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 12^th April 2007, on 24^th 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 28^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hathaway and Hathaway

Details

AGLC: Hathaway and Hathaway [2012] FMCAfam 1447
Case: [2012] FMCAfam 1447
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Hathaway v Hathaway [2012] FMCAfam 1447 involved a dispute between Ms Hathaway and Mr Hathaway over parenting arrangements for their daughter, [X]. Ms Hathaway applied for various parenting orders, including a Recovery Order, in relation to [X], born 12th April 2007. The case was initially listed before Kemp FM for 5 February 2013. However, Ms Hathaway sought an urgent ex parte hearing for a Recovery Order, which was denied by a Registrar. Ms Hathaway subsequently filed an Application for Review of the Registrar's decision, seeking an urgent hearing. The court was required to decide whether the Registrar's decision not to list the matter urgently was reviewable and, if so, whether the Application for Review should be listed for hearing within the prescribed timeframe.

The court held that the Application for Review was indeed reviewable under s.104 of the Federal Magistrates Act 1999, as it involved the exercise of a power to shorten or abridge a time fixed by the Rules. The procedure for review of the Registrar's exercise of power is contained in Division 20.2 of the Federal Magistrates Court Rules 2001, which provides that the Application for Review must be listed for hearing within 14 days of filing. The court noted that the Application for Review was filed on 28th December 2012, and although there was a public holiday and demand on judicial resources over the Christmas/New Year period, the Application for Review would be listed for hearing on 10th January 2013. The court also ordered that Ms Hathaway must serve a sealed copy of her Application for Review and her supporting affidavit on Mr Hathaway within 7 days, that is, by 4th January 2013, and that the documents must be served by hand by a person who is not the Applicant.

The court ordered that 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).

Orders