FOWLER & GLOVER

[2016] FCCA 2595

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOWLER & GLOVER [2016] FCCA 2595

Catchwords:
FAMILY LAW – Practice and procedure – application to review Registrar’s decision not to list parenting proceedings on an urgent basis – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.20.03(a)

Applicant: MR FOWLER

Respondent: MS GIBSON

File Number: CAC 1610 of 2016

Judgment of: Judge Hughes

Hearing date: 5 October 2016

Date of Last Submission: 5 October 2016

Delivered at: Canberra

Delivered on: 7 October 2016

ORDERS

1. The application for review of the Registrar’s decision of 5 October 2016 not to list the proceedings on an urgent basis is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Fowler & Glover is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1610 of 2016

MR FOWLER

Applicant

And

MS GIBSON

Respondent

REASONS FOR JUDGMENT

1. This is an application for a review of the Registrar’s decision of 5 October 2016 to not list the father’s parenting application on an urgent basis. 

2. The parties separated on 16 April 2016 at which time the respondent mother left Queensland with the parties’ (age omitted) child.  The father deposed to not having seen the child since the date of separation. 

3. On 29 April 2016 the mother applied for a domestic violence order against the father in the ACT Magistrates Court.  That application was resolved on a final basis by consent and without admission on 8 September 2016.  During the conference at the Magistrates Court on 8 September 2016 the parties agreed to participate in a family dispute resolution conference (FDRC) to discuss the parenting arrangements.  That conference occurred on 30 September 2016 but no agreement was reached in relation to the child spending time with the applicant.

4. On 5 October 2016 the father filed in this Court his application for parenting orders.  The accompanying letter sought that the matter be listed before 20 October 2016 because the father was planning to come to Canberra between 20 October and 2 November 2016 and wished to spend time with the child during that period.

5. On 5 October 2016 the Registrar wrote to the applicant’s solicitors granting an exemption from the filing of a section 60I certificate.  She acknowledged the applicant’s difficulties and his desire for an early listing of the proceedings.  She refused an urgent listing giving the following reasons:

   (1)The matters raised, whilst serious, are matters routinely raised before this Court and are therefore not, in and of themselves, matters where an early listing would be allocated.

   (2)The mother left the former matrimonial home in April 2016 and the father has not filed an Application until October 2016.

   (3)There is no evidence about immediate harm to the child.

   (4)Judicial time available to hear matters on short notice is extremely limited.  Not every request for an urgent listing can be accommodated.

6. Later on 5 October 2016, the father’s solicitor filed the application for review of the Registrar’s decision which is currently before me. 

7. Rule 20.03(a) of the Federal Circuit Court Rules 2001 provides that a review of a Registrar’s decision must proceed by way of hearing de novo.  Consequently I am required to reconsider the original request for an urgent listing.  To do so I have read the applicant’s documents comprising his application, affidavit and Notice of Risk, all filed on 5 October 2016.  I have also read the application for review and the affidavit sworn by the father’s solicitor, Mr Ridge, on 5 October 2016 and filed the same day.

8. The matters set out in the affidavit of the father’s solicitor are, in effect, submissions.  He submitted that the Registrar took into account irrelevant considerations including the delay between when the mother left the former matrimonial home in April 2010 and the filing of the father’s application in October 2016.  He argued that the relevant time frame is that which occurred between the FDRC on 30 September 2016 and the date of filing which involved no delay.  He relied on the father’s evidence that he had notified the mother on 8 September 2016 that he intended to be in Canberra for two weeks in October.  He argued that the decision of the Registrar had the effect of rewarding bad conduct of the mother and prejudicing the father.  It is not possible to determine on the evidence filed to date whether any refusal by the mother to agree to the father spending time with the child amounts to bad conduct by her as asserted or is appropriately protective of the child.  The Court will be in a better position to determine that when the mother has filed her responding documents.

9. Although I am sympathetic to the father who is frustrated at not being able to see his daughter during the period he will be in Canberra, there is simply no capacity to accommodate the matter before the date on which it was listed by the Registrar, 28 November 2016.

10. At present there is one judicial officer in the registry.  Every Court date between now and 20 October 2016 (by when the father sought the matter be listed) is already heavily over-listed.  Despite this, urgent matters continue to be accommodated.  They typically involve allegations of serious and immediate risk of harm to children.  On the father’s evidence there is no reason to believe that the child is currently at an unacceptable risk of harm.

11. Due to the current volume of cases and lack of judicial resources the first return date in the usual course is in the duty list commencing 30 January 2017.  The Registrar has clearly given the matter some priority by listing it on 28 November 2016.

12. The application for Review is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Hughes

Date: 7 October 2016