Diacos & Gataki (No 3)

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.