Berry & Berry
[2022] FedCFamC2F 152
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Berry & Berry [2022] FedCFamC2F 152
File number(s): CSC 318 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 18 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Ex Tempore Reasons for Judgment – Application to review a Registrar’s decision not to urgently list – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 14.05, 14.07
Central Practice Direction – Family Law Management dated 1 September 2021
Cases cited: Canvin & Jesney [2021] FedCFamC2F 145
Lombardi and Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 18 February 2022 Place: Parramatta Applicant: In person No appearance for the Respondent No appearance for the Independent Children's Lawyer ORDERS
CSC 318 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BERRY
Applicant
AND: MS BERRY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
18 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 21 January 2022 is 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 Berry & Berry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings with respect to the two children of the relationship:
(a)X born in 2011 aged 10 years and 1 month; and
(b)Y born in 2011 aged 10 years and 1 month;
(“the children”).
Listed today is an Application for Review filed by the Father on 21 January 2022 of a listing decision made by a Registrar of the Court on 20 January 2022 (“the Review Application.”)
For reasons which I will now outline, the Review Application will be dismissed.
EVIDENCE
In this matter I have read the following documents, the:-
(a)Initiating Application filed by the Father on 16 April 2021;
(b)Application in a Proceeding filed by the Father on 19 January 2022;
(c)Affidavit of the Father filed on 19 January 2022;
(d)Covering letter of the Father filed 19 January 2022- marked as Exhibit A;
(e)Application for Review filed by the Father on 21 January 2022; and
(f)Further Affidavit of the Father filed 15 February 2022.
Pursuant to Rule 2.18(2) of the Federal Circuit an Family Court of Australia (Family Law) Rules 2021 (“the Rules”) the Mother has 28 days after service of the Application in a Proceeding to file a Response.
There is no Affidavit as to service of the Application in a Proceeding on the Respondent Mother. Nor is there an Affidavit evidencing service of the Application in a Proceeding upon the Independent Children’s Lawyer. I am unaware as to when such Response should be filed pursuant to the Rules in those circumstances.
The Mother has not filed any material in response to the Application for Review. The Court would not have expected the Mother to do so in an application of this nature. There is no proof of service of the Application for Review on the Mother, or indeed upon the Independent Children’s Lawyer.
BACKGROUND
On 16 April 2021 the Father filed an Initiating Application seeking final parenting orders with respect to the children. He did not seek any interim parenting orders.
The Response filed by the Mother on 12 July 2021 sought final parenting orders. The Mother did not seek any interim orders.
At a Directions Hearing before Judge Willis on 12 July 2021 an Order was made appointing an Independent Children’s Lawyer together with an Order for a Family Report to be prepared.
At the listing of the matter for Directions Hearing on 15 September 2021 Judge Cope made the following Orders and Notations with the consent of the parties and the Independent Children’s Lawyer:-
Communication:
1.The Father is to have FaceTime or Whatsapp time with Y and X born in 2011 (“the Children) each week at the following times, starting on 15 September 2021:
(a)Every Sunday commencing between 3:00pm and 3:15pm; and
(b)Every Wednesday commencing between 7:00pm and 7:15pm.
The Father is to initiate the FaceTime or Whatsapp calls.
2.The FaceTime or Whatsapp calls are to take place in a private location with the Children and there is to be no involvement in the FaceTime or Whatsapp calls by any third party.
3.The Mother is to advise the Maternal Grandparents that FaceTime or Whatsapp calls will be initiated by the Father in accordance with Order 1 herein and the Mother is directed to advise the Maternal Grandparents that they must:
(a)Ensure their phones are charged and switched on;
(b)Make the Children available for the FaceTime or Whatsapp calls.
(c)Hand over the telephone to the Children for them to answer the call; and
(d)The Children are to be allowed to take the call into a separate room and have privacy with calls.
THE COURT FURTHER ORDERS THAT:
Children return to City C
4.Both parties are to do all acts and things necessary to return the Children to the City C region as soon as possible and once the Children have returned to the City C region, the parties are to inform the Independent Children’s Lawyer and the Court.
5.Both parties are to keep each other informed and up to date in relation to Covid-19 restrictions and travel directions for the Children’s return to the City C region.
6.The Mother is to advise the Father and the Independent Children’s Lawyer of any enrolment into schooling for the Children and the Father is to do all acts and things necessary to sign all documents to enable the enrolment.
Other Orders
7.The Independent Children’s Lawyer has leave to issue more than 5 subpoena.
8.The Mother is to provide the full names, dates of birth and email addresses for the Maternal Grandparents to the Independent Children’s Lawyer for the purpose of issuing subpoena.
9.The matter be adjourned for Mention on 9 December 2021 at 9:30am in the Federal Circuit and Family Court of Australia at City C.
10.The Independent Children’s Lawyer has liberty to relist the matter on short notice upon written application to the Court.
NOTATION:
A.The Children are currently residing with the Maternal Grandparents in Town D, New South Wales as a result of the border closures due to Covid-19. They are currently in home schooling using the curriculum provided by Town E Public School in New South Wales.
B.The Court has advised the parties that until the Children are returned to City C, the Children should be enrolled into a school in New South Wales to ensure their education continues.
C.The Mother advises the Court the Maternal Grandparents are attempting to arrange some contact between the Children and the Paternal Grandparents which has not yet occurred due to the New South Wales Covid-19 restrictions.
D.The Independent Children’s Lawyer has indicated she has enquired with Ms F for the preparation of a Family Report and advises the next available date is November 2021. The Independent Children’s Lawyer has been unable to engage a Family Report Writer earlier than November 2021.
E.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Further interim parenting Orders were made by Judge Cope with the consent of the parties and the Independent Children’s Lawyer on 9 December 2021 as follows:-
1.That X born in 2011 and Y born in 2011 (“the children”) live with the mother.
2.The Father will spend time with the children as follows:-
(a)From 12 noon on 23 December 2021 until 3:00pm on 1 January 2022;
(b)One week block prior to the commencement of school in January 2022 as agreed in writing;
(c)Upon the commencement of school in 2022, from afterschool Friday until 3:00pm Saturday each week;
(d)Upon the commencement of school in 2022, from afterschool Wednesday until 7:00pm. This day is subject to change by agreement should the Wednesday not suit the children’s arrangements.
3.The changeover is to occur at school. If the children are not attending school, the father will pick the children up from the mother’s residence at the commencement of his time and the mother will pick the children up from the father’s residence at the conclusion of the father’s time.
AND THE COURT ORDERS THAT:
4.The matter is listed for Directions Hearing on 21 March 2022 at 10:30am in the Federal Circuit and Family Court of Australia in City C.
NOTATION:
A.These Orders are “interim interim” Orders to put a holding pattern in place pending the Family Report release.
The interim orders made on this date were specifically noted to be a “holding pattern” pending the release of the Family Report ordered on 12 July 2021.
The Father filed an Application in a Proceeding on 19 January 2022 being six weeks after the interim orders were made on 9 December 2021 seeking Orders as follows:-
1.That the Respondent immediately remove all material related to Family Court proceedings from social media.
2.That I (the Applicant) be granted authority to take my son, X, to ongoing medical treatment and appointments.
3.For the Court Order issued 09/12/2021 be amended to reflect the change of circumstances with the QLD 2022 school year now starting 2 weeks later, as ordered by the QLD Government. I request custody dates and times as specified in the previous order to commence immediately and to be reworded to also include school holiday periods.
4.For the Respondent to provide all information regarding the childrens schooling, such as reports, enrolments, school activities, etc.
Such Application did not seek that the matter be listed on short notice - it did not seek any orders with respect to the listing date of the matter. To be clear, it did not seek that the matter be listed urgently or that the time for service of the Application be abridged.
The Application in a Proceeding was accompanied by a covering letter which sought that the next listing date of the matter be brought forward. The letter from the Father stated:-
I request that this matter which is next due for a hearing on 21/03/2022 be brought forward due to circumstances outlined in my Affidavit dated 18/01/2022 (also submitted).
Specifically with relation to part 1. medical treatment for X and part 2. public comments made by the respondent on social media (which continue to be publicly visible) and which relate to this matter, which I believe is potentially a breach of the Family Law Act.
Also, the previous Court Order issued reflects custody arrangements to commence in tandem with the return to school date. However, the QLD school start date has now been pushed back by 2 weeks by the state Government. I would request this to be amended so I can continue to have custody during this period.
In circumstances where the Father is self-represented it appears that as a consequence of the contents of the letter the matter was listed before a Registrar for the allocation of a listing date rather than simply being allocated a date for listing in the normal course by the Court.
The matter came before a Registrar on 20 January 2022. The Registrar listed the matter for Directions with the substantive proceedings on 21 March 2022.
ISSUES BEFORE THE COURT
Whilst the Father seeks a raft of Orders in his Application for Review that mirrored the orders sought in his Application in a Case the sole issue for me to determine today is whether or not the Court should exercise its discretion to list the Father’s interim application on an urgent basis. It is not a determination of whether any of the interim orders sought by the Father should be made.
THE LAW
Pursuant to Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Application was filed by the Father one day after the Registrar’s decision.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence in addition to the evidence before the Registrar: Rule 14.07(2).
The overarching purpose and objective of the Court is to ensure the just determination of all matters whilst ensuring that the judicial and administrative resources available to the Court are used in an efficient manner: Central Practice Directions – Family Law Management dated 1 September 2021.
DISCUSSION
I am not satisfied that there is a decision by a Registrar that is capable of review.
Chief Judge Alstergren in the matter of Lombardi and Rider [2021] FedCFamC2F 57 cited with approval the decision of Halligan FM (as he then was) in the matter of Myers & Myers [2011] FMCAfam 1104 (“Myers”) which outlined the three scenarios in which the Court can deal with the issue of allocating a listing date to a matter 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.
Halligan FM (as he then was) observed that the first two of the scenarios are a purely administrative task performed by Court Registry staff and therefore are not capable of being the subject review. In contrast, the third scenario is capable of being reviewed.
The Father did not seek any Orders in his Application in a Proceeding with respect to the listing date of the matter – he did not even seek in general terms that the matter be listed urgently, or with short notice. He certainly did not seek specific orders for the abridgement of time for service of the Application upon the Mother and/or for the time in which the Mother was to file her material in response.
The Father did answer “yes” to the question in the Application in a Proceeding Cover Sheet to the question “Are you seeking orders for urgent consideration?” In the Application for Review the Father described the sitting/hearing type of 20 January 2022 as a “request for urgent hearing.” The Father’s covering letter dated 19 January 2022 sought that the hearing date of the 21 March 2022 be “brought forward due to circumstances outlined in my Affidavit dated 18/01/2022”.
In circumstances where the Application in a Proceeding did not seek any orders as to the listing date of the matter nor any orders with respect to the abridgement of time for service of the Application, there was no such application before the Court and any allocation of a listing date by the Court is not a reviewable decision. At this point, the Application in a Review should be dismissed.
However, if I am incorrect and a party indicating “yes” to a question on a cover sheet to an application as to urgency and/or a letter asking that a matter be “brought forward” is sufficient to replace the particularisation of orders sought by a party from the Court, then I am of the view that the Application for Review should be dismissed in any event for the following reasons.
The Father submits by way of his material filed in response to the Application that there should be an urgent listing of his Application in a Proceeding as:-
·the Mother is posting comments on social media;
·the Father wishes to be able to continue to take the child X to his medical appointments;
·he wants the current Orders as to time/school holiday periods to be varied as the new school start date for the year is the 7 February 2022;
·the Father wants the Mother to provide information with respect to schooling;
·the Mother takes too long to reply to his email correspondence;
·the Mother has breached Court Orders for time between the children and the Father on three occasions; and
·the Mother sent the children for time with the Father with inadequate clothing.
Both the Chief Judge in Lombardi and the Deputy Chief Judge in Canvin & Jesney [2021] FedCFamC2F 145 cited with approval Halligan FM (as he then was) in Myers where at [87] His Honour suggested that the following four matters might be relevant considerations in determining an application for review of a Registrar’s decision to reject an application for an urgent listing:
(a) the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
(b) 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;
(c) the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the Court; and
(d) a judicial officer is available to hear the substantive application.
Although the Father seeks to vary Orders made only 6 weeks prior, I am prepared to accept for the purpose of the Application before me that the Father has demonstrated a reasonable basis exists for arguing for the Orders now sought by him. This is in no way, of course, an indication or determination as to what the Judicial Officer hearing the Father’s Application in a Proceeding will decide if the Application proceeds to an interim defended hearing.
I am not satisfied that absent an urgent listing, the Father will be prejudiced in relation to the relief sought by him other than in ways common to other matters awaiting the Court’s attention in the normal course.
This Court is routinely required to hear and determine parenting matters involving allegations of harm. A Judicial Officer, delegated or otherwise, is required to manage each individual matter in a way that is appropriate having regard to the overarching purpose of the Court as to the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Individual case management of a matter must be also seen in the context of the Court having to manage the entirety of its caseload. This involves considerations as to competing assertions of urgency and risk. The Court must give priority to matters involving children who are at risk of harm: Canvin & Jesney [2021] FedCFamC2F 145.
As stated by Chief Judge Alstergren in Lombardi & Rider at [32] and [33]:
[32] Registrars on a daily basis deal with applications for abridgments and urgent listings and are best placed to allocate listings having regard to urgency considerations and the overall business of the Court. The Court will accord priority to cases depending on the urgency that presents itself on a case by case basis by carefully weighing competing considerations such as the factual basis for the urgency asserted, including any issues of safety or risk, and the delay in bringing an application.
[33] This assessment is in the context of an extremely busy court where resources must be allocated efficiently and effectively, and where many parties may consider their application to be urgent for them. In the absence of urgency, a case will be given a first return date at an appropriate time allowing for service on the respondent and the filing of a Response to an Initiating Application.
The matter has been given a listing date before Her Honour Judge Cope on a date some 8 weeks after its filing, being a date the substantive proceedings are already listed. This is not an unacceptable delay, especially in circumstances where this listing date was allocated by Her Honour Judge Cope who has now dealt with the matter on several listings dates and determined that this was a suitable date in circumstances where the parties are awaiting the release of the Family Report.
The Affidavits of the Father do not sufficiently demonstrate foundation for the matter to be listed on an urgent basis. There are no risk issues identified in this matter that justify an earlier listing date. The issues raised by the Father do not warrant the matter being given priority over other matters before the Court. I am not satisfied that the issues raised by the Father justify the matter proceeding other than in the normal course. The Mother should be afforded the opportunity to file her material in Response to the Father’s Application within the normal time limits imposed by the Rules. The listing of the interim application to a date and time the matter is already listed before the Court is an efficient allocation of the Court’s resources.
I am satisfied that there has been no delay in the Father approaching the Court.
As stated by the Chief Judge in Lombardi & Rider, the Court:
[42] …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.
[44] …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 Father seeks the same Orders in the Review Application as that sought in his Application in a Proceeding. The decision the subject of the Review Application is the listing date allocated to the Application in a Proceeding. Review Applications with respect to the allocation of listing dates should not be used as a “back door” method of having a Judicial Officer determine the issues raised by a party in the application, the listing date of which they disagree. The Application for Review with respect to the listing date should be dismissed. The Orders sought by the Father in the Application for Review mirror the Orders sought by him in his Application in a Proceeding. In those circumstances, the dismissal of the Application for Review by the Father will cause him no prejudice as those orders sought by him will be dealt at the listing of the matter at the appropriate time when the Mother has been afforded the opportunity to file her material in response in accordance with the Rules.
CONCLUSION
I therefore make the following Orders.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 18 February 2022
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