DL & W
[2012] FamCAFC 5 Para 3

…ngmeil & Grange [2013] FamCAFC 31 (“ Langmeil & Grange ”) the Full Court said: “43.The rule in Rice & Asplund was recently considered in DL & W [2012] FamCAFC 5 ; (2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Fami…
Caracini & Paglietta
[2009] FamCAFC 188 Para 4

…ee Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3. 64.The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:…
Marsden & Winch
[2009] FamCAFC 152 Para 1

…In Langmeil & Grange (supra) the Full Court said: “In DL v W and Marsden v Winch [2009] FamCAFC 152 ; (2009) 42 Fam LR 1 , per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS [2008] FamCAFC 16 ; (2008) FLC 93-363. In particular, that the…
B & J
[2009] FamCAFC 103 Para 4

…endments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3. 64.The policy considerations underpinning the “rule” were explained…
Gotch & Gotch
[2009] FamCAFC 3 Para 4

…& J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3. 64.The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499: …the principle that there be an end…
Miller v Harrington
[2008] FamCAFC 150 Para 10

…ters raised by the mother are manifestations of the same matters found in Isaac & Isaac [2013] FCCA 136.[61] The father relied on Miller & Harrington [2008] FamCAFC 150 at paragraph 116 for the purposes of that submission which was: “116 The matters said on behalf of the mother to be changes of circumstances are in f…
SPS & PLS
[2008] FamCAFC 16 Para 2

…hose principles in Marsden & Winch (2009) FamCAFC 152 (“ Marsden & Winch”) the Full Court of the Family Court said: “41. Warnick J in SPS & PLS [2008] FamCAFC 16 ; (2008) FLC 93-363 said at [1]: The “ rule ” in In the Marriage of Rice and Asplund ...that, where there has already been a final order in respect of pare…
SZIKT v Minister for Immigration & Anor
[2007] FMCA 293 Para 4

…[30] [2007] FMCA 293 at [4]…
Goode & Goode
[2006] FamCA 1346 Para 1

…nd Asplund. [42] [41] [2006] FamCA 1346 at [82] [42] DL & W , supra at [77]; Carriel & Lendrum [2015] FamCAFC 43 at [49] – [58] and specifically [56] The Full Court in Poisat held that an order dismissing the proceedings is not a parenting order. [43] The Full Court in Carriel & Lendrum did not have to decide this q…
CDJ v VAJ
[1998] HCA 67 Para 4

…he likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said: … So too the public and private interest in the finality of litigation must be given some weight even in case…
[1986] FAMCA 23
[1986] FAMCA 23 Para 3

…debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23 ; (1987) FLC 91-857 at 76,470–71: “Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely…
[1987] FAMCA 21
[1987] FAMCA 21 Para 2

…pplies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth) ; see also Newling & Mole [1987] FamCA 21 ; (1987) FLC 91-856 ; F & N (1987) FLC 91-813 ; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that: ...when the threshold question described…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
60CC 2 mentions (from Para 3)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 1)