Cadigan and Banks
[2012] FMCAfam 1115
•15 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CADIGAN & BANKS | [2012] FMCAfam 1115 |
| FAMILY LAW – Review of Registrar’s decision not to grant leave to serve short notice and for hearing ex parte – delay – inordinate delay by applicant – no urgency shown. |
| Federal Magistrates Act 1999 (Cth) ss.103,104 Federal Magistrates Court Rules 2001 Part 20, Division 20.1, Rules 20.00A, 20.01, 20.02, 20.03 |
| Myers & Myers [2011] FMCAfam 1104 Vibbard & Garcia [2012] FamCAFC 114 Zeller & Whitby [2011] FMCAfam 431 |
| Applicant: | MS CADIGAN |
| Respondent: | MR BANKS |
| File Number: | SYC 6141 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 October 2012 |
| Date of Last Submission: | 15 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Warren McKeon Dickson |
| Solicitors for the Respondent: | No appearance |
ORDERS
The application for review filed on 15 October 2012 is dismissed.
The substantive application remains listed before Walker FM at 9.30 am on 24 October 2012.
IT IS NOTED that publication of this judgment under the pseudonym Cadigan & Banks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6141 of 2012
| MS CADIGAN |
Applicant
And
| MR BANKS |
Respondent
REASONS FOR JUDGMENT
The Application before the Court is an application for review of a decision by a Registrar to list a substantive application at 9.30 am on 24 October 2012 in the duty list of Walker FM. The substantive application was filed today, 15 October. The final orders sought in summary are that first the applicant be permitted to take her two children out of Australia for the purpose of a holiday in Dubai, Johannesburg and Cape Town between 16 October and 17 November 2012. The application also seeks an order that the applicant be permitted to remove the children from the Commonwealth of Australia and that the applicant be authorised and permitted to apply for, and receive, an Australian passport for the children without first obtaining the consent of the respondent. The interim or procedural orders sought are that this application be listed on short notice and that it should be heard ex parte.
The application was filed today, 15 October, and the short notice ex parte worksheet shows that the particular client service manager noted that the first urgent date was 9.30 am on 24 October. The normal first return date would be 9.30 am on 21 November this year. The matter was referred to Registrar Cameron, who directed that the application be listed on the urgent return date at 9.30 am on 24 October, and directed that the application be served on or before 8 pm on 16 October. The applicant seeks a review of that decision and seeks that the initiating application be heard today on short notice and/or on an ex parte basis, and orders should be made accordingly.
The procedure for a review is provided by the Federal Magistrates Court Rules, and has recently been the subject of a decision of the Full Court of the Family Court in the matter of Vibbard & Garcia[1], a decision on an appeal from a Federal Magistrate in that applying the reasons set out by the Full Court in Vibbard & Garcia the application for review appears to be reviewable by this Court as the decision sought to be reviewed is a review of the exercise of the power to shorten or abridge a time fixed by the Rules and is therefore amenable to review under subsection 104(2) of the Federal Magistrates Act 1999 (see in particular paragraph [26] of the decision of their Honours in Vibbard & Garcia). In that decision their Honours endorsed the reasoning of Halligan FM in the matter of Myers & Myers[2] rather than the view put forward in an earlier decision of Zeller & Whitby[3].
[1] [2012] FamCAFC 114
[2] [2011] FMCAfam 1104
[3] [2011] FMCAfam 431
The procedure for review of the exercise of a power by a Registrar under subsection 104(2) is contained in division 20.2 of the Rules. Shortening or abridging a time fixed by the rules falls within the power described in subsection 102(2) of the Act as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the rules of Court” which has been delegated to approved Registrars pursuant to subsection 103(1) by subrule 20.00A(1) (see Vibbard & Garcia at [22], but also Myers & Myers at [29]). Subrule 20.01(1) prescribes times for applications for review:
(1) For subsection 104(2) of the Act application for review of the exercise of a power by a Registrar must be made within:
(a) for the exercise of a power of the Court under the Family Law Act or Family Law Regulations mentioned in items 3 to 30 of the table in rule 20.00A, 28 days, and
(b) otherwise 7 days.
Making an order exempting a party to proceedings from compliance with a provision of the Rules is not the exercise of a power by a registrar mentioned in Items 3 to 30 of the table and Rule 20.00A, rather, it is contained in Item 2. Thus, such an application must be made within 7 days. It has indeed been made within 7 days in this case, namely, on the same day. Under the provisions of Rule 20.02 an application for review of an exercise of power by a Registrar must be listed for hearing as soon as possible and, unless impracticable to do so, within 14 days after the date of filing (see Subrule 20.02(2)). That indeed has been done as it has been listed for hearing on the same day. The applicant must serve a sealed copy of the application on each other party to the proceeding within seven days after it is filed (see Subrule 20.02(3)). That, I am told, has not been done, although I am told copies of the documents have been left at the address of the respondent with the advice that an application was being made today.
Rule 20.03 provides that the review of an exercise of power by a Registrar must proceed as a hearing de novo which is what has occurred today. The applicant relies on the facts set out in her affidavit sworn on 12 October and filed today. What she seeks to do is to take the subject child, [X], out of the country for the purpose of a lengthy holiday mainly in South Africa. There has been little contact between the child and the father. The particular circumstances upon which the applicant relies appear to be set out in paragraphs 21 through to 33 of the affidavit. The applicant deposes at paragraph 21 of her affidavit that on or about 20 August 2012 she booked flights for the children, her mother and herself to go to South Africa to visit her family and to be able to be with her grandmother on [date omitted] 2012 when she celebrated her 90th birthday. She further deposes that she and the children and her mother are due to fly out of Sydney tomorrow on Tuesday, 16 October 2012, and they have return tickets that bring them back to Sydney on 16 November.
She then sets out in paragraphs 23, 24 and 25 details of the travel and the bookings that she has made. At paragraph 26 she deposes that she has looked into rescheduling the Emirates flights currently booked for 16 October and deposes that to the best of her knowledge it will cost about $2003.20 to alter the travel dates. The applicant goes on to depose that or about early October 2012 she applied for passports for the children. She has been issued a passport for one child, but not for the child, [X]. She deposes at paragraph 28 that when she applied for a passport for [X] she submitted an application to have the passport issued without the father’s consent because she had not had any contact with him for a year and that it would only result in an argument. She goes on to say that an officer from the Department of Foreign and Trade contacted her with advice that they had written to the father to see whether he would consent to a passport being issued, and they were required to give him 10 days to respond to that letter, and that if they did not receive a response they could process her application to have the passport issued.
The mother further deposes that on or about 12 October she went to the father’s house with the child to see if he would sign the passport application and she deposed that he said to her words to the effect, “Well, I don’t have anything to do with them so why should I sign it?” He later, after a conversation, is said to have said, “It’s too bad I’m not going to sign it.” When the mother said to him, “It’s not about me, it’s about [X]”, the father said, “Bad luck.” The mother was advised by the Department of Foreign Affairs and Trade that the father had told the Department that he would not consent to the passports being issued. The mother goes on to say that she believed that the father did not have any issue with the children and her travelling to South Africa, particularly because she had taken [X] there before with the father’s knowledge and consent, and she believes that the father is only refusing to sign the passport application for [X] out of spite and to hurt her. That may be the case.
The fact is that the mother had applied for travel to South Africa on her own evidence on or about 20 August 2012, and for some reason she chose not to apply for passports for the subject child and another child until early this month. It has only been in the last few days that she has discovered that the father would not consent, and now seeks to bring this application at extremely short notice. The solicitor for the mother has advised the Court that the mother naively believed that she only needed to make an application for a passport without the father’s consent and that that would take place. That does not explain the inordinate delay in seeking a passport for the child. The only conclusion that can be reached is that the dilemma in which the applicant finds herself is of her own making. In my view, no justification has been made out for dealing with this matter on an urgent basis. The application for review, in my view, is without merit. The application will be dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 30 October 2012
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