Cardone & Carrigan

Case [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 1118

Vibbard & 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:

  1. 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

  2. The Father filed an Application in a Proceeding on 11 November…

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Cardone & Carrigan [2021] FedCFamC1F 255
Case
[2021] FedCFamC1F 255
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CaseChat Overview and Summary

The case of Cardone & Carrigan involves the Father's Application for Review of a decision made by a Registrar of the Family Court of Australia. The Father had filed an Application seeking enforcement of final parenting orders made in the United States, which required the child to spend time with him in Australia during the school holidays. The Registrar declined to grant an urgent listing for the matter and instead scheduled it for a future date. Dissatisfied with this decision, the Father filed an Application for Review seeking urgent listing of his original Application. The court was required to determine whether the Registrar's decision was a reviewable decision under the Federal Circuit and Family Court of Australia Act 2021 and, if so, whether the Review Application should be allowed.

The court examined the nature of the Registrar's decision and whether it constituted a reviewable exercise of power under the Act. The court found that the Registrar's decision to not grant an urgent listing fell within the first or second "scenario" outlined in Myers, where the applicant seeks a first Court date that would still allow for compliance with the relevant Rules fixing time limits referable to the application. The court noted that the Father had not sought to abridge the time for service of his Application or to shorten or dispense with any of the Rules. As such, the court concluded that the Registrar's decision was not a reviewable exercise of power under the Act but rather an administrative task performed in support of the functioning of the Court.

Having determined that the Registrar's decision was not reviewable, the court dismissed the Review Application. The court noted that the Mother had not yet filed a Response to the Father's Application in a Proceeding and that she had indicated a willingness to consider a new date for the matter after 8 December 2021. The court ordered the Father to provide the Mother with a proposed date for the matter and directed the parties to file and serve their respective documents in accordance with the relevant Rules.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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; andc)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.

Ratio Decidendi

Legal Principle Established

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.