Masters & Herceg
[2021] FedCFamC1F 106
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Masters & Herceg [2021] FedCFamC1F 106
File number(s): SYC 3858 of 2019 Judgment of: REES J Date of judgment: 7 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – review of senior registrar’s decision out of time – where the husband misunderstood the filing date for review under the assumption he appeared before a judicial registrar – leave to review out of time granted
FAMILY LAW – COSTS – here the husband was not permitted to photocopy the subpoena material he wished to tender at the hearing – where the substantive proceedings were adjourned by the senior registrar with the husband to pay costs – costs order discharged.
Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.06
Cases cited: Gallo v Dawson (1990) 93 ALR 479 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 6 October 2021 Place: Sydney Applicant: Self-Represented Solicitor for the Respondent: No Appearance Solicitor for the Independent Children's Lawyer: Ms Shedden, Shedden & Associates ORDERS
SYC 3858 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MASTERS
Applicant
AND: MS HERCEG
Respondent
SHEDDEN & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS:
1.That leave be granted to the applicant to file an application out of time to review a decision of the Senior Registrar.
2.That Order 2 made on 9 March 2021 be discharged.
3.That the matter is referred to a Judicial Registrar for listing in relation to the issue of the applicant’s appropriate access to subpoenaed documents and how they are to be provided to the single expert.
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 Masters & Herceg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J
On 9 March 2021, Senior Registrar Campbell (as he then was) made an order in parenting proceedings between Mr Masters (“the applicant”) and Ms Herceg (“the respondent”) requiring the applicant to pay $3,000 in costs described as “costs thrown away by the adjournment of the interim hearing today”.
The applicant now seeks to review that order.
The application to review was filed on 7 April 2021.
The applicant relied on an affidavit sworn by him on 17 August 2021, a Financial Statement sworn the same date, a tender bundle and a case outline.
The respondent did not file any material referable to the review and there was no appearance on her behalf.
The ICL appeared as a matter of courtesy although not strictly required to do so.
The applicant concedes that his application was filed out of time.
Rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that:
(1)The court may at any time, on the application of a party or the court’s own initiative, shorten or extend a time that is fixed under these Rules or by a procedural order.
The High Court in Gallo v Dawson (1990) 93 ALR 479 explained that the grant of extension of time to review a decision is not automatic. In considering such an application it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant of refusal of the application. Importantly, in considering the conduct of the parties the Court must consider the explanation for the delay and the reason why the application was not filed within the time specified in the rules.
The rules which governed the time in which a review must be filed, at the time of the order of 9 March 2021, provided that a review of an order made by a Judicial Registrar must be filed within 28 days (Family Law Rules 2004 (Cth) rule 18.08).
The applicant, wrongly, believed that Senior Registrar Campbell was a Judicial Registrar and that he had filed within time.
The applicant was representing himself. The delay was not significant or material.
Leave will be granted to file the application to review out of time.
I will turn now to consider the substantive decision being reviewed.
The determination proceeds by way of hearing de novo. Since no material was filed on behalf of the respondent and no submissions made on her behalf, I will consider only the material upon which the applicant has relied.
The application is governed by the provisions of s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) which are set out below:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
There is no evidence of the respondent’s financial circumstances.
The applicant is not employed and receives a Jobseeker allowance. He has no relevant property and about $20 in his bank accounts.
The applicant is not in receipt of legal aid.
At the relevant time, the applicant was not legally represented. The consequence of his representing himself was that, due to the procedures then in place in relation to the inspection and copying of material produced on subpoena, the applicant was not permitted to copy material which was categorised as sensitive, such material included, but was not limited to, material produced by the Department of Family and Community Services (“FACS” as it then was).
Because the matter was to proceed electronically, directions had been made for each party to provide to the Senior Registrar’s associate, the documents which he or she intended to tender in electronic form.
The document which the applicant wished to tender was the portion of the FACS file that had been produced to the Local Court in Manly but which post-dated the file which had been produced to the Family Court.
Although the Local Court file had been produced to the Family Court, the applicant was not permitted to copy the relevant material and thus could not include it in his tender bundle.
On 5 March 2021, the applicant emailed the associate to the Senior Registrar explaining that he had been unable to copy the documents upon which he wished to rely. The letter concluded:
Please advise how I can get the documents which 1. Have not been provided by B Solicitors and 2. I do not have access to copy subpoena material thereby copy then admit into evidence.
When the matter came before the Court on 9 March 2021, it did not proceed because material upon which the applicant wished to rely was not available for him to tender.
The proceedings were adjourned and the applicant was ordered to pay the costs of the adjournment.
I do not consider that, in those circumstances, the applicant willingly failed to comply with an order of the Court.
The evidence does not persuade me that there should be any order that the applicant pay costs.
The order of the Senior Registrar will be discharged.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 8 October 2021
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