Cress & Cress
[2023] FedCFamC2F 168
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cress & Cress [2023] FedCFamC2F 168
File number(s): SYC 7421 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 20 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review filed by the father in relation to the non-allocation of an urgent listing date – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07 Cases cited: Canvin & Jesney [2021] FedCFamC2F 145
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 17 February 2023 Date of hearing: In Chambers on 20 February 2023 Place: Parramatta Solicitor for the Applicant Boyce & Boyce Family Lawyers Solicitor for the Respondent Fuentes Legal ORDERS
SYC 7421 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CRESS
Applicant
AND: MS CRESS
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
20 February 2023
THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 25 November 2022 is dismissed.
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 Cress & Cress has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH:
INTRODUCTION
These are parenting proceedings with respect to the three children of the relationship:
(a)X, born in 2011 and currently 11 years and 6 months old;
(b)Y, born in 2013 and currently 9 years and 8 months old; and
(c)Z, born in 2014 and currently 8 years and 3 months old.
(“the children”).
Listed today is an Application for Review filed by the father on 25 November 2022 of a listing decision made by a Registrar of the court on 24 November 2022 (“the Review Application.”)
The parties have consented to the Review Application being heard in Chambers on written submissions filed by each of the parties.
For reasons which I will now outline, the Review Application will be dismissed.
EVIDENCE
I have read the following documents on behalf of the applicant father:
·The Review Application;
·Application for Final Orders filed 20 October 2022;
·Affidavit filed 20 October 2022; and
·The written submissions filed on 17 February 2023.
I have read the following documents of the respondent mother:-
·Response filed on 9 December 2022;
·Affidavit filed on 9 December 2022; and
·The written submissions filed on 17 February 2023.
The mother has not filed a Response to the Application for Review. The court would not have expected the respondent to do so in an application of this nature.
BACKGROUND
On 20 October 2022 the father filed an Initiating Application seeking, on an interim basis:
1.That any and all rules not complied with by the father in filing this application be and are hereby dispensed with on the grounds of urgency.
2.That the father be exempt from the requirement to obtain and file with this application a certificate under s60I Family Law Act 1975 (Cth).
3.That leave be granted to serve this application on short notice.
4.That the matter by listed for an urgent interim hearing.
5.That, within 48 hours of these Orders, the respondent mother shall attend an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair follicle drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
6.To give effect to the above Order, the mother is required to maintain her head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair.
7.Each party or their legal representative is at liberty to provide AWDTS with a copy of these Orders.
8.Thereafter, the mother is to attend at an AWDTS Clinic or nominee and submit to further for hair drug and alcohol testing purposes at the earliest available appointment time within 48 hours of receiving written notice from the father or his legal representative and such testing shall occur as set out in Orders 5, 6 and 7 above.
a.That the mother shall forthwith or no later than 48 hours of the making of these Orders, undergo a carbohydrate deficient transferrin (CDT) test and liver function test to determine whether the mother is regularly consuming alcohol at an excessive level and shall provide a copy of the results to the father’s legal representative as soon as the results are received.
9.The costs of all testing and/or expenses related to the mother’s compliance with testing are to be borne by the mother.
10.That the father have sole parental responsibility for the children [X] born [in] 2011, [Y] born [in] 2013 and [Z] born [in] 2014.
11.That the children live with the father.
12.Subject to the following Order, the children spend time with the respondent mother as agreed between the parties from time to time, and failing such agreement, from 10am until 1pm each Saturday.
13.Unless otherwise agreed between the parties in writing, a supervisor from [B Contact Centre] shall be present at the mother’s expense during the children’s time with the mother and such time is to be reportable by the supervisor.
14.Pursuant to Rule 7.13 of the Federal Circuit and Family Court of Australia Rules 2021, Consultant Psychiatrist [Dr C] of [D Street, Suburb E] NSW be appointed as the Court’s expert to prepare a report in relation to the children, such report to address the following:
a.Whether either party has an alcohol and/or drug abuse issue;
b.The nature, intensity and impact of such issue on the party’s capacity, including as caregiver for the children;
c.The mental health of each party;
d.Whether the children are at risk of harm in the care of either party by reason of an alcohol or drug abuse issues or otherwise;
e.Any views expressed by the children and any factors (such as the child’s maturity or level of understanding) that are relevant to the weight that should be given to the child’s views;
f.The nature of the childrens’ relationship with each of the childrens’ parents;
g.The capacity of each of the childrens’ parents to provide for the needs of the children, including their emotional and intellectual needs;
h.The attitude to the children and to the responsibilities of parenthood demonstrated by each of the childrens’ parents;
i.Any family violence involving the children;
j.Whether the children are at risk of physical and/or psychological harm in the household of either party;
k.Any other matter that the expert considers relevant to the welfare of the children; and
l.Any other matter that the expert considers relevant;
and the parties shall:
m.Attend all appointments as directed by the expert;
n.Undergo all medical examinations and tests and sign all documents as directed by the expert; and
o.Otherwise comply with all reasonable directions and requests made by the expert to assist the expert in the preparation of the report.
15.That neither party shall denigrate the other party or a member of that parties’ family or household in the presence or hearing of the children nor permit the children to remain in the presence or hearing of any persons who engage in such denigrative behaviour.
16.That the respondent mother shall pay the applicant father’s costs of and incidental to these proceedings.
The matter came before a Registrar on 24 October 2022 in the absence of the parties to consider the urgent listing of the interim orders sought by the father. The Registrar made orders on that occasion as follows:-
1.The matter remains listed for a Procedural Hearing before a Judicial Registrar on 24 November 2022 at 10:00am, noting that the matter will be conducted via Microsoft Teams as follows:
2.Not later than 4:00 pm on 28 October 2022 the Applicant shall serve on the Respondent:
a.Initiating Application filed 20 October 2022;
b.Affidavit of [Mr Cress] filed 20 October 2022;
c.Notice of Child Abuse, Family Violence or Risk filed 20 October 2022;
d.Affidavit – Non-Filing Family Dispute Resolution Certificate filed 20 October 2022;
e.Genuine Steps Certificate filed 20 October 2022;
f.Parenting Questionnaire filed 20 October 2022;
g.Marriage, Families and Separation brochure; and
h.A copy of these Orders.
3.Not later than 4:00 pm on 31 October 2022 the Applicant shall file an Affidavit of Service confirming compliance with Order 2 above.
4.An order pursuant to s69ZW of the Family Law Act to the Department of Communities and Justice
5.An order pursuant to s69ZW(1) of the Family Law Act to the New South Wales Police Force; and
6.A restraint against the parties in issuing a subpoena to the Department of Communities and Justice and the NSW Police force except with leave of the Court.
On 24 November 2022, the matter again came before a Judicial Registrar. The mother was not represented on this occasion. Orders were made broadly that:-
1.The matter is adjourned for Directions Hearing before Judicial Registrar [F] on 2 February 2023 at 12:00pm following the appointment of the ICL.
2.That the mother file and serve a Response and Affidavit, and an Undertaking in accordance with Rule 6.02 of the Rules by no later than 9 December 2022; and
3.That an ICL be appointed.
When the matter was heard on 2 February 2023 by the Judicial Registrar Orders were made as follows:
1.The matter remains listed on 20 February 2023 at 10:00am before Judge Murdoch, being a hearing of the Application for Review filed 25 November 2022.
2.The Mention listed before Judicial Registrar [F] on 11 May 2023 is vacated.
3.The matter is listed before Judicial Registrar [F] on 23 March 2023 at 12pm for further case management.
By way of his Review Application the father seeks that Order 1 of the Orders of 24 November 2022 be varied so:
1.That the Application in a Proceeding filed by the father in this proceeding on 20 October 2022 be listed for urgent defended interim hearing on a date convenient to the court in 2022.
THE LAW
Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Application was filed within such time frame.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the court will hear the whole matter afresh rather than determining whether the original decision was in error.
The overarching purpose and objective of the court is to ensure the just determination of all matters whilst ensuring that the judicial and administrative resources available to the court are used in an efficient manner: Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021.
DISCUSSION
I am satisfied that there is a decision by a Registrar that is capable of review.
The father submits by way of his material filed in support of the Application there should be an urgent listing of his Application in a Proceeding as:-
·The mother’s drinking and drug use has historically been problematic and she has overdosed on the drug “GHB” on four occasions between 2020 and 2021, and at least twice in the presence of the children;
·The parties entered into a week-about caring arrangement from February 2022 to April 2022 when the father asked the mother to care for the children for a period of one month as a result of his working arrangements and personal circumstances. Since April 2022 to the filing of the father’s Affidavit on 20 October 2022, he has seen the children four times.
·The father asserts that the mother regularly leaves the children unsupervised for extended periods of time with her sister, Ms G, and the father holds concerns as to Ms G’s history of drug addiction and mental health issues.
·The children have disclosed that they watch pornography and are frequently left unsupervised.
·The children are presently under the watch of the Department and investigations are ongoing, and as such, it is imperative that the matter comes before the court as soon as possible.
The mother submits that:-
·The father was in a position to file an application when the mother’s illicit drug usage was live and posed the greatest risk to the children in around June 2021 and he did not do so.
·The mother has successfully engaged with the Department of Communities and Justice and her case was closed in April 2022. She has completed rehabilitation programs and obtained therapeutic assistance. The father has been aware of the mother’s rehabilitative efforts.
·The father has not availed himself of opportunities to spend time with the children and participate in decision making and schooling events.
·The matter should proceed on its current pathway as to allow Independent Reports to be ordered, with an interim hearing to proceeding following the Report’s release.
As stated by the Chief Judge in Lombardi & Rider (2021) 64 Fam LR 103; [2021] FedCFamC2F 57, the court:
[42] …must discourage review applications of this nature being brought except in truly urgent circumstances. The risk is that such applications are brought on any occasion on which a party merely disagrees with a decision of a Registrar, in particular in relation to the listing of matters.
…
[44] …The Court has a responsibility when allocating dates to make an assessment of priority as against other matters. It must balance the allocation of dates with other matters with equally competing priorities.
Both the Chief Judge in Lombardi & Rider (2021) 64 Fam LR 103; [2021] FedCFamC2F 57 and the Deputy Chief Judge in Canvin & Jesney [2021] FedCFamC2F 145 cited with approval Halligan FM (as he then was) in Myers & Myers (2011) 253 FLR 445; [2011] FMCAfam 1104 where at [87] his Honour suggested that the following four matters might be relevant considerations in determining an application for review of a Registrar’s decision to reject an application for an urgent listing:
(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.
(emphasis added)
The father has at all times been aware of the mother’s drug history and use. The mother herself concedes that her drug use was at its highest in June of 2021 and it is uncontested that the mother overdosed on GHB on various occasions during that year. The father did not avail himself of the opportunity to file an urgent application at that time in relation to the children.
Notwithstanding the father’s knowledge of the mother’s drug use and history, he entered into a shared care arrangement with the mother in February 2022 and asked the mother to solely care for the children for a period of one month in April 2022.
Given the contentious issues and allegations made in this matter, I accept the mother’s submission that independent expert reports will be of great assistance to the court in determining this matter on an interim basis.
This court is routinely required to hear and determine parenting matters involving allegations of harm. A Judicial Officer, delegated or otherwise, is required to manage each individual matter in a way that is appropriate having regard to the overarching purpose of the court as to the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Individual case management of a matter must be also seen in the context of the court having to manage the entirety of its caseload. This involves considerations as to competing assertions of urgency and risk. The court must give priority to matters involving children who are at risk of harm: Canvin & Jesney [2021] FedCFamC2F 145.
As stated by Chief Judge Alstergren in Lombardi & Rider (2021) 64 Fam LR 103; [2021] FedCFamC2F 57 at [32] and [33]:
[32] Registrars on a daily basis deal with applications for abridgments and urgent listings and are best placed to allocate listings having regard to urgency considerations and the overall business of the Court. The Court will accord priority to cases depending on the urgency that presents itself on a case by case basis by carefully weighing competing considerations such as the factual basis for the urgency asserted, including any issues of safety or risk, and the delay in bringing an application.
[33] This assessment is in the context of an extremely busy court where resources must be allocated efficiently and effectively, and where many parties may consider their application to be urgent for them. In the absence of urgency, a case will be given a first return date at an appropriate time allowing for service on the respondent and the filing of a Response to an Initiating Application.
The matter was given a listing some four days after its filing. The parties have attended court on two occasions since the filing of the father’s application and further directions have been made in Chambers for the filing of material and the provision of 69ZW material. It is appropriate that the relevant evidence be before the court so it is able to properly determine what is in the best interests of the children pending a final hearing. The matter is next listed for directions on 23 March 2023. This is not an unacceptable delay having regard to the history of the matter as set out above.
I am not satisfied that the issues raised by the father justify the matter proceeding other than in the normal course. The Father’s Application for Review will therefore be dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 20 February 2023
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