Canvin & Jesney
[2021] FedCFamC2F 145
•13 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Canvin & Jesney [2021] FedCFamC2F 145
File number(s): MLC 10217 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to grant urgent listing of interim parenting matter – Where the Registrar’s decision is reviewable pursuant to section 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the order for urgent listing sought was not supported by the Applicant’s proposal for Interim Parenting Orders – Application for urgent listing dismissed – Orders made to allow submissions on costs. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 256(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.04, 1.07, 1.31, 2.18, 5.04, 14.05, 14.07
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 r 2.01
Family Law Case Management Central Practice Direction paragraphs 1.1, 4.6, 5.10
Cases cited: Bannerman & Frank [2015] FCCA 3171
Dyne & Dyne [2021] FedCFamC1F 96
Feiteiro & Feiteiro [2019] FamCA 647
Hearnes & Jellets [2020] FCCA 2722
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Palmer & Palmer [2012] FMCAfam 522
Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division: Division 2 Family Law Number of paragraphs: 65 Date of hearing: 30 September 2021 Place: Sydney via web conference Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: Schetzer Papaleo Family Lawyers Counsel for the Respondent: Ms Mansfield Solicitor for the Respondent: Coote Family Lawyers ORDERS
MLC10271/2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MR CANVIN
Applicant
AND: MS JESNEY
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Applicant Father’s Application in a Case filed on 22 September 2021 is dismissed.
2.In the event of the Respondent Mother seeking an order for costs in respect to the Applicant Father’s Application above, she is to provide to my Associate and the Applicant Father’s solicitor written submissions of no more than 3 pages within 7 days of the date of these orders.
3.In the event of the Applicant Father disputing any Application for Costs by the Respondent Mother, he is to, within 7 days of receipt of the Respondent Mother’s written submissions, provide written submissions in reply, of no more than 3 pages, to my Associate and to the Respondent Mother’s solicitors.
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 Canvin & Jesney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION
This matter concerns an application filed on 22 September 2021 by the Applicant father, Mr Canvin (‘the Applicant’), for review of a decision by a Registrar of the Court to reject the Applicant’s application, for an abridgment of time, to provide the listing of his Application for Interim Parenting Orders (‘the Application’) ‘as soon as practicable’.
The Review Application is opposed by the Respondent mother Ms Jesney (‘the Respondent’).
The Application for Interim Parenting Orders concerns the parties’ two children: X, born in 2013, and Y, born in 2017.
For reasons which I set out below I have dismissed the Applicant’s Application.
EVIDENCE
In this matter I have had regard to the following documents filed by the Applicant:
· Review Application filed on 22 September 2021;
· Initiating Application filed on 15 September 2021;
· Cover letter regarding urgency dated 15 September 2021;
· Notice of Risk filed on 15 September 2021;
· Affidavit of the Applicant filed on 15 September 2021;
· Affidavit of the Applicant filed 29 September 2021.
The Respondent has not, as yet, filed any evidence in the proceedings in circumstances where, pursuant to r 2.18(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Family Law Rules 2021’), the time for filing a Response to an Initiating Application is 28 days after service of the application. Therefore the Respondent must file a Response and supporting documents by 13 October 2021.
BACKGROUND
The Applicant commenced proceedings in this Court on 15 September 2021 by filing an Application for Final and Interim Parenting Orders (the latter of which included the subject order for abridgment of time and for his interim application to be “listed for interim hearing as soon as practicable”).
The Applicant contends that it is relevant to the consideration of these proceedings that the parties have previously experienced marital difficulties in 2014 during which time the parties continued to live under the one roof with their eldest child while being separated.
The parties subsequently reconciled and, as noted above, their second child was born in 2017.
The parties have experienced increasing marital difficulties in recent months. Those difficulties appear to have come to a head in July of this year when the parties separated but continued to live under one roof. During the course of August of this year the parties respectively engaged legal representatives to communicate their respective positions to the other party despite the fact that the parties were, at that time, living under the one roof.
On 9 September 2021, the Respondent applied for an Intervention Order against the Applicant. The Respondent and the children were named as affected family members on the order.
At paragraph 3 of his Affidavit, filed on 15 September 2021, the Applicant attests that on Friday, 9 September 2021, the police attended the former matrimonial home and served the Applicant with the Interim Intervention Order which had been obtained by the Respondent on the previous day. It appears, however, that the reference should be to Friday 10 September 2021. Nothing, however, turns on that apparent error.
Upon being served with the Interim Intervention Order, the Applicant vacated the former matrimonial home. Since 10 September 2021, the Applicant has been residing with his sister who lives approximately 10 kilometres away from the former matrimonial home.
The application for a permanent Intervention Order is returnable to the Magistrates’ Court on 10 November 2021, however, the Applicant has since made an application to revoke that order and that application has been listed for mention in that Court on 6 October 2021.
The Applicant contends that the Respondent made the application for the Intervention Order for strategic purposes being, primarily, to remove him from the former matrimonial home.
At the hearing of this Application before me, counsel for the Respondent rejected the Applicant’s contention, in that respect, and contended that the Respondent had a proper basis for applying for the Intervention Order in circumstances where she intends to present evidence that the Applicant engaged in aggressive, intrusive and dysregulated behaviour that was potentially caused or exacerbated by the consumption of marijuana.
Clearly, these will be live issues to eventually be considered in the context of a hearing where both parties have a proper opportunity to present evidence and test the evidence of the other party.
The Application
As earlier noted on 15 September 2021, the Applicant filed an Application for Final and Interim Parenting Orders in this Court. That Application included an application for the following interlocutory order:
That all necessary times be abridged to enable this application to be listed for interim hearing as soon as practicable.
(Emphasis added)
There was no reference in the Applicant’s application to those rules which he sought to be ‘abridged’ and while his claim was for the matter to be listed ‘as soon as practicable’, the Application was accompanied by a letter from his solicitors, dated 15 September 2021, which under the subheading ‘Nature of Urgency’, referred to paragraphs 1 through to 16 of the Applicant’s affidavit dated 15 September 2021, and provided the following:
[The Applicant] is concerned that he has been removed from the matrimonial home via the misuse of an Intervention Order Application in circumstances where the events of separation are repetitive of the events that occurred in 2014 when the parties separated under the one roof for about 18 months but then reconciled.
[The Applicant] is concerned that the [Respondent] will not be able to cope with the demands of having the two children in her full-time care in circumstances where he is the primary carer of the children and where [the Respondent’s] mental health has been questionable and concerning.
[The Applicant] seeks an urgent interim hearing to regularise and facilitate his time with the children as soon as practicable given his concerns for the welfare and safety of the children.
(emphasis added)
The evidence presented by the Applicant in support of his application for ‘abridgment of time’ or urgency, is primarily contained in paragraph 3 through to 16 of his Affidavit filed on 15 September 2021 and, most relevantly, at paragraphs 8 through to 16 of that Affidavit the Applicant attests as follows:
8.The children will be upset and unsettled as a result of me not being there however my larger concern is [the Respondent’s] functioning and ability to prioritise the children in the situation where I am not present to co-parent and where she has no assistance.
9. I am concerned that [the Respondent’s] emotional state is fragile and am worried that she should not be solely responsible for our children in the way she currently is in circumstances where I am not allowed to attend to help her with them.
10. [The Respondent] has a history of having depression and mood swings which she has refused to engage in counselling or seek the assistance of any professionals. She has told me in the past about her having cut her arms and I have seen her unable to control her emotions or reactions to the extent that she sits alone in dark rooms, talking to herself as she tries to process whatever is impacting on her at that moment and not responding to either myself or the children. Although she ‘comes out’ of these situations, I am worried that she will not be able to reply or focus on the children who will have no-one else to turn to for their needs in circumstances where [the Respondent] is absent (for want of a better term).
11. [The Respondent] has been operating on a heightened level, especially in the lead up to separation when she was alternating between excitement and hysteria and succumbing to bouts of sadness and grief that she would take out on me.
12. [The Respondent] has been unable to control herself and I have been required to ensure that the children are not exposed to her emotional rollercoaster and to protect them from her when she became non-responsive or deeply upset.
13. As a result of the Intervention Order, there is no-one else in the home to help either the children or [the Respondent].
14. [The Respondent] has told me that she suffered post-natal depression after the births of both children although hid it from me at the time.
15. [The Respondent’s] beloved mother died unexpectedly in Country B in 2020. Owing to Covid-19 [the Respondent] was not able to travel to Country B to be with her or her family at the time and has not been able to go since to complete the last rites and rituals that are traditionally performed when a family member dies. The impact of her dying was difficult for all of us as it was both sudden and quite traumatic as she called [the Respondent] at 4am while she was in the process of passing away.
16. [The Respondent] has told me that she feels as though she will not have closure regarding the loss of her mother until she has been able to return to Country B and undertake the rituals. [The Respondent] has been grieving and sad since however her emotions have also been heightened and fraught and she is reactive, aggressive and less able to cope with stress or upset including the children and their various demands and behaviours.
Despite the Applicant’s apparent concerns regarding the Respondent’s parenting capacity, at paragraphs 57, 58 and 59 of his Affidavit filed on 15 September 2021, he proposes what is commonly referred to as a ‘nesting arrangement’ where the children continue to remain living in the matrimonial home but the parents move in and out of their home on a rotating basis according to the arrangement for their time to care for the children.
Having considered the material filed by the Applicant pursuant to his application for the matter to be listed “as soon as practicable”, the parties were advised on 16 September 2021 of the Registrar’s decision as follows:
Upon assessment of the material provided, the Registrar has not granted an urgent listing/abridgement of time and your application will be listed at 10.00am on 18 October 2021 at Melbourne.
On the Applicant’s account, on Tuesday 21 September 2021, the solicitors for the Respondent wrote to the Applicant’s solicitors indicating that the Respondent did not agree to the Applicant’s proposed nesting arrangement but indicating that, subject to the Respondent’s safety concerns being addressed, the Respondent agreed that arrangements needed to be made for the children to spend time with the Applicant.
On 23 September 2021, prior to being served with the Applicant’s Application for Review, the Respondent’s solicitors wrote to the Applicant proposing that the Applicant spend time with the children each Tuesday and Saturday from 12:30pm – 4:30pm and on FaceTime each Thursday at 5pm. The offer was made conditional upon the Applicant entering into an undertaking not to denigrate the Respondent or consume alcohol or illicit substances prior to or during his time with the children and that his sister be in substantial attendance.
The Respondent also requested that the Applicant undertake a urine drug screen within 24 hours and a hair follicle test together with a Carbohydrate deficient Transferrin test (‘CDT test’). The Respondent indicated her agreement to also submitting to a CDT test, which the parties acknowledge is a test to assist in determining whether a person has been adversely impacted by excessive alcohol consumption.
On 22 September 2021, the Applicant filed his Application for Review which is the subject of these proceedings. The relevant order sought by the Application in that application is:
That all necessary times be abridged to enable the Application for Interlocutory Orders filed [15] September 2021 to be listed for interim hearing as soon as practicable and before 18 October 2021.
On 28 September 2021, the Respondent’s solicitors sent a further letter to the Applicant’s solicitors seeking a response in respect to their proposal for the Applicant to spend time with the children.
On 29 September 2021, the Applicant’s solicitors responded to the Respondent’s solicitors stating that the Applicant wished to spend time with the children on that day but that he would not spend time with the children on the basis proposed by the Respondent stating:
…[O]ur client will not agree to enter into the requested Undertaking nor accept the proviso that his sister be in substantial attendance during the time.
Our client will take the children to his sister’s home, where he has been staying since being removed by the police, which is a comfortable and familiar environment for the children. He has a car with the necessary car-seat for transporting the children.
Our client will not enter into the Undertaking nor the requirement that his time occur in the substantial presence of another person as there are no grounds for same. The children do not require protection from their primary carer, they need to see and be with him…
At the hearing of this matter the Court was advised that the Respondent had undertaken a CDT test on the previous day, however, while the Applicant also agreed to submit to such a test, he did not have the test on that day because, upon visiting the relevant testing service, he observed that the Respondent was also present and, having regard to the existence of the Interim Intervention Order, he elected to make arrangements to undertake the test on a subsequent day.
LEGISLATIVE CONTEXT
Nature of a review of a Registrar’s decision
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (‘the FCFCOA Act’) provides for judicial supervision of orders made by Registrars under delegated authority by enabling a party to seek a review of a power exercised by a delegate of Division 2 of the Court, being a Registrar.
Pursuant to r 2.01 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (‘the Division 2 Family Law Rules’), the rules which form the Family Law Rules 2021 apply to Division 2 matters including that presently before me.
Rule 14.05 of the Family Law Rules 2021 sets out when a party may apply for a review as follows:
14.05 Application for review of order or decision
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
…
Further, r 14.07 of the same rules provides:
14.07 Procedure for review
(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.
…
The Family Law Rules 2021 provide that a response to an application ‘must be filed and served within 28 days after service of the application to which it relates’ (r 2.18(2)). That time also applies in respect to filing a Response to an Application in a Proceeding (r 5.04).
Rule 1.07 empowers the Chief Judge to issue a Case Management Practice Direction the purpose of which is specified, at subrule (3) to among other things:
… set out the obligations of a party when conducting a case and the matters likely to be relevant to the court in exercising discretionary power.
(Emphasis added)
Pursuant to r 1.07 the Chief Judge has issued the Family Law Case Management Central Practice Direction the purpose of which includes ‘achieving the overarching purpose of the family law practice and procedure provisions set out in the [FCFCOA Act]’ (paragraph 1.1(c)).
Sections 190 and 191 of the FCFCOA Act relevantly provide:
190 Overarching purpose of civil practice and procedure provisions
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Note 1: See also paragraphs 5(a) and (b).
Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)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.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
191 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2)A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3)The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b)the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i)the costs that the lawyer will charge to the party; and
(ii)any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
Note: Paragraph (b)—in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.
(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6)If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
(emphasis added)
CONSIDERATION
No issue was taken in these proceedings that the Registrar’s decision to reject the Applicant’s application for ‘[t]hat all necessary times be abridged to enable this application to be listed for interim hearing as soon as practicable’ was an exercise of delegated judicial power and is therefore a reviewable decision pursuant to s 256(1) of the FCFCOA Act. In light of that concession by the Respondent I have not found it necessary to consider whether the listing made by the Registrar in respect to the broad request, by the Applicant, for the matter to be listed ‘as soon as practicable’ was in fact a reviewable decision pursuant to s 256(1) of the FCFCOA Act (see for instance consideration of a similar issue, under predecessor legislation by FM Myers, as his Honour then was, in Palmer and Palmer [2012] FMCAfam 522 at [6] – [20]).
Proceeding on the assumption that the decision was reviewable, it is to be noted that the review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71 [43].
Assistance in considering an application for review of a registrar’s decision to reject an application for urgency is provided in the decision of Halligan FM, as his Honour then was, in Myers & Myers [2011] FMCAfam 1104 where his Honour suggested, at [87], that the following four matters might be relevant considerations:
· 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.
In considering those issues, I respectfully agree with the submission by Counsel for the Applicant that the Applicant has demonstrated a reasonable basis for arguing for the substantive orders he is seeking. Equally, however, consistent with the overarching purpose of ensuring the ‘just determination’ of these proceedings, the Respondent should have a reasonable opportunity to file her evidence in reply.
It was not suggested that there has been any unreasonable or unexplained delay on the part of the Applicant in commencing these proceedings noting that he vacated the former matrimonial home on 10 September 2021.
Accordingly, I again, respectfully agree with the submission of Counsel for the Applicant that the primary issue to be determined in respect to the application before the Court is consideration as to whether 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.
As noted by Judge Wilson, as his Honour then was in Bannerman and Frank [2015] FCCA 3171 at [14];
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 Hearnes and Jellets [2020] FCCA 2722, Judge Kirton QC was required to consider an application for review of a Registrar’s decision not dissimilar to the application before the Court presently. Her Honour rejected the application and, in doing so, noted the observation of Judge Terry in Quong & Rush [2017] FCCA 1765 at [38]-[39] that the nature of the matters before this Court is such that the Court must give priority to matters ‘involving children who are at risk of harm’.
I respectfully agree with and adopt those observations.
The Court may make such orders, in respect to practice and procedure, as it considers appropriate in the interests of justice (r 1.31, Family Law Rules 2021). That discretion is unfettered but clearly must be exercised having regard to the specific facts before the Court. In doing so ss 190 and 191 of the FCFCOA Act direct the Court to apply the civil practice and procedure provisions ‘in a way that best promotes the overarching purpose’.
The ‘overarching purpose’ as noted recently by the Chief Judge in Lombardi & Rider [2021] FedCFamC2F 57 at [43]–[46] relevantly, includes the following objectives;
·the just determination of all proceedings before the Court;
·the efficient use of the judicial and administrative resources available for the purposes of the Court; and
·the efficient disposal of the Court’s overall caseload.
This Court is among those at the forefront of those dealing with the issues of family violence and child abuse which, unfortunately, is devastating the lives of so many vulnerable members of society, including children, often, catastrophically.
It is necessarily the case that, if a matter is given priority above another, the judicial time which can be allocated to the matter which is displaced will be deferred to a later time. For that reason, in determining the issue of urgency, the Court gives priority to those matters where a party or a child, which is the subject of the proceedings, is at risk of harm. The reason for doing so is self-evident.
In this case, the Applicant asserts that the children are at risk of harm in the Respondent’s care because, according to the Applicant’s assertions, the Respondent has mental health challenges and her parenting capacity is reduced on those occasions where she consumes an excessive amount of alcohol. That concern is not, however, such that the Applicant contends the children should spend either no time or supervised time with the Respondent. To the contrary, the Applicant seeks orders to implement what I have referred to as a ‘nesting arrangement’ whereby, for the ‘week about’ arrangement proposed, the Respondent would be the sole carer of the children. Accordingly, the evidence that has been presented by the Applicant is not such that the Court would conclude that the children are at immediate risk of harm in the period pending further consideration of this matter by the Court.
Moreover, in the Applicant’s ‘Notice of Risk’, he does not identify that he is at risk as result of the prospect of him being the victim of family violence. At the same time, the issues of risk, from the Respondent’s perspective, have been dealt with in the form of an Interim Intervention Order. Accordingly, the evidence that has been presented by the Applicant is not such that the Court could conclude that either of the parties are at immediate risk of being the subject of family violence or that the children are at an unacceptable risk of harm in the Respondent’s care.
Additionally, in the exercise of the Court’s discretion, in respect to matters of practice and procedure, the Court will, in parenting matters, have regard to the best interests of the child. This includes the object of ensuring, to the greatest extent possible, consistent with the other considerations set out in s 60CC of the Family Law Act 1975 (Cth) (‘the Family Law Act’) that the children, who are the subject of the proceedings, are able to maintain a meaningful relationship with both of their parents.
In this matter it is significant that the Respondent has proposed arrangements for the Applicant to spend time with the children pending the matter coming before the Court. The Applicant objects to the conditions sought by the Respondent as a pre-condition to the time the Applicant spends with the children, which includes supervision by his sister being present. Nevertheless, the evidence before the Court is that the parties have communicated with each other in order to facilitate the Applicant’s communication with the children. Indeed, the Court was informed that the Applicant had communicated with the children by way of videoconferencing on the day prior to this matter being before the Court.
Both the rules of the Court and the Central Practice Direction specifically state that those practice and procedure provisions have been informed by the ‘overarching purpose’ referred to in s 190 of the FCFCOA Act which includes the ‘just determination’ of the proceedings (see r 1.04 Family Law Rules 2021 and Central Practice Direction, paragraph 1.1).
In that context, absent urgency, a respondent is ordinarily entitled to have a period of 28 days after being served with an application in which to file their response and supporting documentation (r 2.18 Family Law Rules 2021).
Paragraph 4.6 of the Central Practice Direction, specifically notes that, in considering an application for an urgent interim hearing, a Judicial Registrar will balance ‘the extent of the urgency and considerations of procedural fairness.’
It is of note that the Applicant did not make any specific Application to abridge the time for the Respondent to file their Response. Rather the Application was expressed in the general terms, to which I have earlier referred, that the application be listed ‘as soon as practicable’.
The evidence presented by the Applicant in these proceedings is not such that I find, in the exercise of my discretion, that it justifies displacing the Respondent having the period of 28 days, as specified in the Rules, to respond to the evidence presented by the Applicant and presenting evidence supporting orders that the Respondent seeks in the proceedings.
It is to be noted that the application in this matter has been listed for directions on 18 October 2021 being just four days outside the 28 day period specified in the Family Law Rules 2021 as the time within which the Respondent is to file her Response and supporting material. The Registrar’s decision in listing the matter on that date, was entirely reasonable and appropriately expeditious in the circumstances of this case and could reasonably be regarded as being ‘as soon as practicable’ in the circumstances of the case.
Finally, during the course of the proceedings, counsel for the Applicant indicated that one of the motivating factors for the Applicant filing his Application in a Case seeking a review of Registrar’s decision is that the First Court Event is listed before a Judicial Registrar rather than a Senior Judicial Registrar or Judge. The relevance of that fact, it was contended, is that the Registrar will not have the power to make interim orders.
As recently observed by 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. The order made by the Registrar fixing the hearing on 14 October 2021 is the solitary decision under review.
The fact that the Applicant desired a judge or Senior Registrar to preside at the First Court Event is not a reasonable basis for the Applicant seeking expedition of this matter. The Central Practice Direction has been structured in a manner such that the interests of individual litigants are balanced against the legislative obligation on the Court to effectively and efficiently manage the Court’s overall case load. I note, in that respect, that paragraph 5.10 of the Central Practice Direction provides that one of the primary purposes of the First Court Event is, as specified in subparagraph (g): ‘to consider whether any application before the Court is of such urgency or exceptional circumstances that it requires immediate transfer to a Judge or Senior Judicial Registrar’. There is nothing preventing the Applicant making an application for such an order if he considers that he has a reasonable basis for doing so.
CONCLUSION
Accordingly, for these reasons I therefore dismiss the Applicant’s Application in a Case filed on 22 September 2021.
COSTS
In the event of the Respondent seeking an order for costs in respect to this matter she is to provide, within 7 days of the date of these orders, to my Associate and the solicitor for the Applicant, a written outline of argument of no more than 3 pages establishing the basis upon which the Respondent seeks such an order. In the event of the Applicant opposing such an order he is to respond to any such written submissions within a period of 7 days after having been provided with the Respondent’s submissions.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McClelland. Associate:
Dated: 13 October 2021
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