McCluskey and McCluskey

[2018] FCCA 714

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

1. 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

1. 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.

2. The Application for Final Orders which Ms McCluskey filed on 22 February 2018 is listed for consideration on that day. 

3. In her Application in a Case Ms McCluskey sought a recovery order and an urgent listing and an order for short service.

4. 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.

5. On 20 March 2018 Ms McCluskey filed an Application for Review of the listing decision.

6. 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

1. Ms McCluskey sought the following order in her Application for Review:

   In accordance…