Eccleston & Eccleston
[2021] FedCFamC2F 162
•12 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Eccleston & Eccleston [2021] FedCFamC2F 162
File number(s): MLC 1249 of 2020 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 12 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed – costs awarded Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 2.04, 5.05, 14.07
Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021 (Cth), Schedule 1
Cases cited: Diacos & Gataki(No 3) [2021] FCCA 1841
Hearnes & Jellets [2020] FCCA 2722
Lombardi & Rider [2021] FedCFamC2F 57
Petrova & Leighton [2017] FCCA 315
Myers & Myers [2011] 253 FLR 445
Tadros & Tadros & Ors [2020] FCCA 1118
Vibbard & Garcia (2012) 48 Fam LR 1
Division: Division 2 Family Law Number of paragraphs: 51 Date of last submission/s: 11 October 2021 Date of hearing: 7 October 2021, 11 October 2021 Place: Melbourne Solicitor for the Applicant: James McConvill & Associates Counsel for the Respondent: Ms McCreadie Solicitor for the Respondent: Lander and Rogers ORDERS
MLC 1249 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ECCLESTON
Applicant
AND: MR ECCLESTON
Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
11 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed by the Mother on 30 September 2021 be dismissed.
2.The Mother pay the Father’s costs of the Application for Review, fixed in the sum of $642 pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
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 Eccelston & Eccelston has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
This matter concerns an Application for Review filed by the Mother on 30 September 2021 (“the Review Application”).
On 12 September 2021, the Mother filed an Application in a Proceeding, together with a supporting Affidavit and Cover letter for Urgency of even date, seeking orders that:
1. Leave be granted by the Court for this matter to be heard on an urgent basis.
2. The matter be heard on an ex parte basis if necessary; and
3.Where changeover does not otherwise occur at day care or school, then all other changeovers shall take place at the Suburb B Police Station at the time and days in accordance with the orders (being the interim parenting orders made on 16 June 2020).
On 13 September 2021, a Registrar of this Court made a decision to not grant the urgent listing, and the matter was listed on 22 October 2021 in a Registrar Duty List (“the Registrar’s Decision”).
The Review Application seeks a review of the Registrar’s Decision.
There were no formal reasons given by the Registrar and no formal order was 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 hearing of an application for review is a hearing de novo, and, with leave, the Court may receive further evidence in addition to that which was before the Registrar: rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The Father filed a Response to the Application in a Proceeding and the Review Application on 6 October 2021, seeking orders that both applications be dismissed. The Father also filed an affidavit on 6 October 2021 which relates to the Application in a Proceeding.
The hearing of this Review Application was listed before me on 7 October 2021. At that hearing, the Mother’s representative made submissions in support for the application, and the Father’s Counsel made submissions in opposition. The Mother filed additional affidavit material on the night prior to the hearing which she sought to rely upon, one of which was sealed on 6 October 2021 and the other on 7 October 2021. This additional material was opposed by the Respondent as it did not come to the Respondent’s attention until shortly before the hearing commenced, and the matter therefore had to be adjourned to 11 October 2021. Notwithstanding the adjournment, the Respondent has not filed any further affidavit material.
In considering the Review Application, I have had regard to:
(a)the Review Application filed 30 September 2021;
(b)the Application in a Proceeding, Affidavit and Cover letter for Urgency filed by the Mother on 12 September 2021
I have also had regard to the following additional documents and submissions:
(a)the Response and Affidavit filed by the Father on 6 October 2021;
(b)the Affidavits filed by the Mother on 6 and 7 October 2021; and
(c)the oral submissions made on 7 October 2021 and 11 October 2021.
ISSUES BEFORE THE COURT
The issues before the Court are:
(a)Whether the Registrar’s Decision is a reviewable decision under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “Act”); and
(b)If it is a reviewable decision, whether the review should be allowed and the abridgement granted.
ADMINISTRATIVE OR REVIEWABLE DECISION?
Registrars of this Court are delegated powers pursuant to s 254 of the Act, and the right to review the exercise of a power of a Registrar is set out in s 256 of the Act.
The issue of whether or not this Court is able to review the allocation of a first return date has been the subject of various decisions of the Court, and the relevant principles are set out in my recent decision of Lombardi & Rider [2021] FedCFamC2F 57 (Lombardi) at [13]-[17]. Although the matter before me concerns the return date of an Application in a Proceeding rather than a first return date, the same principles are applicable. It is not necessary to reiterate those principles here, other than to note in particular the three discrete scenarios outlined by Halligan FM in Myers & Myers [2011] 253 FLR 445 (Myers) at [26], which were adopted by the Full Court of the Family Court of Australia in Vibbard & Garcia (2012) 48 Fam LR 1 at [27].
CONSIDERATION
To determine whether the exercise of the Registrar’s power in this case is reviewable pursuant to s 256 of the Act, the Court must consider what orders the Mother was asking the Court to make.
In her Application in a Proceeding, the Mother sought orders that:
1.The leave be granted by the Court for this matter to be heard on an urgent basis.
2. That the matter be heard on an ex parte basis if necessary
…
Under the heading ‘REASONS FOR URGENCY’, the Cover letter for Urgency filed by the Mother’s solicitor stated:
… it was on these grounds that we confirm that at the time of filing our application in a proceeding with supporting affidavit, a request for an urgent listing was also made so that this matter could be heard without any delay.
The Review Application stated:
Seek a review of the decision provided on 13 September 2021 following a request for an urgent listing/abridgement of time considered by a Registrar/Judicial Officer.
While there is reference to a request for ‘abridgement of time’ in the Review Application, the Mother made no specific request to the Court to abridge the time for service of her Application in a Proceeding, nor did she seek an abridgement of time for the Father to file his Response to Application in a Proceeding or his supporting Affidavit or Notice of Child Abuse, Family Violence or Risk under Rules 2.18, 2.04 and 5.05.
The Mother did not seek a court date that would not allow time for compliance with the Rules and seek that the Rules be shortened or dispensed with (being the third ‘scenario’ outlined in Myers). Accordingly, the orders requested did not require the Registrar to exercise the power to make an order exempting a party from compliance with a provision of the Rules of Court pursuant to s 254(2)(k) of the Act or to exercise another power delegated under sub-section 254(2) of the Act.
The decision to allocate a listing date falls within the first or second “scenarios” as outlined in Myers. It was, in my view, an administrative task performed by the Registrar.
It is not a matter for the Court to read into an application what the applicant is actually seeking. The Mother here benefited from legal representation. The Court should not encourage litigants to be vague in their applications for urgent hearings.
SHOULD THE REVIEW APPLICATION BE ALLOWED?
In the event that the Court does have jurisdiction to hear the Review Application, I would dismiss the Review Application in any event, for the following reasons.
As I stated in my decision in Lombardi at [43]–[45], when considering whether the Review Application should be allowed, the Court must take into account to the “overarching purpose” provisions outlined in sections 190 and 191 of the Act, particularly the efficient use of judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall caseload. When allocating dates, the Court must balance the allocation of dates with other matters with equally competing priorities.
The basis of the Mother’s application for urgent listing can be summarised in the following points:
(a)Order 5 of the current interim parenting orders made on 16 June 2020 provides for changeover to occur at Restaurant C, where changeover does not otherwise occur at day care or school. This arrangement applies during school holidays, which were due to commence shortly at the time the Mother filed her Application in a Proceeding.
(b)All changeovers thus far had been facilitated by the maternal grandfather at the Mother’s request, however the maternal grandfather has recently become ill and is no longer able to facilitate changeovers.
(c)The Mother deposes that Restaurant C has limited CCTV coverage, and she therefore wishes to vary the changeover location to an area which offers full CCTV coverage.
In her Affidavit filed 12 September 2021 under the heading ‘REQUEST FOR URGENCY’, the Mother states:
I seek for this matter to be listed with urgency as the school holidays are due to commence on 17 September 2021 and as the Child is once again due to spend time with the father over this period, I seek a decision be made with urgency in relation to the changeover location prior to this date.
Unfortunately, by the time this Review Application was able to be accommodated for hearing, the school holidays had passed, and the next school holiday period applicable to the child’s day care are due to commence on 20 December 2021. Nevertheless, the Mother pressed her application for urgency at the hearing of this Review on 7 October 2021.
In Myers at [87], Halligan FM set out four factors the Court should be satisfied of if a matter is to be listed urgently:[1]
(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.
[1] Adopted by decisions such as Petrova & Leighton [2017] FCCA 315; Hearnes & Jellets [2020] FCCA 2722; Tadros & Tadros & Ors [2020] FCCA 1118; Diacos & Gataki(No 3) [2021] FCCA 1841.
I am willing to proceed on the basis that the Mother has demonstrated that a reasonable basis exists for arguing for the substantive orders sought.
As to whether there has been no unreasonable delay in approaching the Court, the Mother filed her Application in a Proceeding shortly after the maternal grandfather became unwell, and approximately 5 days before Victorian school holidays were due to commence. She filed the Review Application within a week following the Registrar’s Decision, well within the 21 days stipulated by Rule 14.05.
As to whether absent an urgent listing, the Mother 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, I am not satisfied that this criteria has been made out.
I refer here to my comments in Lombardi at [32] – [33]:
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.
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.
The crux of the Mother’s application for urgency is that, in the event that the child’s day care centre is closed between now and the return date of this matter on 22 October 2021, changeover will have to occur at Restaurant C, and now that the maternal grandfather is no longer available to facilitate changeover, the Mother has fears for her safety during changeover due to the limited CCTV coverage at Restaurant C.
However, as identified at paragraph [10] of the Father’s affidavit filed on 6 October 2021, there will be no instance where changeover will not occur at day care, until 20 December 2021 when the next school holiday period commences. This is well after the listing of the Mother’s Application in a Proceeding on 22 October 2021. The Mother is in effect seeking a change to the current parenting orders, in anticipation of some other event arising that would require changeover to occur at Restaurant C rather than day care.
The Mother’s additional affidavits filed on 6 and 7 October 2021 provide no indication of when the maternal grandfather, or another nominated person, may become available to facilitate changeovers if need be. I note that the interim parenting orders made on 16 June 2020 provide that changeover is to be facilitated by the Mother, and make no provision that the Mother is to have a nominee or require that the maternal grandfather facilitate the changeover.
Paragraphs [16]-[21] of the Mother’s affidavit filed on 6 October 2021 refer to defended intervention order proceedings that were listed in the Magistrates’ Court on 29 September 2021. At paragraph [18], the Mother deposes that the Magistrate found there was insufficient risk of family violence reoccurring, and the Intervention Order was dismissed. The Mother has indicated she will be appealing the Magistrate's decision.
I find that the Mother’s affidavits filed 6 and 7 October 2021 do not add any weight to her argument for urgency. On the contrary, the additional affidavit material points towards there being no actual urgency, and that the current interim orders are operable and able to be followed.
I also note that this matter recently came before a judicial officer of this Court on 21 June 2021 for final hearing, and that judgment is currently reserved. The upcoming listing for this application is on 22 October 2021, by which time the reserved judgment in respect to the final hearing may have already been delivered, or may be close to being delivered.
While I in no way wish to diminish the Mother’s concerns, the Mother’s application in the circumstances does not sufficiently demonstrate the required need for urgency.
As to “whether a judicial officer is available to hear the substantive application”, I refer again to my recent decision in Lombardi at [34]-[35], where I stated that the Court must discourage review applications of this nature being brought except in truly urgent circumstances.
It is evident the Mother had hoped her Application in a Proceeding filed 12 September 2021 would be heard prior to the school holidays which commenced on 17 September 2021. The Mother was asking the Court to consider and list her application before a judicial officer within a matter of days, in an extremely busy registry. The Mother’s Review was then filed on 30 September 2021, midway through the school holidays. The Mother was seeking an even shorter timeframe for both the Review Application and Application in a Proceeding to be heard within that school holiday period.
I draw attention here to the core principles set out in the Central Practice Direction - Family Law Case Management. Core Principle 3 requires the efficient and effective use of the Court’s judicial and registrar resources, and Core Principle 7 provides an obligation upon lawyers and parties to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely dispute.
With respect, it is difficult to see that the Court could reasonably be expected to list an application in such a short timeframe, unless there were some specifically urgent issues that were clearly drawn to the attention of the registry in writing.
I am not satisfied that this was the case here.
Costs
Under section 117(1) of the Family Law Act 1975 (Cth), parties ordinarily bear their own costs. However, the Court has power to make costs orders if appropriate, having regard to the matters set out in section 117(2A) of the Family Law Act 1975 (Cth).
The Mother was wholly unsuccessful in her Review Application.
As previously stated, the Mother filed two further affidavits in support of her Review Application, sealed on 6 October 2021 at 10.29pm and 7 October 2021 at 12.25am respectively, in circumstances where this Review was listed for hearing on 7 October 2021 at 9.15am. As the Mother sought to rely upon these affidavits, the matter had to be adjourned to give the solicitor for the Respondent time to consider the material and file any affidavit in response.
The Mother’s conduct has wasted costs and the Court’s resources in hearing this Review Application. It is appropriate in these circumstances to order costs.
The Mother sought that costs be fixed at $4000, citing the appearance of Counsel and instructor at the hearing on 7 October 2021 and 11 October 2021. This amount appears to represent costs claimed on an indemnity basis. I am not satisfied that the Mother’s conduct justifies an award of costs on an indemnity basis. Accordingly, I am prepared to order that the Mother pay the Father’s costs fixed in the sum of $321 for each of the two hearings of the Application for Review, being a total of $642, pursuant to Schedule 1 Item 13(a) of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
Applications for review should only be lodged where there is appropriate urgency. If this court event is misused, there will be cost consequences.
I reiterate my decision in Lombardi at [47]:
Parties should not be encouraged to regard a hearing in relation to the review of a Registrar’s decision concerning whether to abridge a matter as an opportunity to agitate their substantive application before a Judge ahead of the time that has been allocated by the Registrar.
CONCLUSION
I make the following orders:
(1)The Application for Review filed by the Mother on 30 September 2021 be dismissed.
(2)The Mother pay the Father’s costs of the Application for Review, fixed in the sum of $642 pursuant to Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 11 October 2021
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