Hearnes & Jellets
[2020] FCCA 2722
•5 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEARNES & JELLETS | [2020] FCCA 2722 |
| Catchwords: FAMILY LAW – Parenting – application for review of Registrar’s decision not to urgently list substantive application – where applicant did not seek abridgment of time – where applicant did not seek exemption from compliance with rule pertaining to service of application – where the allocation of the hearing date is an administrative act – Registrar’s decision is a non-reviewable decision – no jurisdiction to review – application for review dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.117 Federal Circuit Court of Australia Act 1999 (Cth), ss.102, 103, 104 Federal Circuit Court Rules 2001 (Cth) rr. 4.03, 4.05, 6.19, 20.00A, 20.02, 20.03, 22A.02 |
| Cases cited: Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCA 353 Myers & Myers [2011] FMCAfam 1104 Paramasiviam v Randwick City Council [2005] FCA 369 Quong & Rush [2017] FCCA 1765 Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 Vibbard & Garcia [2012] FamCAFC 114 Zeller & Whitby [2011] FMCAfam 431 |
| Applicant: | MR HEARNES |
| Respondent: | MS JELLETS |
| File Number: | MLC 8927 of 2020 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 4 September 2020 |
| Date of Last Submission: | 4 September 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swann |
| Solicitors for the Applicant: | Zervos Lawyers |
| Counsel for the Respondent: | Mr Eley |
| Solicitors for the Respondent: | Sayer Jones |
ORDERS
The Father’s Application for Review of the exercise of power by a Registrar, filed on 24 August 2020 be dismissed.
No Order as to costs.
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 under the pseudonym Hearnes & Jellets is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8927 of 2020
| MR HEARNES |
Applicant
And
| MS JELLETS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Applicant Father (Father) for review of a Registrar’s decision with respect to an abridgment of time to hear a parenting application. The application was listed on 4 September 2020. The primary application has been given a first return date in the Duty List on 24 November 2020. The Father seeks an abridgment of time and that his parenting application be given urgent consideration[1].
[1]Initiating Application, filed by the Father, 18.8.20, p.1.
Synopsis
I have determined that:
(a)The Father’s Application for Review of the exercise of power by a Registrar, filed on 24 August 2020 (Review Application) be dismissed; and
(b)There be no Order as to costs.
Background
The Father is aged 43 and was born in Country B. The Father has two children from a previous relationship: C, aged 10 (C) and D, aged 7 (D). The Father spends time with C and D six nights per fortnight and half of the school holidays, pursuant to Final Orders made by this Court on 4 April 2020[2].
[2] Affidavit of the Father, filed 17.8.20, at [5].
The Respondent Mother (Mother) is aged 31 and was born in Australia.
The parties first met in about 2013 and commenced cohabitation in about 2017[3]. There is one child of the relationship X, born in 2018 and now aged 2 and a half years (X). The parties separated in January 2020[4].
[3] Affidavit of the Father, filed 17.8.20, at [1]-[2].
[4] Affidavit of the Father, filed 17.8.20, at [2].
The Father has deposed that:[5]
(a)After separation he spent time with X every Wednesday from 3.00pm to 6.00 pm and every Sunday from 9.00 am to 6.00 pm, by agreement with the Mother.
(b)He wanted to spend more time with X so that his time coincided with the arrangements he has to spend time with C and D, however the Mother did not agree with his proposal.
[5] Affidavit of the Father, filed 17.8.20, at [6]-[7].
The Father has been paying child support for X in the assessed amount of $165 per week[6].
[6] Affidavit of the Father, filed 17.8.20, at [8].
The Father alleges that on 1 April 2020 the Mother rammed a car she was driving into a car owned by the Father and then assaulted the Father by punching him in the upper chest and face. The Mother then forced entry into the Father’s home by kicking in the door from the garage, which put a hole in the door and damaged plaster in a wall. The Mother removed from the Father’s house two of the Father’s watches and some car keys. The Father made a statement to the Victoria Police in relation to this incident[7]. As a result, the Victoria Police applied for and obtained an Intervention Order on behalf of the Father against the Mother[8]. The Father has deposed that he believes that the Victoria Police are currently preparing to lay charges against the Mother in relation to this incident[9].
[7] Notice of Risk, filed by the Father, pp 10-13.
[8] Affidavit of the Father, filed 17.8.20, at [23]; Notice of Risk filed by the Father, 18.8.20, pp. 7-8.
[9] Affidavit of the Father, filed 17.8.20, at [17].
In about April 2020 a dispute arose between the parties concerning some personal belongings which the Mother alleged the Father had in his possession. The parties made arrangements for a removalist to attend the Father’s home to collect the Mother’s personal belongings on 15 May 2020[10]. Between 12 May 2020 and 19 May 2020 the Mother and the Father exchanged email correspondence concerning the Mother’s disputed personal belongings. In one email on 12 May 2020, three on 13 May 2020 and one on 16 May 2020, 17 May 2020 and 19 May 2020, the Mother told the Father that she would not allow the Father to spend any further time with X until he returned all of her personal belongings that she believed that he retained[11].
[10] Affidavit of the Father, filed 17.8.20, at [9]-[10].
[11] Affidavit of the Father, filed 17.8.20, at [11] and Annexure “-1”.
On 3 June 2020 the Father received an email from the Mother’s solicitors informing him that the Mother would only permit X to spend time with the Father if he agreed to undertake a Men’s Behavioural Change Program and a Parenting After Separation Course. The Mother also claimed to have concerns about the Father’s mental health. The Mother’s solicitors advised the Father that his time with X would recommence in a “graduated and careful manner”, after he had completed the courses referred to[12]. The Mother’s solicitors also sought child support payments over and above the assessed amount of $165 per week and again raised issues pertaining to the dispute over the Mother’s personal belongings.
[12] Affidavit of the Father, filed 17.8.20, at [12].
On 10 June 2020 the Father instructed his solicitors to write to the Mother’s solicitors and:[13]
(a)Advise them that the Father had not spent time with X since 2 May 2020;
(b)Inform them of the email communications between the parties referred to in paragraph 9 and that it was the Father’s view that the Mother was preventing X spending time with the Father because of the ongoing dispute over the Mother’s personal belongings;
(c)Addressed issues in relation to the ongoing dispute concerning the Mother’s personal belongings; and
(d)Proposed a parenting plan for X.
[13] Affidavit of the Father, filed 17.8.20, at [13] and Annexure “-2”.
In about the middle of June 2020 the Father enrolled in a Parenting After Separation Course[14] which he has now completed[15].
[14] Affidavit of the Father, filed 17.8.20, at [15].
[15] Transcript P4: L5.
From the middle of June 2020 until 4 August 2020 the parties’ solicitors engaged in further correspondence seeking to resolve the parenting arrangements[16]. During this period the Mother permitted the Father to visit X once for a period of 35 minutes. This visit took place on 19 July 2020 in the street outside the Mother’s residence, where she is living with her current de facto partner Mr E. The Mother remained present during the Father’s time with X on 19 July 2020. The Mother has also permitted the Father to FaceTime X sporadically[17].
[16] Affidavit of the Father, filed 17.8.20, at [14] – [22].
[17] Affidavit of the Father, filed 17.8.20, at [19] and [24].
The Father deposed that in the first week of July 2020 the parties’ solicitors proposed that the parties attend a Family Dispute Resolution Practitioner, however agreement was not reached as the Mother declined to pay one-half of the fees[18].
[18] Affidavit of the Father, filed 17.8.20, at [18].
On 2 July 2020 the Mother obtained an Interim Intervention Order against the Father on her own application. A further directions hearing in the Intervention Order Proceeding in the Magistrates’ Court at Suburb F is scheduled on 24 March 2021[19].
[19] Affidavit of the Father, filed 17.8.20, at [23]; Notice of Risk filed by the Father, 18.8.20, pp.14-15; Initiating Application, filed 18.8.20, at Part F.
Procedural History
This proceeding was commenced by the Father by an Initiating Application dated 17 August 2020 and filed on 18 August 2020 (Initiating Application). The Initiating Application seeks interim and final parenting orders in relation to X. On the first page of the Initiating Application under the heading Risk of abuse, neglect, family violence/urgent, in response to the question “Are you seeking orders for urgent consideration?” the response is “Yes”. The interim orders sought in the Initiating Application do not include any procedural orders. The Father seeks interim orders for equal shared parental responsibility and that X live with the Mother. Interim orders are also sought for X to spend time with the Father during the day and then after a period of time orders for overnight visits.
On 17 August 2020 the Father’s solicitors also filed:
(a)An Affidavit of the Father, dated 17 August 2020 (Father’s Affidavit);
(b)A Section 60I Certificate from G Mediations, dated 13 August 2020 (Section 60I Certificate); and
(c)A Notice of Risk, dated 17 August 2020 (Father’s Notice of Risk).
At the time the Father’s Solicitors filed the Initiating Application and the documents referred to in the preceding paragraph, they also forwarded a covering letter to the Court, dated 17 August 2020 (Solicitors’ Letter). The Solicitors’ Letter referred to the documents which had been filed that day on behalf of the Father and then said:
We request that this matter be heard on an urgent basis as the Applicant has not spent time with his young daughter, X since 2 May 2020. In addition to this, we refer to the filed s 60I Certificate dated 13 August 2020 which notes that the Respondent refused to participate in family dispute resolution.
Accordingly the Applicant is desperate to spend time with his young daughter and implores the Court to hear the matter on an urgent basis.
(Emphasis added)
The Registry listed the first return date of the Initiating Application to be in the Duty List before myself on 24 November 2020.
The Initiating Application and supporting documents were served on the Mother’s solicitors on 18 August 2020[20].
[20] Transcript P3:L27-46.
The Review Application was filed on 24 August 2020 and it was listed before me on 4 September 2020. The Review Application sought an Order:…“[t]hat the Applicant’s request for an urgent listing/abridgment of time be granted”. The hearing of the Review Application took place on 4 September 2020. Both parties were represented by Counsel. Prior to the hearing the Mother did not file any material. Counsel for the Mother relied on a written Outline of Submission (Respondent’s Outline of Submissions) that was emailed to my Associates in Judge’s Chambers on the morning of the hearing.
Therefore the documents before the Court at the hearing of the Review Application were:
(a)The documents filed by the Father which were before the Registrar being: The Initiating Application, the Father’s Affidavit, the Section 60I Certificate, the Father’s Notice of Risk and the Solicitors’ Letter;
(b)The Review Application; and
(c)The Respondent’s Outline of Submissions.
At the conclusion of the hearing of submissions by Counsel for each of the parties Judgment was reserved.
Relevant Legal Principles
Powers Exercised by Registrars
The Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act) provides for the exercise by Registrars of certain powers of the Federal Circuit Court either specifically pursuant to s.102(2) or pursuant to s.103(1) by delegation in the Federal Circuit Court Rules 2001 (Cth) (Rules). The delegation to Registrars pursuant to s.103(1) of the Federal Circuit Court Act of the powers specifically conferred in s.102(2) is then provided for in r.20.00A of the Rules.
Section 102(2) of the Federal Circuit Court Act relevantly provides as follows:
102 Registrars’ Powers
[…]
(2) The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:
[…]
(h)the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court;
The Right to Seek Review
The right to apply to the Court to review the exercise of a power of a Registrar is set out in s.104 of the Federal Circuit Court Act as follows:
104 Registrars – additional provisions
[…]
Review of the exercise of Registrars’ powers
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Circuit Court of Australia for review of that exercise of power.
(3) The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
[…]
Procedure in Determining an Application for Review
The procedure for reviewing the exercise of power by a Registrar is provided for in r.20.03 of the Rules as follows:
20.03 The review of an exercise of power by a Registrar:
(a)must proceed by way of a hearing de novo; and
(b)may receive as evidence any affidavit or exhibit tendered before the Registrar; and
(c)may with leave receive further evidence; and
(d)may receive as evidence:
(i)any transcript of the proceedings before the Registrar; or
(ii)if there is no transcript an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding.
Time for Service
Rule 6.19 of the Rules provides as follows in relation to the time for service of applications:
6.19 Time for service of application
Unless the Court orders otherwise, an application and any document filed with it may not be served:
(a)less than 3 days before the day fixed for the hearing of an application in a case; or
(b)less than 7 days before the day fixed for the hearing of any other application.
Rule 4.03(3) of the Rules provides as follows in relation to the time for serving a response:
4.03 Response to application
[…]
(3)A response must be filed and served within 28 days of service of the application to which it relates.
The rule notes that a response to an application for a parenting order, or a response seeking a parenting order, must be accompanied by a notice of risk pursuant to r.22A.02(1).
Rule 4.05 then provides as follows in relation to which documents are to be filed with any response:
4.05 Affidavit to be filed with application or response.
(1)A person filing an application or response, whether seeking final, interim or procedural orders, must also file an affidavit stating the facts relied on.
[…]
An Administrative or Reviewable Decision?
In Vibbard & Garcia [2012] FamCAFC 114 (Vibbard & Garcia), the Full Court of the Family Court referred with approval to the decision of Halligan FM (as his Honour then was) in Myers & Myers [2011] FMCAfam 1104 (Myers).In Myers Halligan FM drew a distinction between a decision of a Registrar which was an administrative decision and not therefore reviewable, and a decision which sought an exemption from compliance with a provision of the Federal Magistrates Court Rules 2008 (Cth), and therefore reviewable.
In Vibbard & Garcia, the Full Court first referred to the relevant provisions of the then Federal Magistrates Act 1999 (Cth) (Federal Magistrates Act) and the Federal Magistrates Court Rules 2008 (Cth), being: ss.102(2), 103(1) and 104(2) and (3) of the Federal Magistrates Act[21]; and r. 20.00A(1) of the Federal Magistrates Court Rules 2008 (Cth)[22].
[21] Now ss. 102(2), 103(1) and 104(2) and (3) of the Federal Circuit Court Act.
[22] Now r. 20.00A(1) of the Rules.
The Full Court in Vibbard & Garcia then referred to the decision of Altobelli FM (as his Honour then was) in Zeller & Whitby [2011] FMCAfam 431 (Zeller & Whitby). In that case a Registrar had refused an application for a parenting matter to be given an earlier date than previously allocated. Altobelli FM dismissed the application to review the decision by the Registrar not to abridge time. Altobelli FM held that the powers to review in ss.104(2) and (3) of the Federal Magistrates Act were limited to an exercise of a power under ss.102(2) and 103(1) and that the exercise of the power to abridge time in the case before him, was not a power contained in ss.102(2) or 103(1) of the Federal Magistrates Act. The Registrar’s decision was therefore not reviewable under s.104 of the Federal Magistrates Act[23]. Altobelli FM further explained that the allocation of a hearing date was an administrative act and therefore the decision not to abridge time was not a reviewable decision.
[23] Zeller & Whitby, at [8]-[9].
Altobelli FM considered that support for his conclusion was derived from the decision of Sackville J in Paramasiviam v Randwick City Council [2005] FCA 369 and in the decisions of the Full Court of the Federal Court in Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCA 353 and Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47[24]. Altobelli FM also referred to the decision of Burchardt FM (as his Honour then was) in Lynch v Dunstan [2011] FMCAfam 389. In that case Burchardt FM had also concluded that a decision by a Registrar not to abridge time for a hearing, was an administrative decision and therefore not reviewable pursuant to s.104 of Federal Magistrates Act[25].
[24] Zeller & Whitby, at [12]-[14].
[25] Zeller & Whitby, at [9]-[10].
In Myers Halligan FM distinguished Zeller & Whitby, and determined that a Registrar’s decision to refuse to list an application in relation to child support on an urgent basis was a reviewable decision pursuant to s.104(2) of Federal Magistrates Act[26].
[26] Myers, at [52]. See also Vibbard & Garcia, at [24].
In Vibbard & Garcia the Full Court considered the reasoning of Halligan FM in Myers to be “highly persuasive” and adopted his Honour’s reasoning in the determination of the appeal[27]. The Full Court of the Family Court said in Vibbard & Garcia:[28]
[27] Vibbard & Garcia, at [27].
[28] Vibbard & Garcia, at [20]-[23].
20After referring to the provisions in the Rules concerning the time for service of various types of applications and for the filing of responses to applications, his Honour identified the following three “scenarios” in which a Registrar can deal with the issue of allocating a “court date”:
26 …
a)Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;
b)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and
c)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.
21His Honour observed that the first two of these scenarios do not involve the exercise of any power under the Rules or any power of the Court, but rather involve “purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court”. Then in more specific terms his Honour said:
28 Therefore, in my view it is clear that decisions about allocation of a Court date for an application that do not involve consideration of a shortening to a time fixed by the Rules are not amenable to review under s.104(2).
22However, in relation to the last of the three scenarios which he had identified, his Honour observed that an application to alter a time prescribed by the Rules was in his view “quite different”, and having further observed that in “short notice” or “abridgment of time applications” the relevant time to consider is the prescribed time for service of the application, he expressed the view that:
29 ... shortening or abridging a time fixed by the Rules falls within the power described in s.102(2) as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”, which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1).
23His Honour further explained his reasoning and his conclusion, saying:
30If a party seeks urgent listing on a date that would not permit compliance with the prescribed time for service of the substantive application and seeks “short notice” or an abridgment of that time, in my view the applicant is seeking to be exempted from compliance with the normal time for service as fixed by the Rules, either unconditionally or on terms. A direction that service of an application be effected by a specified date or within a specified time, being less than the prescribed period before the Court date, is an exemption from compliance with the Rules on terms.
31Thus, unfettered by prior authority, I am satisfied that a decision of an approved Registrar to grant or refuse a short notice or abridgment of time application is reviewable under s.104(2) if the applicant seeks a court date within the prescribed time for service of the substantive application.
(Emphasis added)
Consideration
The Court must first determine whether the exercise of the Registrar’s power in this case is reviewable pursuant to s.104(2) of the Federal Circuit Court Act. The first question for the Court to consider is what decision was the Father asking the Registrar (now the Court as this is a hearing de novo[29]) to make?
[29] R.20.03(a) Rules.
The Father sought the following:
(a)In the Initiating Application it was requested that the orders be given “urgent consideration”. As discussed in paragraph 16, this was sought by answering “yes” to a question on the first page of the Initiating Application under the heading Risk of abuse, neglect, family violence/urgent, in response to the question “Are you seeking orders for urgent consideration?”. The Initiating Application did not otherwise seek any interim procedural orders.
(b)The Solicitors’ Letter stated, as set out in paragraph 18:
[…]
Accordingly the Applicant is desperate to spend time with his young daughter and implores the Court to hear the matter on an urgent basis.
(c)The Review Application stated, as set out in paragraph 21:
That the Applicant’s request for an urgent listing/abridgment of time be granted.
(d)At the hearing of the Review Application, Counsel for the Father sought an abridgment of time and that the Father’s parenting application be heard as soon as the Mother had filed her responding affidavit material[30]. Counsel submitted that:
[…][W]e’re not seeking an abridgement of time to a matter of days, but certainly one or two weeks[31].
[…] I would suggest that there is no prejudice to the mother in this matter proceeding earlier than 24 November, provided she has appropriate time in which to file her responding material[32].
Clearly the application was sought to be filed with time abridged and it was a matter for the Registrar’s discretion, taking into account the facts of the case and allocation of the Court’s resources as to what the length of the abridgment was to be. It was a matter for the Registrar’s discretion, and it was left to that discretion[33].
In terms of whether the case is truly urgent, it’s not so urgent that it needs to be heard within 24 or 48 hours[34].
[30] Transcript P2:L45-P3:L2.
[31] Transcript P5:L25-26.
[32] Transcript P6:L2-4,
[33] Transcript P9:L43-46.
[34] Transcript P10:1-2.
The Father therefore made no specific request to the Registrar or the Court for an abridgment of time in r.6.19 of the Rules, for the hearing of an interim application on or before 7 days within filing of the Initiating Application. Further, the Father did not seek an abridgment of time for rr.4.03(3), 4.05(1) and 22A.02(1) for the Mother to file her Response, supporting affidavit and notice of risk.
In Zeller & Whitby Altobelli FM said:[35]
6 Regulation 20A of the Federal Magistrates Court Rules 2001 specifies the powers delegated. It is significant to note that the delegated powers do not include the power to abridge time so that a matter can be dealt with earlier than the date allocated in the registry at the time of filing. The delegated powers are indeed broad. Most of the powers facilitate the orderly and efficient case management of a matter after the proceedings have been commenced. Some of the powers deal with the proceedings at a very early stage, e.g. dispensing with service and ordering substituted service. What all of the powers seem to have in common is that proceedings have actually been commenced, i.e. an application has been filed and a Court date allocated. None of the powers seem to deal with any controversy about when the first Court date should be. Indeed one way of characterising the powers delegated to Registrars in Regulation 20A is that they facilitate the determination of issues between the parties to the litigation. Indeed perhaps one reason why the power to abridge time is not included here is because this is an issue between the applicant and the Court, and not an issue between the parties.
(Emphasis added)
[35] Zeller & Whitby, at [6].
In Myers Halligan FM said:[36]
23 The Rules do not require the Registrar or any other member of the Court’s staff to allocate a hearing date or first Court date to an application. The Rules presuppose that there will be a first Court date or hearing date for an application (see Division 10 and the approved forms of, for example, Initiating Application (Family Law) and Application in a Case, and rr.6.19 and 25A.07(2)).
[36] Myers, at [23].
In this case, unlike the case of Myers where the applicant was unrepresented, the Father was represented by both solicitors and Counsel.
I determine that the Father’s application for an urgent hearing has been presented to the Court as either of the following “scenarios” described by Halligan FM in Myers as follows:
(a)Where the Registry proposed to fix a Court date in the normal course and the Father proposed to fix a different date, but one that would still allow for compliance with the Rules fixing limits referable to the application; or
(b)Where the Father sought a first Court date that would not allow time for compliance with the Rules fixing time limits referable to the application, but did not seek any variation of the time limits fixed by the Rules.
I therefore determine that the Father’s application to the Court for an “urgent” hearing falls within either of the first or second “scenarios” referred to by Halligan FM in Myers[37] and approved by the Full Court in Vibbard & Garcia[38]. In either case these “scenarios” do not involve the exercise of any power under the Rules or any power of the Court but instead involves “purely administrative tasks performed by staff in the Court registry in support of the functioning of the Court”[39].
[37] Myers, at [26(a)] and [26(b)].
[38] Vibbard & Garcia, at [20]-[27].
[39] Vibbard & Garcia, at [21], citing Harman FM in Myers, at [28].
The Court expressly notes that there is no evidence before it that the Father’s application falls within the third “scenario” referred to by the Full Court of the Family Court in Vibbard & Garcia[40]. That is, the Father did not seek a first Court date that would not allow time for compliance with the Rules and seek that the Rules be shortened or dispensed with.
[40] Vibbard & Garcia, at [20].
I therefore determine that the exercise of power in this case, ie. not to abridge time, is not a power under s.102(2) or s.103(1) and is therefore not reviewable under s.104(2) of the Federal Circuit Court Act. The Court therefore does not have jurisdiction to hear the Review Application and it follows that the Review Application must be dismissed.
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.
In Vibbard & Garcia the Full Court of the Family Court approved the list of factors set out by Halligan FM in Myers for consideration by a Registrar, or the Court on Review, where abridgment of service and therefore time for hearing is sought[41]. In Myers Halligan FM said:[42]
[41] Vibbard & Garcia, at [27] approving Myers, at [87].
[42] Myers, at [87].
87 It is not for me, or a Registrar considering an application to abridge the time for service and for urgent listing, to pre-judge applicant’s substantive application. In my view the substantive application should be listed urgently if the Registrar (or the Court on review) is satisfied that –
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.
(Emphasis in original)
In considering whether the Father has demonstrated a reasonable basis for arguing for the orders sought, the Court has concluded, by reason of the matters set out under the heading ‘Background’ in this Judgment, that the Father has “demonstrated a reasonable basis for arguing for the substantive orders sought”[43]. I expressly note that this is a separate consideration to that of pre-judging the Father’s substantive application[44].
[43] Myers, at [87(a)].
[44] Myers, at [87].
I determine however that the Father has not demonstrated that, absent an urgent listing, he will be prejudiced in relation to the substantial relief sought “other than in ways common to other matters awaiting the Court’s attention in the normal course”[45]. I have come to this conclusion for the following reasons.
[45] Myers, at [87(b)].
The Father does not depose to any risk or safety concerns in relation to X in the care of the Mother that would properly give rise to urgency. The Father does not seek to interfere with the status quo in that the Mother is X’s primary caregiver. The Father has articulated concerns in relation to the Mother’s current de facto partner Mr E and alleges that he is the subject of criminal investigations and/or charges[46]. Notwithstanding the Father’s concerns in relation to Mr E the Father deposed:[47]
I do not currently allege that Mr E poses a risk of harm to X, but I as her parent, I would like to be kept informed about the environment she is living in. If she is living in the same house with a person who has a criminal record, I am concerned about the nature of the charges laid against him.
[46] Father’s Affidavit, at [19].
[47] Father’s Affidavit, at [19].
The Father relies upon the urgency of the matter being that he has not spent any substantive time with X since 2 May 2020, with the exception of a period of 35 minutes on 19 July 2020[48]. Counsel for the Father submitted that there was prejudice to the Father as he was not seeing X, and given her age, this would cause significant damage to their relationship. Counsel submitted that it would be a period of 7 months between May and November, when the first return date of the Initiating Application is listed and that this would be highly prejudicial to the Father’s position[49]. I note however that that the period of time between the Father filing the Initiating Application and the first return date in the Duty List on 24 November 2020 will be a period of three months.
[48] Father’s Affidavit, at [10].
[49] Transcript: P5:L26-39.
I also note that Father deposed to having FaceTime contact with X on a “sporadic basis” since 2 May 2020[50].
[50] Father’s Affidavit, at [24].
Counsel for the Mother submitted that the question of spending time and communicating with children is not an issue requiring urgent consideration of the Court and should be dealt with in the course of Court’s usual listing process. It was further submitted that if a matter such as the present case was considered urgent, then the Court would be inundated with urgent applications[51]. In my view there is substance to these submissions in this case. In arriving at this conclusion I have considered the following comments of Halligan FM in Myers:[52]
The Court must be cognisant not only of the case in which urgent listing is sought, but also of the many other cases a busy Court such as this must attempt to deal with in as timely a fashion as is possible with available judicial resources, and of the impact on its ability to do so by interposing urgent matters over the top of matters that have already waited some time for attention.
[51] Respondent’s Outline of Submission, at [9].
[52] Myers, at [84].
Those comments remain relevant to the operation of this Court in more recent times. This is demonstrated by the concluding remarks of Judge Terry in Quong & Rush [2017] FCCA 1765 (Quong & Rush) where her Honour noted that the Court has limited resources and must prioritise truly urgent cases. Her Honour said:[53]
38 The Federal Circuit Court, and the Newcastle Registry of that Court in particular has to deal with a veritable deluge of matters involving children who are at risk of harm: babies who have been taken from their primary carer, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.
39The Newcastle Registry has to prioritise these cases and it does so notwithstanding that it is struggling with the absence of one of its three judges. Regrettably resources do not allow a case in which there are no risk-of-harm issues to be prioritised over other cases competing for judicial time.
[53] Quong & Rush [2017] FCCA 1765, at [38]-[39].
This proceeding does not fall into an urgent category of case as described by Judge Terry in Quong & Rush and should be dealt with in the Court’s usual listing processes.
I note further that pressure on the Court for hearings has increased during the COVID-19 pandemic. The Court has established the National COVID-19 List in accordance with Joint Practice Direction 3 of 2020 – The COVID-19 List (Practice Direction) for matters which are considered to be urgent within criteria of the Practice Direction. This proceeding does not satisfy the requirements of urgency or the other requirements of the Practice Direction.
This proceeding was filed at the Melbourne Registry of the Court at a time when the State of Victoria was in a declared State of Emergency. It was also filed at a time when Metropolitan Melbourne had been subject to Stage 4 COVID-19 Restrictions from 6.00 pm on 2 August 2020. Both the Stage 3 and Stage 4 COVID-19 Restrictions applicable in the State of Victoria and Metropolitan Melbourne have added significant additional pressure on the Court’s resources by way of hearings having to be conducted remotely by video conference. These restrictions are likely to continue to place pressure of the Court’s resources and in particular the Melbourne Registry of the Court for the foreseeable future.
I also determine that the Father has not demonstrated that there has been “no unreasonable or unexplained delay”[54] in approaching the Court. The Father last spent any substantive time with X on 2 May 2020 and yet it was some three and a half months before the Initiating Application was filed on 18 August 2020. The parties entered into correspondence as set out in paragraphs 10 to 14. This was at the election of the Father. It is not reasonable for the Father to now apply to the Court and claim that his matter is urgent and that he should obtain priority over other matters which have been filed earlier and have been waiting some time for a hearing.
[54] Myers, at [87(c)].
As to “whether a judicial officer is available to hear the substantive application”[55], in the interests of deterrence, the Court must clearly discourage review applications of this nature being brought except in truly urgent circumstances. The risk is that such applications are brought on any occasion on which a party disagrees with a decision of a Registrar, in particular in relation to the listing of matters. The review process is not to be used as a means to skip the que and to get on faster. As I said to Counsel at the hearing of the Review Application, I have recently had a number of review applications come before me seeking an abridgment of time. In my view each of these cases has been an attempt by the applicant’s solicitors to ‘skip the que and to get on faster’, in circumstances where the proceeding did not satisfy the criteria for the COVID-19 List and was not urgent within the usual criteria of listing urgent cases. Regrettably this proceeding is but the latest of such cases to come before me during the COVID-19 pandemic.
[55] Myers, at [87(d)].
The Court’s Registrars play a significant role in the proper and efficient functioning of the Court. The Court should not interfere in the listing decision of a Registrar unless it is plainly inappropriate.
I otherwise refer and repeat to the matters referred to in paragraphs 54 to 58 in relation to this consideration.
Therefore if the Court does have jurisdiction to hear the Review Application, for the above reasons I determine that this proceeding should not be urgently listed and I dismiss the Review Application.
Costs
The Mother seeks an order that the Father pay her costs thrown away fixed in the sum of $1,320[56].
[56] Respondent’s Outline of Submissions, at [15].
Section 117(1) of the Family Law Act 1975 (Cth) (Act) provides:
117 Costs
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC each party to proceedings under this Act shall bear his or her own costs.
Section 117(2) of the Act provides:
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) of the Act provides:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Counsel for the Father opposed the Mother’s application for costs on the basis that it was not necessary for the Mother to respond to the Review Application. Counsel submitted that it was for the Father to satisfy the Court that an abridgment was appropriate and that the Mother’s opposition to the application was obstructive, in circumstances where the Father agreed to the Mother being given an appropriate amount of time to file responding material[57].
[57] Transcript P6:L46-P7:L5.
The Father was required to serve a sealed copy of the Review Application on the Mother within 7 days of it being filed: (3) Rules.
As discussed in paragraph40, in Zeller & Whitby Altobelli FM said the power to abridge time was an issue between the applicant and the Court and not an issue between the parties[58]. In Quong & Rush Judge Terry said:[59]
23. Respondents are not consulted about listing decisions when an application is filed. If they had wanted an early listing themselves they would be the applicant and if they have a complaint about an early listing they can apply for an adjournment on the first return date.
[58] Zeller & Whitby, at [6].
[59] Quong & Rush, at [23].
I agree with these opinions expressed by Altobelli FM in Zeller & Whitby and Judge Terry in Quong & Rush. I also agree with the submission made by Counsel for the Father that it was for the Father to satisfy the Court that an abridgment was appropriate. In my opinion it was not necessary for the Mother to appear at the hearing of the Review Application and further to actively oppose the application. Had the Court acceded to the abridgment application, an application for an adjournment for an appropriate period of time to prepare responding material could have been made at the first return date. I note that the Mother’s solicitors have been acting for the Mother since at least 3 June 2020 and should have detailed instructions as to the Mother’s circumstances.
In my opinion, having regard to all the circumstances and in particular to s.117(2A)(c) and s.117(2A)(g) of the Act, the usual position under s.117(1) of the Act should apply and each party shall bear their own costs.
I therefore do not propose to make the order for costs sought by the Mother.
Conclusion
The Court does not have jurisdiction to hear the Review Application under s.104(2) of the Federal Circuit Court Act. Alternatively, if the Court does have jurisdiction to hear the Review Application, this proceeding is not urgent and should not be given an urgent listing.
I can understand why it is disappointing for the Father to have to wait until 24 November 2020 for a mention of this matter in the Duty List. However I am not satisfied that this proceeding should be listed any earlier than the date given to it by the Registrar.
Orders will be made dismissing the Review Application and there will be no order as to costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Associate:
Date: 5 October 2020
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