Lawson & Glenning

[2021] FedCFamC2F 118

Federal Circuit and Family Court of Australia

(DIVISION 2)

Lawson & Glenning [2021] FedCFamC2F 118

File number(s):

MLC 8031 of 2021

Judgment of:

JUDGE RIETHMULLER

Date of judgment:

15 September 2021

Catchwords:

FAMILY LAW – costs – Review of Registrar’s decision – Review Application futile – overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Registrar’s hearing not to be treated as ‘dry-run’ or ‘practice –run’ at a case – costs awarded

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Division:

Division 2 Family Law

Number of paragraphs:

27

Date of last submission/s:

15 September 2021

Date of hearing:

15 September 2021

Place:

Melbourne (via Microsoft Teams)

Counsel for the Applicant:

Mr Allen

Solicitor for the Applicant:

Knight Family Lawyers

Solicitor for the Respondent:

Shane McClure

Solicitor for the Independent Children's Lawyer:

Bowlen Dunstan & Associates Pty

ORDERS

MLC 8031 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR LAWSON

Applicant

AND:

MS GLENNING

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE RIETHMULLER

DATE OF ORDER:

15 SEPTEMBER 2021

THE COURT ORDERS, BY CONSENT, THAT:

1.        The Application for Review dated 6 September 2021 be dismissed.

AND THE COURT FURTHER ORDERS THAT:

2.        The Applicant pay the Respondent’s costs of the Application for Review fixed in the amount of $880.00 AND THAT the Applicant have six months to pay.

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 Lawson & Glenning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

This is a cost application concerning a review application made to review an interim decision of a Registrar of the Court in a parenting case, which was dismissed by consent. 

The Registrar dealt with the parenting matter on 31 August 2021 and made a number of orders (including that the children reside with the mother and for the appointment of an Independent Children’s Lawyer) before adjourning the matter over to Friday of this week. During that adjourned period, the parties were given directions so as to enable them to file further material prior to 17 September 2021 and further affidavits to be filed and served by 14 September 2021 and various documents by 16 September 2021.

The substantive parts of the orders that the Registrar made on that date should not have been unexpected on the material before the Court.  The father is seeking time with the children and alleges that the children are at risk in the mother’s household.  The mother alleges that the children are at risk with the father.  The Registrar reserved the question of time with the father, bearing in mind that the matter was coming back on an early date and in circumstances where she was ensuring that she not only had more details from the parties but also the benefit of an Independent Children’s Lawyer.

The Registrar also had before her evidence and allegations that there is a risk to the children from the mother’s new partner. This is certainly disputed by the mother and her new partner. The allegations with respect to the new partner were substantive, including allegations that one child had reported that the partner yells and is angry, that he puts the children on his shoulder and slams them into the ground. There was also evidence that the new partner has two criminal charges that are pending in the Suburb B Magistrates’ Court of Victoria.  On the material currently before the Court, there is no detail as to the nature of those charges or the allegations that are made to support them. 

There was also evidence before the Registrar that the mother’s new partner has not had a significant involvement in the children’s lives at this point.  The Registrar, unsurprisingly, made injunctions on a short-term basis that the children not be left alone with the new partner, pending the further hearing of the matter. 

When the matter came before me on the review application with respect to the Registrar’s order, the mother did not pursue the review application. 

The question then arose as to the costs of this application. Costs have to be dealt with under section 117 of the Family Law Act 1975 (Cth) (‘the Act’). Ordinarily, parties bear their own costs under section 117(1) of the Act. However, the Court has power to make costs orders if appropriate and must have regard to the matters set out in section 117(2A) of the Act, which lists a number of factors that are relevant.

In this case, the father is financing his own court proceedings, and the mother is in receipt of Legal Aid and therefore has little financial capacity.  The nature of the conduct of the proceedings in the case, however, bears mention.  In this matter, the parties went before the Registrar, who made what appears to be entirely appropriate orders on the very limited material before her at the time.  The orders were, no doubt, orders that were disappointing for the father in that his time was reserved.  The mother, was disappointed that there was the injunction put in place with respect to her current partner and sought a review this order, even though, on the material, it does not appear to have interfered with her living arrangements nor arrangements with her partner and the children. The matter was to come back before the Court in a very short timeframe. 

The Federal Circuit and Family Court of Australia Act 2021 (‘FCFCOA Act’) contains a number of provisions with respect to case management and the purpose of the Court. Sections 190 and 191 of the FCFCOA Act make it very clear the Court has an overarching purpose of attempting to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. They focus on the efficient use of Court resources and efficient disposal of cases that come before the Court to carry out the work in a timely manner, and to conduct the Court in such a way as to best promote the overarching purposes. It is important that litigants take into account these purposes and ensure that they conduct their litigation in a manner that does not cause unnecessary use of Court resources or their own resources.

Lest there be any doubt about the central importance of this provision, the Central Practice Direction – Family Law Case Management (‘Central Practice Direction’), which has been published online, sets out a number of core principles.  It is worthwhile to briefly touch upon those. 

The first core principle in paragraph 3.2 of the Central Practice Direction points out the importance of prioritising the safety of the children reflecting the provisions of the Act. This is clearly what the Registrar had in mind in making the orders that she did on the occasion that the matter came before the Court. It is also apparent that the Registrar had in mind the importance of relationships between children and the parents and, for that reason, provided for a very short return date so that more detailed material could be put before the Court. 

The second core principle is related to the Court’s overarching purpose of quickly, inexpensively and efficiently dealing with matters, as set out in paragraphs 3.3 to 3.5 of the Central Practice Direction. 

Core principle 3 again looks at efficient and effective use of resources, as does core principle seven, which provides an obligation upon lawyers and parties:

…to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely dispute…

In core principle eight, the case issues are to be narrowed to those things that are genuinely in dispute:

…Applications should only be brought before the Court if they are reasonably justified on the material available…

Pursuant to core principle nine, parties are expected to be fully prepared for court events. 

In this case, because the Registrar’s order was a very short-term order, the review application was listed before me in a very short timeframe – around 10 days.  Therefore, the review application has come before me a few days prior to the next date before the Registrar.  It is difficult to see that the Court could reasonably be expected to list a review application in a shorter timeframe unless there were some specifically urgent issues that were clearly drawn to the attention of the registry in writing, for example, a sale settlement that would result in a transfer of title or such other matters that could not be undone. That is not the case in this matter.

The review application, it seems to me, was pointless, not only from the perspective that the order made by the Registrar was obviously a reasonable order to make in the circumstances, but also because the interim hearing was to be finalised on Friday upon receipt of more detailed material to enable the Registrar to make a more nuanced decision. 

It is difficult to see what purpose the review would serve if heard prior to Friday when the matter was to return before the Registrar for a detailed hearing.  If it was intended, or thought, that the review would not be listed until after Friday’s decision, then, the review would be entirely pointless in that the decision on Friday will supersede any decision that has already been made and the review would need to be a fresh review of the decision on Friday, rather than the decision on 31 August 2021.

It seems to me that this review of the Registrar’s decision had no reasonable prospect of success served no purpose. Counsel for the mother submits that it was not intended to misuse the Court’s resources in such a way as to try to gain a listing advantage, if it was thought that one were needed.  Nor does he say that there was ever any intention to simply file reviews to cause the costs of the other party to be run up unnecessarily,  although, it certainly appears that this has been one of the outcomes of the conduct of the mother.  It was further submitted that the application for review was not a way to intimidate the Registrar in the carrying out of her decision by making it clear that the applicant intended to review any decision that she made.  Secondly, it was most likely to be a futile endeavour whether it was listed before or after the next decision of the Registrar.  Importantly, that inevitably led to the result that it would cause costs of the other party to be wasted on a futile court event and cause the resources of the Court to be wasted, in particular, the resources of having a judge review the file and then hear the matter this morning when there was no real purpose to be served by this review application.  The real issues in the case would be dealt with by the Registrar on Friday, and any subsequent review, if there is some proper basis for review, reviewing what the registrar does on Friday. In this respect, the conduct of the case of the mother tells strongly in favour of costs orders being made.

It is not a case where there is any alleged failure to comply with previous orders, although I note that the mother’s lawyers did not comply with the order I made in chambers on 10 September 2021 to file a written outline with respect to this application.  It would seem that after the time for filing that outline yesterday morning at 10.00am had passed, the mother’s solicitor made an offer to the other parties to withdraw the review with no orders as to costs.  Of course, by that point, they had incurred costs due to the matter being listed today. 

The mother has certainly been entirely unsuccessful in the proceedings today. 

It is not suggested that there was an appropriate offer in writing to settle the proceeding that the father should have accepted, given that the father had incurred costs and the offer to withdraw the review did not include costs.

Before making a determination about costs, I afforded the counsel for the mother an opportunity to get specific instructions from the mother about what may or may not have been advised by her solicitor as to the potential benefits of a review application in the circumstances of this case, and in particular, whether or not it would be futile, and the consequences thereof.  Of course, I did not require her to disclose confidential legal advice.

The mother does not seek to place material before me as to what she was told by her solicitor.  In these circumstances, I assume that she received appropriate advice about the potential futility of this application and the consequences that may follow with respect to costs.  Had she alleged that she was not given appropriate advice, or was given inappropriate advice, it may be that the solicitor rather than the client should pay the costs.

conclusion

The conduct in seeking the review was simply futile. It was only ever likely to lead to costs being incurred by the other party for no real benefit.  The mother and father, in this case had a date before the Registrar very soon after the first return date, with an opportunity to file more material addressing the various issues in this case.  This is a case about very serious issues concerning the protection of children and the safety of children. It was entirely appropriate that the Registrar should approach it in the way that she did, firstly with the protective Court orders that were made on the limited material, and secondly, taking steps to ensure detailed material and an Independent Children’s Lawyer was before her on the next occasion, in order to enable her to make an appropriate decision. The mother’s conduct has simply wasted costs, and wasted the resources of the Court for no good purpose.   

In these circumstances, it is appropriate to order costs that have been thrown away.  It is most fortunate for the mother, in this case, that the Independent Children’s Lawyer does not seek a costs order against the mother (being legally aided), and the father seeks only the costs that were incurred in having counsel settle the outline of argument, at $880.00.  That seems to me to be an entirely reasonable sum and I order that the mother pay the father the costs in the amount of $880.00. 

The new Court system of having Registrars undertake interlocutory work should not be treated as an invitation to simply lodge review applications without careful consideration of the need for a review application, and the importance of properly using the Court’s resources. A Registrar’s hearing should not be used as a ‘dry run’ or a ‘practice run’ at a case, but rather the main event, with a review application there in the background, in a similar way to that of an appeal if it were a judge dealing with the matter.  If the system is not approached in this manner, then litigants and practitioners can expect costs and other consequential orders, to ensure that the processes of the Court are not misused or wasted.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Dated: 1 October 2021