McCluskey and McCluskey
[2018] FCCA 714
•27 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCCLUSKEY & MCCLUSKEY | [2018] FCCA 714 |
| Catchwords: FAMILY LAW – Application for review of Registrar’s listing decision – application determined in chambers and dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.05, 1.06, 6.19,15.03 Family Law Rules 2004 (Cth), r.21.13 |
| Cases cited: Cantrell & Cantrell [2017] FCCA 2565 |
| Applicant: | MS MCCLUSKEY |
| Respondent: | MR MCCLUSKEY |
| File Number: | NCC 544 of 2018 |
| Judgment of: | Judge Terry |
| Hearing date: | 27 March 2018 |
| Date of Last Submission: | 27 March 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 March 2018 |
REPRESENTATION
No appearances required.
ORDERS
The application for review filed on 20 March 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McCluskey & McCluskey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 544 of 2018
| MS MCCLUSKEY |
Applicant
And
| MR MCCLUSKEY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 March 2018 Ms McCluskey filed an Application for Review of a decision by a Registrar to give an Application in a Case which she filed on 13 March 2018 a return date of 9 April 2018.
The Application for Final Orders which Ms McCluskey filed on 22 February 2018 is listed for consideration on that day.
In her Application in a Case Ms McCluskey sought a recovery order and an urgent listing and an order for short service.
The Registrar did not formally refuse short service, but in listing the matter on 9 April 2018 she effectively did so because the listing date gives sufficient time for Rule 6.19(a) of the Federal Circuit Court Rules to be complied with, in other words for the application in a case to be served not less than 3 days before the date fixed for hearing.
On 20 March 2018 Ms McCluskey filed an Application for Review of the listing decision.
I intend to dispense with compliance with Rule 15.03 of the Federal Circuit Court Rules and to determine the Application for Review in chambers without an oral hearing. I repeat my observations in Cantrell & Cantrell which were as follows:
The pressure of work in this court is such that it is unreasonable to expect that all Applications for Review of listings decisions will be listed in open court and be the subject of an oral hearing.
Unfortunately these applications tend to come in in volume when a Registry is already under severe pressure trying to deal with incoming work in a timely fashion. If judges are forced to list all such applications in open court and hear submissions about them it either compounds the problem for other litigants who are then squeezed out of hearing time or it adds to the unacceptable pressure on judicial officers who often feel compelled, out of concern for the welfare of children, to sit very long hours.[1]
[1] Cantrell & Cantrell [2017] FCCA 2565
The Application for Review
Ms McCluskey sought the following order in her Application for Review:
In accordance with Family Law Rule 21.13 the Application in a Case, seeking an urgent Recovery Order be listed on an urgent basis, and within 14 days of the date of filing.
Rule 21.13 of the Family Law Rules provides that if an application for a recovery order is filed:
The Registry Manager must fix a date for a hearing that is within 14 days after the date the application was filed, if practicable.
This matter is however in the Federal Circuit Court. There is no equivalent rule in the Federal Circuit Court Rules, this is not a rule which Rule 1.05(3) or Schedule Part 1 of 3 of the Federal Circuit Court Rules obliges me to apply and I do not consider that there is a gap in the Federal Circuit Court Rules which requires me to consider utilising this rule.
In light of this I could just dismiss the Application for Review without further consideration, but I will on this occasion (and only on this occasion) consider in the broader sense of whether a listing earlier than 9 April 2018 is justified.
I have read Ms McCluskey's Initiating Application, Affidavit and Notice of Risk filed on 22 February 2018, her Application in a Case and supporting affidavit filed on 13 March 2018.
The background to the matter is that Ms McCluskey and Mr McCluskey separated in December 2016 after a relationship/marriage of about 13 years. They have two children, X aged 10 and Y aged 8. Y has special needs and behavioural difficulties.
Immediately after separation the mother moved from somewhere on the (omitted) to the (omitted) with the children. A letter from the father’s solicitor to the mother’s solicitor dated 3 July 2017 says that she moved about four or five hours drive from her previous location, and it would appear that it was a unilateral relocation.
Nevertheless the parties signed a parenting plan which did not seek to disturb the children’s residence and which provided for the father to spend every alternate weekend with the children, and he did thereafter at least for a period of time, spend every alternate weekend or at least about every third weekend with the children.
According to the mother in about May 2017 the father began demanding that she return to the (omitted). She said that he also made it clear that if she did not return then X should live with him.
The mother said that she insisted that thereafter the father’s time with the children became supervised with supervision provided by (omitted). The extent to which the time did become supervised is unclear to me.
In the exchange of correspondence between the parties’ solicitors in 2017, the mother alleged that the father’s time with the children needed to be supervised because he had been physically abusive to Y and psychologically abusive to X and that he used marijuana and consumed one or two cases of beer a day. The father disputed the allegations although in regard to the alcohol issue offered to undertake not to consume alcohol in excess of the legal driving limit when the children were with him.
X ceased spending regular time with father on 10 December 2017 for reasons which the mother did not make clear. The mother said that Y had ceased spending time with him three months prior to that. It would appear that during 2017 Y suffered very severe behavioural problems and also mental health issues. It is the mother’s case that this is due to the father’s historical abusive treatment of Y.
On 22 February 2018 the mother filed an application seeking on both a final and interim basis that she have sole parental responsibility for the children and that they live with her and spend time with the father as agreed in writing, having regard to the children’s wishes but at the mother’s sole discretion.
It is not clear from the file whether this application has been served on the father.
The mother’s evidence was that the father contacted her on 5 March 2018 to say that he was coming to the (omitted) on 10 and 11 March 2018 and asking to spend time with X. The mother agreed to him doing so on 10 March provided that the time was supervised by her father.
The father came up and spent some time with X at the maternal grandparents’ home. He then suggested that they take X to the local skate park and the maternal grandfather agreed. The father took X in his car and the maternal grandfather went in a different car. However the father did not arrive at the skate park and he subsequently sent the mother a text message saying that he had taken X back to the (omitted) for a few days and would bring him up when he went to see his Dad.
On 13 March 2018 the mother filed an application for a recovery order.
Conclusion
I am not prepared to give this matter an earlier listing date.
On the face of it, the father’s behaviour in removing X from the mother’s care is inexcusable and it may well be that when the matter comes before me on 9 April 2018, a recovery order will be made if the father has not by then voluntarily returned the child. It will be regrettable if he does not and the child misses a few weeks of school but I cannot be satisfied on the material that the child will be at unacceptable risk of harm in the father’s care during the next couple of weeks.
X spent unsupervised time with the father during 2017 (including if correspondence is correct some holiday time) and did not come to harm. An alleged disclosure by X in January 2018 about some historical event does not change my view that I cannot be satisfied that he will be at unacceptable risk of harm in the father’s care if he remains there until 9 April 2018 which is not very far away.
The mother makes very alarming allegations about the father but experience teaches that there is so often another side to the story. Even on the mother’s material this has all the hallmarks of being a complex family situation.
I could only deal with this matter in court between now and 9 April (when it is listed in a duty list) either by sitting late, imposing on my staff and compromising my own wellbeing or by compromising the hearing time of matters which have been patiently waiting six months or more for a hearing, and if I do the latter I risk matters going part heard which has a knock on effect for other matters.
I would do it, as I so often have to, if I felt that the child’s safety would be at risk if he remained one more day with the father, but I cannot be satisfied of that and I intend to dismiss the Application for Review.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 27 March 2018
0