Cheadle & Pointer
[2022] FedCFamC1F 816
Federal Circuit and Family Court of Australia
(DIVISION 1)
Cheadle & Pointer [2022] FedCFamC1F 816
File number: SYC 7392 of 2013 Judgment of: AUSTIN J Date of judgment: 24 October 2022 Catchwords: FAMILY LAW – PARENTING – Practice and procedure – Review of decision – Where the mother seeks review of a decision by the registrar to decline to hear her Amended Application in a Proceeding – Where the “decision” of the registrar amounted to declining to exercise jurisdiction regularly invoked – Application for Review dismissed by consent – Order made that the mother’s interlocutory application be listed for hearing expeditiously. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 98, 100
Cases cited: Cheadle & Pointer [2020] FamCAFC 277 Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 24 October 2022 Place: Newcastle (via video link) Solicitor for the Applicant: Sexton Family Law Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd ORDERS
SYC 7392 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHEADLE
Applicant
AND: MR POINTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
24 October 2022
BY CONSENT, THE COURT ORDERS THAT:
1.The Application for Review filed on 25 August 2022 is dismissed.
2.The parties and the Independent Children’s Lawyer shall bear their own costs of the review application.
3.The Further Amended Application in a Proceeding filed by the applicant mother on 4 August 2022 shall be listed for hearing before the docket Judicial Registrar on the next available date.
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 Cheadle & Pointer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
Before the Court for consideration is an Application for Review, filed by the mother on 25 August 2022, seeking review of the decision made by a registrar on 5 August 2022 in one narrow respect concerning the conduct of the proceedings between the parties under Pt VII of the Family Law Act 1975 (Cth) about their only child.
Just days before the hearing, the parties reached agreement that the application should be dismissed with no order as to costs. The review application will be dismissed, but a remedial order still needs to be made.
The parties married in 2012 and separated in 2013. Their only child was born 2012 and is now nearly 10 years old.
Final parenting orders in respect of the child were first made in March 2020, essentially providing for the child to live with the father, for him to have sole parental responsibility for her, and for the child to spend time with the mother, conditional upon the mother taking steps to address her psychological ill health. The mother’s appeal from those orders was dismissed in November 2020 (Cheadle & Pointer [2020] FamCAFC 277).
Not long afterwards, in June 2021, the mother commenced fresh proceedings and there has since been a battery of interlocutory contests. For present purposes, it is only necessary to understand the chronology of events between July and August 2022.
On 1 August 2022, a registrar consensually dismissed the parties’ respective interlocutory applications (the mother’s Application in a Proceeding filed on 26 July 2022 and the father’s Response filed on 30 July 2022), but listed another interlocutory application (the mother’s Amended Application in a Proceeding filed on 1 August 2022) before another registrar several days later on 5 August 2022 for further directions.
On 4 August 2022, the mother filed a Further Amended Application in a Proceeding, which superseded the application filed only three days before on 1 August 2022. The intent of both applications was to have the Court revise the interim orders concerning the time spent by the child with the mother and to make various procedural orders concerning the acquisition of evidence for the trial, which is yet to be fixed.
On 5 August 2022, the registrar made orders to refer the proceedings to the pool of cases awaiting the allocation of final trial dates (Order 1), granted the Independent Children’s Lawyer (“the ICL”) leave to issue subpoenas (Order 2), granted the ICL leave to furnish judgments and orders made in the proceedings to the single expert and the mother’s therapist (Order 3), and granted the ICL liberty to restore the matter to the list following release of the Family Report (Order 4).
Significantly, the registrar made no orders or directions in respect of the Amended Application in a Proceeding filed on 4 August 2022. In that respect, the registrar made a notation upon the sealed orders in the following terms:
F.The Applicant Mother filed an Amended Application in a Proceeding on 4 August 2022, seeking amongst other things, leave to file such application. Given the proximity of the appointments with [the single expert], the number of previous applications filed in these proceedings and various concerns raised by the Independent Children’s Lawyer and the Respondent Father today, the Court will consider the issue of leave in relation to the application on the next occasion and has declined to list the application for interim hearing at this time.
The review application filed by the mother attacks only that notation. She does not seek the review of any order made by the registrar.
On one view of it, the review application is incompetent because it does not challenge any “order” made by the registrar. However, characterising the events before the registrar on 5 August 2022 in the way most beneficial to the mother, the “decision” made by the registrar amounted to declining to exercise the jurisdiction regularly invoked by the interim application.
The application was listed before the registrar for directions (not hearing), but no directions were actually made. It was simply noted that the application would not yet be listed for hearing and the application for leave to bring it would be considered “on the next occasion”. The proceedings have since been listed before the same and other registrars several times in September and October 2022, yet the pending application has still not been re-visited. The mother has a legitimate interest in knowing when the Court will exercise jurisdiction to determine her interlocutory application in one way or another.
An order will be made to dismiss the review application, but an ancillary order will be made requiring the application to be listed for hearing before the docket registrar at the first available opportunity. The registrar was exercising delegated power under the provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and a judge of this Court can make any order thought fit upon review of the registrar’s exercise of power (ss 98 and 100(2)). Orders to that effect met with the consent of the parties and the ICL.
The mother should not assume her interlocutory application will meet with success merely because an order is now made for it to be heard expeditiously. Events below have since moved on with relative haste, which arguably make the prosecution of her unresolved application futile. Apparently the mother withheld the child in breach of existing orders, prompting an application by the father for recovery orders and, on 5 October 2022, fresh interim orders were made for the child to spend only professionally supervised time with the mother. As will be obvious from those recent events, the mother will likely encounter difficulty securing the interim relief sought by her Amended Application in a Proceeding filed on 4 August 2022, which is to the effect that the child should spend expansive unsupervised time with her.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 25 October 2022
0