Ismail and Morrell

[2017] FCCA 445

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISMAIL & MORRELL [2017] FCCA 445

Catchwords:
FAMILY LAW – Parenting – refusal to make final parenting orders by consent – mother needs an interpreter – orders not interpreted for her.

Legislation:

Family Law Act 1975

Applicant: MR ISMAIL

Respondent: MS MORRELL

File Number: MLC 9331 of 2016

Judgment of: Judge Harland

Hearing date: 27 February 2017

Date of Last Submission: 27 February 2017

Delivered at: Melbourne

Delivered on: 27 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Raniga

Solicitors for the Applicant: RRR Lawyers

Counsel for the Respondent: Ms Keenan

Solicitors for the Respondent: Women’s Legal Service Victoria

ORDERS

1. The proceeding is adjourned to the Duty List on 15 May 2017 at 9:45am.

2. The Respondent file and serve a Response and Affidavit in support by 27 March 2017.

3. Ms. Keenan, solicitor for the respondent mother, be granted leave to withdrawn from these proceeding.

IT IS NOTED that publication of this judgment under the pseudonym Ismail & Morrell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9331 of 2016

MR ISMAIL

Applicant

And

MS MORRELL

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter comes before me today for mention with respect to a parenting matter.  Ms Keenan, who is on the record for the mother, seeks leave to withdraw, not having instructions any longer.  The mother has not filed any material despite these proceedings beginning many months ago now.  The father sought that final orders be made by consent today which have been signed by the father and the mother.

3. The mother’s lawyer wrote to chambers last week and said that there was something irregular about the minutes of order.  The father has filed an affidavit setting out the circumstances both as to what has been occurring in the past few months and also the signing of the orders.  Ms Keenan points to the affidavit of the father with respect to the circumstances of the orders being signed.  There is no suggestion that the father’s solicitor has done anything improper.

4. The issue of concern is that these proceedings concern a very young child, X born on (omitted) 2014 (“X”).  There had been a long gap in times when the father had not spent any time with X, as the mother was in (country omitted), which is where both parents are from.  The father is currently spending time with X.  There are intervention orders in place.

5. The father deposes that, after making several attempts to come to an agreement through the wife’s solicitors, he and a mutual friend approached the mother with the consent orders at her home.  He says that the mother read the orders carefully and that the mother was happy for him to spend time as set out in the orders.  It says that she was not under any pressure.  The mother is here with an interpreter.  I cannot be satisfied, particularly in the absence of any material filed by the mother, that she has not been placed under some pressure with respect to these orders, noting that there are intervention orders in place currently.

6. I am not satisfied that it would be in X’s best interests for me to make the final orders at this time.  The mother will need to file material, and I will direct that the mother file and serve a response and affidavit within 28 days, and I will list the matter in my duty list at 15 May 2017 at 9.45am. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 9 March 2017