Hathaway and Hathaway
[2012] FMCAfam 1447
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HATHAWAY & HATHAWAY | [2012] FMCAfam 1447 |
| FAMILY LAW – Review of Registrar's decision not to grant leave to serve short notice of an Application for parenting orders. |
| Family Law Act 1975 (Cth), s.67Q Federal Magistrates Act 1999 (Cth), s.104 Federal Magistrates Court Rules 2001 Rules 6.06, 6.07, 20.01, 20.02, 20.03 |
| Vibbard & Garcia [2012] FamCAFC 114 |
| Applicant: | MS HATHAWAY |
| Respondent: | MR HATHAWAY |
| File Number: | SYC 7692 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 December 2012 |
| Date of Last Submission: | 28 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 December 2012 |
REPRESENTATION
| Orders made in chambers |
ORDERS
The Application for Review of a decision of a Registrar filed on 28 December 2012 is listed for hearing in Court 3A at 10:00am on Thursday 10 January 2013.
The Applicant must serve sealed copies of the Application for Review and affidavit in support on the Respondent within seven (7) days.
IT IS NOTED that publication of this judgment under the pseudonym Hathaway & Hathaway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7692 of 2012
| MS HATHAWAY |
Applicant
And
| MR HATHAWAY |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision by a Registrar not to list an application urgently for an ex parte hearing of an Application for a Recovery Order under s.67Q of the Family Law Act 1975.
The Applicant filed an Application for various parenting orders, including a Recovery Order, in relation to the parties’ daughter, [X], born 12th April 2007, on 24th December 2012. A Registrar listed the Application as an urgent application before Kemp FM at 9:3 am on 5 February 2013, noting that this was the first available date.
The Applicant filed an Application in a Case and a supporting affidavit on 28th December, seeking an urgent recovery order, to be heard ex parte. The Applicant deposed in her affidavit that she was concerned for the wellbeing and welfare of her daughter, who had been unilaterally removed from school by her father, the Respondent. No details were provided in support of this claim. The affidavit does not contain any of the information required by Rule 5.03 for an urgent application.
A Registrar considered the application and noted that the matter had been previously considered by another Registrar. The second Registrar refused the application for an ex parte hearing, noting that the Applicant had not shown any imminent risk to the child.
The Applicant has now filed an Application for Review of the Registrar’s decision not to list the matter urgently.
The Law to be Applied
The Application for Review appears to be reviewable by the Court, as the decision sought to be reviewed is a review of the exercise of the power to shorten or abridge a time fixed by the Rules. Therefore, it is amenable to review under s.104 of the Federal Magistrates Act 1999 (see Vibbard & Garcia[1] at [26]).
[1] [2012] FamCAFC 114
The procedure for review of the exercise of a power by a Registrar under subsection 104(2) is contained in Division 20.2 of the Rules. Subrule 20.01(1) prescribes the time for an application for review of this nature as 7 days.
Under the provisions of Rule 20.02, an application for review of an exercise of power by a Registrar must be listed for hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.
The Applicant must serve a sealed copy of the Application on each other party to the proceeding within 7 days after it is filed (Subrule 20.02(3)).
Rule 20.03 provides that the review of the exercise of power by a Registrar must proceed as a hearing de novo. In other words, the Court will consider the question with a fresh mind and will not be concerned with the correctness or otherwise of the Registrar’s decision.
Conclusions
The Application for Review was filed on 28th December 2012. Thus, it must be listed for hearing within 14 days. There is a public holiday intervening and a demand on the limited judicial resources available over the Christmas/New Year period. However, the Application for Review will be listed for hearing in open court on Thursday 10th January 2013.
The Applicant must serve a sealed copy of her Application for Review and her supporting affidavit on the Respondent within 7 days, that is, by Friday 4th January 2013.
Rule 6.06 requires that the documents must be served by hand. The person serving the documents must not be the Applicant (Rule 6.07). Another person must serve the documents on the Respondent.
The person serving the documents on the Respondent must complete an affidavit of service.
The Applicant would be well advised to obtain legal representation on the day that the Review is heard by the Court.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 10 January 2013
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