Darvell & Darvell

[2021] FamCA 490

FAMILY COURT OF AUSTRALIA

Darvell & Darvell [2021] FamCA 490

File number(s):

SYC 699 of 2013

Judgment of:

ALTOBELLI J

Date of judgment:

7 July 2021

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE –   Application for review of a registrar’s decision – Application  granted ex parte in Chambers – Abridgment of time granted – Matter listed for urgent Interim Defended Hearing before a senior registrar.   

Legislation:

Family Law Act 1975 (Cth) s 37A

Family Law Rules 2004 (Cth) rr 1.12, 5.17, 18.6

Cases cited:

Bailey & Peters [2021] FamCA 299

Number of paragraphs:

7

Date of last submission/s:

28 June 2021

Date of hearing:

29 June 2021 (in Chambers)

Place:

Sydney

The Applicant:

No appearance

The Respondent:

No appearance

ORDERS

SYC 699 of 2013

BETWEEN:

MS DARVELL

Applicant

AND:

MR DARVELL

Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	29 JUNE 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be heard and determined in Chambers on an ex parte basis.

2.The Application in a Case filed on 28 June 2021 seeking review of the decision of a Registrar of this Court not to grant an abridgment of time and list the matter for urgent hearing be allowed.

3.The matter be granted an abridgment of time and listed on 9 July 2021 at 10am before Senior Registrar Evans for urgent Interim Defended Hearing in relation to the interim orders sought in the application filed on 21 June 2021.

4.Within 24 hours of notification of the making of this order, the Applicant serve on the Respondent a copy of this order as well as all initiating documents filed together with the application on 21 June 2021.

5.Within 7 days of the date of this order, the Respondent file and serve the following documents:

(a)A Response;

(b)Any Affidavit material on which he seeks to rely;

(c)A Financial Statement; and

(d)A Notice of Risk.

6.By no later than 4pm on 7 July 2021 each party is to file and serve a case outline document, setting out:

(a)a list of documents to be read in their case;

(b)a precise Minute of Orders Sought;

(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

IT IS NOTED THAT

Pursuant to Rule 11.16 of the Family Law Rules 2004 these orders are made in Chambers on an ex parte basis and without the consent of the Respondent, noting that the Respondent has not been served.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Darvell & Darvell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

1. This matter came before me last week. It is an application for review of a decision of an assistant registrar not to grant an abridgment and list a matter on an urgent basis. The application is brought pursuant to s 37A(9) of the Family Law Act 1975 (Cth) (‘the Act’).

2. The Applicant mother sought interim orders in an application filed 21 June 2021 and sought an urgent listing.  The learned registrar declined this application on 24 June 2021.

3. When the matter came before me on 28 June 2021, I proceeded to deal with it on an ex parte basis, pursuant to r 1.12 of the Family Law Rules 2004 (Cth) (‘the Rules’). Given the recency and severity of the family violence allegations set out by the Applicant in her Affidavit and Notice of Child Abuse, Family Violence or Risk filed on 21 June 2021, I determined it was appropriate in these circumstances for the requirements in r 5.17 of the Rules to be dispensed with, and the matter be dealt with on an urgent ex parte manner in Chambers. I made orders granting the review and listing the matter before a senior registrar at the earliest possible time. As it turns out, a senior registrar was available to hear the matter on 9 July 2021.

4. These short reasons for judgment explain why I made that decision.

5. Rule 18.6 of the Rules grants the Court the power to review orders made by a registrar. There were no formal reasons given by the registrar and no formal order appears to have been made. The absence of an order does not mean that I do not have the power to review the decision: Bailey & Peters [2021] FamCA 299. The learned registrar obviously had a reason for not expediting the matter. The learned registrar may well have been influenced by the fact that the children were in the care of the mother, and were not spending time with the father, thus mitigating any present risk of the children spending time with or coming into contact with their father. This of course does not mitigate any fear or apprehension that the Applicant and her children might hold, based on previous experience.

6. However, as the Applicant mother makes clear in both her Affidavit and Notice of Child Abuse, Family Violence or Risk, there are very serious allegations of family violence.  There are, it would seem, two Apprehended Domestic Violence Orders that have been made in this matter, one as recently as 18 December 2019.  There are two known criminal convictions against the father relating to violence.  The mother raises concerns about the father’s consumption of excess alcohol and about the father’s mental health in the context of threatened self-harm.  The mother deposes to unreported family violence that she experienced.  There are no current parenting orders relating to the children.

7. In my view, the need to expedite the listing of this matter before a judicial officer for possible interim determination in such a case is self-evident. Listing registrars play an important gatekeeper role in the case management of cases in this registry. They are partners with judicial officers in the judicial process. In clear family violence cases, such as is this one, they should not be overly concerned about judicial listing and workload pressures but should expedite bringing these matters before a judicial officer at the earliest possible time. If necessary, the said judicial officer can determine priorities when the matter first comes before them.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

Associate:

Dated:       7 July 2021