Bates & Ullman
[2024] FedCFamC2F 1478
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bates & Ullman [2024] FedCFamC2F 1478
File number(s): CAC 1781 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – REVIEW – PROCEDURAL – Father seeking an urgent hearing date and that the listing on 30 October 2024 be brought forward – no alternative available date before a judicial officer detailed – Whether the matter is reviewable and, if so, has sufficient urgency to warrant it taking precedence over other matters before the court. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Bannerman & Frank [2015] FCCA 3171
Canvin & Jesney [2021] FedCFamC2F 145
Dyne & Dyne [2021] FedCFamC1F 96
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Division: Division 2 Family Law Number of paragraphs: 27 Date of hearing: 14 October 2024 Place: Hobart Counsel for the Applicant: Ms Maher Solicitor for the Applicant: Foster Johnson Lawyers Counsel for the Respondent: Ms Kuemmel Solicitor for the Respondent: Rossi Simicic Lawyers ORDERS
CAC 1781 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BATES
Applicant
AND: MS ULLMAN
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application for Review filed 24 September 2024 be dismissed.
2.If the Respondent to the substantive proceedings intends to make an application for costs she must, within 14 days, make, file and serve a summary of argument of no longer than 3 pages, addressing the relevant matters under section 117(2) and the quantum of costs with reference to the appropriate scale.
3.If the Respondent complies with Order 2, then the Applicant must make, file and serve a response to the summary of argument within 14 days of receiving the same - with the issue to be decided on the papers.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
These proceedings concern an Application for Review (‘Review’) filed by Mr Bates (‘the Father’) on 24 September 2024 which was later served on Ms Ullman (‘the Mother’) on 30 September 2024. The Father seeks to review the decision made in chambers of Deputy Registrar Banks on 20 September 2024 to refuse to urgently list the Father’s Application in a Proceeding filed 18 September 2024. The Application in a Proceeding is next listed at 9.30 am 30 October 2024 before Judicial Registrar Banks.
The Father sought interlocutory orders that the matter be listed on an urgent basis and the Mother return with their child, X, to Region F and that X resides with him until the determination of the matter. The Father also sought a recovery order pursuant to Section 67U of the Family Law Act 1975 (Cth) in the event the Mother does not comply with the orders.
Alternatively, if the Court does not agree for the child to be returned to the Father, that the parties attend a Family Dispute Resolution Conference as soon as possible and proposed an arrangement by which the child lives with the Father and spends time with the Mother on alternate weekends.
The Father states in his affidavit filed 20 September 2024 that the urgency arises from the Mother informing the Father in September 2024 that she had relocated to City B, New South Wales without the Father’s knowledge or consent.[1] Previously, the Mother lived in Suburb D and the Father lived in Suburb C, both in Region F.[2]
[1] Affidavit Mr Bates filed 20 September 2024 [10] (‘Father’s Affidavit’).
[2] Ibid [10], [14].
Prior to the Mother relocating, the parties had attended mediation and created a parenting plan. The plan had a fortnightly arrangement where the Father would spend four nights and two afternoons per fortnight with X.[3] The Father states that the last time he saw X was September 2024, three days before the Mother’s text message informing the Father of her relocation.[4]
[3] Ibid [16].
[4] Ibid [9]-[10].
The Mother’s relocation with X is the primary reason the Father has sought for the matter to be listed urgently and as it has impacted his ability to see X as per their parenting arrangement.
The Law
Pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’), an Applicant may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days after the decision of the Registrar is made. Here, the Review Application was filed 1 day after the Registrar’s Decision.
Rule 14.07 of the Rules 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.
Note: In an original hearing, 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.
Registrars of this Court have delegated powers pursuant to section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’). Examples of those powers are set out at section 254(2)(a) to (s) of the Act. The right to apply to the Court to review the exercise of a power of a Registrar is set out in section 256 of the Act.
In Myers & Myers [2011] FMCAfam 1104 at [87], Halligan FM (as he then was), considered three scenarios in which Registrar can deal with the issue of allocating a “court date” being:
(a) Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;
(b) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and
(c) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.
His Honour observed that the first two of these scenarios does not involve the exercise of any power under the Rules or any power of the Court, but rather involve “purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court.” These scenarios are not amenable to review. Where, however, an applicant seeks a different first court date and also seeks that the normal time limits fixed by the Rules be shortened or dispensed with, the Court has jurisdiction to review the Registrar's power.
Halligan FM also set out some matters to take into account when considering a Review of a decision relating to the allocation of a listing date setting:
·the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
·the applicant has demonstrated 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;
·the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the Court; and
·a judicial officer is available to hear the substantive application.
I intend to apply the approach of Halligan FM to assist with the determination of this case.
Documents Relied Upon
The Applicant Father relied upon:
·His Application for Final Orders filed 18 September 2024;
·His Affidavit filed 20 September 2024;
·His Application for Review filed 24 September 2024; and
·Costs notice dated 11 October 2024.
The Respondent Mother relied upon written submissions dated 7 October 2024 in response to the Review application.
Consideration
The Review seeks to bring forward the allocated Court date of 30 October 2024. The Father’s Application for Review sought an ‘interim hearing on an urgent basis.’ As recently observed in Dyne & Dyne [2021] FedCFamC1F 96 at [11] a review application in respect to a listing decision ‘has only one purpose… to determine the appropriate hearing date for the pending interim parenting dispute.’
Is the Review clearly one where an Applicant seeks a different first Court date and also seeks that the normal time limits fixed by the Rules be shortened or dispensed with, the Court has jurisdiction to review the Registrar's power?
The Application in a Proceeding was filed on 18 September 2024 and served by 20 September 2024. The Mother had 28 days to respond. That time has now passed. The Applicant did not, and now cannot, seek to shorten the time for responding documents to be filed. As such the decision is not reviewable. Even if it were, the application would fail for the reasons set out below.
Had the applicant demonstrated a reasonable basis for arguing for the substantive orders sought
The need for an earlier listing was summarised by the Father in his affidavit. The Father’s position is that he has been unable to have any contact with X since September 2024 as a result of the Mother relocating from City E to New South Wales.
The Father’s position is that the Mother has retained X contrary to the parenting agreement between the parties. Given the agreed parenting arrangement between the parties and the inability for it to be carried out due to the distance between the parties, I am satisfied that there is a reasonable basis for the Father seeking orders for X being returned to his care in accordance with the parenting agreement.
Has the applicant demonstrated 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;
Halligan FM stated in relation to this criteria:
The Court must be cognisant not only of the case in which urgent listing is sought, but also of the many other cases a busy Court such as this must attempt to deal with in as timely a fashion as is possible with available judicial resources, and of the impact on its ability to do so by interposing urgent matters over the top of matters that have already waited some time for attention.
In Bannerman & Frank [2015] FCCA 3171 at [14], Judge Wilson (as he then was) stated:
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.
The Father does not contend that the child is at risk in the Mother’s care. This is supported by the Father’s Application in a Proceeding which outlines that there is no risk of abuse, neglect or family violence. Urgent listings must be prioritised for those cases where children are at an immediate risk of harm.[5] Here, there is no evidence that the Mother poses an unacceptable risk of harm to X when in her care.
[5] See Canvin & Jesney [2021] FedCFamC2F 145 [45]-[46].
There is also no guarantee that another Judicial Officer will be able to deal with the matter before 30 October 2024. The Father did not provide any information in this regard. More importantly, I am not satisfied that the Father nor the child, will be prejudiced in relation to the substantive relief sought by her, other than in ways common to other matters awaiting the Court’s attention.
Has the applicant demonstrated that there has been no unreasonable or unexplained delay in approaching the Court;
The Father filed his Application in a Proceeding on 18 September. The Father said that the last time he saw the child was in September 2024, and later was aware of the Mother moving from Suburb D to City B in September 2024. I am satisfied that there has been no delay in approaching the Court.
Is a judicial officer available to hear the substantive application?
As stated, there is no evidence as to whether a judicial officer is available to hear the interim hearing prior to 30 October 2024. In Lombardi & Rider [2021] FedCFamC2F 57 at [45] to [48], Chief Justice Alstergren observed in relation to this criterion:
As to “whether a judicial officer is available to hear the substantive application”, in the interests of deterrence, the Court must discourage review applications of this nature being brought except in truly urgent circumstances. The risk is that such applications are brought on any occasion on which a party merely disagrees with a decision of a Registrar, in particular in relation to the listing of matters.
Consideration must be given to the “overarching purpose” provisions outlined in ss 190 and 191 of the Act.
I particularly note the elements of the overarching purpose which seek to ensure the efficient use of judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall caseload. The Court has a responsibility when allocating dates to make an assessment of priority as against other matters. It must balance the allocation of dates with other matters with equally competing priorities.
The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose : see s 190(3) of the Act.
Whilst the Court must assess the merit of each application for review, in the context of a review of a listing decision, the Court must also have regard to the orderly and considered allocation of hearing dates. This impacts the efficient use of the Court’s resources as well as its ability to efficiently dispose of the Court’s overall caseload. I note the discussion of McClelland DCJ on the importance of the allocation of Court resources in Moxey & Keirn [2021] FamCA 615 at [55]-[57].
Parties should not be encouraged to regard a hearing in relation to the review of a Registrar’s decision concerning whether to abridge a matter as an opportunity to agitate their substantive application before a Judge ahead of the time that has been allocated by the Registrar.
The Court’s Registrars play a significant role in the proper and efficient functioning of the Court. The Court should not interfere in the listing decision of a Registrar unless genuine urgency can be demonstrated.
The listing before Judicial Registrar Banks is in less than 14 days. There is no basis for this case to be given priority over other deserving matters before the court. Further, I have no evidence that an earlier date is available before a judicial officer to hear the matter.
Conclusion
For the reasons set out above, the Application for Review must be dismissed, and so I order.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 25 October 2024
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