Neame & Neame
[2021] FCCA 1664
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Neame & Neame [2021] FCCA 1664
File number(s): PAC 3201 of 2021 Judgment of: JUDGE MYERS Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – practice and procedure – power to review a registrar’s decision – refusal to grant leave to file on short notice – refusal to urgently list matter Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss 102(2)(a)-(o), 103(1) and 104(1) & (2)
Federal Circuit Court of Australia Rules 1999 (Cth), r 6.19
Cases cited: Lynch & Dunstan [2011] FMCAfam 389
Zeller & Whitby [2011] FMCAfam 431
Alcock & Baressi [2012] FMCAfam 60
Myers & Myers [2011] FMCAfam 1104
Palmer & Palmer [2012] FMCAfam 522
Vibbard & Garcia [2012] FamCAFC 114
Number of paragraphs: 11 Date of hearing: 2 July 2021 Place: Parramatta Counsel for the First Applicant: Ms Lawson Counsel for the First Respondent: Mr Todd ORDERS
PAC 3201 of 2021 BETWEEN: MR NEAME
Applicant
AND: MS NEAME
Respondent
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The decision of Registrar Boldiston, made 18 June 2021, is reviewed and the interim orders sought, as contained in the Response filed by the Respondent Mother on 17 June 2021, are listed for hearing this morning 2 July 2021.
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).
.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 under the pseudonym Neame & Neame is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MYERS
This is an interlocutory ex tempore decision in the matter of Neame & Neame delivered after receiving submissions in the court this morning. The decision relates to an application made by the Respondent Mother in an Application in a Case, filed 23 June 2021, where she seeks that a decision of Registrar Boldiston, made 18 June 2021, to refuse to grant leave to the Respondent Mother to serve short notice of her Response, filed 18 June 2021, and the refusal to urgently list the Interim Application for a Recovery Order contained within that Response, be reviewed.
Reviewing a decision of a Registrar to abridge time is an issue that has been canvassed before this Court on several occasions. First instance decisions include Lynch & Dunstan;[1] Zeller & Whitby;[2] Alcock & Baressi;[3] Myers & Myers;[4] and Palmer & Palmer.[5]
[1] [2011] FMCAfam 389.
[2] [2011] FMCAfam 431.
[3] [2012] FMCAfam 60.
[4] [2011] FMCAfam 1104.
[5] [2012] FMCAfam 522.
Pursuant to s 102 of the Federal Circuit Court of Australia Act1999 (Cth) (‘the Act’), Registrars of this Court are delegated certain powers. Those powers are set out at subsection (2)(a) - (o). Pursuant to section 104(2) of the Act, a party to proceedings in which a Registrar has exercised any of the powers of the Act under section 102(2) or under a delegation under section 103(1) may:
(a) Within the time prescribed in the Rules of Court;
(b) With any further time allowed in accordance with the Rules of Court;
(c)Apply to the Federal Circuit Court of Australia for review of that exercise of power.
Section 102(2)(h) of the Act reads:
The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:
…
(h)the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of the Court.
On 17 June 2021, the Respondent Mother, who is the applicant in the Review Application, filed a Response to the Application for Final Orders document in which she sought interim and procedural orders. The substantive interim application was for what is best termed, a recovery order, and the procedural orders numbered 1 and 2 that provided:
(1)That this Response and interim Application be listed as a matter of urgency before a duty Judge or duty Senior Registrar; and
(2)That the Mother be granted leave to serve short notice of this Response and Interim Application.
The Response came before Registrar Boldiston on 18 June 2021. Registrar Boldiston refused to grant leave to the Respondent Mother to serve short notice of her Response and listed the return date for the Response before Judge Obradovic on 17 August 2021.
Rule 6.19 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) provides that unless the Court otherwise determines an Application and any document filed within it may not be served:
(a) Less than 3 days before the hearing of an application in a case; or
(b) Less than 7 days before the day fixed for the hearing of any other application.
Order 2 sought asked that the Respondent Mother be granted leave to serve short notice of the Response and interim Application and in doing so required the Registrar to exercise her power delegated pursuant to s 102(h) of the Act to make an order, or refuse to make an order, exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court, namely r 6.19 of the Rules. Accordingly the Registrars decision is reviewable pursuant to s 104(2).
In Vibbard & Garcia,[6] the Full Court reached a similar conclusion and held that the Court did have power to review such a decision under s 104(1) of the Federal Magistrates Act 1999 (Cth) (now s 104(1) of the Federal Circuit Court Act) because the application determined by the Registrar in that case included an application to abridge time under the Rules of court or exempt the applicant from compliance with the Rules of court relating to the time for service of an application.
[6] [2012] FamCAFC 114.
The Respondent mother’s Application for review of Registrar Boldiston’s decision, made 18 June 2021, must accordingly succeed.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 25 August 2021
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