Accardi & Russo
[2022] FedCFamC1F 253
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Accardi & Russo [2022] FedCFamC1F 253
File number: MLC 4930 of 2021 Judgment of: MCGUIRE J Date of judgment: 22 April 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a decision – father seeks review of interim parenting orders made by Senior Judicial Registrar – where mother is also applicant for review – applications dismissed Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05 and 15.06
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 100 and 256
Cases cited: Cilento & Cilento (1980) FLC 90 - 847
Eaby & Speelman (2015) FLC 93 – 654
Goode & Goode (2006) FLC 93 – 286
Malloy & Stopford Malloy (No.4) [2020] FamCA 995
Re Golding [2020] HCA 38
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 30 March 2022 Place: Melbourne, delivered Hobart Counsel for the Applicant: Ms Wheeler Solicitor for the Applicant: Kennedy Partners Counsel for the Respondent: Mr Dickson QC Solicitor for the Respondent: Brendon Rothschild Legal Group ORDERS
MLC 4930 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACCARDI
Applicant
AND: MS RUSSO
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.That the application of the father, Mr Accardi, for Review filed 21 February 2022 be dismissed.
2.That the Amended Application in a Proceeding filed by the mother, Ms Russo, on 25 March 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Accardi & Russo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATIONS
On the face of it I am asked to deal with an Application for Review filed by the father, Mr Accardi, on 21 February 2022. That document seeks a review of orders made by Senior Judicial Registrar Hoult on 27 January 2022 effectively dismissing the father’s application for orders inter-alia to increase his interim time with the four children of the parties being:
(1)X born in 2011 (aged 11 years);
(2)Y born in 2013 (aged eight years);
(3)Z born in 2015 (aged six years); and
(4)W born in 2018 (age 4 years).
The father now seeks interim parenting orders which would effectively have the children spending four nights per fortnight with him and 10 nights fortnightly with the mother.
The mother, Ms Russo, is also an applicant for Review. She does so on the basis of a document titled “Amended Application in a Proceeding” filed 25 March 2022. On 24 March 2020 the Court File discloses a document dated 24 March 2022 titled “Application in a Proceeding” seeking orders in the same terms as the latter document. The Court File does not disclose any Response filed by the mother to the father's Application for a Review filed 25 February 2022.
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides in respect of an Application for Review of order or decision as follows:
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
Rule 15.06 provides:
(1)The court may at any time, on the application of a party or the court’s own initiative, shorten or extend a time that is fixed under these Rules or by a procedural order.
(2)A party may apply under subrule (1) for an order extending a time even though the time fixed by the rule or procedural order has passed.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
In circumstances where each of these parties seeks a Review of Senior Judicial Registrar Hoult's (‘SJR Hoult’) decision of 27 January 2021 then each of the parties is quite clearly out of time and where the Court File discloses no application by either for leave nor indeed was any oral application made before me at the hearing of this matter. It seems, therefore, that each of the applications is fundamentally incompetent and it is within my power to summarily dismiss both applications accordingly. Nevertheless, and where the orders sought to be reviewed are children's orders with the best interests of children being the fundamental focus of the legislation, I am prepared to consider the arguments of each of the parties where, as I say, each seeks a Review of the determination of SJR Hoult.
BACKGROUND
The parties commenced cohabitation and were married in 2010. They separated on 11 April 2020 and were divorced in 2021.
There are four children of the parties.
The father commenced substantive proceedings in respect of parenting in an Application filed in the Federal Circuit Court on 4 May 2021. The mother in her Response filed 30 June 2021 sought both parenting and financial orders. The father in his Reply filed 13 July 2021 sought financial orders.
On 14 July 2021 Judge Howe made an urgent Watch List order in respect of the children and interim consent parenting orders providing inter-alia:
(a)the children to live with the mother;
(b)the children to spend time with the father:
(i)from after school or 3:30pm to 7:30pm on each alternative Friday commencing 23 July 2021…
(ii)from after school or 3:30pm to 7:30pm on each alternative Wednesday commencing 28 July 2021…
(iii)from 1.00pm Saturday to 7:30pm Sunday commencing 31 July 2021 and each alternative weekend thereafter…
(iv)on Father's Day…
(v)at such further and other times as may be agreed between the parties in writing (emphasis added).
I calculate, therefore, these orders, made by consent as they were, provided for the children to spend one overnight per fortnight with the father plus time on each alternative Wednesday and Friday.
Relevantly, the matter came back before Judge Howe on 17 September 2021 whereupon orders were made transferring the matter to Division 1 of the Court. Significantly, a notation was made to Judge Howe’s orders thus:
The father made an application this day for an increase in the time [X]… spends with him which was denied.
Judge Howe, however, made orders, whether by consent or not is unclear, varying the 14 July 2021 orders as to telephone time; an order for a psychological assessment by Dr B; and an order for Dr C to provide family therapy.
On 7 December 2022 the mother brought an Application in a Case seeking further interim orders inter-alia as follows:
1.That the Respondent Wife have sole parental responsibility for the children…
2.That the Applicant Father spend time with the children from 18 December 2021 and each alternating weekend thereafter, from 9.00am on Saturday until 7:30pm on Sunday;
3.That phone contact between the Applicant Father and the children whilst they are in the Respondent Wife's care is to cease.
On 20 January 2022 the father filed a Response to the Application in a Proceeding seeking orders inter-alia varying Judge Howe’s orders of 14 July 2021 whereby the children spend time with him in the interim as follows:
…
1.1In week one from 3:30pm or the conclusion of school or kindergarten on Friday until 9.00am or the commencement of school or kindergarten on the following Monday, commencing as and from Friday 4 February 2022;
1.2In week two from 3:30pm or the conclusion of school or kindergarten on Thursday until 9.00am or the commencement of school or kindergarten on Friday, commencing from Thursday 10 February 2022…
The father also sought orders varying the consent orders of July 2021 whereby he spend half of both term and long summer holidays with the children. Further, he sought time on special days for the children on each of their birthdays, his birthday, Father's Day, Christmas Eve/Christmas Day and Easter.
The father sought communication with the children each Monday and Wednesday between 6:30pm and 7.00pm.
SJR Hoult heard this matter on 27 January 2021 and made orders and gave reasons ex tempore on that day. It followed that each of the applications by the father and the mother was effectively dismissed in respect of varying the orders of Judge Howe made 14 July and 17 September 2021 as referenced above.
My understanding of the documents filed in court is that each of the parties now seeks a Review of the decision of SJR Hoult.
Each of the parties filed Case Outlines documents in the hearing before me which attempt to set out the issues which I interpret being the following:
(1)Whether the orders of Judge Howe made 14 July 2021 confirmed by her orders of 17 September 2021 be varied to increase the time as sought by the father or to decrease or effectively change the regime sought by the mother;
(2)Where the father seeks an order that the mother provide him with documents regarding treatment within the National Disability Insurance Scheme (‘NDIS’) for X. This was not an issue raised before SJR Hoult. Submissions were not made to me in respect of this issue. I assume, therefore, the parties have either resolved the matter or it is no longer prosecuted by the father.
(3)Where the mother raises issues in respect of the children's time with extended members of the paternal family. I do not understand this to be an issue raised before SJR Hoult. Nor was the issue agitated before me by counsel for either party. Again, I assume that the issue was either not prosecuted or has been resolved.
(4)Where the mother now seeks an order for interim sole parental responsibility being an application before SJR Hoult but dismissed and where no orders for parental responsibility were made by Judge Howe.
(5)Where the mother seeks an order for “an Urgent Final Hearing” being an issue not raised on my understanding before SJR Holt nor argued before me and, in any event, being an issue quite properly agitated before a Judicial Registrar or Senior Judicial Registrar.
Essentially, therefore, the only issues agitated in submissions before me were in respect of the time for the children with the father and also, if only on the mother's affidavit material, an order for her to have interim sole parental responsibility. I consider the matter accordingly.
Each of the parties relies on copious and voluminous affidavit material most of which impinges the Rules of this Court.
Each of the parties had the good fortune to be represented before me by very experienced counsel being Mr Dixon QC for the mother and Ms Wheeler of counsel for the father. Each provided relevant and succinct submissions in support of their cases and the issues before the Court given the somewhat convoluted litigious background to this matter.
THE RELEVANT LAW
Section 100 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act') provides:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 1) under section 98 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2)The Federal Circuit and Family Court of Australia (Division 1) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 98, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
Section 256 of the Act provides in the same terms in respect of Division 2.
Rule 14.07 provides:
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing (being that the court rehears the whole matter and does not simply review the decision of the original court).
(2)The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The orders I must make are parenting orders and, as such, I am to have the best interests of the four children as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Family Law Act’).
In considering and determining the children's best interests I am to reference the proposals of each of the parties together with the probative evidence before me to the many considerations set out in s 60CC(2) and (3) of the Family Law Act against the background of the objects and principles of the legislation set out in s 60B which provides as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The nature of interim hearings is such that they do not have the considerable advantages of a final trial where the evidence of the parties, their witnesses, and experts will be tested by cross-examination after the full forensic preparation of the case. An interim hearing, such as this, proceeds on the basis of submissions referencing untested affidavit material. It follows that Courts at this stage are often unable to make findings of disputed fact and credit with a tendency, therefore, to rely upon the agreed or uncontroversial facts to assist in the determination. Nevertheless, and despite the limitations of this truncated process, the Court remains mandated to conduct a hearing on a course of statutory considerations set out in the well – known decision of the Full Court in Goode & Goode[1] where their Honours say at [68]:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[1] (2006) FLC 93 – 286.
Nevertheless, the above statement by their Honours in Goode should not be understood, even at this interim stage, of the Court being relieved of the obligation of considering all the evidence. In Eaby & Speelman[2] a later Full Court commented:
[2] (2015) FLC 93 – 654.
[18] … It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is pertinent to raise an issue aired during submissions by counsel for the father where I questioned whether there was any change of circumstances or sufficient change of circumstances from the consent orders made by Judge Howe on 14 July 2021 confirmed by her orders of 17 September 2021 but where counsel took exception (with the proper courtesy) to the question. In response I borrow from the learned comments of my colleague Harper J in Malloy & Stopford Malloy (No.4) [2020] FamCA 995 where his Honour opined:
[15]At [23] of the July judgment I pointed out that where there are repeated interim applications regarding spousal maintenance the principle of finality, informed by questions of change of circumstances or the availability of fresh evidence, gains added prominence, and the discretion to set aside or vary an interim order must at some point be subject to the constraints imposed by the public interest in the finality of litigation. I repeated what I said in Joubert and Anor & Verhoeven and Anor [2020] FamCA 53 at [30] - [31]. I rely upon that statement of the law again, in particular the principles stated by Brereton J in Paris King Investments Pty Ltd & 1 Ors v Michael Normal Rayhill & 2 Ors [2006] NSWSC 578 at [14] as follows:
the general rule is that interlocutory relief is not to be reconsidered if at all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered.
Harper J also cited Nettle J in the High Court in Re Golding [2020] HCA 38 where the latter said:
[11]Generally speaking, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the relief sought; and, in the absence of exceptional circumstances, such as, for example, the discovery of facts of which the applicant was not aware and which the applicant could not have ascertained with reasonable diligence at the time of the first application, it will ordinarily be regarded as an abuse of process to make a second application for interlocutory relief on the same or other grounds.
I comment further only to say as a matter of policy that parties do not have a necessary right to the determination of an interim hearing and certainly not a multitude of interim hearings save in the advent of changed circumstances.
As long ago as 1980 in the well-known decision of Cilento & Cilento[3] the Full Court had cause to comment on a process of multiple interim applications at P 75,345 as follows:
Before dealing with that submission we would draw attention to the fact that three contested applications have been dealt with by the Court relating to interim custody of B over the last 18 months since the filing of the original application and that the contested custody application has not come on for hearing …
Congestion in the Court’s lists is one factor resulting in delays and that is regrettable. Another factor may be the readiness of parties to bring repeated unnecessary interim and interlocutory applications which clog the lists. Interim applications for custody are not to be encouraged. Not only do they place unnecessary emotional and financial strains on the parties and in many cases unnecessary emotional strains on the children but they also tend to prevent the parties, if necessary, assisted by court counsellors, attempting to resolve the differences affecting the welfare of children. Where it is not possible for the parties to resolve those differences, such applications delay the final hearing of the contested custody application.
[3] (1980) FLC 90 – 847.
THE FATHER’S APPLICATION FOR REVIEW
The father relies on no less than five separate affidavits and apparently with little regard to the Rules of this Court. He also relies on an affidavit of Ms D sworn 16 February 2022. She is a registered psychologist and treating the father since December 2020. She has had regard to the expert reports filed in the proceedings and provides evidence as an expert. She reports the impetus of the father's difficulties being the marriage breakup and accompanying stress and grief. She reports his symptoms including “feeling angry and upset” in respect of the mother re partnering and advising the children as such. She notes grief, guilt, shame, disturbed sleep, and mood swings. She offers an excellent prognosis advising that in the 15 months of therapy “he has achieved consistent and growing self – understanding, self – awareness and self – responsibility as he navigates his new role as a single parent”. The prognosis is otherwise unparticularised.
The father provides an affidavit from Mr E sworn 7 February 2022. He is the father's friend of 20 years duration. He has frequent contact with the father. He observes a good relationship between the children and father noting no behavioural issues for the children, save for X throwing tantrums.
Firstly, the father says that he has been spending more time with the children than ordered by Judge Howe in July 2021 confirmed in her orders of September 2021. He says, therefore, that the children's best interests are served by providing certainty in accordance with the reality of the time that has been ordered. Frankly, I find this argument to be disingenuous. The evidence is that on occasions the parties have agreed time outside the basic orders made by Judge Howe in July 2021. Those orders do, in fact, allow the parties to be flexible outside of those orders. Clearly, the mother has on occasion acceded to requests by the father for extra time. In my view this should be a matter of credit to the mother and the father ensuring a degree of cooperative parenting. There is not, however, any logical nexus to a variation of Judge Howe’s orders where, in fact, there has been strict compliance with those orders including the availability of flexible time. In this sense, I see no change in circumstances from that which existed when Judge Howe made orders in July 2021. Had Judge Howe thought it in the children's best interests then to make orders in the terms that the father now seeks she would have done so. Judge Howe did not do so but rather made an order allowing the parties some input and flexibility. I find no merit in this argument.
Secondly the father sees an incongruity between the mother maintaining concerns of risks for the children in his care whilst at times offering him more time with the children. It is true that the mother has consistently raised risk issues most prominently in respect of the father's anger and as noted and confirmed, at least historically, in the affidavit of his own psychologist, Ms D. There have similarly been reports from Mr E (prior to Judge Howe’s September orders) and more lately by Dr B both of which reference the father's propensity for anger. These matters remain to be tested ultimately in respect of the children's best interests and this is a matter squarely for the Court's consideration in respect of s 60CC(2)(b). I do not accept the father's argument accordingly.
Thirdly, the father argues that the current orders provide a “lack of structure” in their time with him including some confusion for the children. Firstly, these orders were made by the consent of the parties in July 2021 and in the terms that currently prevail. The father caused the matter to be re-agitated before Judge Howe in September 2021, but with the orders remaining unchanged. Secondly, it is well-established that interim orders, like an interim hearing, are often less than perfect creatures where the Court must often make orders which maintain meaningful relationships for children with their parents (s 60CC(2)(a)) whilst awaiting a full forensic preparation of the matter for trial and the allocation of trial time. It might not be unexpected that children will suffer some adjustment issues following the making of interim orders which in themselves follow a separation of their parents. I am not satisfied on the evidence that the number of changeovers cause problems for the children which would be rectified on the father's proposed orders given the other significant issues in this matter in respect of the father's capacity to attend to the children's needs including their physical and emotional needs (s 60CC(3)(f)) and in respect of considerations of practical difficulty and changes in the children circumstances (s 60CC(3)(d) and(e)).
Fourthly, the father says that a changes in circumstance since Judge Howe’s orders is that he has completed a number of courses. It is to his credit that he has done so. Nevertheless, even the untested expert evidence does not give me cause to make findings to the requisite standard of proof in respect of previous issues raised in relation to the father's demeanour such that would cause a change in the regime ordered by Judge Howe and again now emphasising the consent of the parties at that time.
Issues of the children's interim time were brought before Judge Howe in July 2021. On that occasion, to their great credit, the parties reached a consent interim arrangement in the regime which currently exists. I can only presume that they did so in full knowledge of the nature of the orders that they were seeking which, on their face, do involve a number of changeovers but equally provide for a high frequency of time for the children with each of their parents and consequently shorter gaps in time between visits. Judge Howe was urged to reconsider this regime in September 2021 and declined to change the regime. The major issues raised by the mother and supported to a degree in the expert reports remain alive before this Court and yet to be tested by cross-examination and a full forensic preparation for trial. In all of those circumstances and where I am satisfied that the children are having a high-frequency relationship with their father and where there are no changes of circumstances of materiality, I am not inclined to make interim parenting orders in the terms of the father's application before SJR Hoult and agree with the Senior Judicial Registrar that the father's application should be dismissed. Again, I emphasise that the other issues raised in the father's documents were not agitated before me with the focus being solely on the father's quest for an increase in interim time with the children.
THE MOTHER’S APPLICATION
The mother relies on no less than six affidavits. She too seeks a variation of the orders of Judge Howe which were made by consent in July 2014 and where her application was dismissed by SJR Hoult.
Counsel for the mother argues that she does not seek to have the children spend any less time with the father but simply change the regime whilst offering effectively the same time.
Firstly, the mother argues that the current spend time arrangements are detrimental to the children's “sense of routine and mental health” she references X’s diagnosis with ASD and ADHD manifested in some behavioural problems. She references X’s psychologist who in fact provided an assessment as long ago as 14 April 2021 and where such material was available before Judge Howe, but where I note again that the parents entered into consent orders on 14 July 2021. I have no updated affidavit or assessment from that psychologist. The mother annexes to her affidavit of the 24 March 2022 a psychological assessment for X dated 24 January 2019 and now some three years old.
Similar comments can be made to the mother’s application in this respect as had been made to the father's application. Firstly, armed with information, Mr E’s report, a psychological assessment, and her own particular knowledge, the mother entered into interim consent orders on 14 July 2021. Judge Howe did not see fit to vary those orders in September 2021. Issues raised by the mother such as the father's propensity to anger and the mental health/behavioural issues in respect of the children were evident then and remain so. There is no evidence of any probative kind that could satisfy the Court that a change in the children's regime as proposed by the mother would attend to these issues.
Secondly the mother asks for an order for interim sole parental responsibility. Her affidavit material is at best anticipatory in respect of any such order as for as for example should there be a need for a change of schools or in the event that X may (emphasis added) require additional psychological support.
Whilst I accept that the current relationship between the parents might be antagonistic, this is hardly a novel experience for these Courts and parties undertaking litigation after a relatively recent separation. Where the authorities[4] make it clear that the Court is not mandated to make an order in respect of parental responsibility at an interim stage and where, in any event, s 61B and C recognise and preserve the responsibilities of parental responsibility in each of the parents and where s 61DA offers a presumption of equal shared parental responsibility being in the children's best interests and where the mother’s application is anticipatory, at best, then I am not inclined to make the orders sought by the mother without again the full testing of the evidence including the nature of the relationships of the children with each of their parents; the capacity of the parents to attend to the children's physical, intellectual and emotional needs and the attitudes of the parents to the responsibilities of parenthood where the evidence as to these s 60CC factors is sparse at best at this stage.
[4] Goode & Goode (supra) at [49] – [56].
Consequently, the mother’s application in respect of the issues agitated before me is similarly dismissed.
The mother also sought an injunctive order in respect of the children being left alone in the care of various members of the paternal family. This issue was not agitated before me in the submissions of either counsel and I consequently expect that it has been resolved or is no longer prosecuted.
The mother seeks an order that “the matter be referred to the National Assessments Team and a Final Hearing date be set as soon as practicable”. This is not a matter properly for my determination although I quite obviously retain the power but is, in my view, an administrative matter for the appropriate authority but where I note, in any event, that almost irresistibly each matter coming before these Courts will have a high degree of subjective intent as to the urgency of their particular matter.
Finally, by way of general comment, and being mindful that the process of Review from decisions of Judicial Registrars and Senior Judicial Registrars, where the hearing is de novo, it should not, in my view, become the situation where a person unsuccessful or aggrieved on the determination of the Registrar should automatically seek a “second grab” hearing without first properly assimilating and considering the reasons for the decision of the Judicial Registrar. As I have emphasised by repetition in this matter, these two parents reached consent orders in respect of the interim parenting of their children in July 2021. A second application was brought as soon as September of that year and was unsuccessful. A third application was brought in December 2021 and heard by SJR Hoult in January 2021 which resulted in yet another agitation of these matters all of which would undoubtedly rail against any cooperative parenting arrangement for the benefit of these children even in the interim.
CONCLUSION
In conclusion, the applications for Review by both the father and the mother will be dismissed on the merits contained in the Reasons set out above. Further, I am of the view that each of the applications would, in any event, be dismissed where each is filed out of time contrary to the Rules without any application or request for leave and where I would not, in any event, be inclined to grant leave of my own volition.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 22 April 2022
3
5
0