MEHARRY & COLE
[2012] FMCAfam 15
•10 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEHARRY & COLE | [2012] FMCAfam 15 |
| FAMILY LAW – Children – parenting orders – application in a case – application to vary interim orders – application tantamount to appeal – no change of circumstances sufficient to warrant reopening interim parenting proceedings. PRACTICE & PROCEDURE – Review of Registrar’s decision – no reviewable error. |
| Family Law Act 1975 (Cth) |
| Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MS MEHARRY |
| Respondent: | MR COLE |
| File Number: | SYC 6692 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 January 2012 |
| Date of Last Submission: | 9 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 January 2012 |
REPRESENTATION
| Application heard in chambers |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitors for the Respondent: | Johnston Vaughan Solicitors |
| Solicitors for the Independent Children’s Lawyer | Clayhills Solicitors |
ORDERS
The Application for Review filed on 6 January 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Meharry & Cole is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6692 of 2010
| MS MEHARRY |
Applicant
And
| MR COLE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision by a Registrar to list an Application in a Case on the first day of the final hearing of a parenting application.
The Applicant filed an Application in a Case on 4th January 2012 seeking an urgent interim hearing of an application to vary interim parenting orders made by Monahan FM on 15th December 2011. The Application in a Case was accompanied by an affidavit of the Applicant made that same day.
The Registrar noted that the substantive application for parenting orders is listed for final hearing before his Honour on Monday 6th February and declined to list the Application in a Case any earlier than that date.
The Registrar’s reasons are stated to be:
The affd. does not disclose sufficient risk factors to warrant urgent hearing. The final hearing is listed in March[1] & there is no availability for an interim hearing before then given the Christmas break and unavailability of the FM.
[1] It is in fact listed for 6 and 7 February 2012
The Applicant filed an Application for Review of the Registrar’s decision on 6th January 2012. In the space for “Orders sought” the Applicant has written:
I have not had any help filling out form – help refused so I don’t understand.
1. My child still doesn’t want to stay for time – 3 week period is very distressed.
See number 3 of affidavit.
Background
The substantive application was listed for final hearing before Monahan FM on 15th and 16th December 2011. The Court file shows that the Applicant attended Court on 15th December 2011 and was represented on the day by Ms MacDonald, who appeared for her on a duty basis. The Applicant sought an adjournment of the final hearing, which his Honour granted.
Monahan FM adjourned the final hearing to Monday 6th February 2012 with an estimated time of not more than two days. His Honour conducted an interim hearing and made orders until further order, providing that the child concerned should live with the Mother and spend time with the Father.
His Honour’s orders of 15th December 2011 included some notations, of which Notations A to D inclusive are relevant to the issue to be decided:
A. it is extremely unlikely that the Court will grant any further adjournment to the parties.
B. Paragraph nine (9) herein was made with the consent of the parties and the Independent Children’s Lawyer.
C. With the exception of paragraph 12(a), paragraphs 10 to 21 herein reflect the terms of a Minute of Orders proposed by the Independent Children’s Lawyer (“the ICL’s Minute”) but opposed by the Applicant and were made following an interim hearing today.
D. Paragraph 12(a) herein was a decision of the Court which amended the original terms of the ICL’s Minute which proposed that the child spend time with the Respondent in each alternate week from Thursday after school to before school on the following Monday.
The Application in a Case filed by the Applicant seeks these Orders:
Seeking Short notice. I need these orders changed.
1. [X] have contact every fortnight as specified.
2. That I be free to place my son in childcare while I work for limited time when I need or family & friends may mind him at my discretion and if I need to go to the shop and my son is sick can stay home 10 mins or so legal age in Australia said by DOCS is 11.
3. That the father not ring in exs.
4. That the holiday time spent with the father cease and he be given 1 week due to [X]’s concerns (my son).
The Application in a Case is accompanied by an affidavit where the Applicant states (among other things):
1. I am applying to change the orders.
2. They have caused my family my son myself and those in the community that support me great distress. They interfere with me being able to work and place my son in suitable activities for his growth, my child has reported to me the new changes made and is upset.
3. My son has voiced he does not like the current arrangements and is distressed about staying for a period of three weeks at his Fathers, his words were ‘no way is that going to happen”, he has telephoned his Father to tell him this.
Conclusions
There is no error by the Registrar. It was a decision entirely for the Registrar to decline to list an application to vary interim orders made on 15th December 2011 on an urgent basis when there was a final hearing scheduled on 6th and 7th February 2012, just over seven weeks after the orders were made.
It is clear that Monahan FM made the interim parenting orders that he did after he had granted the Applicant’s application for an adjournment of the final hearing on 15th December 2011. His Honour conducted an interim hearing on 15th December, as a result of which he made the parenting orders about which the Applicant complains.
What the Applicant appears to be doing is asking the Court to conduct an appeal against its own orders, which the Court has no jurisdiction to do. The Applicant has not shown in her affidavit any change in circumstances sufficient to justify rehearing the interim application for parenting orders (see Rice v Asplund[2]).
[2] (1979) FLC 90-725
The Application in a Case appears to be an abuse of the Court’s process. It can be dealt with by Monahan FM when the matter is next before the Court on 6th February 2012, just four weeks from today.
The application for review of the Registrar’s decision is entirely without merit and is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2012
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