Cardone & Carrigan
[2021] FedCFamC1F 255
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cardone & Carrigan [2021] FedCFamC1F 255
File number(s): SYC 6017 of 2019 Judgment of: CHIEF JUSTICE ALSTERGREN Date of judgment: 29 November 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – Decision not reviewable – Urgency not established - Application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 1.2, Schedule 4, rr 2.18, 14.05, 14.07
Cases cited: Bailey & Peters [2021] FamCA 299
Canvin & Jesney [2021] FedCFamC2F 145
Darvell & Darvell [2021] FamCA 490
Diacos & Gataki(No 3) [2021] FCCA 1841
Hearnes & Jellets [2020] FCCA 2722
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] 253 FLR 445
Moxey & Keirn [2021] FamCA 615
Palmer & Palmer [2012] FMCAfam 522
Petrova & Leighton [2017] FCCA 315
Quong & Rush [2017] FCCA 1765
Tadros & Tadros & Ors [2020] FCCA 1118Vibbard & Garcia (2012) 48 Fam LR1
Division: Division 1 First Instance Number of paragraphs: 62 Date of last submission/s: 29 November 2021 Date of hearing: 29 November 2021 Place: Melbourne (via Microsoft Teams) Counsel for the Applicant: Ms Spain Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Ms Coulton Solicitor for the Respondent: Neilson Law ORDERS
SYC 6017 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARRIGAN
Applicant
AND: MS CARDONE
Respondent
ORDER MADE BY:
CHIEF JUSTICE ALSTERGREN
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 15 November 2021 be dismissed.
2.Each party shall bear their own costs of the Application for Review.
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 the pseudonym Cardone & Carrigan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ:
This matter concerns an Application for Review filed by the Father on 15 November 2021 (“the Review Application”) seeking review of a Registrar’s decision not to grant an urgent listing of the Application in a Proceeding filed by the Father on 11 November 2021.
BACKGROUND
The Father filed an Application in a Proceeding on 11 November 2021, together with a Cover Letter for Urgency and supporting Affidavit, seeking enforcement of final parenting orders made in the United States of America by the D Court in the City F State B pursuant to a Parenting Plan dated 20 June 2016, and registered in Australia by orders of this Court made on 23 October 2019 (“the final parenting orders”).
The final parenting orders provide that the child is to spend time with the Father in State C in the December/January school holiday period. The child lives with the Mother in Australia, and Mother does not agree for the child to travel to State C in the forthcoming school holiday period, due to concerns for the child’s health in light of the COVID-19 pandemic.
On 15 November 2021, a Registrar of this Court made a decision to not grant the urgent listing, and instead, the matter was listed on 16 December 2021 in a Judicial Registrar First Return List (“the Registrar’s Decision”).
There were no formal reasons given by the Registrar and no formal order was made, however absence of an order does not mean that I do not have the power to review the decision: Bailey & Peters [2021] FamCA 299.
Where a party seeks review of the exercise of power by a Registrar, the Court must proceed by way of a hearing de novo and may receive evidence including, with leave, further evidence in addition to that which was before the Registrar: r 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The hearing of this Review Application was listed before me on 29 November 2021.
In considering the Review Application, I have had regard to the following documents filed by the Father:
(a)Application in a Proceeding filed on 11 November 2021;
(b)Affidavit filed on 11 November 2021;
(c)Cover Letter for Urgency filed on 11 November 2021;
(d)Application for Review filed on 15 November 2021; and
(e)Outline of Case Document filed on 26 November 2021.
I have also considered the oral submissions made on behalf of both parties on 29 November 2021, as well as the Case Outline and Affidavit filed by the Mother on 29 November 2021 in relation to the Review Application.
The Mother has not yet filed a Response to the Application in a Proceeding. Rule 2.18(2) of the Rules stipulates that a Response must be filed and served within 28 days after service of the Application to which it relates. Therefore, the Mother must file a Response and supporting documents by 9 December 2021.
At paragraph 5 of the Mother’s Affidavit filed 29 November 2021, the Mother states that while she does not agree to there being a need to bring the first return date forward, she does not oppose a new date being allocated after 8 December 2021, which will allow her to file a Response, and both parties to inspect medical documents which are returnable by 6 December 2021 under subpoena filed by the Father on 22 November 2021.
After discussion with the parties, it was conceded that in any event the parties would require further time to file updated affidavits upon inspecting the subpoena material, and to file any affidavit in reply. Accordingly, on 29 November 2021, I made orders that both parties have leave to file a further affidavit on or by 8 December 2021, and, if necessary, any affidavit in reply on or by 10 December 2021.
ISSUES BEFORE THE COURT
The issues before the Court are, first, whether the Registrar’s Decision is a reviewable decision under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) and second, if it is a reviewable decision, whether the Review Application should be allowed.
ADMINISTRATIVE OR REVIEWABLE DECISION?
Registrars of this Court are delegated powers pursuant to s 254 of the Act. The right to review the exercise of a power of a Registrar is set out in s 256 of the Act.
Rule 14.05(1) of the Rules provides that:
(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.
The issue of whether or not this Court is able to review the allocation of a first return date has been the subject of various decisions of the Court, and the relevant principles are set out in my recent decision of Lombardi & Rider [2021] FedCFamC2F 57 (‘Lombardi’) at [13]-[17].
Although the matter before me concerns the first return date of an Application in a Proceeding rather than Initiating Application, the same principles are applicable.
It is not necessary to reiterate those principles here, other than to note the three discrete scenarios in which a Registrar can deal with the issue of allocating a court date as outlined by Halligan FM in Myers & Myers [2011] 253 FLR 445 (‘Myers’) at [26]:
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.
These factors were adopted by the Full Court of the Family Court of Australia in Vibbard & Garcia (2012) 48 Fam LR 1 at [27].
The first two scenarios involve purely administrative tasks performed in support of the functioning of the Court. The third scenario where an applicant seeks abridgment of time stipulated under the Rules, involves an exercise of power under the Act.
Consideration
To determine whether the exercise of the Registrar’s power in this case is reviewable pursuant to s 256 of the Act, the Court must consider what orders the Father was asking the Court to make.
In his Application in a Proceeding, the Father sought the following order:
1.That the orders of 23 October 2019 be enforced and the applicant mother comply with the orders made by the D Court in and for City F State B in the United States of America on 16 July 2016 AND to that effect the child, X, born … 2012, travel to State C to spend time with respondent father over the 2021/2022 school holiday period on dates to be advised by the respondent father within 7 days of these orders.
The Father’s Cover letter for Urgency states:
The father seeks compliance with the final orders. The mother has refused to comply with orders and does not permit the child to travel to State C over the forthcoming Christmas school holiday period.
The Respondent Father seeks that the matter be urgently listed given the urgent need to book flights and accommodation in Sydney on his arrival to collect the child.
Under the heading ‘details of orders sought to be reviewed’, the Review Application states:
An order for urgency is sought in circumstances where the Applicant resides in State C and final orders provide for the child to travel to State C for the forthcoming school holidays. The Respondent is refusing to comply with the final orders.
Under the heading ‘orders sought’, the Review Application states:
1.That the matter be listed on an urgent basis for interim hearing with leave to serve on short notice.
The Father made no specific request to the Court to abridge the time for service of his Application in a Proceeding, nor did he seek an abridgement of time for the Mother to file a Response to the Application in a Proceeding and supporting affidavit.
The order sought by the Father in his Application in a Proceeding, in my view, did not require the Registrar to exercise the power to make an order dispensing with the service of any process of the Court pursuant to s 254(2)(d) of the Act, or exempting a party to proceedings in the Court from complying with a provision of the Rules of Court pursuant to s 254(2)(k) of the Act, or to exercise any other power delegated under sub-section 254(2) of the Act.
That is, the Father did not specifically seek a first Court date that would not allow time for compliance with the Rules nor that the Rules be shortened or dispensed with (being the third ‘scenario’ outlined in Myers).
The listing of the first return of the Application in a Proceeding was an administrative task performed by the Registrar in support of the day-to-day functioning of the Court, and falls within the first or second “scenario” as outlined in Myers.
It is not a matter for the Court to read into an application what the applicant is actually seeking. The Court should not encourage litigants to be vague in their applications for urgent hearings.
In this respect, I note the reasoning of Myers FM (as he then was) in Palmer & Palmer [2012] FMCAfam 522 at [19] that:
19.Perhaps had the Initiating Application contained an order sought framed in the following terms a different result may have been achieved:
“That the Registrar list the matter within 4 business days dispensing with the requirements as to service at regulation 6.19 of the Federal Magistrates Court Rules 2001”.
In such circumstances the Registrar’s allocation of a first return date may have been an exercise of judicial function and therefore captured by the reasoning in the decision of Halligan FM in Myers & Myers.
Counsel for the Father referred to clause 2 of Schedule 4 of the Rules, which sets out the powers of the Court that are delegated to Senior Judicial Registrars and Judicial Registrars. In particular, Counsel referred to the delegated power in item 14.3, being “to exercise the Court’s powers in relation to case management”, and the related provisions in Part 1.2 of the Rules, specifically item 3(b) which provides for the power to “postpone, bring forward or cancel a court event” in the conduct of proceedings. It was submitted by Counsel for the Father that postponing, bringing forward and cancelling a court event necessarily involves cancelling one hearing and allocating another, thus it is specifically contemplated that allocation of a hearing date is a delegated judicial power, and therefore a power that is capable of being reviewed.
I do not accept this argument. The allocation of a first return date by a Registrar upon the filing of an Initiating Application or Application in a Proceeding, differs from a postponement, adjournment, or cancellation of a court event in the course of case management. In the absence of an applicant seeking abridgment of time limits fixed by the Rules, it is a purely administrative function performed by Registrars who are tasked with assessing applications as they are filed, and allocating a suitable first return date, whilst balancing considerations of urgency and efficient use of court resources.
SHOULD THE REVIEW APPLICATION BE ALLOWED?
In the event that the Court does have jurisdiction to hear the Review Application, I would dismiss the Review Application in any event for the reasons that follow.
When considering whether the Review Application should be allowed, I must consider sections of the Act which set out the overarching purpose of the provisions. Section 190(1) of the Act provides that the overarching purpose is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
I also note the core principles set out in the Central Practice Direction – Family Law Case Management (“Central Practice Direction”), which have been informed by the overarching purpose referred to in s 190 of the Act, in particular:
(a)Core Principle 1 which requires the prioritisation of the safety of children and early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, as essential elements of case management;
(b)Core Principle 2 which requires the Central Practice Direction and Family Law Rules to be interpreted and applied in the way that best promotes the Court’s overarching purpose and prioritises the best interests of the children;
(c)Core Principle 3 which requires the efficient and effective use of the Court’s judicial and registrar resources in the context of ensuring the appropriate handling of risks; and
(d)Core Principle 4 which provides that effective case management relies on a consistent approach to the management of like cases and early triaging of matters to an appropriate pathway, including assessment of risk.
Keeping these principles and the overarching purpose in mind, the Court has a responsibility when allocating dates to make an assessment of priority as against other matters. 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], and my similar discussion in Lombardi & Rider [2021] FedCFamC2F 57 (‘Lombardi’).
In Myers, Halligan FM (at [87]) set out four factors the Court should be satisfied of if a matter is to be listed urgently:[1]
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.
[1] Adopted by decisions such as Petrova & Leighton [2017] FCCA 315; Hearnes & Jellets [2020] FCCA 2722; Tadros & Tadros & Ors [2020] FCCA 1118; Diacos & Gataki(No 3) [2021] FCCA 1841.
I am willing to proceed on the basis that the Father has demonstrated that a reasonable basis exists for arguing for the substantive orders sought, thus satisfying the first factor in Myers.
I am also satisfied as to the fourth factor that there has been no unreasonable or unexplained delay in approaching the Court. The Father filed his Application for Review well within the 21-day timeframe stipulated by r 14.05 of the Rules. The Father instructed his solicitors to write to the Mother’s solicitors on 20 October 2021, as soon as he became aware that Australia had re-opened borders, confirming that he intends to travel to Australia on 16 December 2021 and then travel with the child back to State C. The Father filed his Application in a Proceeding on 11 November 2021, the same day he received a response from the solicitors for the Mother which indicated that the Mother does not agree to the child travelling overseas in the December 2021 school holiday period.
Therefore, the key issue to be determined is whether absent an urgent listing, the Father 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.
At paragraph 9 of his Affidavit filed 11 November 2021, the Father deposes that he has “filed this Affidavit in urgent circumstances” because he has not been able to spend time with the child pursuant to the final orders due to COVID-19 travel restrictions, and it has now been fourteen months since the Father has seen the child, and two years since the Father’s extended family has seen the child. The Mother has stated she does not agree to the child travelling to State C these forthcoming school holidays, which, according to the New South Wales Department of Education, are due to commence on 20 December 2021.
In his Outline of Case filed 26 November 2021, the Father further states that he is unable to book flights for himself to travel to Australia, and then flights for himself and the child to travel to State C, until the outcome of the Application in a Proceeding is known. The Father says that, if his Application is successful on 16 December 2021, there may be no flights or no appropriate flights available to travel to Australia to collect the child and/or for the Father and the child to travel from Australia to State C during the school holiday period. If this is the case, the child will not spend time with the Father and paternal family during the Christmas school holiday period as required by the final parenting orders.
As stated by Justice Altobelli in Darvell & Darvell [2021] FamCA 490 at [7], listing Registrars play an important “gatekeeper role” in the case management of cases in this registry.
I also note the comments of Judge Terry in Quong & Rush [2017] FCCA 1765 at [38]-[39], where her Honour observed 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’.
Adopting this observation in Canvin & Jesney [2021] FedCFamC2F 145, Deputy Chief Judge McClelland noted at [49] – [50]:
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.
I concur with my learned colleagues in these decisions and adopt those observations.
Paragraph 4.6 of the Central Practice Direction provides that applications for urgent interim hearings will be assessed by a Judicial Registrar at the time of filing, and a listing date provided, “having regard to the issues in dispute, including the extent of the urgency and considerations of procedural fairness.”
The crux of the Father’s argument for urgency is that the listing date “leaves little time for the child and the parties to make plans for the holiday period”, in circumstances where the final orders which are in full force and effect provide that the child shall spend time with the Father in State C during the December school holiday period.
I am not satisfied that the information which the Father has provided is at a level which warrants this matter being prioritised over other matters that have been patiently waiting in the queue.
The matter is next listed before a Senior Registrar in approximately four weeks since the Father’s Application in a Proceeding was filed. The Application in a Proceeding was given a listing date of 16 December 2021, which is prior to the commencement of the December school holidays.
In the event that orders are made requiring the Mother to comply with the final parenting orders, at most, the Father would be inconvenienced if he should have to purchase flights and accommodation to Sydney on short notice to ensure his time with the child commences on 20 December 2021, or alternatively, the parties may potentially have to reach a sensible agreement about make-up time in the event the Father’s time with the child has to commence on a slightly later date due to availability of flights and accommodation, in the spirit of the final parenting orders. There are no issues of safety or risk of harm to the child.
These circumstances, while inconvenient, do not satisfy the requisite threshold for ‘urgency’, particularly in the context of a busy registry where the listing Registrar must balance this matter against numerous other matters seeking urgent hearing, including matters involving allegations of serious risk of harm to children absent an urgent listing.
Further, in light of the COVID-19 pandemic, there are issues of risk to the child’s health should the child travel to State C. The child is 9 years old and therefore not eligible to be vaccinated against COVID-19. The Mother’s Affidavit filed 29 November 2021, outlines concerns about vaccination rates in State C and about the child contracting COVID-19 particularly where he has existing health conditions and is not eligible to be vaccinated. The Mother has also annexed to her Affidavit an Emergency Order dated October 2021 conveying that the Mayor for City E has declared the area in a ‘state of emergency’ for 60 days from the date of the order, due to the number of COVID-19 infections in the community.
The parties were awaiting production of material under subpoena from the child’s general practitioner which is returnable by 6 December 2021, and, at the time of hearing this Application for Review, the parties informed the Court that the subpoena material had just been provided to the registry. The parties sought orders that the solicitors each be granted leave to electronically inspect the subpoena material, and file updated affidavits upon consideration of the contents therein, and I made orders to this effect on 29 November 2021.
At paragraphs 22 – 23 of his Affidavit filed 11 November 2021, the Father deposes that there is no requirement to quarantine upon arrival to State C, and that the child will not be required to quarantine upon arrival home in New South Wales. By contrast, the Mother deposes at paragraph 24 of her Affidavit that, to her understanding under current directions by the New South Wales Government, should she and/or the child be required to travel to State C, both would have to self-isolate for 7 days and return a negative COVID-19 test before being able to return to work, and the child returning to school.
I agree with the submissions made by Counsel for the Mother that, in addition to health concerns for the child, we live in uncertain times and border restrictions and quarantine requirements are unpredictable. While the Father and child may be able to travel from Sydney to State C in December 2021, given the constant changes, it remains uncertain what travel and quarantine requirements will be in place at the time the child is due to return into Australia.
In all the circumstances, it is appropriate that the parties have time to inspect and consider the subpoena material from the child’s medical practitioner, file updated affidavit material, and the Mother have time to file a Response. This will ensure that the issue of the child’s travel pursuant to the final parenting orders, in the new climate of COVID-19, can be properly considered.
It is also to be noted that the first return date of the Father’s Application in a Proceeding is 16 December 2021, being just four business days after the 28 day period specified by rule 2.18 of the Rules for the Mother to file her Response, and three business days after 10 December 2021, the date by which any affidavit in reply is to be filed.
As to “whether a judicial officer is available to hear the substantive application”, as I have stated in Lombardi, the Court must discourage review applications of this nature being brought except in truly urgent circumstances. As previously stated, the Sydney registry is an extremely busy one with finite judicial and registrar resources, and it is unlikely that an earlier listing date can be afforded in the time-frame sought by the Father, ahead of other matters that have been waiting in the queue and assessed as having greater priority.
CONCLUSION
As has been reiterated in previous decisions, the Court’s Registrars play an important role in the proper and efficient functioning of the Court and case management. The Court should not interfere in the listing decision of a Registrar unless genuine urgency can be demonstrated and I am not satisfied that is the case here. The Registrar has appropriately balanced considerations of issues of safety and risk, the best interests of the child, and the effective and efficient allocation of Court resources.
The Father’s Review Application should be dismissed and each party shall bear their own costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Justice Alstergren. Associate:
Dated: 6 December 2021
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