NICOL & NICOL

[2015] FCCA 2213

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICOL & NICOL [2015] FCCA 2213

Catchwords:
FAMILY LAW – Application to review decision of a Registrar declining to abridge time – application determined on basis that this is a valid review of the Registrar’s exercise of power – application wholly deficient in merit – application dismissed – ruling on whether the act of the Registrar was administrative or an exercise of judicial power reserved. 

Legislation:

Family Law Act 1975

Applicant: MR NICOL

Respondent: MS NICOL

File Number: MLC 7151 of 2015

Judgment of: Judge Burchardt

Hearing date: 6 August 2015

Date of Last Submission: 6 August 2015

Delivered at: Melbourne

Delivered on: 6 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Knight

Solicitors for the Applicant: Knight Family Lawyers

Counsel for the Respondent: Mr MacFarlane

Solicitors for the Respondent: Harwood Andrews

ORDERS

1. The Application for Review filed 30 July 2015 be dismissed.

2. The Respondent’s costs of the Application for Review be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Nicol & Nicol is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 7151 of 2015

MR NICOL

Applicant

And

MS NICOL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. On 29 July 2015, the applicant husband filed his Initiating Application.  He sought interim orders that time for service be abridged and that the matter be listed on the next available date, supervised time with the children, communication with the children, communication by the children with the father by email or letter, a section 11F report, an Independent Children’s Lawyer and access to medical and school records.  The application was supported by an affidavit of Mr Nicol filed the same day.  This reveals that the parties were married in 1998 and have three children, X born on (omitted) 1999, Y born on (omitted) 2001, and Z born on (omitted) 2005.

2. The return date allocated by the administrative process for this application was 29 September 2015.  I am told that the wife was served on 31 July 2015.  It is immediately apparent, therefore, that any delay beyond that required by the Rules is of approximately the order of four weeks.  I may say that this reduction of the first return dates, which were previously substantially blown out, has only occurred by a major push on the part of the judges of this registry to bring these dates back.  In the scheme of things, a delay of eight weeks to first return while undesirable is a pretty good go, bearing in mind that we are three judges out of 12 short in this registry at the moment.

3. What next happened, for these purposes, was that an Application for Review of the Registrar’s decision to fail to extend time was lodged on 30 July 2015. 

4. I should say it is apparent that, following separation last year according to the father, the last time he saw the children was for 90 minutes on Boxing Day, so he delayed from Boxing Day until July – effectively almost August – before filing his application.  The application seeks simply that a section 11F report be ordered. 

5. The Response filed by the wife seeks that the application be dismissed.  There is a welter of correspondence put on affidavit that shows that there have been, from the husband’s point of view, rather ineffectual communication with the wife’s solicitors from time to time.

6. I have sought to elicit from counsel for the husband what it is that makes this application as urgent as it is said to be and takes it out of the ordinary rack of cases, because we have many cases, unfortunately, in which people want to get their matters on as soon as possible.  There are considerable strains on the judicial resources of this registry at this time because, as I say, we are two judges short and one judge is away seriously ill.  Everybody wants to get on urgently and, no doubt, with a similar emotional intensity to that of the husband.  But when you look at the fact that for whatever reason he waited from December last year till late July this year to file his proceeding and you look at the fact that the children are said on his own case to be at their best, ambivalent about seeing him and I note that there is an Intervention Order in place from which the usual family law exemption has apparently been removed by a curial act, it is immediately apparent that there is absolutely nothing to justify the abridgement that is sought.

7. This application should not have been brought.  It should have been obvious that this was a perfectly normal family law case not attended by any measure of urgency beyond that which applies to all such cases.  I am going to dismiss the Application for Review accordingly.  Litigants and their advisors need to understand that the Court does its level best to get all matters on as quickly as possible.  It is required to endeavour to do so by the terms of the legislation that constitutes the Court, but there is only so much we can do and we are not assisted by having to devote resources to applications as startlingly deficient in merit as this one. 

8. I have also been asked, in any event, to consider ordering the section 11F report today and making an order that the father be permitted to have written communication with the children.  It is immediately apparent that those are matters properly addressed when the wife has had a proper opportunity to file her materials which is what the original return date, inter alia, was designed to do.

9. Accordingly, I order that the Application for Review be dismissed.  I will reserve the respondent’s costs of the Application for Review.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  14 August 2015