Diacos & Gataki (No 3)
[2021] FCCA 1841
•11 August 2021
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 114Number 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 Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
BACKGROUND
This matter concerns the child X (‘the child’) who is now aged 7. The Applicant Father is Mr Diacos (‘the Father’) aged 37 and the Respondent Mother is Ms Gataki (‘the Mother’) aged 28.
The parties cohabited from 2013 until 2017. The child was born in 2014. Final orders were made on 14 December 2018 that provided for the living arrangements for the child between the two parents.
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; and
c.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; and
b.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
Section 102(2) the FCCA Act confers specific powers on Registrars:
(2)The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:
(a)the power to dispense with the service of any process of the Federal Circuit Court of Australia;
(b) the power to make orders in relation to substituted service;
(c)the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Federal Circuit Court of Australia or of any other person;
(d) the power to make orders in relation to interrogatories;
(e)the power, in proceedings in the Federal Circuit Court of Australia, to make an order adjourning the hearing of the proceedings;
(f) the power to make an order as to costs;
(g) the power to make an order about security for costs;
(h)the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court;
(i)a power of the Federal Circuit Court of Australia prescribed by the Rules of Court;
(j)the power, in family law or child support proceedings, to direct a party to the proceedings to answer particular questions;
(k)the power to make orders under the following provisions of the Family Law Act 1975 :
(i) sections 11F and 11G;
(ii) sections 13C and 13D;
(iii) subsection 65LA(1);
(iv) paragraph 70NEB(1)(a);
(ka)the power to direct a family consultant to give a report under section 62G of the Family Law Act 1975 ;
(l) the power, in family law or child support proceedings, to make:
(i)an order under section 66Q, 67E, 77 or 90SG of the Family Law Act 1975 ; or
(ii)an order for the payment of maintenance pending the disposal of the proceedings;
(m)the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;
(n)the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders under the Family Law Act 1975 ;
(o)the power to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act 1975 .
Section 104(2) of the FCCA Act states:
Review of the exercise of Registrars' powers
(2)A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Circuit Court of Australia for review of that exercise of power.
The written submissions of Mr Puyol, counsel for the Mother, rely upon the decision of Halligan FM, as he then was, in the decision of Myers & Myers [2011] FMCAfam 1104 (‘Myers’) where his Honour determined that an application to abridge time and bring the matter on urgently fell within the power that I have described as the section 102(2)(h) power. Alerted to Vibbard & Garcia [2012] FamCAFC 114 (‘Vibbard & Garcia’) by the helpful and detailed written submissions of Mr Puyol, I accept that Myers was approved by the Full Court in Vibbard & Garcia.
In Myers, his Honour set out at paragraph [26], that different powers may be involved depending on the circumstances under which a Registrar deals with the issue of allocating a Court date.
In Myers his Honour set out the first category at paragraph [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;
The second category of Myers at [26](b) is:
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;
The third category of Myers at [26](c) states:
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 found that the third category, the circumstance where the applicant seeks a different first Court date and seeks that the normal time limits fixed by the rules be shortened or dispensed with, is a matter whereby the Court would have jurisdiction to review the Registrar's power. His Honour found that if the first two categories applied the Court would not have jurisdiction to review the Registrar's power. The point being that not every decision of a registrar or of a Court administration is reviewable by a judge under the rules. At [90] of that decision, Halligan FM referred to the power of the Court upon reviewing a Registrar's exercise of a delegated power, the Court “may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised”.
In oral submission to me the Mother’s counsel asserted:
“…at no point in that letter, nor in the interim orders sought in the initiating application, does the applicant (the Father) seek an abridgement of time (for the service of the application)… So in the absence of an order (being sought in the application) or a request for the abridgement of time (for service) itself and it hasn’t been requested in this letter… the date provided by the registrar was purely administrative and not within the purview of section 102 (of review under the FCCA Act).
I proceed on the basis that I am bound by the Full Court in Vibbard & Garcia.
The point is that I regard the interim orders sought as in substance seeking to have the normal time limits fixed by the rules to be shortened or dispensed with. This is usually understood by the use of the word abridged. In this case, I will also consider the issue of whether an application for a different date in Court on an urgent basis by implication carries with it an application to shorten or vary the times and hence to be exempting a party from compliance with the ordinary rules.
In this case I find that the use of the words “by abridging this initiating application and listing it on an urgent basis” in the letter referred to from an experienced practitioner to an experienced registrar of the court was mere legal shorthand, in the urgent filing of an application for: “by abridging, that is shortening, all times for service as required by the applicable rules of this initiating application and listing it on an urgent basis”. And I have no doubt a registrar of this Court would have so understood the “legal shorthand”. Hence upon the orthodox view of Myers, approved by Vibbard & Garcia, which binds me, I find that I have jurisdiction.
At [29] of Vibbard & Garcia, the Full Court referred to the circumstance where the applicant “...was impliedly seeking an exemption from compliance with the Rules concerning the time and method of service...” However, that part of the decision must be regarded as obiter dicta only because the husband did expressly seek such exemptions in that case. In this case I also find that whether or not I am correct about the “legal short hand” finding, the absent words of “that is shortening, all times for service as required by the applicable rules” were implied from the text used and the circumstances of the application and the matters set out in the affidavit.
Hence, I find that I have jurisdiction as to whether or not I should exercise that power and make a determination that is sought. I am guided by the following matters.
At [87] of Myers the matters of discretion included:
[87]It is not for me, or a Registrar considering an application to abridge the time for service and for urgent listing, to pre-judge the applicant’s substantive application. In my view the substantive application should be listed urgently if the Registrar (or the Court on review) is satisfied that-
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.
I am also assisted by the recent decision of Judge Kirton QC of this Court on 4 September 2020 in the matter of Hearnes & Jellets [2020] FCCA 2722 also brought to my attention by Mr Puyol. Her Honour carefully analysed the law and authorities relating to this area of review and the exercise of discretion.
I particularly acknowledge and refer to the circumstance that her Honour grappled with, being the issue of the extent to which not only was that case said to be urgent but, as recited by her Honour at [54], the issue of the many other cases a busy Court such as this must attempt to deal with in as timely a fashion as is possible with available judicial resources, and of the impact on its ability to do so by interposing urgent matters over the top of matters that have already waited some time for attention.
Her Honour referred to and approved the comments of Judge Terry in the matter of Quong & Rush [2017] FCCA 1765, where Judge Terry referred to the:
“…veritable deluge of matters involving children who are at risk of harm…”
When the matter was first called before me, it was apparent that the Mother had, in fact, been served with the application, affidavit in support, notice of risk of the Father and the application for review and consequent upon being served with those papers, the Mother had the common sense to seek legal advice.
Although not being required to appear on the review application she had chosen to do so. However a choice was made that rather than instructions being taken and a response and affidavit setting out the Mother’s side of the story filing served or filed, the detailed written submissions referred to were filed.
I take all those matters into account as to the exercise of my discretion but the most significant matter as to the exercise of my discretion in this case is that on the face of the Father’s material and prima facie, the Mother is in breach of the extant and applicable and recently made final orders referred to earlier.
Further she has the assistance of legal representation.
I also take into account the experience of the Court that frequently (but not always) where a party feels compelled to act in apparent breach of an order and over hold a child or children that party seeks to “bless” the over holding by urgently issuing an application to vary the orders and themselves seek the abridgement of times for service to bring the controversy before the Court as soon as practical. This is the course of responsible parenting and responsible litigation. Too simply over hold, for whatever reason, and to hide behind that over holding, then wait for the other side to issue and/or seek to delay the hearing of the matter, unless there are justifying circumstances, would be contrary to sensible litigation practice and responsible parenting.
CONCLUSION
In the circumstances of this case I find that I have jurisdiction and is appropriate to exercise my discretion in favour of granting the application to review and listing the matter as soon as the Court is able to deal with it after a little time for the Mother to file her side of the story.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 11 August 2021
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