Lombardi & Rider
[2021] FedCFamC2F 57
•16 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lombardi & Rider [2021] FedCFamC2F 57
File number(s): MLC 9239 of 2021 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 16 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.04, 2.13, 2.18, 5.04, 14.05, 14.07
Cases cited: Bashir & Bashir(No 2) [2020] FCCA 3316
Diacos & Gataki (No 3) [2021] FCCA 1841
Hearnes & Jellets [2020] FCCA 2722
Lynch & Dunstan [2011] FMCAfam 389
Moxey & Keirn [2021] FamCA 615
Myers & Myers [2011] 253 FLR 445
Palmer & Palmer [2012] 263 FLR 265
Petrova & Leighton [2017] FCCA 315
Tadros & Tadros & Ors [2020] FCCA 1118
Vibbard & Garcia (2012) 48 Fam LR 1
Zeller & Whitby [2011] FMCAfam 431
Division: Division 2 Family Law Number of paragraphs: 50 Date of last submission/s: 14 September 2021 Date of hearing: 14 September 2021 Place: Melbourne Solicitor for the Applicant: Hartleys Lawyers The Respondent: In person ORDERS
MLC 9239 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LOMBARDI
ApplicantAND: MR RIDER
Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Mother’s Application for Review filed 6 September 2021 be dismissed.
2.Each party shall bear their own costs of the Application for Review.
Note: The form of the order is subject to the entry in the Court’s records.
Note: 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).
IT IS NOTED that publication of this judgment under the pseudonym Lombardi & Rider is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
On 18 August 2021, the Mother filed an Initiating Application seeking parenting orders. With that application the Mother sought an order that all times and rules be abridged to allow the matter to be heard on an urgent basis.
On 19 August 2021, a Registrar of the Court decided they were not satisfied the urgency of the application had been demonstrated and refused to give the case greater priority than it would have received in the usual course of events in respect of cases awaiting hearing (the “Registrar’s Decision”). The matter was listed for a First Court Event on 29 September 2021.
On 23 August 2021, the Mother served the Initiating Application on the Father, stamped with a return date of 29 September 2021.
The Father is yet to file a Response. Pursuant to r 2.18(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the “Rules”), the time for filing a Response to an Initiating Application is 28 days after service of the application. Therefore the Father must file a Response by 19 September 2021.
On 6 September 2021, the Mother filed an Application for Review seeking review of the Registrar’s Decision. It is this application that is before the Court (the “Review Application”). The Review Application is confined to whether or not the Court should exercise its discretion to abridge the time for consideration of the Mother’s substantive application.
Pursuant to r 14.05 of the Rules, an applicant may seek 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 19 days after the Registrar’s Decision.
Where a party seeks review of the exercise of power by a Registrar, the Court must proceed by way of a hearing de novo and may receive evidence including, with leave, further evidence in addition to that which was before the Registrar: r 14.07 of the Rules.
In considering the Mother’s application to review the Registrar’s Decision, I have read the following documents:
(a)The Mother’s Initiating Application filed 18 August 2021;
(b)The Affidavit of the Mother affirmed 18 August 2021;
(c)The letter from Hartleys Lawyers dated 18 August 2021 in relation to urgency;
(d)The Application for Review filed 6 September 2021; and
(e)The Affidavit of the Mother filed 13 September 2021.
The Father has not filed any material, as is to be expected in an application of this nature.
ISSUES BEFORE THE COURT
The issues before the Court are, first, whether the Registrar’s decision on 19 August 2021 is a reviewable decision under the Act and second, if it is a reviewable decision, whether the review should be allowed and the abridgement granted.
ADMINISTRATIVE OR REVIEWABLE DECISION?
Registrars of this Court are delegated powers pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “Act”). Examples of those powers are set out at s 254(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 s 256 of the Act as follows:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 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 Court for review of that exercise of power.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The issue of whether or not this Court is able to review the allocation of a first return date has been the subject of various decisions of the Court.[1]
[1] See for example: Lynch & Dunstan [2011] FMCAfam 389; Zeller & Whitby [2011] FMCAfam 431; Myers & Myers [2011] FMCAfam 1104; Palmer & Palmer [2012] 263 FLR 265; Hearnes & Jellets [2020] FCCA 2722; Diacos & Gataki(No 3) [2021] FCCA 1841; Bashir & Bashir (No 2) [2020] FCCA 3316.
I have had regard to these previous decisions and particularly to the decision of Halligan FM (as his Honour then was) in Myers & Myers [2011] 253 FLR 445 (Myers) which was noted with approval by the Full Court of the Family Court of Australia in Vibbard & Garcia (2012) 48 Fam LR 1 who considered the reasoning in Myers to be “highly persuasive”.
I particularly note the “three discrete scenarios” outlined by Halligan FM in Myers 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.
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”. It was His Honour’s view that it was clear that decisions about the allocation of a Court date for an application that does not involve consideration of a shortening a time fixed by the Rules are not amenable to review.
However, in relation to the third scenario, His Honour found that a circumstance where the applicant seeks a different first Court date and also seeks that the normal time limits fixed by the rules be shortened or dispensed with, is a matter whereby the Court would have jurisdiction to review the Registrar's power.
CONSIDERATION
The Court must first determine whether the exercise of the Registrar’s power in this case is reviewable pursuant to s 256 of the Act. In doing this, the Court must consider what decision the Mother was asking the Court to make.
The Mother sought the following:
(a)The Mother requested that the orders be given “urgent consideration” 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 also sought an interim procedural order that “all times and rules be abridged to allow this matter to be heard on an urgent basis”.
(b)The Cover Letter for urgency stated:
We advise that our client seeks that her Initiating Application be abridged and listed urgently on the basis that it concerns urgent Recovery Order matters.
(c)The Review Application stated:
We are seeking to review the decision of the Registrar on 19 August 2021 and failure to exercise discretion to list this matter urgently.
Other than the request for an order that the “rules be abridged” in the Mother’s Initiating Application, the Mother made no specific request to the Court to abridge the time for service of her Initiating Application pursuant to r 2.13 of the Rules, nor did she seek an abridgement of time for the Father to file his Response to Initiating Application, Notice of Child Abuse, Family Violence or Risk and supporting affidavit, under rr 2.18, 2.04 and 5.04 respectively.
However, although the Mother’s application has been framed in the most generic of terms, I am prepared to take the Mother’s application at its very highest and proceed on the basis that the Mother was seeking that the Registrar exercise the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court. This power may be delegated pursuant to s 254(2)(k) of the Act and has been so delegated under the Rules.
I consider that the Mother’s application falls within the third “scenario” referred to by Halligan FM in Myers. That is, the Mother sought a first court date that would not allow time for compliance with the Rules and sought that the time frames stipulated by the Rules be shortened or dispensed with.
I am therefore satisfied that the Registrar’s Decision on 19 August 2021 was a reviewable decision.
SHOULD THE REVIEW APPLICATION BE ALLOWED?
Having determined that the Registrar’s decision is reviewable, I must now consider whether the Mother’s Application for Review should be allowed and the abridgement granted such that the matter is listed for hearing urgently sometime before 29 September 2021.
The Mother argues that the Registrar failed to exercise their discretion to list the matter urgently on the grounds that:
…the Registrar has erred on the weight given as to the urgency of this issue, and that the children, X born in 2008 and Y born in 2009, have not been returned to Applicant Mother’s care since 18 July 2021.
The children have since not been returned to the Applicant Mother’s care, warranting judicial determination and assistance.
The Mother seeks that her Initiating Application be abridged and listed urgently as the matter concerns urgent Recovery Order issues.
The basis upon which the Mother seeks urgent assistance from the Court for the children to be returned to her care, is as follows:
(a)According to the Mother, during the relationship and following separation, the Mother was primarily responsible for the children’s ongoing welfare, development and day to day needs.
(b)On 14 December 2020, the parties entered into a Parenting Plan which provides for the children to live with each party on a shared care week about basis, with changeover taking place at each parties’ respective residence.
(c)The Mother states that between 14 December 2020 and 18 July 2021, the Parenting Plan was working effectively and the children were well settled into their regular routine.
(d)According to the Mother, on 18 July 2021, the Father did not provide the children to the Mother at changeover. Whilst the Mother had some concerns as to why the Father was not present, she did not believe it to be of such an issue to warrant intervention. The Mother acknowledges that she did not immediately file an application for the children to be returned to her care in her affidavit of 13 September 2021 and states that:
I was of the view that the Father would return the Children to me once I had provided him with the clean supervised urine drug screens and confirm that I was undertaking counselling sessions, as he had requested.
(e)The Mother alleges that between 18 July 2021 and 25 July 2021, the Father provided a range of excuses as to why the children had not been returned to the Mother, including that he was to undertake a COVID-19 test. The Mother states that she received no confirmation of the test being undertaken or test result.
(f)The Mother also alleges that since 18 July 2021, the Father has withheld the children from her, and has failed to permit the children to spend time with her, and instead made allegations that the Mother has been using illicit substances. The Mother acknowledges that she has used illicit substances, however, she has subsequently undertaken supervised urine drug screens which have been negative for illicit substances.
(g)The Mother further alleges that the Father has contacted the schools of the children and removed her as a parent of the children, advising the schools that he is the sole carer of the children.
(h)The Mother states that she is very concerned about the Father’s actions including his abusive, denigrating and alienating behaviour, his consumption of alcohol and his deteriorating mental health.
The Father submitted during the hearing that he would be filing affidavit material in opposition to the Mother’s substantive application. The Father indicated that the material would include allegations of the Mother’s use of illicit substances, inappropriate behaviour towards the children by the Mother’s partner and also the Mother’s contact with the children since 18 July 2021.
In Myers, Halligan FM (at [87]) set out four factors the Court should be satisfied of if a matter is to be listed urgently:[2]
(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.
[2] Adopted by decisions such as Petrova & Leighton [2017] FCCA 315; Hearnes & Jellets [2020] FCCA 2722; Tadros & Tadros & Ors [2020] FCCA 1118; Diacos & Gataki(No 3) [2021] FCCA 1841.
I am willing to proceed on the basis that the Mother has demonstrated that a reasonable basis exists for arguing for the substantive orders sought.
As to whether 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, I am not satisfied that this criteria has been made out.
Registrars on a daily basis deal with applications for abridgments and urgent listings and are best placed to allocate listings having regard to urgency considerations and the overall business of the Court. The Court will accord priority to cases depending on the urgency that presents itself on a case by case basis by carefully weighing competing considerations such as the factual basis for the urgency asserted, including any issues of safety or risk, and the delay in bringing an application.
This assessment is in the context of an extremely busy court where resources must be allocated efficiently and effectively, and where many parties may consider their application to be urgent for them. In the absence of urgency, a case will be given a first return date at an appropriate time allowing for service on the respondent and the filing of a Response to an Initiating Application.
In considering this second criteria, I have had regard to the comments of Halligan FM in Myers (at [84]):
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.
While the Mother’s application contains a number of assertions regarding the Father, I am not satisfied that basis for urgency has been demonstrated in the Mother’s evidence.
The affidavits of the Mother do not sufficiently demonstrate the required need for urgency bearing in mind the listing on 29 September 2021 is only 15 days from the date the Review Application was heard. The Mother has not shown that, absent an urgent listing, she 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.
I am also not satisfied that the Mother has demonstrated that there has been “no unreasonable or unexplained delay” in approaching the Court. According to the Mother, the last time she spent any substantive time with the children was on 18 July 2021. Her Initiating Application was filed on 18 August 2021, and the abridgement of that application was refused on 19 August 2021. It was not until 6 September 2021, some 3 weeks later, that the Mother filed the Review Application.
It is not reasonable for the Mother to now apply the Court and claim that this matter is urgent and that she should obtain priority over other matters which have been filed earlier and have been waiting some time for a hearing.
It should also be noted that the matter is currently listed on 29 September 2021, just over one month since the Mother’s initiating application was filed. This is not a significant delay. According to the Mother’s Affidavit of Service filed on 30 August 2021, the Father was served with the Mother’s Initiating Application on 23 August 2021. The Father is yet to file any material. In accordance with r 2.18(2) of the Rules the Father must file a Response 28 days after service of the application, therefore by 19 September 2021. Given the issues in dispute, the Court will benefit from receiving evidence from both parties.
I am not satisfied that the Mother has conducted herself in a way that suggests urgency. Even if the delay before filing the Initiating Application can be explained, the Mother’s delay in filing the Review Application in circumstances where such an application is so time sensitive (having been filed 19 days after the Registrar’s Decision, where the Rules require that it be filed within 21 days) is of significant weight.
The third criteria is not made out.
As to “whether a judicial officer is available to hear the substantive application”, in the interests of deterrence, the Court must 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 merely disagrees with a decision of a Registrar, in particular in relation to the listing of matters.
Consideration must be given to the “overarching purpose” provisions outlined in ss 190 and 191 of the Act.
I particularly note the elements of the overarching purpose which seek to ensure the efficient use of judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court’s overall caseload. The Court has a responsibility when allocating dates to make an assessment of priority as against other matters. It must balance the allocation of dates with other matters with equally competing priorities.
The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose: see s 190(3) of the Act.
Whilst the Court must assess the merit of each application for review, in the context of a review of a listing decision, the Court must also have regard to the orderly and considered allocation of hearing dates. This impacts the efficient use of the Court’s resources as well as its ability to efficiently dispose of the Court’s overall caseload. I note the discussion of McClelland DCJ on the importance of the allocation of Court resources in Moxey & Keirn [2021] FamCA 615 at [55]-[57].
Parties should not be encouraged to regard a hearing in relation to the review of a Registrar’s decision concerning whether to abridge a matter as an opportunity to agitate their substantive application before a Judge ahead of the time that has been allocated by the Registrar.
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 genuine urgency can be demonstrated. I am not satisfied that is the case here.
CONCLUSION
The Mother’s Review Application should be dismissed.
As the Mother’s Review Application was unsuccessful and the Father was not represented, there will be an order that each party shall bear their own costs of the Application for Review.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 16 September 2021
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