Moxey & Keirn

Case [2021] FamCA 615

FAMILY COURT OF AUSTRALIA

Moxey & Keirn [2021] FamCA 615

File number(s): SYC 6197 of 2019
Judgment of: MCCLELLAND J
Date of judgment: 24 August 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE –Review of a Registrar’s decision – Where the Applicant seeks a review of the Registrar’s decision to allocate an interim hearing date – Where the Registrar adjourned the interim hearing to allow for the production of subpoena material and the Father and Independent Children’s Lawyer to respond to the Mother’s case – Where cases should be resolved in a “just and timely manner” at a cost that is reasonable including to the Court – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) s 91B

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Family Law Rules 2004 (Cth) rr 1.12, 15.06
Cases cited:

Camm v Linke Nominees Pty Ltd (No. 4) [2013] FCA 223

Newman & Tate [2020] FamCA 1114
Number of paragraphs: 72
Date of last submission/s: 11 August 2021
Date of hearing: 11 August 2021
Place: Sydney
Solicitor for the Applicant: Holmes Donnelly & Co Solicitors
Appearance for the Respondent: Mr Keirn in person
Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers

ORDERS

SYC 6197 of 2019
BETWEEN:

MS MOXEY

Applicant
AND:

MR KEIRN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND J

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1.The Mother’s Application in a Case filed on 27 July 2021 is dismissed.

2.In the event of the Independent Children’s Lawyer seeking an order for costs, the Independent Children’s Lawyer is to, within seven days, provide a submission of no more than two pages to my Associate and each other party.

3.The Mother has leave to reply to any such submission on costs, pursuant to Order (2) above, within seven days of its receipt provided that any such response will similarly be limited to two pages.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moxey & Keirn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ:

INTRODUCTION

  1. This matter concerns an Application in a Case filed on 27 July 2021 (the “Review Application”) by Ms Moxey (“the Mother”) seeking a review of a decision of a Registrar of this Court in respect to the date allocated by the Registrar, to hear the Application in a Case filed on 26 May 2021 by the Mother (“the substantive Application”) concerning the children C, born in 2013, and B, born in 2010.

  2. The Mother, by her substantive Application, seeks, inter alia, a…

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AGLC
Moxey & Keirn [2021] FamCA 615
Case
[2021] FamCA 615
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Moxey (the Mother) seeking a review of a Registrar's decision to adjourn an interim hearing. The dispute arose within long-running family law proceedings concerning parenting arrangements for the parties' two children. The Registrar had adjourned the interim hearing to allow for the production of subpoenaed material and for the Father and Independent Children's Lawyer to respond to the Mother's case. The review was heard by McClelland J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the Registrar's decision to adjourn the interim hearing was appropriate, particularly in light of the Mother's desire for a timely resolution and the overarching principle that cases should be resolved in a just and timely manner at reasonable cost. The Court was required to consider the reasons for the adjournment, including the need for further evidence and submissions, and balance these against the need for expedition.

McClelland J approached the review as an original hearing, re-examining the matter afresh rather than simply looking for error. The Court found that the Registrar's directions, including the filing of a consolidated affidavit, the intervention of the Department pursuant to s 91B of the Family Law Act 1975 (Cth), and the requirement for hair follicle testing for the Mother, were all appropriate measures given the serious allegations made by the parties. The Court noted that the urgency that prompted the Mother's substantive application had been at least partially addressed by interim orders made on 1 June 2021, which were being complied with. The Registrar had acknowledged the Mother's desire for a hearing within six weeks but had allocated the first available date, 20 October 2021, which was deemed appropriate given the necessary steps to be taken.

The Mother's application for review was dismissed. The Court also made orders regarding potential costs submissions by the Independent Children's Lawyer and the Mother's right to reply.

Orders

Orders of the court

SYC 6197 of 2019

BETWEEN:

MS MOXEY

Applicant

AND:

MR KEIRN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND J

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1. The Mother’s Application in a Case filed on 27 July 2021 is dismissed.

2. In the event of the Independent Children’s Lawyer seeking an order for costs, the Independent Children’s Lawyer is to, within seven days, provide a submission of no more than two pages to my Associate and each other party.

3. The Mother has leave to reply to any such submission on costs, pursuant to Order (2) above, within seven days of its receipt provided that any such response will similarly be limited to two pages.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

I set out the approach of the Court and relevant legal principles in respect to the conduct of a review of a Registrar’s decision in Newman & Tate [2020] FamCA 1114 at [9]–[12]. Essentially, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing which, requires the re-examination of the matter afresh. BACKGROUND The substantive proceedings concern an Application for Final Orders filed by the Mother on 11 December 2019, in respect to parenting arrangements for the parties’ two children, B, presently 11 years of age and C presently 8 years of age. The current proceedings occur in circumstances where proceedings between the parties first commenced in this Court on 19 December 2014. The parties’ commenced living together in 2005 in Country HH before moving to England where they married in 2006. They remained living and working in England until late 2014. Both of the children were born in England and hold dual New Zealand and British citizenship. The parties moved to Australia on 13 October 2014 and, since that time they have both obtained employment and continue living and working in Australia. The parties separated on 21 November 2014 but they remained living under the one roof until 5 January 2015. By interim orders made on 16 April 2015, by Rees J, the children were to live with their Father each Wednesday from 5 pm until the following Thursday at 8.30 am and each alternate weekend from 9 am on Saturday until 5 pm on Sunday [21]. On 12 July 2017, judgment in the final hearing was delivered by Rees J, and parenting orders were made by consent which inter alia provided for the Father and Mother to have equal shared parental responsibility of the children, and the children were to live with the Mother. Further, it was ordered that the children’s time with the Father was to be initially for four nights a fortnight throughout 2017, and that time was to gradually increase to five nights a fortnight commencing in Term 1 2018 and finally, to six nights a fortnight from Term, 1 2020. Relevantly, for the purposes of this decision, in her Honour’s judgment dated 12 July 2017, Rees J considered the allegation made by the Father that, on several occasions, the children had been placed at risk as a result of the Mother’s excessive consumption of alcohol. Specifically, consideration was given to an event which occurred on 29 September 2016 when an ambulance was called to the Mother’s home as result of injuries she sustained. The children were in her care at the time. At paragraph 167 of her Honour’s decision, Rees J noted that the Mother’s account of the incident was as follows:On Thursday, 29 September 2016 at about 5:15 pm in the afternoon I sent a text message to [Mr W], a friend. [Mr W] texted me back and told me to relax and breath (sic) and asked if I wanted to join him at the Z Hotel. I declined as I had the children in my care and I texted back, to the effect of ‘would you like to come over to my home instead’. [Mr W] agreed. I had a glass of wine and I felt a bit lightheaded. I had not eaten that day and had eaten little the day prior, I had not been feeling well throughout the course of the day and did not feel well throughout the course of that evening. I had another glass of wine and felt dizzy. [Mr W] played with the boys around the table and I stayed sitting. I got up from the dining room table and walked down the hallway of the house and I tripped on the floor mat and banged my head, when I fell backwards. [Mr W] found me on the ground with blood on my head and called an ambulance. The police arrived as well. I was sedated in the home and I woke up in the hospital, the head scan was completed and three metal staples were placed into my head to seal to the wound (sic). I had never fallen in the home before and I was embarrassed by the whole situation. The police inspected the home, concerned of what occurred and observed one empty bottle of wine and 2 glasses.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As noted, appropriately in my view, no party has questioned the appropriateness of the orders made by Senior Registrar Hayward on 22 July 2020 other than in respect to the issue of timing of the hearing.CONSIDERATION At this point I note, in respect to the orders, the following: The Senior Registrar’s direction for the parties to file a single consolidated Affidavit is absolutely essential for the orderly and logical consideration of this matter. At the commencement of this hearing I spent some time questioning the parties as to precisely what material they were seeking to rely upon in respect to their respective cases because it was unclear. In the context where both parties have made very serious allegations against the other it was entirely appropriate for the Senior Registrar to request the Department to intervene in these proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”). To facilitate the Department’s consideration of that request the Senior Registrar also, appropriately, gave leave for a representative of the Department to inspect relevant documents produced pursuant to subpoenas. Clearly, for that to occur, particularly in the context of the current COVID-19 pandemic, would take some time. Neither party disputed the appropriateness of the Senior Registrar’s order for the Mother to undertake hair follicle testing. From the Father’s perspective he contended that such testing was necessary to reassure himself and the Court that the Mother is remaining abstinent from alcohol. From the Mother’s perspective she contends that such test will establish that she has not and does not have an alcohol abuse disorder. While there was no formal evidence presented to the Court all parties conceded that such a test could be arranged at relatively short notice. Nonetheless, it could reasonably be expected that the parties would wish to consider presenting additional evidence in respect to the outcome of the test as well as to tailor their submissions to the Court in light of the test results. The Senior Registrar specifically acknowledged the desire of the Mother for her substantive application to be heard within 6 weeks of 22 July 2021. That is, the business day prior to 2 September 2021. Despite acknowledging that desire on the part of the Mother, the Senior Registrar noted that “the Court provided the parties with the first available date being 20 October 2021” (emphasis added). It is clear that the situation of urgency that gave rise to the Mother’s substantive Application filed on 26 May 2021 in which the Mother had sought a recovery order for the children had been at least partially addressed by the parenting orders made on 1 June 2021. This was in circumstances where, on 22 July 2021 there was no suggestion that, in terms of time, the Father had failed to comply with those orders. In other words, the children were spending time with each parent in accordance with those orders made on 1 June 2021. It is significant that the orders made on 1 June 2021 were made either with the consent of the parties or, where not made by consent, determined in favour of the Mother.