Nowell & Nowell
[2021] FedCFamC2F 170
•13 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nowell & Nowell [2021] FedCFamC2F 170
File number(s): ADC 4285 of 2021 Judgment of: CHIEF JUDGE ALSTERGREN Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – review of a Registrar’s decision not to list matter on urgent basis and to transfer the matter into the Evatt List – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191, 254, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07
Cases cited: Darvell & Darvell [2021] FamCA 490
Diacos & Gataki(No 3) [2021] FCCA 1841
Hearnes & Jellets [2020] FCCA 2722
Lombardi & Rider [2021] FedCFamC2F 57
Petrova & Leighton [2017] FCCA 315
Moxey & Keirn [2021] FamCA 615
Myers & Myers [2011] 253 FLR 445
Tadros & Tadros & Ors [2020] FCCA 1118Vibbard & Garcia (2012) 48 Fam LR 1
Division: Division 2 Family Law Number of paragraphs: 50 Date of last submission/s: 8 October 2021 Date of hearing: 7 October 2021 Place: Melbourne Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Ms Reid Solicitor for the Respondent: CG Family Law ORDERS
ADC 4285 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NOWELL
Applicant
AND: MR NOWELL
Respondent
ORDER MADE BY:
CHIEF JUDGE ALSTERGREN
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Mother’s Application for Review filed 20 September 2021 be dismissed.
2.The parties each bear their own costs of and incidental to the Application for Review.
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 a pseudonym Nowell & Nowell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHIEF JUDGE ALSTERGREN
This matter concerns an Application for Review filed by the Mother on 20 September 2021, seeking review of orders made by a Registrar on 17 September 2021 (“the Review Application”).
The Review Application was listed for hearing before me on 7 October 2021 (“the Review Hearing”).
These proceedings commenced by Initiating Application filed by the Father on 2 September 2021 and concern the child of the relationship, X born in 2012 and aged 9 (“the child”). The parties agree that the Father unilaterally relocated with the child from the former family home on 25 August 2021.
The Father filed a supporting Affidavit, Notice of Child Abuse, Violence or Risk, Parenting Questionnaire and Cover letter for Urgency on 2 September 2021.
The interim orders sought by the Father, in summary, are as follows:
(a)That the matter be heard urgently.
(b)The requirement that the Father file a section 60I Certificate be dispensed with.
(c)That the child live with the Father.
(d)That the Mother be restrained by injunction from removing the child from the Father’s care or from the child’s current school.
(e)Until further order, the child spends supervised time with the Mother at a Contact Service, for 6 visits.
(f)The Mother obtain a psychiatric assessment and a report from the supervised Contact service, at her own expense.
The Mother filed a Response on 13 September 2021, together with a supporting Affidavit, Notice of Child Abuse, Violence or Risk, and Parenting Questionnaire. The interim orders sought by the Mother, in summary, are:
(a)That the application be heard urgently by a Judge on 20 September 2021 and that timeframes imposed by the Act and the Rules that would otherwise prevent the urgent hearing occurring be waived or abridged as needed.
(b)That pursuant to s 67U of the Family Law Act 1975 (Cth) (Family Law Act), a Recovery Order be issued to deliver the child to the Mother.
(c)That if the Father takes or attempts to take the child after the recovery order, he may be arrested without warrant.
(d)That the child live with the Mother; and
(e)The child spend time with the Father at times and under such conditions as the Court determines.
The matter was initially allocated a first return date of 20 September 2021 in a Registrar Duty List.
However, the matter was then considered in chambers by an Evatt List Registrar on 17 September 2021. This was done as a result of one of the parties having had completed the DOORS Triage risk screening and being classified as ‘high risk’.
The orders made by the Registrar in chambers on 17 September 2021 are the subject of the Review Application before the Court (“the Registrar’s Decision”). The particular orders which the Mother seeks to be reviewed are:
·Order 1: The proceedings are allocated into the Evatt List;
·Order 2: The Duty List Hearing date of 20 September 2021 be vacated;
·Order 3: The parties attend a First Court Event before an Evatt List Senior Judicial Registrar on 2 November 2021; and
·Order 30: All parties and the Independent Children’s Lawyer file and serve a case summary outline, minute of order and written submissions, no later than 2 days prior to the First Court Event.
I note that the Registrar also made other orders including that:
(a)A Child Impact Report be prepared pursuant to s 62G of the Family Law Act with interviews to occur with the parents on 25 October 2021 and with the child on 27 October 2021;
(b)An Independent Children’s Lawyer be appointed pursuant to s 68L of the Family Law Act to represent the child; and
(c)Pursuant to s 69ZW of the Family Law Act, within 21 days, South Australia Police and the Department of Child Protection South Australia provide to the Court information with respect to any investigations, assessments, reports and notifications made regarding suspected child abuse and/or family violence.
In her Review Application, the Mother seeks orders that the matter instead be listed for urgent interim defended hearing before a Judge in either Division 1 or 2 of the Federal Circuit and Family Court of Australia as soon as possible, and at least within 7 days.
The Father has not filed any material in relation to the Review Application, nor was he required to in an application of this nature.
The hearing of an application for review is a hearing de novo, and, with leave, the Court may receive further evidence in addition to that which was before the Registrar: r 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
In considering the Review Application I have had regard to the following documents:
(a)The Initiating Application, Affidavit, Parenting Questionnaire and Notice of Child Abuse, Family Violence or Risk and Cover letter for Urgency filed by the Father on 2 September 2021; and
(b)The Response, Affidavit, Parenting Questionnaire and Notice of Child Abuse, Family Violence or Risk filed by the Mother on 13 September 2021.
I have also considered the following documents and submissions in addition to what was before the Registrar:
(a)The Undertakings filed by the Mother and the Father on 24 September 2021;
(b)The Affidavit filed by the Father on 2 October 2021;
(c)The oral submissions made by the parties at the Review Hearing on 7 October 2021; and
(d)The chronology jointly emailed by the parties to chambers on 8 October 2021.
ISSUES BEFORE THE COURT
The issues before the Court are:
(a)Whether the Registrar’s Decision is a reviewable decision under the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”); and
(b)If it is a reviewable decision, whether the review should be allowed.
ADMINISTRATIVE OR REVIEWABLE DECISION?
Registrars of this Court are delegated powers pursuant to s 254 of the Act. The right to review the exercise of a power of a Registrar is set out in s 256 of the Act.
I am satisfied that the Registrar’s Decision in respect of the listing date was a reviewable decision. The parties were both seeking interim orders that the Registrar exercise the power to make an order exempting a party to proceedings from compliance with a provision of the Rules of the Court. This power may be delegated pursuant to s 254(2)(k) of the Act and has been so delegated under the Rules. The Registrar in this case declined to exercise that power.
However, the Registrar’s Decision in respect of allocating the matter to the Evatt List is not a reviewable decision. Matters are transferred into the Evatt List if they return as ‘high risk’ in the Family DOORS Triage screening process. This is an administrative process that has been in place in the Adelaide registry since the pilot commenced on 7 December 2020.[1] This was an administrative task performed by the Registrar rather than an exercise of power under s 254 of the Act.
[1] Lighthouse Project and Evatt List (FAM-LHP) Family Law Practice Direction.
SHOULD THE REVIEW APPLICATION BE ALLOWED?
I am next required to consider whether the Review Application should be allowed, such that the matter is listed for interim defended hearing on a date before 2 November 2021.
When making this assessment, I must consider the sections of the Act which set out the overarching purpose of the provisions. Section 190 of the Act provides that the overarching purpose is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. The objectives included in the overarching purpose are listed in section 190(2), as follows:
(a)The just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)The efficient disposal of the Court's overall caseload;
(c)The disposal of all proceedings in a timely manner; and
(d)The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
I also note the core principles set out in the Central Practice Direction – Family Law Case Management (“Central Practice Direction”), in particular:
(a)Core Principle 1 which requires the prioritisation of the safety of children and early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, as essential elements of case management;
(b)Core Principle 2 which requires the Central Practice Direction and Family Law Rules to be interpreted and applied in the way that best promotes the Court’s overarching purpose and prioritises the best interests of the children;
(c)Core Principle 3 which requires the efficient and effective use of the Court’s judicial and registrar resources in the context of ensuring the appropriate handling of risks; and
(d)Core Principle 4 which provides that effective case management relies on a consistent approach to the management of like cases and early triaging of matters to an appropriate pathway, including assessment of risk.
(Emphasis added)
In keeping with these principles and the overarching purpose, the Court has a responsibility when allocating dates to make an assessment of priority as against other matters.
When a matter first enters the Court system, it is first assessed by a Registrar, whose role is to triage the matter to an appropriate pathway. This case was allocated into the Evatt List, which requires consideration of appropriate orders, evidence needed, the type of officer that should hear the matter upon return, and risk factors. I note the discussion of McClelland DCJ on the importance of the allocation of Court resources in Moxey & Keirn [2021] FamCA 615 at [55]-[57], and my similar discussion in Lombardi & Rider [2021] FedCFamC2F 57 (“Lombardi”).
Consideration
In Myers & Myers [2011] 253 FLR 445 (Myers), Halligan FM (at [87]) set out four factors the Court should be satisfied of if a matter is to be listed urgently:[2]
(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.
[2] Adopted by decisions such as Petrova & Leighton [2017] FCCA 315; Hearnes & Jellets [2020] FCCA 2722; Tadros & Tadros & Ors [2020] FCCA 1118; Diacos & Gataki(No 3) [2021] FCCA 1841.
As to the first factor, I am willing to proceed on the basis that the Mother has demonstrated that a reasonable basis exists for arguing for the substantive orders sought.
I am also satisfied as to the fourth factor that there has been no unreasonable or unexplained delay in approaching the Court. The Mother filed the Review Application 7 days after the Father unilaterally relocated with the child, and 3 days after the Registrar’s Decision, which is well within the 21-day timeframe stipulated by rule 14.05 of the Rules.
As to whether absent an urgent listing, the Mother 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 am not satisfied that this has been made out.
At the review hearing, Counsel for the Mother submitted that the basis of the urgency was the child’s special needs, the significance of the Mother’s parenting role in the child’s life, and the lack of parenting role by the Father. Counsel for the Mother sought to differentiate this case from other recent cases concerning applications for review regarding first return dates, such as Lombardi, because this matter had a first return date of 20 September 2021 which was then vacated and replaced with a later date of 2 November 2021.
It was further submitted that the decision to vacate the listing on 20 September 2021 deprived the Mother of the opportunity to agitate her application on that date, and prioritises the Father's inappropriate behaviour and condones parties taking matters into their own hands.
I am troubled by the latter part of this submission. This is, with respect, a misconception of the role of the Registrar in the Evatt List and appears to evidence a lack of appreciation of the careful consideration Registrars give to risk factors, appropriate orders to be made for the preparation of the matter for upcoming hearing and current Court resources available. Such consideration does not in any way condone parties taking matters into their own hands.
As stated by Justice Altobelli in Darvell & Darvell [2021] FamCA 490 at [7], listing registrars play an important “gatekeeper role” in the case management of cases in the registry.
Each party views their matter as urgent, particularly where children are involved, as well as allegations of substance abuse, child abuse and family violence. However, this Court unfortunately deals with a high volume of cases involving such allegations on a daily basis.
As I stated in my decision in Lombardi at [32] – [33]:
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.
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...
I also refer to the comments of Halligan FM in Myers at [84]:
The Court must be cognisant not only of the case in which urgent listing is sought, but also of the many other cases a busy Court such as this must attempt to deal with in as timely a fashion as is possible with available judicial resources, and of the impact on its ability to do so by interposing urgent matters over the top of matters that have already waited some time for attention.
Matters are carefully considered before being triaged into this case management pathway and allocated a First Court Event before an Evatt List Judge or Senior Judicial Registrar.
The parties’ affidavit material is concerning and contains serious and opposing allegations, including the following:
(a)The child has some health conditions and learning disabilities.
(b)The Father deposes that he unilaterally relocated with the child from the former family home on 25 August 2021 due to a number of incidents of family violence and displays of mental health issues by the Mother. In his Cover Letter of Urgency filed 2 September 2021, the Father stated that he is concerned that the child is in danger in the Mother’s care due to the Mother’s mental health issues and alcohol abuse.
(c)At paragraphs [32] to [52] and [58] to [64] of his affidavit filed 2 September 2021, the Father deposes to a number of incidents of the Mother not taking the child to school, abusing alcohol, exhibiting mental health issues, and being physically aggressive towards the Father and the child. Annexed to the Father’s affidavit number of medical reports which indicate that the Mother had been diagnosed with a number of mental health issues in the past, between 2000 and 2005.
(d)The Mother denies the allegations that the child is at risk in her care. She deposes that she has been the child’s primary caregiver and that her mental health challenges have not impeded her parenting abilities. The Mother’s affidavit annexes a letter from her treating psychologist dated 6 September 2021 and a letter from her general practitioner dated 10 September 2021, which both state that the Mother suffers from symptoms of anxiety and depression, however the child is not at any risk in her care.
(e)The Mother alleges that she learned through family members that the Father has used cocaine in the past and that she has concerns he has recently been using cocaine again. She also alleges that the Father has been verbally and sometimes physically abusive towards her throughout the relationship.
(f)The Father has withheld the child from attending school at B College since 25 August 2021 due to his concerns that the Mother will remove the child from the school. The Father stated he was advised by South Australia Police that he could keep the child at home in these circumstances until 30 September 2021.
(g)The child changed schools from Primary School C to College B from the start of Term 3 in 2021.The Father deposes that the parties changed the child’s school by consent. The Mother deposes this change was unilaterally done by the Father and that she was ‘tricked’ into signing the enrolment forms.
It was on the basis of this material that this matter was assessed by a Registrar to be suitable for inclusion in the Evatt List with specialised resources and a First Court Event on 2 November 2021.
This process is part of the Lighthouse Project Pilot currently operating in the Adelaide Registry, which was specifically introduced to assist with early assessment of risk in parenting cases, and ensure that the most vulnerable parties and children in the Court system are provided with appropriate resources to safeguard against family violence and other risks of harm. The aim of the Evatt List is to minimise the number of court events and finalise a matter within nine to twelve months of filing.
The Registrar made a sequence of orders, detailed above, to enable the Court to receive crucial information from the parties and relevant external organisations, including South Australia Police and Child Protection, which will prepare this matter for the First Court Event in the Evatt List and assist the Senior Judicial Registrar in determining appropriate interim parenting orders. It is precisely in matters like this where independent information from external agencies is particularly pertinent and of utmost assistance to the Court to ensure parenting orders are made in the best interests of the child.
Bearing in mind the serious nature of the allegations made by the parties, I am satisfied that the orders made on 17 September 2021 were appropriate for the future conduct of the matter, and, as Counsel for the Mother accepted at the Review Hearing, are orders that may have had to be made in any event.
The Mother’s application for urgency appears to be based on the assumption that, firstly, her recovery application could have been dealt with on 20 September 2021 in the Registrar’s Duty List by being referred to a judicial officer, and secondly, that her application would have been overwhelmingly successful.
In my view, in circumstances where there are no interim parenting orders in place and there is a myriad of issues between the parties, including factual disputes and serious allegations of risk, it is unlikely that the parties’ interim applications could have been dealt with at the duty list, or that the parties would have obtained a return date earlier than 2 November 2021.
I have also considered the following documents and submissions which were adduced by the parties at the Review Hearing:
(a)The parties both filed Undertakings on 24 September 2021 which reflect the arrangements the parties have put in place for the child to spend supervised time with the Mother until the matter returns before the Court on 2 November 2021.
(b)The parties made oral submissions at the Review Hearing, and emailed a chronology to chambers on 8 October 2021, indicating that the child has spent time with and communicated with the Mother on a number of occasions since 25 August 2021, namely:
(i)Five in-person visits from 9.30am to 4.00pm on 25 September 2021, 28 September 2021, 30 September 2021, 2 October 2021 and 5 October 2021, in accordance with the arrangements set out in the parties’ Undertakings;
(ii)A sixth in-person visit on 7 October 2021 from 12.15pm to 4pm, as the parties attended the Review Hearing in the morning;
(iii)Telephone calls on numerous dates between 13 September 2021 and 4 October 2021;
(iv)Email communication on a number of dates between 28 August 2021 23 September 2021, noting the Mother says not all emails were received or responded to by the child; and
(v)Text message communication on numerous occasions between 14 September 2021 and 7 October 2021.
This evidence of recent time spent and communication between the Mother and the child weighs against the Mother’s application for an urgent hearing.
I am not satisfied the Mother 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.
As to “whether a judicial officer is available to hear the substantive application”, I refer to my recent reasons in Lombardi at [34]-[35]:
[34] … that the Court must discourage review applications of this nature being brought except in truly urgent circumstances. If the Court does not do this, the risk is that such applications are brought on any occasion on which a party merely disagrees with a listing decision of a Registrar.
[35] The Court’s Registrars play an important role in the proper and efficient functioning of the Court. The Court should not interfere in the listing decision of a Registrar unless genuine urgency can be demonstrated.
The priority of this matter would have been assessed against other like matters, and a listing decision made being mindful of the effective use of the Court’s registrar and judicial resources.
Conclusion
As I stated in Lombardi at [48], the Court’s Registrars play an important role in the efficient management of cases by the Court, and the listing decision of a Registrar should not be interfered with unless genuine urgency can be demonstrated. I am not satisfied that is the case here.
The Mother’s Review Application should be dismissed, with each party to bear his or her own costs. I make orders to this effect.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Chief Judge Alstergren. Associate:
Dated: 13 October 202
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