Bannerman and Frank
[2015] FCCA 3171
•19 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BANNERMAN & FRANK | [2015] FCCA 3171 |
| Catchwords: FAMILY LAW – Application to review a Registrar’s decision in relation to the abridgment of time – consideration of case law – first return date abridged. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Myers v Myers (2011) 253 FLR 445 Vibbard & Garcia [2012] FamCAFC 114 |
| Applicant: | MS BANNERMAN |
| Respondent: | MR FRANK |
| File Number: | MLC 10690 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 19 November 2015 |
| Date of Last Submission: | 19 November 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Ms S Macgregor |
| Solicitors for the Applicant: | Macgregor Solicitors |
| No appearance by the Respondent |
ORDERS
The first return date for the Initiating Application filed by the Applicant on 16 November 2015 be abridged.
The Duty List hearing of 10 February 2016 at 9.45 a.m. be vacated.
The matter be adjourned to the Duty List of this Court on
14 December 2015 at 9.45 a.m. for Mention.
The Application in a Case filed by the Applicant on 19 November 2015 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bannerman & Frank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10690 of 2015
| MS BANNERMAN |
Applicant
And
| MR FRANK |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
On 19 November 2015, the Applicant Mother in this proceeding, MS BANNERMAN (“the Mother”) applied in a case seeking the urgent review of a decision of the Registrar dated 16 November 2015. On 16 November 2015, the Registrar held that she was not satisfied about the demonstrated urgency of the case and refused to accord the case greater priority than the case would have received in the usual course of events in respect of cases awaiting hearing. As presently matters stand, the date for first return is 10 February 2016, there being no successful abridgement of that date prior to the hearing of this application before me today.
Today, the application is for review of the decision of the Registrar. That application is made under the rules of the Federal Circuit Court of Australia. In support of the application, Ms SUE ANNE MACGREGOR (“Ms Macgregor”), who appeared before me today, swore an affidavit[1] in which Ms Macgregor deposed to the circumstances giving rise to the asserted urgency. Ms Macgregor swore that the proceeding relates to two children, X born (omitted) 2006 and Y born (omitted) 2011 (collectively “the children”). Ms Macgregor deposed that there are family violence proceedings pending between the parties with the defended hearing of the application for an intervention order listed for hearing in the Magistrates Court of Victoria at Moorabbin in early 2016.
[1] Affidavit of Sue Anne Macgregor filed 19 November 2015.
Ms Macgregor also swore that the Respondent to the application, MR FRANK (“the Father”), continues to enter the Mother’s home essentially by breaking and entering, he being a (occupation omitted). Ms Macgregor swore that no firm arrangements remain in place in respect of the children and that while the Mother provided information that she was the primary caregiver, the children continue to be removed from the care of the Mother. During the course of argument this afternoon, Ms Macgregor relied on the additional matters recorded below.
First, Ms Macgregor submitted that the Mother has no family support in Australia, the Mother being a permanent resident but having been born overseas. Ms Macgregor said that the Mother has a poor command of the English language and that, of itself, puts her at a significant disadvantage.
Next, Ms Macgregor relied on the fact that the Mother had been the subject of recent family violence in which the Father assaulted the Mother causing her to be hospitalised. That evidence of the Mother is presently unproven but I am willing to accept it at a preliminary level at an interlocutory application of this sort.
In addition, the Father’s ability to enter the Mother’s residence unlawfully creates a high degree of instability for the children in the present arrangements between the parents.
In her Initiating Application,[2] the Mother has sought orders concerning:
·the children living with the Mother;
·the Mother having sole parental responsibility;
·spousal support;
·orders concerning time to be spent by the Father with the children of the relationship; and
·various other interim orders.
[2] Initiating Application filed 16 November 2015.
The Father has not filed any material as is to be expected in an application of this nature, borne as it is of urgent circumstances.
The Mother applied through Ms Macgregor to the Registrar seeking an urgent listing date. The Registrar was apparently not satisfied that grounds existed for the making of that order with the consequence that the Registrar refused to accede to the Mother’s request.
A review of that application is before me. The criteria for the grant of an order which has the effect of reviewing a Registrar’s decision has been set out by this Court in the decision of Myers v Myers (2011) 253 FLR 445, (“Myers”) a decision of Halligan FM as his Honour then was. That decision has been approved by the Full Court of the Family Court of Australia in Vibbard & Garcia [2012] FamCAFC 114 at para.27 in which the Full Court of the Family Court of Australia approved the decision in Myers.
In Myers, a four-point test was prescribed in a review of the Registrar’s decision in respect of an application to abridge time and for urgent listing. It is important to set those criteria out.
First, an applicant must demonstrate that a reasonable basis exists for arguing for the substantive orders sought. I am willing to proceed on the basis that the Mother has made out that ground.
Next, an applicant is required to demonstrate that, absent an urgent listing, the applicant will be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the Court’s attention in the normal course.
This criteria has weighed most heavily upon me. The Registrar on a daily basis deals with applications for listings and is best placed to organise the Court’s affairs in a way best known to Court staff having regard to urgency considerations and the overall business of the Court. Judges generally are not appraised of the business that a Registrar considers when listing cases. In the orderly conduct of the Court’s list, the Court will accord priority to cases depending on the urgency that presents itself on a case by case basis. In the absence of urgency, a case will proceed in an orderly way where an applicant is given a return date usually when first filing.
This case is something out of the ordinary, in my judgment. I say that because:
·there is evidence of family violence calling for the hospitalisation of the Mother;
·there is evidence of breaking and entering by the Father in ways that, on one view, may amount to a breach of the criminal law; and
·there is evidence of, according to the Mother anyway (and I recognise that it is untested) that the children stand confused seeing the altercations between their parents.
The circumstances of this case seem to me, at least at this preliminary level, to meet the second criteria prescribed in Myers.[3]
[3] (2011) 253 FLR 445
Turning to the third criteria, the applicant must demonstrate that there has been no unreasonable or unexplained delay in approaching the Court. I am satisfied that Ms Macgregor has moved with all due and appropriate speed to bring this application to the Court in the proper time.
The fourth criteria is that a judicial officer is available to hear the substantive application. Information from the Court derived through my associate indicates that the Duty List can accommodate this case on the usual risks and with the usual attendant problems of availability of judge time for a case of this sort. Ms Macgregor has indicated she is willing to take her chances with the case being listed in the Duty List commencing on 14 December of this year.
In view of those matters, I am persuaded that urgent circumstances exist for the deviation of the usual course which the Registrar ordinarily applies and quite properly so, where a case would be listed to take its course in the usual ruck of cases. This case seems to be attended with sufficient urgency to warrant its entry into the Duty List commencing 14 December 2015.
An order will be made to that effect.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 27 November 2015
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