Kassis and Kassis
[2014] FamCA 1067
•2 December 2014
FAMILY COURT OF AUSTRALIA
| KASSIS & KASSIS | [2014] FamCA 1067 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of Deputy Registrar’s decision – Where a Deputy Registrar dismissed an application to shorten the time for the listing of an interim application – Where the Deputy Registrar dealt with that application on the papers – Discussion of the Full Court’s decision in Holden & Wolff [2014] FamCAFC 224 – Where in that case the Full Court is not to be taken to say that all processes and procedures in respect of a hearing de novo must take place without regard to the nature of the application being considered – Where it is open to a Justice of the Family Court to deal with an application to review a decision of a Registrar in chambers; in the absence of the parties; without an oral hearing; on the papers and determine the application without requiring notice to be given to the respondent – Where there is insufficient evidence of urgency – Application to shorten time for listing of the interim application dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Mears & Mears [2011] FMCA Fam 1104 |
| APPLICANT: | Mr Kassis |
| RESPONDENT: | Ms Kassis |
| FILE NUMBER: | SYC | 5533 | of | 2012 |
| DATE DELIVERED: | 2 December 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 2 December 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
Orders
The Application for Review filed 20 November 2014 is dismissed.
The Application in a Case filed 13 November 2014 remain listed on 7 January 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kassis & Kassis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5533 of 2012
| Mr Kassis |
Applicant
And
| Ms Kassis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
In this matter, a Deputy Registrar has dismissed an application to shorten the time for the listing of an interim application. The Deputy Registrar dealt with that application on the papers. The reason given for refusing short notice was “insufficient evidence of urgency”. The applicant has filed an application seeking a review of the Deputy Registrar’s decision.
Last week, the Full Court in Holden & Wolff [2014] FamCAFC 224, considered what a Federal Circuit Court Judge had done in circumstances similar to those with which I am now dealing. In that case, the Judge had reviewed a decision of a Deputy Registrar who had refused to shorten the time for the listing of an application. Her Honour had done so, in chambers, on the day the application for review was filed, on the papers filed by the applicant, without notice to the respondent and without providing reasons.
The Full Court in Holden & Wolff found that her Honour erred by dealing with the matter in chambers without an oral hearing without the consent of the appellant and erred by not following what the Full Court found to be “the mandated process by which a review of a registrar’s decision must be heard”. The Full Court, at [50] – [65], provide their reasons for concluding that her Honour had made these errors:
The hearing in chambers
50. Counsel for the appellant contended that her Honour’s course of considering and determining the application ex parte, in chambers and without the parties being notified of that course amounted to error.
51. It is thus important to consider the procedure undertaken by her Honour, that is, determining the matter in chambers in light of the relevant rules and statutory provisions.
52. Section 97 of the Act provides:
(1) Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Family Court, in the Federal Circuit Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.
(1A) The regulations and the applicable Rules of Court may authorise proceedings to be heard by a Judge, Judicial Registrar, Registrar or magistrate sitting in Chambers.
…
53. The Federal Circuit Court Rules 2001 (Cth) (“the Federal Circuit Court Rules”) do not provide for hearing of family law matters in chambers. However, r 1.05(2) of the Federal Circuit Court Rules provides that where the Federal Circuit Court Rules are insufficient, the court may apply the Family Law Rules as necessary.
54. Rule 11.16 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) provides that the Family Court of Australia (as well as those courts to whom the rule applies or may be applied) may exercise its jurisdiction in chambers.
55. Although her Honour did not expressly indicate that she applied r 11.16 of the Family Law Rules in order to hear the application in chambers, we assume that she did.
56. Section 54 of the Federal Circuit Court Act 2001 (Cth) provides:
54. The Rules of Court may authorise the Federal Circuit Court of Australia or a Judge to make decisions in proceedings without an oral hearing if the parties to the proceedings have consented to the making of such decisions without an oral hearing.
57. Rule 15.03 of the Federal Circuit Court Rules provides that that court may determine a matter without an oral hearing. It follows that the rule addresses process and not venue (in chambers). Notably, r 15.03 requires that the parties consent to a matter being determined without an oral hearing. As we have already mentioned, the parties consent was not sought and given the appellant’s solicitor’s advice that counsel had been briefed to address the court, consent could not have been inferred. We accept that r 1.06 of the Federal Circuit Court Rules enables the court to dispense with full compliance with any of the rules “in the interests of justice”, but there is nothing to indicate that her Honour dispensed with compliance with r 15.03 or considered the obvious consequences of so doing.
58. It was uncontroversial that no consent was obtained from the appellant to the course adopted by her Honour in determining the matter without an oral hearing. To that extent then, her Honour erred.
The nature of the hearing conducted
59. Secondly it was asserted that in considering the matter as she did, her Honour failed to conduct a hearing de novo as mandated by r 20.03 of the Federal Circuit Court Rules. Rule 20.03 of the Federal Circuit Court Rules provides for the nature of the hearing to be conducted on an application for review. It is helpful to set those rules out in full:
20.02 Application for review
(1) An application for review of an exercise of power by a Registrar must be in accordance with the approved form.
(2) An application must be listed for a hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing.
(3) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed.
(4) Unless the Court or a Registrar otherwise orders, the application does not operate as a stay of the exercise of power under review.
20.03 Procedure for review
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 proceeding 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.
(Emphasis added)
60. What constitutes a hearing de novo is well settled. In Harris v Caladine (1991) 172 CLR 84, Dawson J said at page 124:
An order made by a Registrar is reviewable by way of a hearing
de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and “the informant or complainant starts again and has to make out his case and call his witnesses”…(Citations omitted)
61. Rule 20.03 itself contemplates the very nature of a hearing de novo, containing provision for the receipt of any affidavit or exhibit tendered to the Registrar, the reception of further evidence with leave and receipt of the transcript of proceedings before the Registrar. Axiomatically too, a party who must per force “make out his case and call his witnesses” must also be able to make submissions on the matter in a hearing de novo.
62. Although parties may consent to a hearing de novo being conducted in chambers without further evidence or submissions, without that consent, there was, in this case, no hearing.
63. In this regard her Honour did not comply with the mandated process by which a review of a registrar’s decision must be heard and in so doing failed to afford the appellant procedural fairness. To this extent then her Honour erred.
64. The appellant further contends that her Honour was obliged to give reasons for her determination. Given our determination of the other grounds of challenge to her Honour’s orders, it is unnecessary to consider this matter further.
65. For the reasons given above we granted leave in respect of the appeal against her Honour’s order of 26 August 2014 and allowed the appeal.
In the Family Court, when an application for an interim order is filed, the Registry Manager is required by r 5.05(1) Family Law Rules 2004 (Cth) (“FLR”) to fix a date for a court event that is as near as practicable to 28 days after the application is filed. The reason for a minimum period of 28 days arises from the requirement under the rules for a respondent to file a response and any supporting affidavit at least seven days before the listing date (r 9.08(1) FLR) having been served as soon as possible after filing (r 7.04(1) FLR). Given the listing pressures in this registry, the return date of such an application has been typically in excess of 28 days. If a party seeks to have the period of time between the date of the filing of the application and the date of the listed court event shortened, r 5.05(4) FLR authorises the Registry Manager to fix an earlier date than it would otherwise have in the queue, if a Registrar (which by the FLR’s dictionary includes a Deputy Registrar) is satisfied that:
(a) the reasons for the urgency is significant and credible; and
(b) there is a harm that will be avoided, remedied or mitigated by hearing the application earlier.
The power exercised by the Registrar to shorten the time provided in r 5.05(1) FLR is contained in r 1.14(1) FLR. Section s 37A Family Law Act 1975 (Cth) (“the Act”) gives judges the power to delegate certain powers to registrars and the power in r 1.14 has been delegated to the Registrar by r 18.06(2), Table 18.5, Item 2.
Through the years, Deputy Registrars have dealt with the volume of short notice applications by reading the written evidence presented by the applicant for short notice and making a determination about the shortening of time. If the application was refused, often the only reason given was that there was insufficient evidence of urgency. The FLR enable a Deputy Registrar to determine an application for shortened time in this manner. Rule 11.01 FLR allows the court to manage a case to achieve the main purpose of the FLR by exercising powers set out in Table 11.1. Item 3 of Table 11.1 empowers judges and registrars when conducting a case to, amongst other things:
(e) make orders in the absence of a party;
(f) deal with an application without an oral hearing;
....
(i)determine an application without requiring notice to be given.
The main purpose of the FLR is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case (r 1.04 FLR).
Section 97(1A) of the Act provides that Rules of Court may authorise proceedings to be heard by a Judge or Registrar in Chambers. Rule 11.16 FLR deals with cases in chambers and is in the following terms:
11.16 Cases in chambers
(1) Subject to subrule (2), a court may exercise its jurisdiction in chambers.
(2) A trial must be heard in open court.
(3) A judicial officer who determines a case in chambers must:
(a) record:
(i) the file number;
(ii) the names of the parties;
(iii) the date of the determination; and
(iv) the orders made; and
(b) sign the record.
Axiomatically, the process before the Deputy Registrar is ex parte given that the onus is on the applicant to establish an arguable case that there is urgency which is significant and credible, and there is harm that will be avoided, remedied or mitigated by an earlier hearing.
Once a Deputy Registrar has determined an application for shortening the time in the way described, the applicant, if dissatisfied, as in this case, may seek to review the Deputy Registrar’s decision. The application for review is made by the filing of an Application in a Case (r 2.01 FLR, Table 2.1, Item 5). No additional affidavit needs to be filed with that application (r 5.02(2) FLR), although no rule prohibits further evidence being filed. No further evidence has been filed in this review.
Rule 18.10 FLR is relevant to the review of all types of decisions made by a Registrar and is in the following terms:
18.10 Power of court on review
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy 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;
(b) any further affidavit or exhibit;
(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.
Rule 18.10(1) FLR uses the word “hearing” which is defined in the dictionary to the FLR (r 1.16) as:
The process, other than a trial, of determining
(a) an Application in a Case.....
A “trial” is defined in the dictionary to the FLR as meaning the process of determining a case started by an Initiating Application (Family Law), including the court events or hearing days before the presiding judicial officer mentioned in rules 16.08, 16.09, 16.10 and 16.13 that apply to the case [the rules relate to court events before a judge after the substantive application has been placed in a judicial docket for hearing].
In Holden & Wolff, because of the provisions of s 54 of the Federal Circuit Court Act 2001 (Cth) and r 53.03 of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”) made consistently with that section, the Full Court has said that the trial judge erred in making the decision to dismiss the review of the Registrar’s decision to shorten time, without an oral hearing, without the consent of the parties, in circumstances where the Judge had not dispensed with r 15.03 FCCR pursuant to r 1.06 FLR. Assuming r 15.03 FCCR had been dispensed with, the Full Court at [54] – [57] of Holden & Wolff refer to the availability of r 11.16 FLR to the Federal Circuit Court. It would also follow that the general powers under r 11.01 and Table 11.1, items 3(e), 3(f) and 3(i) FLR would have been available to her Honour.
As set out above, the Full Court commented that one would need to “consider the obvious consequences of dispensing with the rule that required an oral hearing” (see [57] Holden & Wolff set out above). Presumably the consequences referred to are a reference to a denial of natural justice or a lack of procedural fairness to the applicant who is denied a shortening of time. Given that the applicant can, within reason, file whatever evidence he or she wishes to establish urgency, it is difficult to see how those consequences arise in the majority of cases.
On the other hand, whilst r 53.03 FCCR remains and if r 1.06 FLR cannot be readily applied, one consequence will be that the majority of reviews of decisions shortening time in the Federal Circuit Court (in respect of which reviews are available – see Mears & Mears [2011] FMCA Fam 1104) will need to be listed for oral hearing at a court event and it might be that other matters which are waiting their turn will need to wait longer.
There is no equivalent rule in the FLR to r 15.03 FCCR. Rule 11.01 FLR in fact says the opposite as it gives the court power to make orders in the absence of a party, deal with an application without an oral hearing and determine an application without requiring notice to be given.
The more difficult issue arising from the Full Court’s decision in Holden & Wolff is whether or not it is any longer permissible for a Justice to deal with a review of the Deputy Registrar’s decision to refuse an application to shorten time in the same manner as the Deputy Registrar has dealt with it (namely, expeditiously, in chambers, on the written material provided by the applicant and without any or any detailed reasons).
There is no relevant distinction between r 20.03 FCCR and r 18.10 FLR. Both require a Judge or Justice to review the Registrar’s decision by way of “a hearing de novo” or “an original hearing”. Both describe what evidence may be received in a similar manner.
A literal reading of [61] of the Full Court’s judgment in Holden & Wolff might lead to the conclusion that the Full Court was saying that the nature of a hearing de novo cannot be varied to suit the nature of the determination being made and that all hearings de novo should allow the calling and cross examination of witnesses and the making of submissions. The question arises as to whether the Full Court means there is to be a uniform set of procedures for hearings de novo no matter what the nature of the issue to be determined.
When describing the nature of a hearing de novo, the Full Court in Holden & Wolff at [60] refer to what Dawson J said in Harris v Caladine (1991) 172 CLR 84 at page 124. The High Court in that case focused on the applicable procedures in a hearing de novo which reviewed a Registrar’s decision to make a final property settlement order by consent, in circumstances where the consent had been withdrawn by the date of the hearing de novo. The High Court, in separate judgments, unanimously held that the matter, when reheard, should be treated as a freshly contested s 79 application with the calling of witnesses, cross examination and the ability to make submissions. Dawson J relied upon Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620. That was a case involving a review of an adverse determination by the Builders Licensing Board against a builder. Both Harris v Caladine and Builders Licensing Board were reviews against final determinations.
Determinations considered on a rehearing can range on a continuum from the type of determination made by the Registrar in Harris v Caladine (a final property settlement order) to the type of determination made by a Registrar which I am currently asked to review (shortening of time for a listing). Somewhere in the middle are hearings de novo from interim parenting and other determinations made by a class of Registrar approved pursuant to r 18.05(1) FLR. Those determinations are made in open court on the written material with submissions and in circumstances where cross examination will only be allowed in exceptional circumstances (r 5.10(2) FLR).
It is important to recognise that in the passage that the Full Court relies upon at [60] of Holden & Wolff, Dawson J says at page 124 of Harris v Caladine that the commencement of the application again is “subject to any restrictions in the rules”. Dawson J repeats that cautionary reference at page 125.
The Full Court cannot be taken to have meant that in an interim parenting hearing the provisions of r 5.10(2) FLR (about cross examination only in exceptional circumstances) whilst applying before the Registrar had no application when the matter was heard afresh on review by a Justice. Nor can the Full Court be taken to have meant that the provisions of r 11.01 FLR (making orders in the absence of a party; dealing with an application without an oral hearing and/or requiring notice to be given) are available to aid a Registrar when making a decision about the shortening of time but not to a Judge when reviewing that decision. In both instances the rehearing is “subject to any restrictions in the rules” and it cannot be the case that the reviewing Judge is deprived of procedural benefits afforded by the FLR to Registrars in the exercise of their delegated powers.
The Full Court’s decision in Holden & Wolff can be confined to its facts. It involved proceedings in the Federal Circuit Court in which the consent required by r 15.03 FCCR had not been given by the applicant to allow the hearing de novo to be conducted in chambers without an oral hearing. Nor was there any dispensation of r 15.03 FCCR which would have allowed a hearing in chambers without consent (r 1.05(2) FCCR and r 11.16 FLR).
In conclusion, I do not take the Full Court to be saying that there is one set of procedures that need to be applied to all hearings de novo. Although r 20.03 FCCR and r 18.10 FLR both contemplate that a hearing de novo may involve certain processes and procedures, the Full Court is not to be taken to say that all of those procedures must take place without regard to the nature of the application that is being considered. There is no inconsistency between what is contained in r 20.03 FLR and what is contained in r 11.01 FLR.
I shall consequently conduct this hearing de novo in chambers, in the absence of the parties, without an oral hearing, without notice being given to the respondent and upon the evidence filed by the applicant.
At [64] of Holden & Wolff the Full Court left open the question as to whether or not I am obliged to give reasons for the determination. In the circumstances I am of the view I am not obliged to set out why I could not find in the applicant’s material evidence that would convince me that the conditions set out in r 5.05(4) FLR have been satisfied.
Having read the documents upon which the applicant relies before me in support of his application to shorten time, I find that there is insufficient evidence of urgency and accordingly I dismiss the application to shorten time for the listing of the interim application.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 December 2014.
Associate:
Date: 2.12.2014
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