Bikri & Falco
[2024] FedCFamC2F 1477
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bikri & Falco [2024] FedCFamC2F 1477
File number(s): MLC 11230 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – REVIEW – PROCEDURAL – Whether the listing date should be moved forward and the time for the Respondent to file their material be shortened – Whether the decision is reviewable – Whether the matter is urgent such that it would justify the matter being given precedence over other matters before the court – Whether there is evidence of an alternative judicial officer to deal with the matter if it is brought forward. Legislation: 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
Dyne & Dyne [2021] FedCFamC1F 96
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 14 October 2024 Place: Hobart via Microsoft Teams Counsel for the Applicant Ms Abdallah Solicitor for the Applicant: Bardo Lawyers Counsel for the Respondent: Mr Nguyen Solicitor for the Respondent: Jindalee Lawyers Pty Ltd ORDERS
MLC 11230 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BIKRI
Applicant
AND: MS FALCO
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.That 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 three (3) pages, addressing the relevant matters under section 117(2) of the Family Law Act 1975 (Cth) and the quantum of costs with reference to the appropriate scale.
3.If the Respondent complies with Order 2, then the Applicant to the substantive proceedings must make, file and serve a response to the Respondent’s 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 Bikri (‘the Husband’) on 24 September 2024. There is no evidence of service of the application, and no documents have been filed in response. The Respondent filed a notice of address for service on 1 October 2024. The Review was served by email on 30 September 2024. The Husband seeks to review the decision made in chambers of Deputy Registrar Letts on 9 September 2024 to refuse to urgently list the Husband’s Application in a Proceeding filed 6 September 2024. All matters are listed on 23 October 2024 at 9:30 am before Judicial Registrar Watson.
In the Husband’s Application, he sought interlocutory orders that Ms Falco (‘the Wife’) be restrained from interfering with the operations of the joint business, C Business, that she be restricted from blocking the Applicant’s access to bank accounts associated with the business, and from making withdrawals, transfers or transaction from accounts associated with the business.
The Husband, in his affidavit filed 6 September 2024, states that the listing of the Application was urgent on the basis that the Wife closed their joint bank account without consulting him. The Husband is also concerned about the risk of needing to close his business.
The Wife, in her written submissions of 9 October 2024, states it was reasonable to restrict access to the joint account to prevent the Husband from transferring money from the business account to himself and his current partner, Ms D. The Wife states that as a result of the Husband’s conduct, the business has accrued $50,976.62 in liabilities owed to the Australian Taxation Office and creditors of the business.
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 same 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 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:
·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 Husband relied upon:
·His Application for Review dated 24 September 2024;
·Documents relied on in the Application for Review dated 9 October 2024;
·His affidavit dated 3 September 2024; and
·His Application in a Proceeding dated 6 September 2024.
The Respondent Wife relied upon:
·Her Submissions dated 9 October 2024; and
·Costs notice filed 14 October 2024.
Consideration
The Review seeks to bring forward the allocated court date of 23 October 2024. The Application in a Proceeding sought an application for interim orders 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 Husband sought the hearing of his application to be brought forward, and as such, was effectively asking that the Registrar exercise the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court. This power may be delegated pursuant to section 254(2)(k) of the Act and has been so delegated under the Rules.
Normally, the Wife would have 28 days to file her responding documents. The Husband’s Application was filed on 6 September 2024 but was not served until late September 2024. The Wife filed a Notice of Address for Service on 1 October 2024. It seems likely that the Wife has until 27 or 28 October to file her responding documents. I note the return date is 23 October 2024.
The Husband is seeking an earlier date for the listing of his application. It follows that he is seeking a shortening of the time for the Respondent to file her responding documents. On the face of it, the decision of the Registrar not to provide an earlier date is reviewable.
Has the applicant demonstrated a reasonable basis for arguing for the substantive orders sought
The need for an earlier listing date was summarised by the Husband in his affidavit filed 6 September 2024:
20. In or around April 2024, [Ms Falco] closed our joint [E Bank] Account without first consulting me.
…
22. I have been unable to access the relevant business accounts, which has prevented me from operating the business effectively in the following ways:
(a)I am unable to accept payments from customers
(b) I am unable to pay business bills and overheads
(c)I am unable to efficiently process employee salaries and have been paying them from my personal account
(d) I am unable to pay suppliers and am currently receiving warning emails from suppliers threatening to cease deliveries.
23. I have also been unable to pay rent for the business premises at [F Street, Suburb G] in New South Wales. I have received a warning email from [H Authority] [in mid] 2024.
The Husband’s position is that he is unable to operate his business because of the Wife preventing access to the bank accounts associated with the business. He has outlined how this has had a significant impact on him, the business, and third parties including creditors and employees. Therefore, the Husband has demonstrated, taking his case at its highest, a reasonable basis for seeking the interlocutory orders in his application.
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 main concern of the Husband is that the joint business, C Business, will have to close from not being able to pay for liabilities arising from the operations of the business. However, there is no evidence that there is a risk of the business closing, which is the only identified concern of the Husband in relation to access to the accounts.
Further, the Husband does not have his access fully revoked, as demonstrated by the email from the Wife’s solicitor’s dated 29 July 2024 — contained in the Husband’s affidavit. This email does not state that the Husband should not have access to the accounts, but that payments from the account are to be approved by both account holders. Therefore, there is no evidence to support a real risk that the business will be at risk of closing. As such, I am not satisfied that without an urgent listing, the Husband would be prejudiced.
Has the applicant demonstrated that there has been no unreasonable or unexplained delay in approaching the Court
The Husband submits that he was unable to access the bank accounts associated with the business in April 2024 as the Wife closed the account and in July 2024 the Wife’s solicitors made a request to ANZ to block the transfer of monies from the C Business bank account.
The Husband attempted to resolve the matter by contacting the Wife in July 2024 — with no success. The Husband then instructed his solicitor on 19 August 2024 to commence negotiations to resolve the matter, however, the Husband contends he did not receive a response. The Husband did not make an application for an urgent listing until 6 September 2024.
Although there is an explanation for the delay in requesting an urgent listing, the Husband maintains that the matter, since 19 August, has been urgent. He outlined the significant impact of not having access to the C Business bank accounts, which ought to have been known to the Husband when he realised he did not have access to the accounts and the ability to pay bills on 24 July 2024. Therefore, there does appear to be an unreasonable delay in approaching the Court.
Is a judicial officer available to hear the substantive application?
In Lombardi & Rider [2021] FedCFamC2F 57 at [45] to [48], Chief Justice Alstergren observed in relation to this criteria:
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 matter is next listed before Judicial Registrar Watson on 23 October 2024. I have no evidence that an earlier date before a judicial officer is available to hear the application.
Conclusion
I am not satisfied that this matter has such urgency that it should brought forward and dealt with at the expense of other matters before the court. Further, I have no evidence as to the availability of another judicial officer to deal with the matter at an earlier time. A such the Husband’s Review must be dismissed, and so I order.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 25 October 2024
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