Nicoll & Nicoll
[2022] FedCFamC2F 400
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nicoll & Nicoll [2022] FedCFamC2F 400
File number: BRC 1331 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 3 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of a Registrar’s decision not to place the matter into the Evatt List Case Management Pathway – Where the decision is an administrative decision and not a reviewable decision – No evidence before the Court as to completion of the Family DOORS Triage screening process – The Application for Review is dismissed – Application for costs – Where the applicant has been wholly unsuccessful – Orders made for the applicant to pay costs. Legislation: Family Law Act 1975 (Cth) ss 117, 254
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18, 14.05, 14.07
Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 September 2021
Guide for Practitioners in the Federal Circuit Court Evatt List
Cases cited: Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4 Division: Division 2 Family Law Number of paragraphs: 26 Date of hearing: 3 March 2022 Place: Parramatta Counsel for the Applicant: Mr Page Solicitor for the Applicant: Michael Dwyer Solicitor Solicitor for the Respondent: Chomley Family Law ORDERS
BRC 1331 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NICOLL
Applicant
AND: MS NICOLL
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
3 MARCH 2022
THE COURT ORDERS THAT:
1.Within 3 months from today the Father pay to the Mother, costs in the sum of $321.
2.The Application in a Proceeding filed by the Father on 25 February 2022 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).
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 the pseudonym Nicoll & Nicoll has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE MURDOCH
These are parenting proceedings with respect to the children of the relationship:-
·X, born 2011;
·Y, born 2014; and
·Z, born 2015.
Listed today is the Application in a Proceeding filed by the father on 25 February 2022. This Application seeks a review of a decision by a Registrar made on 11 February 2022. The order that is sought to be reviewed is the decision made by a Registrar to not place this matter into the Evatt List.
The Evatt List is a case management pathway that is currently in three pilot sites in Australia: Adelaide, Brisbane and Parramatta. The Evatt List has been created to ensure that families who are the most vulnerable are provided with appropriate resources and support, thereby strengthening their safety and wellbeing. It is a case management system of the Court that responds to the particular needs of families as efficiently and effectively as possible so as to minimise further trauma and harm to the family. The order that is sought by the applicant father today, by way of the Application for Review, is that the matter be placed into the case management pathway of the Evatt List.
For reasons which I will now outline, the review application will be dismissed.
In this matter, I have read the following documents relied upon by the father:
·the Initiating Application filed by the father on 9 February 2022;
·the affidavit filed by the father on 9 February 2022; and
·the Application in a Proceeding filed on 25 February 2022.
In circumstances where the Application for Review refers to the Guide for Practitioners in the Federal Circuit Court Evatt List, and more specifically paragraph 1.3 of the said Guide, I have also read the Guide for Practitioners in the Federal Circuit Court Evatt List and marked that as exhibit A in these proceedings.
Pursuant to rule 2.18(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the mother has 28 days after service of an Initiating Application to file a Response.
I am advised and accept the mother’s submission that the date for the filing of the mother’s material in response is not until 14 March 2022. In those circumstances, the mother has not filed any material in response to the father’s Initiating Application. The mother, further, has not filed a Response to the father’s application to review the listing date allocation. In circumstances of the matter that is before the Court today, I would not expect the mother to have filed a response to such review.
The father, as I have stated, commenced these proceedings by way of filing an Initiating Application on 9 February 2022. Such application seeks both interim and final orders.
There has been no response to the application filed by the mother and that is no criticism. The date for her to have filed such material has not yet passed.
On 11 February 2022, the matter came before a Registrar of this Court, being either a Judicial Registrar or a Deputy Registrar. It appears that the matter was allocated a listing date of 14 March 2022 in a Judicial Registrar’s first return list.
On 25 February 2022, the father’s Application in a Proceeding for review of that decision was filed. Such review application does not seek to review the listing date allocated to the matter by the Registrar. The Application for Review seeks that the matter be considered for the Evatt List. Mr Page of Queen’s Counsel appearing for the father confirmed to the Court today that the decision sought to be reviewed is the decision apparently made by the Registrar to not allocate this matter to the Evatt List.
The order that is sought by the father today is that I make an order placing this matter into the Evatt List.
Pursuant to rule 14.05 of the Rules, a party may seek a review of an exercise by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The father’s Application for Review was filed within that 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 fresh, rather than determining whether the original decision was an error.
The overarching purpose and objective of the Court is to ensure the just determination of all matters whilst ensuring that 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.
I am not satisfied that there is a decision by a Registrar that is capable of review. The Registrar’s decision in respect of allocating or not allocating this matter to the Evatt List is not a reviewable decision. This is an administrative process that has been in place in the Brisbane Registry since the pilot commenced there on 11 January 2021. It was an administrative task performed by a Registrar, rather than an exercise of power, pursuant to section 254 of the Family Law Act 1975 (Cth).
Even if I were satisfied that this is a reviewable decision, the review must still fail. It is unfortunate, in circumstances where the solicitor for the father was able to quote paragraph 1.3 of the Guide for Practitioners in the Federal Circuit Court Evatt List in the Application for Review that, perhaps, the entire document was not read.
Paragraph 1.5 of the Guide for Practitioners in the Federal Circuit Court Evatt List clearly states that in order to be referred to the Evatt List, at least one of the parties must complete an online risk screen questionnaire called a Family DOORS Triage and return as high risk through the Family DOORS Triage screening process. An Evatt List Judicial Registrar will then review the case and determine whether it is appropriate for the Evatt List. There is no evidence before me, nor would I expect there to be in circumstances where this screening process is confidential, pursuant to the Family Law Act 1975 (Cth). There is no evidence before me that either of the parties in this matter has undergone the Family DOORS Triage screening process. Therefore, the matter, at this stage, is ineligible to be placed into the Evatt List.
For these reasons, the Application for Review will be dismissed.
There is now an application for costs at scale made by the respondent mother in circumstances where the Application filed by the father has been wholly unsuccessful.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceeding shall bear their own costs, subject to subsection 2, which states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as it considers just. Although s 117(2) of the Act requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, the matter of Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4 states that there is no additional or special onus on the applicant who seeks the costs orders.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection 2A. I will not repeat them today. Turning to those appropriate considerations, as set out in subsection 2A, I have no evidence before me as to the financial circumstances of each of the parties to the proceedings, nor is there any evidence before me as to whether any party has a grant of Legal Aid and if so the terms of such grant. The conduct of the parties, in relation to the proceedings, is not applicable having regard to the early stage of this matter. The proceedings have not been necessitated by the failure of a party to the proceedings to comply with previous Orders of the Court.
The father has been wholly unsuccessful in the application today. In that regard, I note my earlier reasons that this is an application that in effect, should never have been made. The decision by a Registrar is not a reviewable decision. It is an administrative decision. The legal representatives for the father should have been aware that it is not a reviewable decision. The mother has been put to the costs of appearing today unnecessarily in those circumstances.
I am satisfied that there are circumstances that justify the departure from the usual provisions of section 117 of the Family Law Act 1975 (Cth) and I will make an order for costs.
Otherwise, the Application for Review filed by the father on 25 February 2022 will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Murdoch delivered on 3 March 2022. Associate:
Dated: 1 April 2022
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