Diacos & Gataki (No 3)

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FEDERAL CIRCUIT COURT OF AUSTRALIA

Diacos & Gataki (No 3) [2021] FCCA 1841

File number: MLC 11078 of 2020
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 11 August 2021
Catchwords: FAMILY LAW – review of a registrar’s decision – jurisdiction argument – where applicant seeks to have application abridged – where respondent argues that the court does not have jurisdiction to review – administrative decisions – application for review granted
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court of Australia Act1999 (Cth), ss 102(2), 104(2)

Cases cited: Hearnes & Jellets [2020] FCCA 2722
Myers & Myers [2011] FMCAfam 1104
Quong & Rush [2017] FCCA 1765
Vibbard & Garcia [2012] FamCAFC 114
Number of paragraphs: 32
Date of hearing: 22 October 2020
Place: Melbourne
Solicitor for the Applicant: Leslie Family Law
Counsel for the Respondent: Mr M Puyol
Solicitor for the Respondent: Knight Family Lawyers

ORDERS

MLC 11078 of 2020
BETWEEN:

MR DIACOS

Applicant
AND:

MS GATAKI

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 OCTOBER 2020

THE COURT ORDERS THAT:

1.The Application for Review of a Registrar's decision be granted and the Initiating Application filed 12 October 2020 be listed for first return/interim defended hearing on 30 October 2020 at 10.00am.

2.The Respondent Mother file and serve a Response, Notice of Risk and supporting Affidavit no later than 4.00pm on 28 October 2020.

AND THE COURT NOTES THAT:

A.No order has been made, or sought this day, to discharge the Final Orders made 14 December 2018.

B.The Respondent Mother was represented by Counsel and solicitor on this review application.

C.The Court has been informed that Question 2(a) of the Notice of Risk filed 13 October 2020 has been answered 'No' in error and it was intended to be answered 'Yes'.

D.The Court will request the Department of Health & Human Services liaison officer to provide a summary of any relevant child protection investigations prior to the adjourned date.

E.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 under the pseudonym Diacos & Gataki (No 3) is approved pursuant to s.121(9)(g) of the

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Details
Case
[2021] FCCA 1841
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Diacos (the applicant father) for a review of a registrar's decision not to grant an urgent listing for his initiating application. The dispute arose after Ms Gataki (the respondent mother) allegedly failed to facilitate a changeover of the children pursuant to final orders made in December 2018. The applicant's solicitor had sought an urgent listing of the application filed on 12 October 2020, but the registrar declined this request, listing the matter for the next available duty list date of 11 November 2020. The applicant subsequently filed an application for review of this decision.

The central legal issue before the court was whether the registrar's decision to refuse an urgent listing was a reviewable decision under section 104(2) of the *Federal Circuit Court of Australia Act 1999* (Cth). The respondent argued that the registrar's decision was purely administrative and not made under delegated powers pursuant to sections 102 or 103 of the Act, and therefore not subject to review. The applicant contended that the decision involved the exercise of a power that was reviewable.

Judge O'Shannessy determined that a registrar's decision to grant or refuse an application for short notice or an abridgment of time is reviewable under section 104(2) of the *Federal Circuit Court of Australia Act 1999* (Cth). The court reasoned that such an application, where a party seeks a court date that would not allow for compliance with the prescribed time for service of the substantive application and requests a shortening or dispensing with those time limits, involves the exercise of a power to exempt a party from compliance with the Rules of Court, which is a power delegated to approved registrars. The court found that the applicant's request for an urgent listing, which implicitly sought to abridge the time for the respondent to file her response and supporting materials, fell within this category of reviewable decisions.

The court ordered that the application for review of the registrar's decision be granted. The applicant father's initiating application was listed for a first return/interim defended hearing on 30 October 2020. The respondent mother was ordered to file and serve her response, notice of risk, and supporting affidavit by 4.00 pm on 28 October 2020. The court also noted that no orders were made or sought to discharge the final orders of 14 December 2018.

Orders

Orders of the court

MLC 11078 of 2020

BETWEEN:

MR DIACOS

Applicant

AND:

MS GATAKI

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 OCTOBER 2020

THE COURT ORDERS THAT:

1. The Application for Review of a Registrar's decision be granted and the Initiating Application filed 12 October 2020 be listed for first return/interim defended hearing on 30 October 2020 at 10.00am.

2. The Respondent Mother file and serve a Response, Notice of Risk and supporting Affidavit no later than 4.00pm on 28 October 2020.

AND THE COURT NOTES THAT:

A. No order has been made, or sought this day, to discharge the Final Orders made 14 December 2018.

B. The Respondent Mother was represented by Counsel and solicitor on this review application.

C. The Court has been informed that Question 2(a) of the Notice of Risk filed 13 October 2020 has been answered 'No' in error and it was intended to be answered 'Yes'.

D. The Court will request the Department of Health & Human Services liaison officer to provide a summary of any relevant child protection investigations prior to the adjourned date.

E. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

F. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

G. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

H. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This judgment concerns an application for review of a registrar’s decision to not list an application urgently. The review application came before me on 22 October 2020 and after hearing submissions from both parties I granted the application and listed the Father’s substantive application to the following week and reserved my reasons. These are my reasons. THE FATHER’S REQUEST & REGISTRARS DECISION The Father initiated proceedings on 12 October 2020 after the Mother did not facilitate changeover pursuant the final orders of 14 December 2018. At the time of filing, the Father’s solicitor sought to have the application listed urgently before the court by sending with the documents a letter that included the request:As such, we humbly request that you exercise your discretion by abridging this initiating application and listing it on an urgent basis. On the afternoon of 12 October 2020 the Father’s then solicitor received a response from the court that the request had not been granted and that the matter had been listed on the next available duty list date being 11 November 2020 following the courts usual practice. The relevant email to the Father’s then practitioner from the court stated:Dear Practitioner, The Court acknowledges receipt of the application/response referenced above, through the Commonwealth Courts Portal.Your request for an urgent listing/abridgement of time has been considered by a Registrar/Judicial Officer.Upon assessment of the material provided, the Registrar/Judicial Officer has not granted an urgent listing/abridgement of time and your application has been listed at 9.45 a.m. on 11 November 2020 , which is the next available listing date.…(emphasis added)THE APPLICATION FOR REVIEW On 14 October 2021, the Father has filed an application for review of exercise of power by a registrar. The order that the Father sought in that application was that:1.All times be abridged to allow the Initiating Application filed on behalf of the Applicant on 12 October 2020 to be heard as a matter of urgency. THE MOTHER’S POSITION The Mother’s position was that the decision of the registrar to not list the matter urgently was not a decision that was made under section 102 or 103 of the Federal Circuit Court of Australia Act1999 (Cth) (‘the FCCA Act’) and therefore a review of that decision under section 104 cannot be exercised. Counsel for the Mother submitted that this was a purely administrative and not a decision made under the delegated powers under the legislation. On the morning of the review application hearing, Counsel for the Mother emailed a 5 page document of written submissions to assist. Counsel for the Mother said at [12] to [43]:[12]At paragraph 19 of the decision in Vibbard & Garcia, the Full Court refers to ‘the threshold issue’ that was to be determined by Halligan FM as “whether the power exercised by the Registrar in dealing with the application for an urgent listing was a power delegated to Registrars by a rule made pursuant to s 103(1) and hence reviewable under s 104(2).”[13] The Full court in Vibbard & Garcia adopted the said :After referring to the provisions in the Rules concerning the time for service of various types of applications and for the filing of responses to applications, his Honour identified the following three “scenarios” in which a Registrar can deal with the issue of allocating a “court date”: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.His Honour observed that the first two of these scenarios do not involve the exercise of any power under the Rules or any power of the Court, but rather involve “purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court”. Then in more specific terms his Honour said :Therefore, in my view it is clear that decisions about allocation of a Court date for an application that do not involve consideration of a shortening to a time fixed by the Rules are not amenable to review under s.104(2).However, in relation to the last of the three scenarios which he had identified, his Honour observed that an application to alter a time prescribed by the Rules was in his view “quite different”, and having further observed that in “short notice” or “abridgment of time applications” the relevant time to consider is the prescribed time for service of the application, he expressed the view that:29… shortening or abridging a time fixed by the Rules falls within the power described in s.102(2) as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”, which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1).His Honour further explained his reasoning and his conclusion, saying:30If a party seeks urgent listing on a date that would not permit compliance with the prescribed time for service of the substantive application and seeks “short notice” or an abridgment of that time, in my view the applicant is seeking to be exempted from compliance with the normal time for service as fixed by the Rules, either unconditionally or on terms. A direction that service of an application be effected by a specified date or within a specified time, being less than the prescribed period before the Court date, is an exemption from compliance with the Rules on terms.31Thus, unfettered by prior authority, I am satisfied that a decision of an approved Registrar to grant or refuse a short notice or abridgment of time application is reviewable under s.104(2) if the applicant seeks a court date within the prescribed time for service of the substantive application.Was the power exercised by the Registrar in this case reviewable pursuant to section 104(2) of the Federal Circuit Court Act?[38]In the current matter, the Applicant sought ‘orders for urgent consideration’ on the basis that that there is a ‘risk of abuse, neglect or family violence’ .[39]The Interim orders sought by the application do not seek an abridgment of time and instead conditionally seek that the matter “be relisted for an urgent mention to consider the future direction of the matter…” [40].The Review Application filed by the application on 15 October 2020 stated in Part D that “all times be abridged to allow the Initiating Application filed on behalf of the Applicant on 12 October 2020 to be heard as a matter of urgency.”[41]The applicant in this matter made no request to the Registrar or the Court at the time of filing his Initiating Application for an abridgment of time for rules 4.03(3), 4.05(1) and 22A.02(1) for the Mother to file her Response, supporting affidavit and notice of risk before the expiry of 28 days.[42] It is submitted on behalf of the Respondent that:a.where the applicant seeks an urgent hearing date that does not allow the respondent time to comply with the filing requirements under the Rules; andb.where the applicant does not seek any variation or abridgment of the time limits fixed by the Rules (for example, an abridgment of rule 4.03);the registrar’s determination of the hearing date falls within the first or second “scenario” as approved by the Full Court in Vibbard & Garcia.[43]It is submitted that the Registrar decision to list the matter on 11 November 2020 did not involve the exercise of any power under the Rules or any power of the Court but instead involves “purely administrative tasks performed by staff in the Court registry in support of the functioning of the Court”.(emphasis added)THE APPLICABLE LAW

Ratio Decidendi

Legal Principle Established

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