Mawson & Mawson
[2021] FedCFamC1F 40
•14 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mawson & Mawson [2021] FedCFamC1F 40
File number(s): ADC 433 of 2020 Judgment of: BERMAN J Date of judgment: 14 September 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the mother seeks a review of parenting orders – Where the father seeks that the application be dismissed – Where the mother’s application is out of time – Where leave to bring the application out of time was not specifically sought – Application for review dismissed. Legislation: Family Law Act 1975 (Cth) s 38N
Family Law Rules 2004 (Cth) rr 18.05, 18.07, 18.08
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 19 August 2021 Place: Adelaide Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd ORDERS
ADC 433 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MAWSON
Applicant
AND: MR MAWSON
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
14 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Application for Review filed 18 July 2021 of orders made by Senior Registrar Heuer on 30 April 2021 is dismissed.
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 the pseudonym Mawson & Mawson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Application in a Case filed 18 July 2021, Ms Mawson (“the mother”) seeks a judicial review of a decision of Senior Registrar Heuer made 30 April 2021, but in particular paragraph 3 of the orders made.
By his Response to an Application in a Case filed 13 August 2021, Mr Mawson (“the father”) seeks that the mother’s application be dismissed.
The parties are in conflict as to the future parenting arrangements for X born in 2013 (“the child”). The proceedings were commenced by the father on 3 February 2020 however, the parties agreed to undergo a therapeutic process in circumstances where the mother considered that the child was highly resistant to spending time with the father and he considered that the mother has either failed to support or actively undermined the child’s relationship with him.
On 11 February 2021, Judge Brown transferred the proceedings to the Family Court of Australia and made holding orders by consent that the child spend time with the father each alternate Sunday from 9.00 am until 4.00 pm commencing on 14 February 2021. On 30 April 2021, the Senior Registrar made the following orders relevant to the mother’s application:
3. That the child spend time with the father:
a) Until 2 July 2021:
i.Each Wednesday from 4.00pm until 7.00pm, commencing 5 May 2021;
ii.Each alternate Sunday from 9.00am until 4.00pm commencing 2 May 2021;
b) From 2 July 2021 to 24 September 2021:
i. Each Wednesday from 4.00pm until 7.00pm;
ii.Each alternate weekend from 9.00am Saturday until 4.00pm Sunday;
c) From 25 September 2021:
i.Each Wednesday from after school (or 4.00pm if a non-school day) to 7.00pm;
ii.Each alternate weekend from 9.00am Saturday until 4.00pm Sunday.
d) At all other times as agreed.
The Senior Registrar’s orders also provided for the parties to facilitate the child’s attendance at the “C Program” and to provide for the child to be at liberty to communicate with the father by phone, FaceTime or video call.
The Senior Registrar also considered that an updated Family Assessment Report should be obtained from Ms B proximate to the hearing date. It is assumed that the intended addendum report is to assist in the determination of the final orders sought by each of the parties given the proceedings were referred by the Senior Registrar to the list of matters awaiting a trial allocation and in the absence of an adjourned date.
Ms B had provided a Family Assessment Report on 3 February 2021. The mother contends that the recommendations of Ms B were contrary to orders made by Judge Brown on 21 December 2020 which in part provided for the child to spend unsupervised time with the father between 9.00 am and 1.00 pm on 10 January 2021, 24 January 2021 and 7 February 2021. Specifically, the mother refers to page 17, paragraph 4 of the report where Ms B opines that “[e]ventually, some period of that time could be spent unsupervised, once [the father] is demonstrating a capacity to curtail [the child’s] inappropriate behaviour effectively”.
It is the mother’s submission that she was surprised that the interim argument was listed before the Senior Registrar and that given the orders made which increased the time that the child spends with the father, the mother contends that there had not been proper consideration given to the recommendations of Ms B, that a cautious approach should be adopted and any increase in the child’s time with the father should be gradual.
Paragraphs 18 to 21 of the mother’s affidavit filed 18 July 2021, sets out her observations of the purported deteriorating behaviour of the child as a result of the increased time as ordered. The more significant example of the child’s poor behaviour and inability to cope with the care arrangements are set out in paragraphs 21(a) to (n) of the mother’s affidavit.
The father denies that the child is not coping with the arrangements as ordered and provides his response at paragraph 25 of his affidavit filed 13 August 2021. In summary, the father contends that when the child is in his care he is settled and happy, has never asked to return to the mother’s home earlier than the allotted time and if anything, the child has expressed reluctance to end his time with the father and return to the mother’s home.
As at the date of the hearing, the child had spent overnight time with the father on 10 July 2021, 24 July 2021 and 7 August 2021.
THE STATUS OF THE MOTHER’S APPLICATION FOR JUDICIAL REVIEW
Registrars of the Family Court of Australia are officers of the Court pursuant to s 38N of the Family Law Act 1975 (Cth) (“the Act”).
Section 38N(2) of the Act provides:
The officers of the Court, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by this Act, by the standard Rules of Court or by the Chief Justice.
Rule 18.05 of the Family Law Rules 2004 (Cth) (“the Rules”) delegates powers to a Registrar including a Senior Registrar as specified in table 18.2. Item 3 in Table 18.2 delegates to a Registrar the following relevant provisions:
Power to make a parenting order:
a. until further order; or
b. in undefended proceedings; or
c. with the consent of all parties to the proceedings.
Subject to the parameters of the delegated power, Registrars are not subject to direction as to how they exercise those powers.
Rule 18.07 provides for the review of decisions made by a Registrar exercising delegated power pursuant to Rule 18.05 and Table 18.2. The Rule provides:
This part:
(a)applies to an application for the review of an order of a Judicial Registrar, Registrar or a Deputy Registrar; …
Rule 18.08 provides:
(1)A party may apply for a review of an order mentioned in an item of Table 18.6 by filing an Application in a Case and a copy of the order appealed from in the filing registry within the time mentioned in the item.
Item 2 in Table 18.6 provides that an application to review a decision of a Registrar exercising power delegated under rule 18.05(1) are to be made within 21 days of the order being made.
The father argues that the application for review is significantly out of time and in the absence of an application for leave to bring the proceedings out of time and any explanation for the delay, the application for review should be dismissed.
It is not suggested that in an appropriate case the Court does not have the ability to grant leave for the proceedings to be filed nunc pro tunc. In circumstances where there is no application nor attempt to explain delay, the Court should not lightly entertain an application that is not filed within time.
A number of considerations have potential relevance to a decision that leave should be given to file out of time. It is reasonable that a litigant has an expectation that an order made will resolve the issues as between the parties. In this case, the father contends that he is entitled to rely upon the outcome of the proceedings properly heard and determined.
Issues of prejudice to each of the parties is also a consideration as is the costs of litigation, likely to be exacerbated by further application.
A party who is dissatisfied with the outcome of proceedings should not be able to easily relitigate the same issues. A significant advantage is provided to parties to review a decision of a Registrar, including a Senior Registrar, de novo providing that they bring the necessary application within the time as provided by the Rules.
Whilst not a determining factor, the best interests of a child may be relevant and worthy of weight in determining whether to extend time.
The father argues that when the mother’s affidavit is given careful consideration there is little extra raised that is significant.
The affidavits of the parties do not enable a determination that the child has been adversely or beneficially affected by the implementation of the orders that introduce an overnight component.
I am cognisant of the need to act out of an abundance of caution but in the circumstances of this case there is nothing before the Court that would lend weight to an argument that the best interests of the child would weigh heavily in deciding that leave should be given for the proceedings to be issued out of time.
There is merit in the father’s argument that in the absence of an adequate explanation as to the delay in bringing the application for review, there are no countervailing factors which would support leave being given even though it was not specifically sought.
As considered, I am not able to find that the matters raised by the mother are of sufficient substance that they would present as a material change sufficient to form the basis of a fresh interim application.
Ongoing litigation is unlikely to be in the interests of a child. Care must be taken to ensure that if an application is filed there must be a proper foundation that is likely to materially impact upon a child.
I make the order as appears at the commencement of these reasons.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 14 September 2021
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