LESTER and BEATTIE

[2024] FCWA 249

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

IN CHAMBERS

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: LESTER and BEATTIE [2024] FCWA 249

CORAM: COHEN J

HEARD: 23 OCTOBER 2024

DELIVERED : Ex tempore

FILE NO/S: 1051 of 2018

EX PARTE

MS LESTER

Applicant

AND

MR BEATTIE

Respondent

Catchwords:

PRACTICE AND PROCEDURE - Review of registrar's decision - Where registrar rejected a Form 2 Application and supporting affidavit for filing - Consideration of Family Court Rules 2021 (WA) r 490 - Where review upheld and application to be listed within 14 days - Case turns on own facts

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (WA), r 490

Category: Not Reportable

Representation:

Counsel:

Applicant	:	No Appearance
Respondent	:	No Appearance

Solicitors:

Applicant	:	Joss Legal
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Giacobetti & Giacobetti (No 3) [2023] FedCFamC1F 1126

COHEN J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lester and Beattie has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

Section 243 of the Family Court Act 1997 (WA) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

1The Court was asked to conduct a review of a registrar's decision pursuant to rule 490(3) of the Family Court Rules 2021 (WA) ("the Rules").

2The applicant mother, [Ms Lester] ("the Applicant"), in her Form 2 Application for Review filed 23 October 2024 ("the Review") sought the Court consider the registrar's decision to refuse to accept a Form 2 Application filed 15 October 2024 ("the Proposed Application"). She also requested the Court provide reasons for decision.

3The proceedings relate to the parties' daughter, [Child A] born [in] 2020. The other party to the proceedings is the respondent father, [Mr Beattie] ("the Respondent").

4For the Reasons that follow, I allowed the Review and directed the Proposed Application be accepted for filing as at the date it was lodged on the eCourts Portal.

Background

5On 20 December 2019, the parties agreed final orders by consent, which provided for, amongst other things, Child A to live between the parties in an equal time arrangement.

6On 1 November 2023, the Applicant recommenced proceedings, which the Respondent responded to on 4 December 2023. For present purposes, it is only necessary to note that both parties currently seek orders on a final basis for Child A to live with them.

7[In] March 2024, the parties attended a case assessment conference with [a Family Consultant], whereby they agreed a minute of interim consent orders. The sole focus of the interim orders was to address the Applicant's concern about Child A's school attendance while in the care of the Respondent, which was shared by the Family Consultant.

8The interim orders included a finalisation order, which reflected that if neither party sought to relist the proceedings by 1 December 2024, the matter would be finalised as follows:

(a)the 2019 final orders by consent would remain in full force and effect; and

(b)in terms of paragraphs 1 to 3 of the minute of interim consent orders.

9In his memorandum, the Family Consultant described Child A's absenteeism as unacceptable and without justifiable reason. Further, he raised concern, with "a focus on the father", about parenting communication noting the turmoil Child A has endured since the age of 8 years due to "parental toxicity". He reflected that judicial oversight may be required.

10On 15 October 2024, the Applicant filed the Proposed Application seeking, amongst other orders, for Child A to live with her. In her affidavit filed in support, she deposes to Child A's ongoing school absenteeism in the Respondent's care, which if correct, averages at approximately 45 per cent, compared to 88 per cent when in the care of the Applicant.

11On 17 October 2024, the Court rejected the Proposed Application for filing for the following reasons ("the Rejection Letter"):

1. The existing arrangements for the child have been in place for a significant period of time.

2. The primary issue relates to the child's school attendance.

3. On the Applicant's own evidence, the child has a "close relationship" with both parties and she has "no other significant concerns about [the child] while she is in [the other party's] care".

4. The parties are encouraged to consider participating in Family Dispute Resolution with a focus on the recommendations contained in the Case Assessment Conference Report dated 28 March 2024. If after exploring this option, the parties are unable to resolve the matter, consideration may be given to a judicial determination."

Legal principles

12The Applicant applies under r 490(3) of the Rules for a review of the Rejection Letter. The Court is to conduct an original or de novo hearing and may receive as evidence any affidavit tendered in the first hearing, and any further affidavit or exhibit.

13Rule 490 is in the following terms:

490. Rejection of documents

(1)A registrar or judicial officer may reject a document filed or received for filing if the document —

(a)is not in the proper form in accordance with these rules; or

(b)is not executed in the way required by these rules; or

(c)does not otherwise comply with a requirement of these rules; or

(d)is tendered for filing after the time specified in these rules or an order for filing the document; or

(e)on its face, appears to the judicial officer to be an abuse of process, frivolous, scandalous or vexatious; or

(f)is tendered for filing in connection with a current case in a registry that is not the filing registry.

(2) If a judicial officer rejects a document filed or received for filing under subrule (1), the judicial officer may give directions about any step already taken on the document, including a direction about costs.

(3) A person may apply for review of a registrar's decision under subrule (1) or directions given by a judicial officer under subrule (2) by filing an application in a case without notice.

14The grounds for rejecting a document are an exhaustive list. There is nothing in r 490(1) which suggests any other discretionary grounds to refuse a document for filing.

Discussion

15Leaving aside the fact that pursuant to the finalisation order, one or both parties had the right to request a relisting, without any obligation that such request be accompanied by an application and affidavit, the Court's power to reject a document is confined to that set out in r 490(1).

16In the absence of applications being assessed as an abuse of process, frivolous, scandalous or vexatious, which cannot be said of the Proposed Application, or where some other constraint has been placed upon a party, litigants are entitled to file applications with an expectation they will be listed and determined in accordance with the Court's ordinary listing practices.

17In applying the Rules, including deciding whether to accept a document for filing, the Court must take into consideration the nature of the proceedings before it. These proceedings are child-related and Child A's best interests are legislatively mandated to be paramount.[1] Child A's best interests cannot be secondary to case management considerations.[2]

[1] Family Court Act 1997 (WA) s 66A.

[2] See e.g., Giacobetti & Giacobetti (No 3) [2023] FedCFamC1F 1126 [8] (Curran J).

18It is important to record that while the existing arrangements had been in place for a significant period of time and that Child A appears to have a close relationship with the Respondent, those facts are by no means determinative of the arrangements being in Child A's best interests, nor that the Proposed Application appears to be "an abuse of process, frivolous, scandalous or vexatious".

19The registrar correctly recorded in the Rejection Letter that the primary dispute is about the child's schooling.

20In this context and having regard to the evidence in support of the Proposed Application about this specific issue, it may matter not that the Applicant otherwise appeared to have no other "significant concerns" about Child A in the Respondent's care. The central issue in dispute is the Respondent's capacity to ensure Child A's attendance at school and his compliance with the interim orders which were entered to ameliorate this specific risk issue.

21I otherwise note the registrar referred the parties to family dispute resolution, which they are not required to participate in when litigation is on foot. To the extent the Family Consultant made reference to mediation, I do not consider he intended this recommendation to extend to a situation where issues were again being raised about Child A's school attendance, noting his strong comments about this issue.

22The registrar's decision was tantamount to a summary dismissal without affording the Applicant a right to be heard. If the registrar considered it fell within r 490(1)(e), she was required to take the Applicant's material at its highest. Had she done so, it is difficult to understand how she reached the conclusion she did, noting Child A appears to be at extreme educational risk in the Respondent's care on the Applicant's evidence.

23However, this should not be taken to reflect a view about the ultimate outcome of the Proposed Application, which will be determined at a hearing.

24It is the Court's view that where interim applications are properly brought and do not fall within the terms of r 490(1), they must be accepted for filing by Court so they can be listed, heard and determined on the merits. If the issues disclosed in a filed application are amenable to summary dismissal, the accepted application can be referred to a judge or magistrate in chambers.[3] If the judge or magistrate are so satisfied, it is open to those judicial officers to enter a summary dismissal, noting the high bar to be met before such a step is taken, and are obliged to provide reasons.

[3] I note that registrars are not delegated the power to summarily dismiss applications. Family law magistrates may accept a document in their capacity as a registrar of this Court, transfer the proceedings to the Magistrates Court, then determine the application as a magistrate in chambers.

25For all of the Reasons above, I upheld the review and accepted the Proposed Application for filing.

26I directed the Principal Registrar to allocate a directions hearing within 14 days as the issue relates to Child A's education; steps should be taken by the Court to list the proceedings as soon as practicable.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

MF

Associate

24 OCTOBER 2024