Nakai & Nakai
[2025] FedCFamC2F 87
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nakai & Nakai [2025] FedCFamC2F 87
File number(s): BRC 7998 of 2023 Judgment of: JUDGE MANSFIELD Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision not to list matter on urgent basis – application dismissed Legislation: Family Court of Australia Act 1975 (Cth) s 69ZX(3)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 149, 149(3)(d), 254, 256
Federal Circuit and Family Court of Australia Act 2021 (Division 2) (Family Law) Rules 2021 (Cth) r 3.01
Cases cited: Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] 253 FLR 445
Vibbard & Garcia (2012) 48 Fam LR 1
Division: Division 2 Family Law Number of paragraphs: 23 Date of last submission/s: 24 January 2025 Date of hearing: 24 January 2025 Place: Canberra Solicitor for the Applicant: DA Family Lawyers Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Rosen Lawyers ORDERS
BRC 7998 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NAKAI
Applicant
AND: MS NAKAI
Respondent
ORDER MADE BY:
JUDGE MANSFIELD
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS THAT:
1.The Father’s Application for Review filed 19 December 2024 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MANSFIELD:
INTRODUCTION
This is an application for review of a Registrar’s decision made on 13 December 2024 not to grant an urgent listing for the determination of interlocutory orders sought by him in the Initiating Application filed on 12 December 2024.
The application has instead been listed before a Judicial Registrar in a first return list on 24 February 2025.
The applicant seeks orders that the time for return of the Initiating Application be abridged and the proceedings be listed for interim defended hearing before Justice Carew.
For the reasons that follow, the father’s Application for Review filed on 19 December 2024 is dismissed.
MATERIAL
Material received into evidence was:
(a)The Initiating Application dated 12 December 2024.
(b)The applicant’s affidavit in support of the Initiating Application made on 12 December 2024.
(c)The Application for Review filed on 19 December 2024; and
(d)With leave of the court pursuant to Rule 14.07(2)(b), the mother’s Response and affidavit in support filed on 21 January 2025.
RELEVANT FACTS
From the applicant’s affidavit:
(a)There are three children who are 12, 10 and 5 years old.
(b)There was a six day final hearing in July 2024 and in August 2024. Justice Carew made final orders which included that the children spend unsupervised time with the father on a gradually increasing bases.
(c)In September 2024, the children spent time with the father on two occasions pursuant to the orders. On 30 September 2024, the supervision service advised that the time it took to facilitate changeover on the previous occasions was too long for them and they ceased their service. A different service provider was used on the next three occasions which was not successful in that the children did not go into the care of the father. That service provider ceased its services.
(d)The father proposed to effect changeovers at their residences. The mother did not agree.
(e)The father has proposed two other changeover service providers. The mother did not agree to either of them.
(f)Since 28 September 2024, the children have not spent time with the father in accordance with the final orders. Weekly Facetime calls are not happening.
(g)The father now seeks that changeovers occur by delivery of the children to the parent’s respective residences, and failing the mother’s compliance, the children change residence and live with the father.
Presently, there seems no prospects of the children spending time with the father.
PRINCIPLES
Registrars of this Court are delegated powers pursuant to s 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the “Act”).
The right to apply to the Court to review the exercise of a power of a Registrar is set out in s 256 of the Act as follows:
(1) A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
In Vibbard & Garcia (2012) 48 Fam LR 1the Full Court of the Family Court of Australia endorsed the reasoning in Myers & Myers [2011] 253 FLR 445 that a circumstance where the applicant seeks a different first Court date and also seeks that the normal time limits fixed by the rules be shortened or dispensed with, is a matter whereby the Court would have jurisdiction to review the Registrar's power.
Also in Myers, Halligan FM (at [87]) set out four factors the Court should be satisfied of if a matter is to be listed urgently:
(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.
IS THE REGISTRAR’S DECISION REVIEWABLE?
Applying the rationale of the Chief Judge in Lombardi & Rider [2021] FedCFamC2F 57 at [11-23], I am satisfied that the decision the father was asking the Court to make was that the time for return of the Initiating Application be abridged and therefore was a reviewable decision.
SHOULD THE REVIEW APPLICATION BE ALLOWED?
Determination of this question is by way of consideration of the four factors set out in Myers that the Court should be satisfied of if a matter is to be listed urgently.
(a) has the applicant demonstrated a reasonable basis for arguing for the substantive orders sought?
I find for the applicant in relation to this factor because:
(a)Final Orders were made relatively recently in August 2024; and
(b)The children have not spent time with the father since 28 September 2024 contrary to the final orders; and
(c)Presently, there are no prospects of the children spending time with the father in accordance with the final orders.
(b) has the applicant 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?
I find against the applicant in relation to this factor because:
(a)When exercising discretion in parenting matters, including with respect to matters of practice and procedure, the Court will have regard to the best interests of the children. On the father’s evidence, there are real and present issues to be determined with respect to what arrangements would promote the safety of the children with respect to psychological harm, the capacity of the mother to provide for all of the needs of the children and for the children to have a meaningful relationship with the father. Such issues are not uncommon in matters awaiting the Court’s attention in the normal course;
(b)I recognise that there may be some prejudice to the applicant in relation to the substantive relief sought by virtue of the children having no contact with him without intervention of the Court. It may also be the case that whatever the mother’s conduct in not facilitating time with the father pursuant to the final orders compromises her position in the substantive proceedings. In any event, the next listing of 24 February 2025 is relatively soon in the overall scheme of the history of this matter and relative to other matters awaiting the Court’s attention.
(c)The father is not sufficiently prejudiced in relation to the substantive relief sought by virtue of the application being listed in the usual manner before a registrar in a first return list on 24 February 2025;
(c) has the applicant demonstrated that there has been no unreasonable or unexplained delay in approaching the Court?
Yes. The Application for review was filed 6 days after the Registrar’s decision.
(d) Is there a judicial officer is available to hear the substantive application.
There are two aspects for consideration under this factor and I find against the applicant in relation to both.
Firstly, I adopt the Chief Judge’s remarks in Lombardi & Rider [2021] FedCFamC2F 57:
•32. Registrars on a daily basis deal with applications for abridgments and urgent listings and are best placed to allocate listings having regard to urgency considerations and the overall business of the Court. The Court will accord priority to cases depending on the urgency that presents itself on a case by case basis by carefully weighing competing considerations such as the factual basis for the urgency asserted, including any issues of safety or risk, and the delay in bringing an application.
•33 This assessment is in the context of an extremely busy court where resources must be allocated efficiently and effectively, and where many parties may consider their application to be urgent for them. In the absence of urgency, a case will be given a first return date at an appropriate time allowing for service on the respondent and the filing of a Response to an Initiating Application.
Secondly, the applicant seeks that the matter be listed for interim defended hearing before a specified Justice which would necessitate a transfer of the proceedings to the Federal Circuit and Family Court of Australia (Division 1).
Section 149 of the Federal Circuit and Family Court of Australia Act 2021 provides for discretionary transfer of proceedings. Of the matters that the Court must have regard to, including the matters in Rule 3.01 of the Federal Circuit and Family Court of Australia Act 2021 (Division 2) (Family Law) Rules 2021, only s 149(3)(d) might be applicable, which is the administration of justice, on the sole basis that it was Justice Carew who recently and comprehensively dealt with the matter. In my view, that is not a proper or appropriate reason to transfer the proceedings, especially in circumstances where the parties and any other Court, whether constituted by Justice Carew or otherwise, may receive into evidence any findings, decisions or judgments made by Her Honour pursuant to s 69ZX(3) of the Family Law Act 1975.
CONCLUSION
The findings against the applicant with respect to factors (b) and (d) outweigh the findings for the applicant with respect to factors (a) and (c).
In light of the findings that:
(a)The applicant has not 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; and
(b)Registrars on a daily basis deal with applications for abridgments and urgent listings and are best placed to allocate listings having regard to urgency considerations and the overall business of the Court.
The Application for Review filed on 19 December 2024 is dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Mansfield. Associate:
Dated: 24 January 2024
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