Accardi & Russo

Case [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

  1. 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).

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Details
AGLC
Accardi & Russo [2022] FedCFamC1F 253
Case
[2022] FedCFamC1F 253
Decision Date

CaseChat Overview and Summary

In the case of Accardi & Russo, both parties sought a review of a decision made by Senior Judicial Registrar Hoult on 27 January 2021. Both applications were filed out of time and no leave was sought to extend the deadline. Despite this, the court was prepared to consider the arguments due to the fundamental focus on the best interests of the children. The parties, who were married and later divorced, have four children. The father initiated proceedings regarding parenting on 4 May 2021, while the mother sought both parenting and financial orders in her response on 30 June 2021. The father sought financial orders in his reply on 13 July 2021.

The legal issues that the court had to decide involved the competency of the applications, the timeliness of the filings, and the best interests of the children. The court considered whether the applications were fundamentally incompetent due to being out of time and the absence of an application for leave to file late. The court also had to assess whether the applications should be dismissed on the merits, considering the repeated attempts by the parties to alter the agreed-upon interim parenting arrangements.

The court's reasoning and outcome were based on the fundamental principle that the process of reviewing decisions of Judicial Registrars should not allow for an automatic "second grab" hearing if the initial decision has been made. The court emphasised that the parents had already reached consent orders in July 2021 regarding the interim parenting of their children. Subsequent applications in September 2021 and December 2021 were unsuccessful, leading to further agitation of the matters. The court concluded that these repeated attempts would undermine any cooperative parenting arrangement for the benefit of the children.

The court dismissed both applications on the merits and noted that they were also out of time. It stated that it would not have been inclined to grant leave to file the applications late. The court's final orders were to dismiss the applications for review brought by both the father and the mother.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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