AIDE & AIDE

[2012] FamCA 997

FAMILY COURT OF AUSTRALIA

AIDE & AIDE [2012] FamCA 997

FAMILY LAW – FAMILY PRACTICE AND PROCEDURE – Application seeking leave of out time to review the Registrar’s orders. Application dismissed

Family Law Act 1975 (Cth)

Cummings Corporation Pty Ltd v Child Support Registrar and Balnaves, PJ (1995) FLC 92-643
Gallo v Dawson (1990) 93 ALR 479
Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257

APPLICANT: Mr Aide

RESPONDENT: Ms Aide

FILE NUMBER: BRC 4509 of 2012

DATE DELIVERED: 24 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Macmillan J

HEARING DATE: 24 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person by telephone

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person by telephone

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. The husband’s Application in a Case filed 3 October 2012 seeking leave of out time to review the Registrar’s orders made 26 July 2012 be and is hereby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aide & Aide has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: BRC 4509 of 2012

Mr Aide

Applicant

And

Ms Aide

Respondent

REASONS FOR JUDGMENT

1. The application before me today is the father’s Application in a Case filed 3 October 2012 in which he seeks various orders but primarily that time be extended for the filing of his application for leave to review the decisions of Registrar Stoneham made 26 July 2012 and Registrar Moser made 7 September 2012.  Although it is clear from his submissions that his objection to the orders made by Registrar Moser is that the matter should be dealt with in Brisbane and not in Melbourne.  It was the decision of Registrar Stoneham made 26 July 2012 which transferred the proceedings to Melbourne.

2. The father filed an Initiating Application in Brisbane on 21 May 2012 which was set down for a Directions Hearing on 22 June 2012.  On 19 June 2012 the mother filed an Application in a Case seeking the transfer of the proceedings to the Family Court at Melbourne.  That application was listed for hearing on 22 June 2012.  On that date Registrar Stoneham heard submissions by both parties who both appeared by telephone and on 26 July 2012 ordered that the proceedings be transferred to the Melbourne Registry of this Court and adjourned the proceedings to a date to be fixed by that Registry.

3. The matter was listed for hearing before Registrar Moser on 7 September 2012.  The father appeared by phone and the mother in person that day.  Registrar Moser made orders requiring the mother to file and serve a Response to the father’s Initiating Application and any relevant affidavits within seven days,  that the parties attend an intake meeting with a Family Consultant on 2 October and that the matter be otherwise adjourned for hearing in the Senior Registrar’s Duty List on 30 October 2012.  Registrar Moser also noted that the father intended to come to Melbourne for the intake meeting on 2 October 2012 and that the Family Consultant be requested to make the next meeting with the parties as soon as possible after the intake meeting whilst the father was in Melbourne.

4. The father did not travel to Melbourne for the intake meeting and on 3 October 2012 he filed the application that is before me today.  The order made by Registrar Stoneham was sent to the father on 1 August 2012.  He initially told me that he has received the orders in early August but said that he had not been told about the hearing on 7 September 2012 until the night before when his partner checked the status of the case online.  He later said that he had been mistaken and that he had not received a copy of Registrar Stoneham’s order.  He also said that he did not receive the letter from the Court dated 31 August 2012 notifying him of the hearing on 7 September 2012 until the afternoon of 7 September 2012.  The father has clearly received documents sent to the address noted on the orders and in particular the order made by Registrar Stoneham.Given that the father initially confirmed receipt of the orders and told me when that had occurred I am satisfied that the father did receive a copy of the orders made 26 July 2012. 

5. The father appeared by telephone at the hearing before Registrar Moser on 7 September and clearly by that time was aware of the orders made by Registrar Stoneham transferring the matter to the Melbourne Registry even if as he said he was not served with a copy of that order. Notwithstanding that to be the case he did not file his application for leave to extend time to review the orders until 3 October 2012. Rule 18.08 of the Family Law Rules 2004 makes provision for a party to apply for review of an order by a Judicial Registrar, a Registrar or a Deputy Registrar within specified times which are determined on the basis of the delegated power being exercised.  In the case of the order transferring this matter to the Melbourne Registry the application for review must be filed within seven days of the making of that order.  Rule 1.14 provides for a party to apply to the Court to shorten or extend any time fixed by the Rules and that application may be made even if as in this case the time fixed by the relevant rule has passed.

6. In Cummings Corporation Pty Ltd v Child Support Registrar and Balnaves, PJ (1995) FLC 92-643 at 82,501 the Full Court referred to the observations of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at page 480:

   The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the Rules will work and injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time…

1. Whilst the orders would appear not to have been sent to the father until 1 August 2012 and that might explain why he might not have filed his application for review within the prescribed seven day period that does not explain why he did not seek leave to extend the time either in early August 2012 on the basis of my findings that he had received the orders forwarded to him by the Court on 1 August 2012 or in September 2012 after the matter was heard by Registrar Moser.

2. Even if I accepted that the father was not aware of the orders until shortly before the hearing before Registrar Moser on 7 September 2012 and I accepted his explanation for having not filed his application until 3 October 2012 I am still not satisfied that I should exercise my discretion to extend the time for the father to file his application for review or that it is necessary to do so in order to do justice between the parties.  The father filed his application in Brisbane because he says it is the halfway point between where he lives in B Town, Queensland and Melbourne where the wife and the children live.  The father previously lived in Melbourne, the mother and the children live in Melbourne and the proceedings have always been heard and determined in Melbourne.  It is hard to see how it could be considered practical for the matter to be heard in Brisbane.

3. It is submitted by the mother that the father will have to travel anyway and that there is no point in both parties having to travel. There is some force in that argument.  The mother is the primary carer for these children.  I was initially told by the father that he was paying approximately $50 per week child support for the children although I am now told that he is shortly to receive an assessment of some $1300 per month. 

4. The father’s application is for parenting orders.  An order has been made for the parties to attend upon a Family Consultant prior to the interim hearing of the matter listed before Senior Registrar FitzGibbon on 30 October 2012.  It is also likely that if the matter proceeds to a final hearing a report will need to be prepared by a Family Consultant for the purposes of that hearing.  If the proceedings were to be listed for hearing in Brisbane as proposed by the father it would be necessary for the mother to travel to Brisbane with the children for the preparation of that report as well as for the hearing. That would obviously involve the children missing significantly greater amounts of school.  There would also be the cost of accommodating both the mother and the children in Brisbane during that period.  Not surprisingly as the mother and the children live in Melbourne it would also be likely that there would be witnesses that are based in Melbourne. 

5. I am not satisfied that there is any basis for the matter to be listed for hearing in Brisbane rather than Melbourne and even if the time for the father to file his application for review were to be extended his application to have the matter dealt with in Brisbane would in my view not succeed.  In those circumstances the time limit for the filing of the application for review does not cause an injustice to the father and I do not intend to exercise my discretion to extend the time for the filing of the application to review either the decision of Registrar Stoneham made 26 July 2012 or Registrar Moser’s order made 7 September 2012.  In those circumstances I propose to make an order dismissing the father’s application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 October 2012.

Associate:

Date:  30 November 2012