Handle-Waters and Budd

[2011] FamCA 145

FAMILY COURT OF AUSTRALIA

HANDLE-WATERS & BUDD [2011] FamCA 145

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision

Family Law Act 1975 (Cth)

APPLICANT: Ms Handle-Waters

RESPONDENT: Mr Budd

FILE NUMBER: ADC 3418 of 2010

DATE DELIVERED: 24 February 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Eyre Lawyers

COUNSEL FOR THE RESPONDENT: Mr Brown

SOLICITOR FOR THE RESPONDENT:

Whyte Just & Moore

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Lonergan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1. That the application for “review” filed 8 February 2011 is dismissed as incompetent.

2. That all extant applications be otherwise transferred to the Federal Magistrates Court of Australia for hearing on a date to be fixed.

3. That the reasons this day be transcribed and be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 3418 of 2010

Ms Handle-Waters

Applicant

And

Mr Budd

Respondent

And

Ms Lonergan
Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me this morning by way of an order made by Senior Registrar FitzGibbon on 8 February 2011.  Paragraph 8 of the orders says that the extant applications are adjourned to this date in the Senior Registrar’s duty list. 

2. I have the benefit of the Senior Registrar’s reasons and he noted that there was an application for the review of his decision.  He was critical of the review documentation but made clear that if it was a review, it was to be listed in the judicial duty list.  In the list this morning, Mr Brown, the solicitor for the father, appears as does Ms Lonergan who is the Independent Children’s Lawyer.

3. The legal practitioner for the mother is from a firm of lawyers in South Australia.  There is on the file in front of me, a request to have the hearing by electronic means and that application was granted.  Between 10.15 this morning and now 10.55, four different telephone calls have been made to the number offered and a recorded message on each occasion indicates that the lawyer is unable to take the call and a message should be left.  I cannot hold up the business of the Court when somebody has requested the permission to conduct the hearing that way if they do not get a message to the Court that there is a problem.  It is particularly so in this case when the application for electronic attendance indicated that the necessary technical equipment is in place, the client would be there and it could be dealt with on a hands-free telephone.

4. The other curious difficulty in this case is that neither Mr Brown nor Ms Lonergan say that they have seen what is described as the application for review.  That document, which is on a Federal Magistrates Court of Australia masthead, was filed on 8 February and was listed in the duty list for 24 February.  Despite the fact that some 16 days has gone by, that document has not been served.  I draw some comfort from the fact that Mr Brown has told me this morning that his personal assistant has advised him today that this morning there is a response document sitting at his office.

5. The Court too was provided with two documents;  the first is a response to an application in a case which seems to be the response to the application that was dealt with by the Senior Registrar on 8 February supported by an affidavit. 

6. On 8 February, the Senior Registrar had the lawyer for the mother participate in the hearing by telephone and the order noted that paragraphs 1, 2 and 3 were by consent.  The second of those orders is an interim order setting out that the mother could telephone the child each Tuesday and Thursday.  Paragraph 3 is a permanent injunction.

7. The review document seeks a variety of orders including one that reads that the orders made on 25 September 2010 by Senior Registrar FitzGibbons [sic] be overturned.  If that is an application to set aside or vary the September order, it could hardly be dealt with on a review basis because the application for the review is well and truly out of time. 

8. Equally puzzling is the fact that the orders made on 25 September 2010 were made by a registrar of the Family Court of Australia in Adelaide.  Those orders were made on the basis of a joint approach to the Registry in Adelaide for consent orders.  There is no engrossed copy of the order on the file, but that may very well be because it is the Registry practice not to engross orders, but one way or the other what the mother appears to be seeking to do is to change those consent orders. 

9. The paragraphs 5 and 6 of the orders sought are equally curious.  Number 5 reads:

   That this review be heard as a matter of urgency given that the child is distressed and hysterical at the prospect of spending time with the father.

   How a court could make an order in those terms, I am not sure. 

   The sixth order is:

   That the child is currently being conveyed to Adelaide by Australian Federal Police and is crying and distressed.

   Equally, I don’t know how a court could make that order.  It seems to me to be a mixture of orders being pursued and what might be described as a plea.

10. The document makes little sense and on that basis I find it to be incompetent notwithstanding the fact that I have not been able to hear from the person who drafted it.  The appropriate course of action for me at this stage is to simply dismiss the review application.  Those who had participated in the proceedings today seem to suggest that this is not a difficult matter, although there was some discussion about an application for an order under s 11F of the Act.  The more appropriate course of action seems to me for me to transfer the matter to the Federal Magistrates Court on a date to be fixed where the matter can be dealt with by that Court in its more expeditious process.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 February 2011.

Associate: 

Date:  7 March 2011