MEADOWS & MEADOWS
[2020] FamCA 12
•21 January 2020
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS | [2020] FamCA 12 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – Where the applicant sought a review of the decision to reject two applications for filing – Where the applications sought orders including final parenting orders – Where the orders were sought notwithstanding similar issues had been addressed in final parenting proceedings and the applicant has appealed against those orders – Where in any event there is not enough time for the mother’s application to be heard and determined – Application dismissed. |
| Family Law Act 1975 (Cth) ss 60I, 65F Family Law Rules 2004 (Cth) r 5.01A |
| Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Rice & Asplund (1979) 6 Fam LR 570; [1978] FamCA 84 |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| DATE DELIVERED: | 21 January 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 10 January 2020 |
REPRESENTATION
| APPLICANT MOTHER IN PERSON |
| RESPONDENT FATHER IN PERSON |
Orders
The Applications in a Case filed by the mother on 19, 24 and 31 December 2019 are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 December 2019 a Registrar made orders including an order rejecting for filing two applications lodged by Ms Meadows (“the mother”). On 19 December 2019 the mother filed an Application in a Case (“the Review Application”) seeking to review the Registrar’s decision. That application was heard on 10 January 2020.
The mother filed further review applications on 24 and 31 December 2019. They were not allocated return dates and the disposition of those applications was also referred to me.
What follows are the reasons for the orders set out at the commencement of this judgment.
The Hearing
Both the mother and Mr Meadows (“the father”) attended by telephone and each was without legal representation. The mother identified the evidence on which she sought to rely. Both parties made oral submissions and judgment was reserved, the parties being excused from attending on delivery of judgment.
The Applications
In the Review Application the mother sought the following orders:
(1)REVIEW OF A REGISTRARS DECISION: DECISION OF REGISTRAR HAYWARD on the 19/12/2019 hearing held at 10am; application she advised was dismissed under Section 24.10E
In the Application in a Case filed 24 December 2019 the mother sought the following orders:
(1)Review of a Registrars Decision: Registrar McGrath decision madde [sic] on 24 December 2019. Decision was received by email from the Family Court of Australia Sydney Registry marked as Official Use Only and the application in a case made had been taken off the comcourts portal.
In the Application in a Case filed 31 December 2019 the mother sought the following order:
(1)Review of a Registrars Decision: Registrar Turner decision made on 30 December 2019. Decision was received from the comcourts email address by email and the application in a case made had been taken off the comcourts portal.
The Evidence
The mother identified the following affidavits as the evidence on which she relied:
·affidavit of the mother sworn 11 November 2019;
·affidavit of the mother sworn 16 December 2019;
·affidavit of the mother sworn 19 December 2019;
·affidavit of the mother sworn 23 December 2019;
·affidavit of the mother sworn 31 December 2019;
·affidavit of Dr LLL sworn 1 November 2019;
·affidavit of Dr GG sworn 17 December 2019; and
·affidavit of Psychologist Ms FF sworn 13 December 2019.
Although she initially referred to them, the mother also indicated that it was not necessary to read her affidavit sworn 8 November 2019 (as it was repeated in the 11 November 2019 affidavit) nor the affidavits filed by her medical practitioners in 2018.
The mother asserted that all of the affidavits relied on by her had been served on the father. The father did not dispute that fact and did not ask for more time to digest them. The father did not ask me to read any evidence in his case.
Given that the mother first identified the affidavits on which she sought to rely at the hearing on 10 January 2020, I was unable to read them prior to the hearing. I explained that fact to the parties and said that I would read the affidavits before determining the Review.
Background Facts
The evidence before me is limited but reference was necessarily made to final orders (parenting and property settlement) pronounced by Baumann J on 30 July 2019. It will aid in understanding these proceedings if I repeat some of the facts set out in his Honour’s reasons for judgment. I do not understand the biographical facts to be controversial but acknowledge that the mother has appealed against some of the orders of 30 July 2019. The following background is based on paragraphs 15 – 24 of his Honour’s reasons for judgment[1]:
[1]Meadows & Meadows (No. 2) [2019] FamCA 491.
·as at July 2019 the father was 40 years of age and the mother was 38;
·the parents commenced cohabitation in 2001. The mother says that there was a period of separation in 2006/2007 however the parties were married in 2009;
·the parties’ daughter, B, was born in 2011;
·although the father and mother have different versions of history around the time that separation occurred initially in July 2012, by December 2012 the father had returned to live in the former matrimonial home at Suburb P while the mother and B lived in rental accommodation, initially in a unit at Suburb EEE. The father says that the mother and B returned to the family home, and separation under the one roof commenced in early 2013. This appears to be disputed by the mother;
·by the time the parties filed a joint Application for Divorce in August 2013, the parties acknowledged that B was spending the majority of time in the mother’s care, when not otherwise at child care or with the father. The mother had returned to some employment in mid-2013. A decree of divorce was made in 2013;
·the father and his now wife, Ms F, began their friendship in 2013;
·the mother claims she was stalked by the father and otherwise harassed by other persons. The mother came to the attention of the AAA Mental Health Team in May 2014;
·the mother commenced the property proceedings in the Federal Circuit Court of Australia (FCC) on 16 October 2014. The parenting proceedings were instituted by the father’s amended Response which was filed in May 2015;
·from 12 August 2016 the mother unilaterally refused to permit B to spend time with the father, causing the father to file an application for specific interim parenting orders on 7 September 2016 and interim orders were made on 4 October 2016 as follows:
…
2.Orders be made in accordance with the document titled ‘Minute of Order’ dated 4 October 2016 and initialled by me and placed with the papers, as follows:
a.That the child of the marriage B born … 2011 (“B”) live with the father as follows:
i.By consent, from Wednesday 5 October 201 at 6:30pm until Sunday 9 October 2016 at 9.00am.
ii.Each alternate weekend from 6.30pm Friday until 9.00am on Monday commencing on Friday 14 October 2016.
iii.On such other occasions as is agreed.
b.That B live with the mother at all other times, unless otherwise agreed.
c.That, within 7 days, the father sign all documents necessary to enroll B to attend KKK School at J Town commencing in 2017.
d.That, within 7 days, the mother sign all documents necessary to enroll B to attend HHH School at KK Town commencing in 2017, on a “no admissions” basis, with respect to that issue.
e.By consent, that the mother deliver B to the father at the beginning of each period B is to live with him and the father deliver B to the mother at the end of periods when B is living with him at the BP Service Station, JJ Street, K Town New South Wales.
3.The matter be adjourned to 9 November 2016 at 11.00am for interim hearing (estimate 2 hours).
4.Orders be made in accordance with the document titled “Minute of Directions” as initalled by me and placed with the papers, as follows:
a.That each party file and serve any further affidavit upon which they wish to rely at the interim hearing on 9 November 2016 on or before 28 October 2016.
b.Leave is granted to each party to issue up to 5 further subpoenas.
5.A short case outline document be forwarded by each party to my Associate at least 2 days prior to the adjourned date.
6.The Application in a Case filed 7 September 2016 be stood over to the adjourned date.
7.The date of 5 December 2016 at 9.30am be vacated.
·time between the father and B resumed on 5 October 2016;
·on 10 January 2017, for Reasons published (see Meadows & Meadows [2017] FCCA 14), the following interim orders were made:
(1)B, born … 2011, (“the child”) live with the father.
(2)The child spend time with the mother, subject to these orders, from 6.30pm on Friday until 6.30pm on Sunday, each alternate week commencing the first Friday from the date of these orders.
(3)Notwithstanding, any other order, the child shall spend time with the mother from 6.30pm on the Saturday prior to Mother’s Day until 6.30pm on Sunday, being Mother’s Day if the child was not already in the care of the mother.
(4)Notwithstanding any order for the purpose of celebrating Christmas, the child shall spend time with the mother from 3.00pm on Christmas Eve, 24 December, until 3.00pm on Christmas Day, 25 December, in even numbered years commencing in 2016 and from 3.00pm on Christmas Day, 25 December until 10.00am on Boxing Day, 26 December, in odd numbered years commencing in 2017. The child spend time with the father from 3.00pm on Christmas Day, 25 December, until 6.00pm on Boxing Day, 26 December, in even numbered years commencing in 2016 and from 3.00pm on Christmas Eve, 24 December, until 3.00pm on Christmas Day, 25 December, in odd numbered years commencing in 2017.
(5)The mother’s overnight time with the child shall occur at the maternal grandparents’ home at D Street, E Town with one or both of the maternal grandparents being present, pending a psychiatric assessment of the mother being carried out as recommended by Dr C, with the costs of such an assessment to be shared equally, subject to any initial funding available from the Independent Children’s Lawyer. The Independent Children’s Lawyer has leave to forward to Chambers a minute of order to implement such an assessment.
(6)The mother have telephone time with the child as agreed between the parties but failing agreement on at least 3 occasions per week when the child is otherwise living with the father between the hours of 6.30pm and 7.30pm on Monday, Wednesday and Friday.
(7)All changeovers shall occur at McDonald’s, K Town, unless otherwise agreed to between the parties.
(8)Neither party denigrate the other in the presence or hearing of the child or permit any other person to do so.
(9)The parties do all acts and things to cause the child to be enrolled at and attend HHH School at KK Town to commence kindergarten in January/February 2017.
(10)The matter be adjourned to 15 June 2017 at 9.30am for mention.
·the effect of those orders was to change the primary residence of the child to that of the father;
·there was no appeal against those orders;
·the proceedings were transferred to this Court on 14 July 2017;
·on 11 October 2017 the proceedings were expedited and orders were made including orders relating to a psychiatric assessment of the mother, provided the mother agreed. Simply stated, the mother has consistently refused to participate in any such assessment and the Court urged the mother to reconsider her position not to participate. The Court was not satisfied there should be any departure from the current interim orders. The mother appealed against the orders of 11 October 2017;
·the mother continued to exercise her ordered time with B until an event on or about 5 November 2017, when the mother refused to return the child to the father because of an asserted health concern. The father immediately caused a recovery application to be filed and on 10 November 2017 the Court made a recovery order, pursuant to which the child was returned to the father;
·on 14 November 2017 the Court ordered:
i)the child’s time with the mother under the orders of 10 January 2017 were suspended; and
ii)B was thereafter to have time with the mother at a supervised contact centre at V Town;
iii)The mother’s telephone time with the child to be supervised with a right to the father to terminate the call at the conclusion of 15 minutes.
The mother’s position in refusing to participate in the preparation of an expert psychiatric report was noted at Order 9.
·when the matter came before Baumann J on 16 August 2018. It was noted that the proceedings had been expedited and that earlier trial dates in June 2018 had been vacated. The proceedings were listed for Final Hearing commencing 14 January 2019;
·the mother’s appeal against the orders made on 11 October 2017, was heard by the Full Court (Ryan, Watts and Austin JJ) on 17 August 2018. The appeal was dismissed by orders pronounced on 21 December 2018. Reasons for judgment were published on 7 January 2019 (see Meadows & Meadows (2019) FLC 93-833);
·the hearing before Baumann J proceeded, with the Independent Children’s Lawyer (“ICL”) providing oral submissions and a minute of final order, and the unrepresented mother and father were directed to file written submissions;
·in his reasons for judgment, Baumann J observed:
24.Despite the best endeavours at trial to focus the mother’s evidence, cross-examination and submissions not on the Reasons of Judge Kemp, or for that matter the subsequent Orders made by Justices of this Court, it was not achieved. These Reasons will not be drawn into seeking to satisfy the mother’s albeit understandable concerns from her perspective, that the change from her being the primary carer of B in January 2017, to the current position where she refuses to exercise even supervised time with B, is other than a complete travesty of justice.
On 30 July 2019, the following final orders were made by Baumann J:
Parenting
(1)That all previous parenting orders be discharged.
(2)That the father have sole parental responsibility for the child, B born … 2011 (“the child”) and in exercising his sole parental responsibility in relation to any major long-term decisions, before the father makes the decision, he shall:
(a)notify the mother in writing of his intended decision;
(b)allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;
(c)consider the mother’s opinion before making his final decision; and
(d)then advise the mother of his final decision.
(3)That the child live with the father.
(4)That the child shall spend time with the mother as may be agreed in writing between the parents, but at least as follows:
(a)Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;
(b)For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;
(c)Thereafter, each second Saturday from 10.00am until 6.00pm; and
(d)On Mother’s Day from 10.00am until 6.00pm.
(5)That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Children’s Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.
(6)That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.
(7)That the father have leave to provide a copy of these parenting Orders to:
(a)any school upon which the child attends;
(b)any medical practitioner upon which the child attends; and
(c)the Centre.
(8)That the child shall communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.
(9)That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
(10)That each parent be and is hereby restrained from:
(a)denigrating the other parent, the other parent’s household or extended family, or the child’s school, in the presence or hearing of the child, nor cause, permit or allow any third person to do so;
(b)providing or showing any documents filed in these proceedings (including the family report dated 3 April 2018) to the child, or permitting or causing others to do so; and
(c)discussing with the child these proceedings or permitting or causing others to do so.
(11)That the mother and father shall keep each other advised at all times of their residential address and telephone contact numbers and details of all persons living at the house when the child is in their care and notify the other of any change within seven (7) days of such change.
(12)That the father shall do all things necessary to authorise the child’s schools to provide to the mother on a regular basis copies of school reports, newsletters, and other information regarding the child’s school activities.
(13)That the mother and father shall be at liberty to attend the child’s school for parent/teach interviews, school assemblies, school carnivals, extra-curricular activities and any other event parents are normally invited.
(14)That the mother and father keep each other informed of any medical emergency that may involve the child or any medical treatment that the child may receive whilst the child is in the care of that parent.
(15)That in the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:
(a)the other parent is to be notified as soon as practicable;
(b)the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)the medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them on request.
(16)That the father shall keep the mother informed and provide details and an authority to the child’s general practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the mother shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment, if any, and these Orders shall be sufficient authority for each party to do so.
(17)That any order restraining the removal or attempted removal of the child from the Commonwealth of Australia be discharged, and the child’s name be removed from the Airport Watch List.
(18)That after 30 July 2020, provided these Orders have been complied with, the mother and the father should engage in a form of community-based family dispute resolution and genuinely discuss extending the time the child spends with the mother to include overnight time and part of school holidays as well as other special event time.
Property
(19)That the husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Oder and the husband shall retain as his exclusive property free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands and actions arising from the home including the Bank PP mortgage.
(20)That:
(a)the Court allocates, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $45,000 to the Applicant wife, MS MEADOWS out of the Respondent husband’s, MR MEADOWS interest in the WW Superannuation Fund (“the Fund”);
(b)in accordance with s 90MT(1)(a) of the Family Law Act 1975, the Trustee of the Fund:
(i)creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 20; and
(ii)makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
(c)this Order has effect from the operative time and the operative time is four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of the WW Superannuation Fund.
(21)That the operation of Order 20 be stayed until such time as the husband files an Affidavit deposing to:
(a)service of a copy of these Orders on the trustee of the WW Superannuation Fund; and
(b)the response, if any, received from the Trustee.
(22)That in the event that the Affidavit deposes that no response was received from the Trustee within twenty-eight (28) days of service of the Orders, or that the Trustee consents to the terms of the Orders, the stay imposed by Order 21 hereof is automatically discharged upon the filing of the Affidavit, without further order.
(23)That unless otherwise dealt with in this Order:
(a)the wife shall retain as her sole and exclusive property free from claims by the husband:
(i)her jewellery;
(ii)her household contents;
(iii)her superannuation entitlements; and
(iv)any bank accounts and other personal property in her possession, power and control at the date of this Order.
(b)the husband shall retain as his sole and exclusive property free from claims by the wife:
(i)his motor bike;
(ii)his vehicle 1;
(iii)his household contents, tools and trailer;
(iv)his remaining superannuation entitlements (after the splitting order at Order 20 takes effect);
(v)any bank accounts and other personal property in his possession, power and control at the date of this Order; and
(vi)his shareholding and other entitlements in L Pty Ltd (save for the motor vehicle 3).
(24)That the husband shall, within sixty (60) days of the date of this Order, sign all necessary documents as the sole director of L Pty Ltd to transfer and assign the company’s right, title and interest in the motor vehicle 3 (formerly registered …) to the wife.
(25)That if the husband is unable or unwilling to pay to the wife the settlement sum prescribed by Order 19 above, then:
(a)the home shall be sold by public auction and listed for that purpose by the husband, within ninety (90) days of the date of this Order, with a registered real estate agent agreed by the parties, and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;
(b)the reserve price of the auction shall be no less than $620,000 unless agreed to by both parties but may be higher;
(c)the husband, for the purposes of the said auction, shall be required to accept an offer of $620,000 or higher;
(d)upon the settlement of any contract for sale of the home, the proceeds of sale shall be distributed as follows:
(i)payment of all real estate agent commission and marketing expenses;
(ii)payment of proper legal costs associated only to the husband’s sale of the home and proper adjustments on sale for rates and Government levies;
(iii)discharge of the secured Bank PP mortgage liability;
(iv)the balance (“nett sale proceeds”) to be distributed between the parties as set out in the next order.
(26)That the nett proceeds of sale are to be distributed between the parties so as to achieve an overall division of the nett non-superannuation interests found to exist and identified at paragraph 83 of the Reasons for Judgment, in the proportions of 45% to the wife and 55% to the husband.
(27)That pending the payment by the husband under Order 19 above, or the sale of the home under Order 25 above, the husband shall be entitled to remain in exclusive occupation of the home subject to him:
(a)continuing to pay the interest only payments on the Bank PP mortgage;
(b)continuing to pay rates, insurance and Government levies on the home as and when they fall due; and
(c)continuing to maintain the home.
(28)That each party shall be responsible solely for any credit card liabilities, personal loans and other debts and liabilities not otherwise dealt with in these Orders, as may be in their name at the date of this Order and shall indemnify the other party from any claims in respect of such labilities, and without affecting the generality of this Order. The wife shall specifically be solely responsible for her HECS debt.
(29)That the parties shall liberty to apply or any orders to enforce the provisions of this Order.
The mother appealed against the parenting and property settlement orders of 30 July 2019.
The mother filed an application seeking some changes to the orders of 30 July 2019 and on 19 September 2019 the following orders were made by Baumann J:
(1)That Order 4 of the Orders made 30 July 2019 be varied as follows:
(a)Order 4(a) - no change;
(b)Order 4(b) - no change to the location for changeover but to accommodate the operating hours of the Suburb MM Contact Centre the time shall commence at 9.30am and conclude at 3.30pm; and
(c)Orders 4(c) and 4(d) – changeovers shall occur at the service station at UU Town.
(2)That all other pending applications are dismissed.
The mother filed an application seeking a stay of some of the orders made on 30 July 2019 and on 24 October 2019 Baumann J dismissed that application.
As to the appeal, I understood from what the parties said that the appeal books have been prepared, the mother filed written submissions on 8 January 2020 and the written submissions from the father and the ICL have yet to be filed. No hearing date has been set for the appeal.
Discussion
The orders under review are the orders of the Registrar made on 19 December 2019. Those orders are as follows:
1.I note that this matter was listed before me today for a telephone procedural hearing in respect of the mother’s new initiating application filed the 13th November together with Application in a Case filed on the 16th December 2019.
Order for Dismissal
2.That the Initiating Application filed on the 13th November 2019 together with the Application in a Case filed on the 16th December 2019 is dismissed in accordance with Rule 24.10(1)(e) of the Family Law Rules 2004.
Notations
3.The Court notes the following:
·That the Final Parenting Orders made by Justice Bauman on the 30th July 2019 were the subject of a stay application which was dismissed.
·The Final Parenting Orders made on the 30th July 2019 are also the subject of an appeal. The hearing of that appeal is pending.
·The Court was informed by both the mother and the father that the mother has chosen to not comply with the parenting orders made by the court and this has resulted in the mother not spending time with the child for the last 2 years.
·The initiating Application filed by the mother on the 13th November 2019 seeks orders in relation to block holiday time (including overnight) for the Christmas period and January school holiday period.
·The mother raised Rule 5.01A of the Family Law Rules 2004. Such a rule relates to the Christmas school holiday period and the filing of such an application. Subsection 2 requires such an application to be made by 4pm on the second Friday in November of the application year. Such a date would fall on Friday the 8th November 2019. I note that the mother’s Initiating Application was filed on 13 November 2019 therefore she has not complied with Tule 5.01A and any supporting material in respect of urgency has not been established.
·In any event, the Initiating Application and Application in a Case has been dismissed on the grounds of Rule 24.10(1)(e) of the Family law Rules 2004.
The review of a Registrar’s decision proceeds by hearing de novo. That means that the decision made by the Registrar is to be considered afresh by me and the mother need not demonstrate that the Registrar was wrong.
In effect, I am to conduct afresh, a “procedural hearing in respect of the mother’s new Initiating Application filed the 13 November 2019 together with Application in a Case filed on the 16 December 2019”[2].
[2] The Registrar noted in the orders of 19 December 2019 that this was the reason for the listing on that date.
In the Review Application, the mother set out the detail of the orders sought in the rejected applications. I will not repeat the terms of those orders here but will discuss them below.
For completeness I should note that a review was determined by me in these proceedings on 21 August 2019 – Meadows & Meadows (No. 3) [2019] FamCA 644. That review raised similar issues to the current review. As I explained in that earlier judgment:
Once final parenting orders are made, there is only limited scope for parenting issues to again be addressed. If there is an appeal, then a stay may be sought on some aspect of the orders. An application may be made to enforce the orders. An application can be made to vary machinery orders. Otherwise, any change to the orders would require a significant change of the circumstances of a child or the parties since the orders were made. In that event, fresh proceedings would be required, commenced by the filing of an Initiating Application.
Subsequent to my earlier decision, the mother filed a Notice of Appeal in respect of the orders of 30 July 2019. In addition, stay and machinery applications were filed by the mother and they were each heard by Baumann J and determined.
The issue before the Court is – what should be done, in a case management sense, with the mother’s applications filed on 13 November 2019 and on 16 December 2019.
During submissions I understood the mother to suggest that in the course of determining the stay and machinery applications before him in 2019, Baumann J invited her to file a fresh Initiating Application about parenting issues and, in particular, about her spending time with B in the 2019/2020 Christmas school holidays. That is not the father’s recollection.
There is an obvious issue about the utility and appropriateness of the mother’s applications. In particular there is an issue about whether the mother has a case to argue at first instance about B, when final parenting orders were made on 30 July 2019 after a defended trial. It is relevant to note that:
·the mother has appealed against the parenting orders and that appeal has yet to be heard; and
·in breach of earlier orders, the mother has not spent any time with B since November 2017.
In the normal course, a procedural hearing in respect of an Initiating Application raising parenting issues would involve ensuring that there was a Response to the application and if not, making directions for the filing of any Response. If the proceedings were likely to be defended, orders would normally be made for the parties to attend a conference with a Family Consultant to attempt to resolve the dispute with the assistance of a psychologist or social worker employed by the Court. That process may or may not involve the child. Particularly in circumstances such as this where s 60I(8)(a) or (aa) of the Family Law Act1975 (Cth) (“the Act”) were invoked, it is invariably the case that the parties to parenting proceedings attend on a Family Consultant before a hearing is conducted. Although the section provides for exemptions, that is the requirement of s 65F of the Act. In the normal course there would be no orders appointing a hearing until the evidence of the parties was filed and that would usually not be ordered until a Family Report (or another expert report) was ordered and prepared. The Family Report would not be prepared until a final hearing was in prospect and in this Registry, unless the proceedings were expedited, that would be some years after filing.
The options for me include making the directions necessary for the hearing of the applications or, as the Registrar did, to reject the application.
The issue before me is an important one. I gather that the mother contends that there has been a significant change of circumstances since the orders of
30 July 2019 which would justify a reconsideration, but only for the duration of the 2019/2020 Christmas school holidays, of her application that B should live with her. The mother also seeks orders about changeover, telephone communication with the child and an injunction to ensure that the father is present overnight with the child when she is in his care. In the Application in a Case filed 16 December 2019 the mother seeks permission to file affidavits from three health professionals and an urgent injunction to restrain the father from being in the same room when B speaks to her mother on the telephone.
The father opposes the mother’s review. Although the review applications filed 24 and 31 December 2019 are not listed before me for hearing, I apprehend that the father also opposes those applications.
In brief submissions, the father explained that he is worn down by the demands of earning a living and parenting and finds the mother’s voluminous filings in this Court, including repeated applications, to be vexatious.
The mother’s review was listed for hearing on 10 January 2020 and by arrangement, each of the parties appeared by telephone. As I raised with the parties, the practical problem with the mother’s application, insofar as it relates to the 2019/2020 Christmas school holidays, is that it is unlikely that the mother’s application could be heard and determined in time to have any practical effect within the remainder of the holidays. Indeed the mother herself acknowledged this problem in her later affidavits. For example, the father says that he requires three weeks to put his material on. B was represented in the earlier proceedings. She is eight years of age and in the normal course, an ICL would again be appointed for her. The effective appointment of an ICL can take some weeks. Hearing time would need to be found and judgment would need to be delivered. The issue is further complicated because, as the mother acknowledges, the main aspect of the orders she seeks is in the nature of final orders. In the normal course, the parties would be required to present themselves and their other witnesses for cross-examination.
There is a second problem with the mother’s application because it can be said that she is seeking to agitate aspects of the issues that were before the Court in the proceedings concluded by the orders of 30 July 2019; issues which are presumably also part of the mother’s appeal against those orders. No doubt the technicalities are of no importance to the mother and she simply wants block overnight time with her daughter now.
As a practical matter, there is no apparent likelihood of the mother spending time with B in the current school holidays as a result of anything that will be done in the appeal proceedings. That may be the reason for the mother filing the Initiating Application on 13 November 2019. It is the mother’s case that there are urgent issues, including issues arising from fresh evidence about her relationship with B, about B’s safety or well-being and about special days or events, that cannot wait for the appeal.
As to the fresh evidence. The mother relied on her own affidavits and affidavits by three treating practitioners. The affidavits are repetitive and voluminous. The treating practitioners filed affidavits in similar form and in each case they represented that they were providing an updated report for “the family law matter” between the parties. In his reasons for judgment, Baumann J set out the circumstances whereby he received affidavits from four medical practitioners (including the three relied on before me) in the mother’s case as follows:
36.The mother filed and relied upon the medical reports referred to below, however none of the witnesses were available for cross-examination and their notes of consultations with the mother were not produced (at least likely to be a result of the late appointment of a different ICL). I ruled that the mother could rely upon those Affidavits, but that an inability to test their opinions did affect the weight I might be able to attach to the evidence. ….
A party requires leave to rely on any report other than a report by a single expert. As I have indicated, the mother seeks that leave in her Application in a Case filed 16 December 2019. I gather that the medical practitioners relied on by the mother give evidence in the role of treating practitioners. Experts may only give evidence about matters in respect of which they are qualified to report. For treating practitioners that is normally limited to the circumstances of initial contact with the patient, the history of consultations, clinical notes and as to matters within the practitioner’s expertise that he or she qualify themselves to report on but limited to opinions about diagnosis, treatment and prognosis. It is not a matter for a party, let alone for an expert, to decide to provide a report or an updated report. The mother’s experts were put in the inappropriate position of being asked to comment on matters beyond the treatment they are providing to the mother and/or B and in some instances, to advocate for the mother. It is easy for me to be critical and one can readily understand the desire of a medical or other health practitioner to respond favourably to requests from a patient for help and to do what they can to assist, even if that help was outside their professional roles.
The medical practitioners relied on by the mother before me are as follows.
Dr LLL is a medical practitioner in general practice. He swore an affidavit on 1 November 2019. He referred to a “single expert affidavit” he swore on 13 April 2019. The hearing before Baumann J concluded with written submissions on 7 March 2019. Therefore, it is understandable that there is no reference to that affidavit in the judgment of Baumann J. Of course, if the affidavit sworn on 13 April 2019 contained important evidence, there could have been an application to Baumann J, prior to delivery of judgment, to re-open the mother’s case or that of the ICL. The mother has not relied on the affidavit of Dr LLL sworn 13 April 2019 before me and I am not aware of its contents.
The affidavit of Dr LLL that is before me attaches clinical notes from the MMM Street Medical Centre for B up until 10 October 2017. I take it that those notes were before Baumann J or could have been put before his Honour. The two recent matters raised in Dr LLL’s affidavit are:
·on 11 October 2019 the mother consulted with Dr LLL about a possible drink spiking incident which the mother reported to the police and which involved chain of custody urine testing of the mother. Dr LLL reported that the tests were negative for opiates, amphetamine, cannabinoids, cocaine metabolites and benzodiazepines; and
·on 21 October 2019 the mother advised Dr LLL that she was currently on stress leave due to the family law matter and had not been able to see her daughter for almost two years and “is concerned for her and her daughter’s relationship and her daughter’s continuing signs of possible memory issues and anxiety in which she is seeking the situation to be urgently remedied through application to the Court to have the issues addressed”.
Suffice it to say, there is nothing in Dr LLL’s material that would represent a basis for re-opening, independently of the mother’s appeal, the final orders about the mother’s time with B.
Dr GG deposed that he is a medical practitioner in general practice with mental health qualifications. He swore an affidavit on 17 December 2019 which attached a report dated 3 December 2019. Dr GG referred to an earlier report he had made on the mother as a result of an order I made on 15 January 2018.
In his report of 3 December 2019 Dr GG said:
I would like to offer some clarity to some of the points that have been raised in the most recent reasons for judgement in this matter in regards to my previous affidavits and as to Ms Meadows’s current state of health in the hopes it may assist further as to my knowledge and skills in regards to this matter for the mother.
Dr GG set out to explain his understanding of why he did not attend at the final hearing before Baumann J in January 2019. Dr GG then set out to explain matters that he was advised (presumably by the mother) arose from his evidence in the final hearing. Unfortunately, Dr GG then offered his opinion as to the appropriateness of the final orders made by Baumann J on 30 July 2019.
Suffice it to say, there is nothing in Dr GG’s material that would represent a basis for re-opening, independently of the mother’s appeal, the final orders about the mother’s time with B.
Ms FF is a psychologist in private practice. As with the other practitioners Ms FF asserted that her affidavit represented an updated report for the purposes of the family law matter between the parties. At the mother’s initiative Ms FF overheard a telephone conversation between the mother and B on Wednesday, 11 December 2019. That was done without the permission of the father and without telling B.
Ms FF reported on B’s obviously eager and enthusiastic communication with the mother; the fact that the mother rang a number of times before her call was answered; the fact that after 17 minutes the father intervened to bring the communication to an end and continue to interrupt until “finally the conversation finished as Ms Meadows avoided difficulties for B at 22 minutes.” In her report, Ms FF offers an interpretation of the court orders and invites the Court to intervene, presumably to prevent the father’s interruption of the telephone conversations. Ms FF says that she spent some several hours with the mother and “read through the reports from health professionals (including Dr LLL, Dr GG and regarding the previous medical reports conducted and discussed by Dr EE) on Ms Meadow’s positive mental health assessment”. Ms FF recorded that she has previously advocated that the father be assessed for his mental health and referred to “issues in the matter around the mental health of the father’s new partner (wife)”. Ms FF favours the Court with her opinion that “the overriding priority of Mr Meadows and his new partner is to block and interfere with any contact between [the mother] and B rather than to support a healthy relationship between mother and daughter or even to support B’s needs for the connection”.
Suffice it to say, there is nothing in Ms FF’s material that would represent a basis for re-opening the final orders about the mother’s time with B.
In my view, leave would not be given to the mother to rely on those affidavits.
Turning to the mother’s affidavits.
The affidavit of the mother sworn 11 November 2019 consists of 104 paragraphs. Without purporting to be exhaustive about the contents, the affidavit addresses the following:
·the affidavit refers to applications made by the mother since the final orders;
·the mother deposed to recent events, said to give rise to risks for B. The mother referred to “a pattern of behaviour of B being kept home sick” around dates associated with the proceedings. The mother referred to similar behaviour of that type over the history of the matter;
·the mother referred to the father interrupting to terminate her telephone calls with B over the previous three weeks;
·without any specifics the mother referred to a “similar pattern of situations of various attacks” on her motor vehicle, her home and stalking events around the time of her applications and Court hearings;
·the mother deposed to efforts she had taken to manage her health. She referred to the chain of custody substance testing “in regards to an event at my home in which it appeared possible it was entered by unknown persons and in which there was possibility of a drink spiking”;
·the mother referred to her long-standing concerns about the behaviour of B. She expressed concern that the impact on B of the (poor) mental health of the father’s wife;
·B has made statements to the mother in the last three weeks which are out of character and which the mother contends show the possible effect on the child of ailments suffered by the father’s wife. The mother deposed that B had recently described nervousness and feelings of nervousness and had appeared nervous with a shaking voice on the phone. The mother said that B recently expressed being uncertain of herself and situations at school and “not being sure of what she was doing during activities in which she has actually done before with no such concern and with a greater understanding of what she was doing”;
·B has told the mother that she cannot remember activities and the mother finds that to be concerning. The mother understands that the child has not been to a doctor to discuss those problems. The mother says that the father has not raised that subject with her (the mother) despite him being aware that B was previously referred to a paediatrician for that issue;
·the mother is concerned for B’s health in the father’s household because of the diet that she asserts is imposed on her in that household;
·the mother was concerned when the father texted her to indicate that he would not be present for an upcoming telephone conversation between B and the mother. That gave rise to concerns for the mother that the child would be in danger in the care of the father’s wife;
·B has recently repeated to the mother, her wishes to spend holiday time with her mother. The mother has asked the father to facilitate additional time and he has refused;
·the mother hopes to resume her search for paid employment shortly. The mother is actively managing her finances. She currently lives in E Town, New South Wales but hopes to move as she has intended throughout these proceedings. It is been two years since she has spent time with B. The father has the benefit of all school, school holiday and special times with the child;
·the mother would like the opportunity of spending time at Christmas and in the Christmas school holidays with B.
The affidavit of the mother sworn 16 December 2019. Without purporting to be exhaustive about the contents, the affidavit addresses the following additional matters:
·the mother complains about the father monitoring, interrupting and terminating telephone calls between the mother and B on 4, 7 and 11 December 2019;
·on 7 December 2019 the mother told B that she could speak to her mother for longer than 15 minutes now;
·between 28 November 2019 and 30 November 2019 the father refused to provide the mother with contact details for people with whom B was to be staying. The father referred to Ms Q and Ms NNN Meadows (the paternal grandmother and paternal aunt) but the mother does not have their contact details;
·on dates that are not identified, the mother made reports about B to the NSW Department of Communities and Justice and no action was taken;
·on 28 September 2019 the father took B to Queensland and did not provide the mother with the contact details of the place where B would be staying;
·on 26 October 2019 the mother told the father that contact could not occur at Suburb MM and requested that he tell her if he would ever seek a change to that requirement of the orders. The father did not respond;
·on 16 November 2019 the mother sent an email to the father to advise him that she could not spend time with B at Suburb MM due to safety concerns that the mother holds about the area;
·In November 2019 there were problems, including a lack of prior notice, with calls made by B to the mother for B’s birthday;
·the father was present in B’s room during B’s call to the mother on 14 December 2019 and he required B to terminate the call after 21 minutes;
·the mother has asked the father about the church which B will attend. The mother does not want B to attend the KK Town Parish as the mother does not feel that she (the mother) could take an active role in that parish.
The affidavit of the mother sworn 19 December 2019 is the affidavit filed in support of the Review Application. Without purporting to be exhaustive about the contents, the affidavit addresses the following additional matters:
·the circumstances giving rise to the late filing of the Initiating Application;
·the affidavit refers to the evidence of the treating practitioners and to the risk of the father taking B away without giving the mother prior notice;
·she says she is “distressed and concerned for the health and welfare risks to my daughter from the recent observed violence and the new evidences provide insight to those situations to the court”;
·there have been previous contravention applications and there are new allegations that the father is breaching his responsibilities under the orders against the mother;
·the father is creating unacceptable barriers to the mother in communicating and spending time with the child;
·it is particularly important for B to spend time with the mother at Christmas given her age;
·the mother has a genuine fear about the location at which she is to see B under the current orders and it should be changed;
·any fears the father has should be modified by the fact that the appeal is still on foot and he still retains $200,000 which was to be paid to the mother under the final orders;
·urgent orders are required to protect B from family violence.
The affidavit of the mother sworn 23 December 2019. Without purporting to be exhaustive about the contents, the affidavit addresses the following additional matters:
·the mother asserts that she is under financial distress and that it would be a financial struggle for her to attend at Suburb MM to see B;
·B has not spent time with her mother for several birthdays and two Christmases and that should be changed now;
·the mother contends that the Court should not assume that her failure to spend time with B under the orders is for any reason other than her genuine fears and her desire to end the father’s tyranny of control and his attempts to isolate the mother from her family and friends;
·the mother acknowledges that if her review is not heard until January then it will be practically defeated before hearing;
·the mother requests that her matter not be determined by me, Justice Stevenson, Justice Austin and that it not be put before Registrar Hayward. As I referred to above, the mother did not press that application in respect of me hearing the matter on 10 January 2020. Judicial officers are not permitted to choose the matters they hear and parties are not permitted to select their judge. The mother is within her rights to ask that a judicial officer or registrar before whom her proceedings are listed, recuse himself or herself from dealing with her proceedings. Ideally she would be consistent about that unlike the position she has taken with my involvement in the proceedings. If the mother’s appeal is successful and the proceedings are remitted for hearing at first instance, the mother can consider the position then. Without suggesting that the mother’s appeal will succeed, an order remitting the matter following a successful appeal would normally include a request that the proceedings be listed before a judge other than the judge appealed from – in this case Baumann J;
·the father has been alienating and violent.
The affidavit of the mother sworn 31 December 2019. Without purporting to be exhaustive about the contents, the affidavit addresses the following additional matters:
·the mother complains about the fact that her application (presumably the application filed 23 December 2019) was referred to a Registrar without her being given prior notice of the Registrar’s name;
·the mother asserts a right to be heard in what amounted to a dismissal of her application as vexatious or frivolous;
·the mother has “referred the matter to the Australian Federal Police (AFP) as I believe my file has been menaced in the courthouse and in that I am experiencing some form of intimidation”;
·The mother no longer trusts any NSW Police Officer.
As to some of the matters raised in the mother’s affidavits, I would make the following comments:
(a)As to the requirements of the current orders in respect of telephone contact between B and the mother, I do not understand the mother’s comments. The relevant orders are:
(8)that the child shall communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.
(9)that the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
True it is that the requirement for supervision of the calls, by the father or his nominee, expired after three months. That does not mean that the father was required to absent himself from the vicinity during all calls made after that period. Indeed, it follows that in order to assess whether a call should be terminated, the father would need to be in the vicinity. As I read the orders, the provisions of the order requiring that the calls not be lengthy and the express permission for the father to “terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate” are continuing provisions of the orders and did not lapse after three months.
(b)As to the requirement to provide the contact details for the paternal grandmother and aunt, the relevant order is:
(11)that the mother and father shall keep each other advised at all times of their residential address and telephone contact numbers and details of all persons living at the house when the child is in their care and notify the other of any change within seven (7) days of such change.
It is difficult to know what was required of the father on the occasion referred to by the mother. For example, it is not apparent from the mother’s affidavit that the paternal grandmother and paternal aunt were to be staying at the father’s residence at the time in question.
(c)As to the mother’s finances, I note that there is an order requiring the father to pay the mother $200,000 within 60 days of 30 July 2019.
(d)The mother asserts that she complied with Rule 5.01A of the Family Law Rules 2004 (Cth). That Rule has no application in the circumstances of this case. The mother’s application about B living with her, overnight (including during the 2019/2020 Christmas school holidays) was heard and determined and the resultant order is under appeal.
(e)The mother acknowledges that if her Review was not heard until January then it would be practically defeated before hearing. I agree.
Given that there has been an application about machinery aspects of the orders of 30 July 2019 heard and determined by Baumann J and there is an appeal about the substance of the parenting orders made on that date, in my view it is unlikely that the mother has established a basis, independent of the appeal, to re-open the issues:
·of B living with her overnight, whether during the school holidays or otherwise;
·of the conditions for the mother’s telephone calls with B; or
·of the handover venue for the mother’s time with B.
Conclusion
By her Initiating Application lodged on 13 December 2019 the mother sought orders that she spend time with B during the 2019/2020 Christmas school holidays.
The final orders made on 30 July 2019 included an order that B live with the father and that she spend time with the mother as may be agreed in writing between the parents, but at least as follows:
(a)commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00 am until 2.00 pm;
(b)for a period of three (3) calendar months thereafter, each second Saturday from 10.00 am until 4.00 pm;
(c)thereafter, each second Saturday from 10.00 am until 6.00 pm; and
(d)on Mother’s Day from 10.00 am until 6.00 pm.
If not by way of appeal, presumably, the gravamen of the mother’s complaint in the Initiating Application is that the father has not agreed, in accordance with the opening words of order 4, to change the minimum arrangement ordered by the Court either as to the venue for handover or as to the duration of the periods of time she was to spend with B. As a consequence, the mother seeks that those matters be specified in further orders, including an order providing for B to spend the school holidays with the mother.
This is not a case where the trial judge overlooked the issue of the mother having overnight time with the child. The trial judge heard final proceedings in which the mother sought that B live with her and that as a primary position, that any time with the father be conditional on the father meeting certain requirements. The trial judge declined to make an order for shared parental responsibility, in part because of the poor relationship and communication between the parents. It is not conceivable that the trial judge anticipated that there would be ready agreement pursuant to order 4. The reasons for judgment reveal that the trial judge did not anticipate making an order for the mother to spend overnight time with B. Indeed, the reasons contain discussion about the trial judge actively considering, but ultimately rejecting, proposals that the mother’s time be supervised.
Absent an agreement between the parties, the reasons for judgment are inconsistent with an order that the mother have any overnight time, let alone block time with B for the current school holidays.
The orders of 30 July 2019 brought to a conclusion longstanding and exhausting proceedings between the parents, including their dispute about the living arrangements for their daughter. The hearing was conducted in a context where the mother had not availed herself of Court-ordered time with B for more than 12 months. Sadly, that has continued for a further 12 months, to the present time.
As with all courts, open access to this Court in respect of controversies within its jurisdiction is strongly promoted and jealously guarded. For that reason the powers to reject the filing of an application or to summarily dismiss an application are rarely invoked.
As I have stated above, having read the material filed by the mother, I strongly doubt that the mother could justify a revisiting of the orders of 30 July 2019 in the ways in which she seeks. The proceedings about B commenced in May 2015 and were concluded more than four years later, by the orders of 30 July 2019 which followed a final contested hearing.
Although the general law principle of res judicata does not apply to parenting cases, there is protection against repeated parenting litigation. In Rice & Asplund (1979) 6 Fam LR 570 the Full Court dealt with an appeal from a parenting decision which reversed an order made three years before. As to revisiting an earlier parenting decision, in dismissing the appeal, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
Whether described as a rule or a principle, the approach expressed in Rice & Asplund has been consistently applied by this Court. As recently as in Elmi & Munro (2019) FLC 93-212 the Full Court said:
24.There is no scope for doubting the correctness of Rice and Asplund in any event. It has been explained and applied in many Full Court decisions, including Langham & Langham (1981) FLC 91-014; Newling and Newling (1987) FLC 91-856 (“Newling”); Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”); SPS and PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31; Poisat & Poisat (2014) FLC 93-597 (“Poisat”); Carriel & Lendrum (2015) FLC 93-640; Tindall & Saldo (2016) FLC 93-727.
25.In Poisat, the Full Court (Strickland, Murphy & Austin JJ) said at [13] that the principle “is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently”.
The parties are within their rights to challenge any or all of the orders of 30 July 2019. The mother has exercised those rights by lodging an appeal. However, outside an appeal, and outside issues of machinery orders or a stay, which have already been addressed, the mother does not have an unfettered right to seek to re-agitate issues that were addressed or that could have been addressed by those final orders.
The mother’s evidence in support of her application is a combination of material that predates the final hearing in January 2019 and bare assertions and allegations including allegations made against or about the father and his wife. In my view, the mother has not identified a changed circumstance which would justify such a serious step as re-opening the proceedings brought to a conclusion by the orders of 30 July 2019, nor has she identified a new factor or a factor which was not disclosed at the previous hearing which would have been material to that hearing. In the interests of B, of the parties and the community, there must be an end to the litigation.
The only question I have is about a decision to reject a recently filed Initiating Application being made at a procedural hearing, whether by a registrar or a judge, where that decision is based solely or largely on the Rule in Rice & Asplund. The mother is aggrieved about that decision being made without formal notice to her. For the reason that the mother has identified (it now being too late to hear her application about the school holidays), it no longer matters but on balance I would think that the appropriate forum for considering the rejection of an application based on Rice & Asplund would be a listing before a judge on that issue, with prior notice to the parties of the purpose of the hearing. In that way the parties, and importantly, the applicant, would be on notice and could be heard on the issue. In saying that, as I have set out above, I have no doubt that the Registrar correctly assessed that the application offended the rule in Rice & Asplund.
However, I return to the practical problem – with the background referred to above, in my opinion it is not practicable for the mother’s Initiating Application to be heard and determined prior to the end of the 2019/2020 Christmas school holidays. As to the orders sought about telephone communication and about B’s time in the father’s care, if they were not matters considered to be relevant to the machinery or stay applications heard and determined by Baumann J in 2019, in my view they are matters for the mother’s appeal, rather than for fresh proceedings. If the mother was aggrieved about the decisions of Baumann J on her machinery or stay applications she could have appealed against those decisions.
In my view, the Initiating Application filed on 13 November 2019 and the Application in a Case filed 16 December 2019 should be dismissed. That is the order made by the Registrar on 19 December 2019. That is the reason why the mother’s Review Application is dismissed.
Turning to the review applications filed on 24 and 31 December 2019. I indicated to the parties that I would make a decision about the hearing date/s of those applications. I have now had the opportunity to read those applications. The first thing to say is that, as was observed by Registrar Turner in her decision of 24 December 2019, the Application in a Case that was rejected by her is in similar terms to the Application in a Case lodged on 23 December 2019 that was rejected by Registrar McGrath. Therefore, there is no utility in listing the review application filed on 31 December 2019 and it stands dismissed.
Next, I read with some surprise that among other judicial officers, the mother objects to me hearing the applications. That is not something that the mother raised during the hearing on 10 January 2020 and it is odd that a similar objection was not made in respect of the Review Application that is the main subject of these reasons.
None of that matters. As a result of the dismissal of the mother’s Initiating Application filed 13 November 2019, there are no proceedings before this Court at first instance in which the decisions under review could be relevant. The Application in a Case filed on 24 December 2019 is also dismissed.
Of course, if one or more aspects of the mother’s appeal are successful and if that results in one or more aspects of the parenting proceedings being remitted for hearing at first instance, it may be that the issues that were the subject of the decision being reviewed will be raised in those remitted proceedings.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 21 January 2020.
Associate:
Date: 21 January 2020
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