Miner & Miner
[2023] FedCFamC2F 1463
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Miner & Miner [2023] FedCFamC2F 1463
File number(s): SYC 8849 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a Registrar’s decision not to urgently list –Application heard in Chambers - Application upheld. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18(2), 14.05, 14.07(2)’
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021.
Cases cited: Canvin & Jesney [2021] FedCFamC2F 145
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104.
Division: Division 2 Family Law Number of paragraphs: 18 Date of hearing: In chambers on 16 November 2023 Place: Sydney Solicitor for the Applicant: York Law Family Law Specialists Solicitor for the Respondent: Sydney Law Group Pty Ltd
Table of Corrections 17 November 2023 In Order 3(b) the words “4:00pm 10 days prior to the interim hearing” have been replaced with “2:00pm on 21 November 2023. 17 November 2023 In Order 4 the words “7 days prior to the interim hearing” has been replaced with “on 21 November 2023” ORDERS
SYC 8849 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MINER
Applicant
AND: MS MINER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application for Review filed on 10 November 2023 is upheld.
2.The Application in a Proceeding filed by the Applicant Father on 10 November 2023 is listed for interim hearing at 10:00 am on 22 November 2023.
3.With respect to Affidavits relied upon for the purposes of the interim hearing: -
(a)only one Affidavit will be read for each witness, including the parties;
(b)all Affidavits are to be filed and served by no later
than 4:00pm 10 days prior to the interim hearing2:00pm on 21 November 2023;(c)an Affidavit must be no longer than 10 pages in length and contain no more than 5 annexures;
(d)Affidavits are to comply with rule 2.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth);
(e)no party shall be entitled to rely on any Affidavit material not filed and served in accordance with these Directions without leave of the Court.
4.Each party is to file and serve by no later than
7 days prior to the interim hearing4:00pm on 21 November 2023 an Outline of Case Document (Interim Hearing) of no more than 5 pages. Such Case Outline will include: -(a)a Minute of the Orders sought noting that the Court has not granted leave to the parties to substantially amend the Orders sought by them in their Application in a Proceeding or Response to such Application;
(b)a chronology listing significant events;
(c)a list of documents sought to be relied upon at the interim hearing;
(d)a brief summary of argument; and
(e)any relevant case law.
5.Outline of Case Documents will not be received by email by the Associate.
6.Parties are to ensure that any material produced under subpoena is inspected prior to the interim hearing.
7.If the Interim Hearing is to be conducted by way of web conference then:
(a)by no later than 48 hours prior the Interim Hearing the parties are to forward by email to the chambers of the Senior Judicial Registrar with each party copied in, any proposed joint tender bundle sought to be relied upon and:
(b)any documents contained within the tender bundle will not form part of the evidence until actually tendered at the hearing;
(c)any proposed tender bundle must be both indexed and consecutively paginated;
(d)such tender bundle is to be no more than 30 pages; and
(e)tender bundles that do not comply with these directions will be rejected and be unable to be relied upon at the hearing without leave first being obtained.
8.Any self-represented litigant seeking to rely upon documents to which rule 6.37(2)(b) of the Federal Circuit and Family Court Rules 2021 (Cth) applies (“the restricted documents”), is required to attend the Exhibits Section of the Sydney Registry and make a copy of any document sought to be relied upon and place such documents in a separate sleeve to be provided by the Exhibits Section and marked “Documents for Tender.”
9.Leave is granted to the legal representatives of each party only and, if applicable, the Independent Children’s Lawyer, to photocopy all documents produced on subpoena in these proceedings to which access has been granted, including documents to which rule 6.37(2)(b) of the Federal Circuit and Family Court Rules 2021 (Cth) applies (“the restricted documents”). For that purpose:
(a)a legal representative must not:
(i)provide a copy of the restricted documents to their client in any form;
(ii)permit their client to copy the restricted documents; or
(iii)allow any other person to provide the restricted documents to the client.
10.A legal representative may provide the restricted documents to another lawyer briefed or engaged to appear at the hearing or in accordance with a further Order of the Court, but not otherwise and a sealed copy of these Orders must be provided to any person receiving a copy of the restricted documents, including solicitors or Counsel. Any person receiving a copy of the restricted documents pursuant to these Orders is subject to the same restrictions and obligations as the legal representative in relation to the restricted documents.
11.That upon either of the following events:
(a)the instructions to the legal representatives on record being withdrawn and/or their ceasing to act;
(b)the finalisation of these proceedings whether by consent or determination by the Court;
the legal representatives must forthwith return to the Court with a letter addressed to the Registrar and marked confidential, a copy of this Order together with all and any copies of the documents obtained pursuant to the abovementioned paragraph.
12.That leave be granted for short service, with the father to effect service of the Initiating Application filed on 8 November 2023 and any material filed in support thereof by no later than 4:00pm on Friday 17 November 2023.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings with respect to the two children of the relationship:
(a)X born in 2012 currently aged 11 years; and
(b)Y born in 2014 currently aged nine years
(“the children”).
Listed today is an Application for Review filed by the father on 10 November 2023 as to a listing decision made by a Registrar of the Court on 9 November 2023 (“the Review Application.”)
On 14 November 2023 orders were made in chambers that the matter would be heard and determined in Chambers unless a party objected. No one has objected and thus the application has been determined in Chambers.
For reasons which I will now outline, the Review Application will be upheld.
EVIDENCE
In this matter I have read the following documents, the: -
·Initiating Application filed 8 November 2023;
·Application for Review filed 10 November 2023;
·Letter to court dated 10 November 2023;
·Affidavit of Mr Miner filed 8 November 2023;
·Affidavit – Non-Filing Family Dispute Resolution Certificate filed 8 November 2023;
·Genuine Steps Certificate filed 8 November 2023; and
·Notice of Risk filed 8 November 2023.
Pursuant to rule 2.18(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) the respondent has 28 days after service of the Application in a Proceeding to file a Response.
The respondent has not filed any material in response to the Application for Review. The Court would not have expected the respondent to do so in an application of this nature.
BACKGROUND
On 9 November 2023 the father filed an Initiating Application seeking orders on an interim basis that:
1.The father have sole parental responsibility for the children with such parental responsibility to include but not be limited to education, medical procedures, travel and the issue of passports.
2.That the children live with the Father.
3.That:
a.the children spend supervised time with the Mother, such time to be facilitated by [B Contact Centre] (or such other agency as may be agreed upon by the Parties) once per week for a period of not more than 3 hours with the Mother to pay the costs of the supervision as well as the issue of reports by [B Contact Centre].
b.the children spend supervised time with the Mother at other times as agreed between the Parties.
4.That to give effect of Order 3 hereof, each of the Mother and Father forthwith do all acts and things and complete all intake assessments and comply with all reasonable directions of [B Contact Centre].
5.That the Mother be restrained from removing the children or either of them from their school or from the father's care.
6.That the Mother be restrained from taking any medication other than as strictly prescribed by her GP or medical professional.
7.That until further order the Mother, [Ms Miner] born […] 1975, her servants and/ or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said children, [X] born […] 2012 ("[X]") and [Y] born […] 2014 ("[Y]") (together "the Children") from the Commonwealth of Australia.
8.IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's name/ s on the Watchlist, until this Court orders removal.
9.That this application be listed on short notice.
10.That the Father have leave to file this Initiating Application without a Section 60i Certificate.
11.That the Mother pay the Father’s costs of an incidental to this application.
The matter came before a Registrar on 8 November 2023. The Registrar refused the father’s application for urgency and the matter was listed for first return on 23 January 2023.
The Application for Review was accompanied by a covering letter which sought that the next listing date of the review be expedited. The letter dated 10 November 2023 states broadly that:
·The children are presently in the care of the father.
·The mother abuses prescription medication and alcohol and has been admitted to over five rehabilitation clinics in the past six years.
·The last time the mother was admitted to a rehabilitation clinic was in mid-2023 where she remained until late 2023.
·Since the mother has left the rehabilitation clinic she has sought to have time with the children which the father has attempted to facilitate on the basis that he be present or the time be supervised and the mother has refused to accept supervision.
·The father is concerned based on the mother’s presentation that she continues to abuse alcohol and prescription medication and is concerned that the mother will attend upon the children’s school or extracurricular activities to retain them.
·The mother regularly drives under the influence of alcohol and prescription medication.
·The children’s school are not able to withhold the children from the mother should she attend to unilaterally collect them.
THE LAW
Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Application was filed within such time frame.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence values in addition to the evidence before the Registrar: rule 14.07(2).
The overarching purpose and objective of the Court is to ensure the just determination of all matters whilst ensuring that the judicial and administrative resources available to the Court are used in an efficient manner: Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021.
DISPOSITION
The father submits by way of affidavit material filed in support of the Application there should be an urgent listing of his Application in a Proceeding as: -
·In mid-2023 the father returned home from a trip with X to find the mother heavily intoxicated whilst caring for Y. The following day the father asked the mother to leave the former matrimonial home and admit herself into rehabilitation pursuant to an agreement made after a 4-day family program in early 2023.
·The parties were unable to locate a detox facility for the mother to detox under medical supervision and the parties were able to obtain remote medical support for the mother to manage her withdrawal from alcohol from home over several days. During the mother’s detox she admitted to the father that:
·She had driven under the influence of alcohol on multiple occasions on her way home from work. The mother admitted to parking at a shopping centre and drinking a large quantity of alcohol in her car before driving over 10 kilometres home on a road where the speed limit is 100 kilometres per hour.
·She abused prescription medication, and she handed two sheets of the tablets to the father.
·She used delivery services and would withdraw cash to disguise her purchasing alcohol so the father would not see such transactions.
·The parties separated in late 2023 just prior to the mother being released from C Rehabilitation Centre. The father formed the view that the mother had not addressed her alcohol and prescription medication abuse.
·Later that month, the parties and Ms D, the children’s psychologist, had a telephone call to discuss the children’s progress. During such phone call the mother indicated that she was happy for the children to continue seeing Ms D. By the end of the phone call, and following Ms D questioning the mother about whether she was genuine in wanting to deal with her addiction issues, the mother told the father she wanted a second opinion in relation to the children’s therapy and that she did not want Ms D to see the children again.
·On the following day the children spent time with the mother at the accommodation she is presently renting close-by to the father’s property. The father became concerned that the mother was still abusing prescription medication when X informed the father twice that the mother told the children he was “angry at her” for having been admitted to a rehabilitation program.
·In late 2023 the mother told the father that she intended on attending the children’s school on the following day and taking the children. The father deposes the children’s school does not know about the mother’s issues and the father has sought to shield the children from such issues as much as possible.
·The mother has admitted to driving drunk with the children in the car. The mother also admits to having mixed “massive amounts of [drugs] with alcohol” and “stealing drugs from my dying sister-in-law.”
·The father deposes the mother has given false stories to health professionals to obtain prescription medication.
·The father did not file urgent proceedings on that date as a relative died suddenly and he has had to attend to their funeral arrangements.
Both the Chief Judge in Lombardi & Rider (2021) 64 Fam LR 103; [2021] FedCFamC2F 57 and the Deputy Chief Judge in Canvin & Jesney [2021] FedCFamC2F 145 cited with approval Halligan FM (as he then was) in Myers & Myers (2011) 253 FLR 445; [2011] FMCAfam 1104 where at [87] his Honour suggested that the following four matters might be relevant considerations in determining an application for review of a Registrar’s decision to reject an application for an urgent listing:
(a)the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
(b)the applicant has demonstrated that absent an urgent listing the applicant will be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the court’s attention in the normal course;
(c)the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the court; and
(d)a judicial officer is available to hear the substantive application.
(emphasis added)
I am prepared to accept for the purpose of the Application before me that the father has demonstrated a reasonable basis exists for arguing for the Orders now sought by father. This is in no way, of course, an indication or determination as to what the Judicial Officer hearing the Application in a Proceeding will decide if the Application proceeds to an interim defended hearing.
I am satisfied that the father has demonstrated a reasonable basis on which the matter should be expedited to an interim hearing. I am satisfied that absent an urgent hearing the children are at significant risk of the mother attending upon their school to unilaterally collect them. I accept the father’s evidence that the school will not intervene in the absence of parenting orders restraining the mother from such conduct. I am further satisfied that it is in the best interests of the children that this matter be heard on an interim basis urgently in circumstances where the mother has made such a threat recently and has full knowledge of where the children attend school.
Whilst a listing date some 12 weeks after the filing of the father’s initiating application is not entirely unacceptable, I am satisfied that there is a risk to the children identified in the affidavit material of the father that justifies an earlier listing date being granted. The Application - Review will be upheld and directions made to prepare the matter for an interim hearing at the earliest available hearing date before a Senior Judicial Registrar.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 16 November 2023
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