Isaac & Isaac
[2014] FCCA 3173
•4 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC | [2014] FCCA 3173 |
| 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 defended hearing in Children’s Court. |
| Legislation: |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Isaac & Isaac [2013] FCCA 136 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 4 August 2014 |
| Date of Last Submission: | 4 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2014 |
REPRESENTATION
Counsel for the Applicant: Mr T. Gough
Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| The Respondent: | Appeared in person |
ORDERS
The matter be adjourned for a mention on 24 October 2014 commencing at 10:00 am at the Federal Circuit Court of Australia at Melbourne.
AND THE COURT NOTES:
There are proceedings on foot in the Victorian Children’s Court.
The proceedings in the Victorian Children’s Court are listed for a 7 day hearing commencing on 25 August 2014.
Section 69ZK of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac 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, 4 August 2012, are proceedings concerning X born (omitted) 2001 and Y born (omitted) 2005 (“the children”).
The applicant, Mr Isaac (“the father”) is the children’s father. The respondent, Ms Isaac (“the mother”) is the children’s mother.
The father filed an application on 27 June 2014 which sought the following orders:
“FINAL ORDERS SOUGHT
1.That the Husband be excused from further particularising his Application for Final Orders and have leave to file an Amended Application in relation to both parenting and property matters pending the following:
(a)The joinder of the Department of Human Services to these proceedings;
(b)The wife filing her responding material.
2.Such further and other Orders as this Honourable Court considers appropriate.
INTERIM ORDERS SOUGHT
1.That pursuant to s.45(2) of the Family Law Act 1975 (“the Act”) the whole of these proceedings be transferred from the Melbourne Children’s Court (Family Division) to the proceedings 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 s91B of the Act, the court requests the intervention in the proceedings of the Secretary of 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 s92A of the Act, the court directs the Department to make an application to join the proceedings in the Federal Circuit Court.
4.That pursuant to s69ZW 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 X born (omitted) 2001 and Y born (omitted) 2005 for the period 1 November 2013 to date of this order and in particular:
(a)any notifications to the agency of suspected abuse of the children or of suspended family violence affecting the children;
(b)any assessments by the Department of investigations into a notification of that kind or the findings or outcomes 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 on 31 July 2014 which sought the following orders:
“FINAL ORDERS SOUGHT
1.To dismiss husband’s application.
INTERIM ORDERS SOUGHT
1.To dismiss husband’s application.”
The background to the father’s application is set out in reasons for decision published as Isaac & Isaac [2013] FCCA 136. On 24 June 2013 this Court made final parenting orders (as that term is defined in the Family Law Act 1975 (“the Act”) for the children for the reasons set out in the abovementioned decision.
Against the background of those reasons, I note the following developments since the matter was last before the Court.
Final parenting orders were made in June 2013. In November 2013, as a result of intervention by the Victorian Department of Human Services (“DHS”) proceedings were commenced in the Victorian Children’s Court.
There have been subsequent mentions in the Children’s Court in December 2013, February, March, April, May and July 2014.
As a result of a recent hearing in the Victorian Children’s Court those proceedings are listed for a contested hearing estimated to take 7 days on 25 August 2014.
Given the developments referred to above the Court directed the parties attention the provisions of section 69ZK of the Act which states:
“Child welfare laws not affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b)any such order made or action taken; or
(c)the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.”
Putting the matter simply by virtue of those developments this Court has today no jurisdiction to make a parenting order under the Act.
Given this and the upcoming hearing in the Children’s Court the applicant has sought that this matter be adjourned until the proceedings in the Children’s Court are finalised.
It has been made clear courts are entitled to manage their procedures so that the interests of justice can be served by the speedy resolution of cases at the minimum expense (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon)). In Aon their Honours made a number of points, which included that:
·the conduct of litigation is not merely a matter for the parties. The need to avoid disruptions in the court’s lists, with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard, is a relevant matter (at [93]);
·when considering an application such as this the court should take account of other litigants, not just the parties to the litigation in question (at [94]-[95]);
·costs are not always a sufficient compensation for the vacation of a hearing date (at [99]-[100]);
·there may be cases where it may properly be concluded that a party has had sufficient opportunity to make their case and that it is too late for an adjournment application, having regard to the other party and the other litigants awaiting trial dates (at [102]);
·the fact that an explanation has been offered for the delay in raising the issue is relevant, together with whatever explanation may be given (at [103]); and
·whilst all matters relevant to the exercise of the power should be considered substantial delay, wasted costs and the concerns of case management are important (at [111]).
A significant factor in support of an adjournment are the events that I have referred to in the Children’s Court which do in my view, provide a proper basis for the matter being adjourned.
The virtue of the matter being adjourned till after the proceedings in the Victorian Children’s Court are dealt with is that the legislative barrier standing in the way of this Court being able to deal with the matter may not exist.
This is not a matter where an adjournment prejudiced one party as against another party. The Court has not been asked to today to disturb the existing orders in the Victorian Children’s Court. Accordingly and given the position of the parties the matter will be adjourned for mention on 24 October 2014.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 4 August 2014
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