Hess & Forsyth
[2024] FedCFamC2F 251
•28 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hess & Forsyth [2024] FedCFamC2F 251
File number(s): ROC 1175 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 28 February 2024 Catchwords: FAMILY LAW – REVIEW – procedural – Applicant Father seeks an injunction to prevent the Mother from relocating to an area some 5 hours away – the Deputy Registrar has moved the first return date to May to enable the parties to attend mediation and the Father wants the date brought forward to March – whether that decision is reviewable – whether the Father should be able to bring his application without first receiving a s60I certificate. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Myers & Myers [2011] FMCAfam 1104 Division: Division 2 Family Law Number of paragraphs: 31 Date of last submission/s: 22 February 2024 Date of hearing: 19 February 2024 Place: Launceston via Ms Teams Counsel for the Applicant: Ms Phelan Solicitor for the Applicant: Phelan Family Law Counsel for the Respondent: Mr Collins Solicitor for the Respondent: South Geldard Lawyers ORDERS
ROC 1175 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HESS
Applicant
AND: MS FORSYTH
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
28 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Review filed 13 February 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
This is an Application for Review filed by Mr Hess (‘the Father’). The Father seeks to Review Orders of the Deputy Registrar of 9 February 2024 which in essence:
(a)Referred the parties back to mediation because the Father filed his application before obtaining a s60I certificate; and
(b)Allocated 24 May 2024 as a mention date rather than its original listing date of 21 March 2024.
The Review is opposed by Ms Forsyth (‘the Mother’).
Background
On 22 November 2022, the parties entered final consent orders (‘the Orders’) concerning their child X born 2021. The Orders in essence provide:
(a)The parties have equal shared parental responsibility;
(b)X lives primarily with the Mother;
(c)The Father spends time with X each week, building overtime through various stages until eventually it increases to 6 nights per fortnight;
(d)The Father spends time with X on special days including Christmas Day, Easter, and Birthdays;
(e)That changeovers occur with the Mother delivering X at the start of the Father’s time and the Father returning her at the conclusion of his time;
(f)That the parties use alternative dispute resolution before coming back to the court.
On 8 February 2024, the Father filed an Initiating Application seeking interim and final Orders that X live with him if the Mother moves to Town B, and interim orders to restrain the Mother from moving from City C. He also sought that ‘this matter be allocated an urgent hearing date and that the time for service be abridged’. His application was given a return date of 21 March 2024.
The Father also filed a ‘Genuine Steps Certificate’ where he confirmed that he had not taken genuine steps to resolve the dispute before his application was filed. He stated that the matter was urgent and that he would be unduly prejudiced if he was required to complete pre-action procedures.
In his accompanying affidavit, the Father stated that the Mother advised him on 24 January 2024 that she intended to relocate to Town B in March because of her employment. She claimed that the move would not interfere with his ordered time with X and if she did not leave, she would ‘lose her job’.[1] The Father told her that he did not consent to her moving, but the Mother said that she did not require his consent. She hoped, however, that there would be a negotiation as to the time arrangements that would result in him having more time.[2] He stated that the Mother refused to provide an undertaking not to relocate with X. He stated:
52.I am seeking an urgent date for an interim hearing, as [Ms Forsyth] has said that she is leaving "in March" and she has refused to sign an Undertaking not to move [X] from [City C].
53.[Ms Forsyth] has a solicitor representing her in this matter. [Ms Forsyth] is aware that I do not consent to her moving [X] from [City C]. I am seeking that the time for service of this Application be shortened and an urgent hearing date allocated before [Ms Forsyth] moves [X] away.
[1] Affidavit of Mr Hess filed 8 February 2024 [44] (‘Father’s Affidavit’).
[2] Ibid [41]-[59].
The Father stated that he believes that his time with X — particularly incidental time at day care and during her extracurricular activities — will reduce if the Mother moves, as will X’s time with other people important to her, including his son, D. He also worries about the travelling time that will eventuate:
68.[Town B] is located [over 400] kms from [City C]. It is at least a 5hr drive each way between [City C] and [Town B]. [Ms Forsyth’s] proposal would mean 10 hours of travel time each fortnight for [X]. The travel to [Town B] from [City C] is dangerous as the road is occupied mostly by heavy trucks […] and there is always the risk of kangaroos jumping onto the road as the road is through remote areas.
69.I am extremely concerned about the impact of the proposal for regular, extensive travel on [X]. Apart from the safety concerns I have, I am also concerned that the proposed travel could impact on [X's] relationship with me as she is likely to be tired from the travel and also the time will be very short with extensive travel either side of it.
70.If [X] moves to [Town B], it impacts on the special days and other time that [X] spends with me and also with her half-brother.
71.The proposal by [Ms Forsyth] would see [X] in the car for the equivalent of over 260 hours each year, just to facilitate the "stage 2" time. This doesn't include any additional travel to facilitate special days or appointments.[3]
[3] Ibid.
On 9 February 2024, the Deputy Registrar ordered:
1.The First Return before Judicial Registrar […] on 21 March 2024 is vacated.
2.Pursuant to section 13C of the Family Law Act 1975 (Cth) (“the Act”), the parties must attend Family Dispute Resolution as soon as practicable to attempt to resolve their disputes with each other relating to the care of the children, [X] born […] 2021.[4]
[4] Order of Deputy Registrar in Hess & Forsyth (Federal Circuit and Family Court of Australia, ROC1175/2022, 9 February 2024) (‘Court Orders’).
The matter was given a chambers return date of 24 May 2024. The Deputy Registrar also made the following notations:
A.Pursuant to section 60I(7) of the Act, and subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8).
B.The Registrar is not satisfied that a ground for an exemption pursuant to section 60I(9) of the Act has been established.
C.A certificate issued by a Family Dispute Resolution Practitioner pursuant to section 60I(8) of the Act is to be submitted by the applicant prior to the Chambers Hearing.
D.In the event the certificate issued by a Family Dispute Resolution Practitioner is issued prior to the next Chambers Hearing, the applicant must send the certificate to the Court at […@...] requesting that the Initiating Application be referred to the Registrar for listing.[5]
[5] Ibid.
On 13 February 2024, the Father filed a Review seeking the following orders:
1. That the Application for Interim Orders be granted exemption under section 60I of the Family Law Act 1975 on the ground of urgency and that all time for service be abridged.
2. That the matter be listed for urgent interim hearing in the Federal Circuit and Family Court of Australia in [City C].[6]
[6] Application for Review of Mr Hess filed 13 February 2024.
Submissions
Both parties filed written submissions. The Father argued that the matter should be relisted before a Senior Judicial Registrar on 21 March 2024 so that his interim application can be determined. He argued that he will be prejudiced if that does not occur:
9. The Mother has stated that she is moving “in March”, which is a matter of weeks away. The Mother is intending to relocate the child to a town five hours away by car from the parties’ current residences. The Mother has refused to provide an undertaking not to relocate with the child and again confirmed this to the Court on 19 February 2024.
10. The Mother’s proposed relocation has far-reaching consequences for the young child, including:
a. Separation from her half-brother whom she sees 12 out of 14 days each fortnight;
b. Separation from her extended family, with whom she lives.
c. The Mother is proposing to change the time the child spends with her Father.
d. There would be no opportunity for the incidental time that is occurring at Daycare and the time when the Mother is unable to care for the child as set out in Order 19 (which has been occurring).
e. Some Orders will not be able to be carried out - i.e. Orders 10, 19 and Orders relating to special days.
f. A minimum of 10 hours of travel imposed on the child over a weekend, twice each month.
g. Joint decision making for major long-term issues such as the child’s daycare and health providers.
11. If the matter is delayed for the parties to attend FDR, then a First Return date is likely to be mid-year, noting that the next chamber date is 10 May 2024. By May 2024, the child may have already been relocated to [Town B] and the nature of the Father’s Application will change from an injunction to seeking the return of the child. More importantly, delay is likely to mean extensive changes imposed onto the child, changes not contemplated by the parties when the Orders were made just over 1 year ago, including the extensive travel now proposed.
12. The Mother seems to take a narrow interpretation of the Orders, without consideration of the impact on the child of the relocation, the intention of the build-up time arrangement and the equal shared parental responsibility of the parents.
13. If this Application proceeds, it is likely to avoid further litigation for the parties, but importantly, save unnecessary disruption to this young child’s life, pending an agreement being reached or a decision of the Court, in relation to the substantive issue of relocation.
14. The Mother has engaged the same lawyers who acted for her when the Final Parenting Orders were made on 2 February 2024. The Mother has been served with all material.[7]
[7] Written Submissions of Mr Hess filed 20 February 2024.
He also claimed that he and the Mother could, hopefully, attend an alternative dispute resolution conference prior to the March date.
The Mother submitted that the Review should be dismissed:
7. The Court must be cognisant that Registrars ‘are best placed to allocate listings having regard to the urgency considerations and the overall business of the Court.
8. Notwithstanding that the substantive aspects of the Applicant’s case should not be made on the review of the Registrar’s decision: -
a. There are no allegations of risk of harm to the child made in the father’s application.
b. The Mother is yet to file Response material against issues (including travel time) raised in the Father’s Application. Pursuant to the Rules, this material was anticipated to be filed by 7 March (prior to the allocated date of 21 March 2024). The Court will be assisted from receiving evidence from both parties.
c. Any time the child spends with persons other than the Father is either not contained in the order or is by agreement.
d. The Mother will continue to comply with the Consent Orders.
e. The Mother sought to increase the time the Father would spend with the child.
f. Order 19 sets out a “first care option”. The Mother offered this to the Father when the site travel to [Town B], for her employment, was required.
9. The Chambers hearing date of 10 May 2024 allows for mediation to occur (with ancillary orders made in circumstances if the mediation occurred prior or is not considered appropriate).
10. Due to original listing date being vacated, 21 March 2024 the availability of a judicial officer would need to be sought.
11. The Mother seeks that the Application for Review be dismissed.[8]
The Law
[8] Written Submissions of Ms Forsyth filed 22 February 2024.
Allocation of a return or hearing date
Pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’), an Applicant may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days after the decision of the Registrar is made. Here, the Review Application was filed 1 day after the Registrar’s Decision.
Rule 14.07 of the Rules provides:
(1) A Court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the Court rehears the whole matter and does not simply review the decision of the original Court.
(2) The Court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing; or
(b) any further affidavit or exhibit; or
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
Registrars of this Court have delegated powers pursuant to s254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’). Examples of those powers are set out at s254(2)(a) to (s) of the Act. The right to apply to the Court to review the exercise of a power of a Registrar is set out in s256 of the Act.
In Myers & Myers [2011] FMCAfam 1104 at [87], Halligan FM (as he then was), considered three scenarios in which a Registrar can deal with the issue of allocating a “court date” being:
(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.[9]
[9] Myers & Myers [2011] FMCAfam 1104 (‘Myers & Myers’).
His Honour observed that the first two of these scenarios does 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.” These scenarios are not amenable to review. Where, however, an applicant seeks a different first Court date and seeks that the normal time limits fixed by the Rules be shortened or dispensed with, the Court has jurisdiction to review the Registrar's power.
Halligan FM in Myers & Myers set out some matters to consider when determining a Review of a decision relating to the allocation of a listing date setting:
·the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
·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;
·the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the Court; and
·a judicial officer is available to hear the substantive application.
Dispute Resolution
Section 60I(7) of the Act states:
Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
Section 60I(9) of the Act states:
Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i)to be made with the consent of all the parties to the proceedings; or
(ii)in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i) the application is made in relation to a particular issue;
(ii)a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii)the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
Consideration
I will deal first with Deputy Registrar’s decision to vacate the return date of 21 March 2024 and list the matter for a chambers mention on 24 May 2024.
This is not a reviewable decision. The Father is not seeking a first return date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application. The Father’s application was filed on 8 February 2024, and he seeks a return date of 21 March 2024. Rule 5.5 of the Rules states:
Responding to an Application in a Proceeding
(1) A respondent to an Application in a Proceeding who seeks to oppose the application, or seeks different orders, must file and serve a Response to an Application in a Proceeding.
(2)A respondent who files and serves a Response to an Application in a Proceeding must, at the same time, file and serve an affidavit stating the facts relied on in support of the Response.
Note: A Response to an Application in a Proceeding must be filed and served within 28 days after service of the application to which it relates (see sub-rule 2.18(2)).
The Mother has until 7 March to file her Responding documents – well prior to the Father’s proposed return date. As such this aspect of the Father’s Review must fail.
The remaining ground relates to the Registrar’s decision requiring the parties to attend a Family Dispute Resolution Conference.
The Father claims that his case meets the exception set out at s60I(9)(d) — that the application ‘is made in circumstances of urgency’. The Mother told the Father that she will be relocating. She was as clear with the Court. When I asked her lawyer as to whether she would undertake not to relocate until the May mention of the matter, she declined.
The Mother has, however, also made it clear that she will comply with the Order – as she must. At this time and until 31 March 2026, the Father’s fortnightly time with X is 3.30pm Friday until 4.00pm Sunday.[10] There is no suggestion that any the Father’s ordered time is in jeopardy if the Mother moves to Town B. Certainly, the structure and flexibility of the current arrangements may change if the Mother leaves, but his ordered time will continue. Whether the Father’s potential loss of his other incidental time is enough to convince a court to issue a s68B injunction is unclear — particularly given the Mother’s claim that she has little option but to relocate because of her work requirements.[11]
[10] Court Orders (n 4) [3(b)].
[11] Father’s Affidavit (n 1) [44]: the Mother believes that she will lose her job if she does not relocate. See paragraph 6 of these Reasons.
The Orders require the parties to attend Alternative Dispute Resolution prior to commencing court proceedings. The Father did not do this but has now sought an urgent FDR. If the Mother does not properly participate in such a conference, the Registrar has ordered that:
Leave is granted to the other party to file an updating Affidavit – Non-Filing of Family Dispute Resolution Certificate and request the Registrar reconsider an exemption pursuant to section 60I(9) of the Act.[12]
[12] Court Orders (n 4) [4(b)].
Pursuant to Notation D to the Orders, if the Father can arrange an FDR and obtain a certificate, he can make a further request of the Deputy Registrar to provide a listing date. It may be that 21 March 2024 is that listing date if the FDR can occur quickly. It is clear that the Father does not need to wait until 24 May 2024, once he receives a certificate. Ultimately, the listing date is appropriately a matter for the Deputy Registrar.
I am not satisfied that the matter is urgent enough to attract the operation of s60(9)(d) of the Act. The Mother is not intending to breach the existing Orders. There will need to be a discussion about future arrangements but that should occur at mediation. The Deputy Registrar’s Orders provide sufficient leeway for the Father to seek an early listing once the FDR process has occurred — a step specifically required by the Orders. Consequently, this aspect of the Fathers Review also fails.
The Review will be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 28 February 2024
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