OFFENBURG & MANDARA - [2020] FCCA 2702

FEDERAL CIRCUIT COURT OF AUSTRALIA

OFFENBURG & MANDARA

[2020] FCCA 2702

Catchwords:
FAMILY LAW – Procedural – Application for Review of the Senior Registrar’s listing decision – dealt with in chambers – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.104(2)

Federal Circuit Court Rules 2001, rr.1.06, 20.01 – 20.03

Cases cited:

Cantrell & Cantrell [2017] FCCA 2565

Applicant:

MR OFFENBURG

Respondent:

MS MANDARA

File Number:

ADC 4384 of 2020

Judgment of:

Judge C Kelly

Hearing date:

In Chambers

24 September 2020

Date of Last Submission:

24 September 2020

Delivered at:

Adelaide

Delivered on:

29 September 2020

REPRESENTATION

Orders made in chambers

ORDERS

Rules 15.03 and 20.02 of the Federal Circuit Rules 2001 are dispensed with and the father’s Application for Review filed 22 September 2020 be determined in Chambers on the papers.
The Application for Review filed 22 September 2020 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4384 of 2020

MR OFFENBURG

Applicant

And

MS MANDARA

Respondent

REASONS FOR JUDGMENT

Introduction

On 14 September 2020, the Applicant father filed an Initiating Application the parties’ child X, born in 2012. The father sought interim Orders seeking to dispense with the requirement for filing a certificate pursuant to s.60I of the Family Law Act 1975 (as amended) and an urgent listing.
On 16 September 2020 the Applicant’s solicitor was advised that the “Request for an urgent listing has been considered by the Senior Registrar” and “Upon assessment of the material provided, the Registrar has not granted an urgent listing …”.
The Application was allocated a first return date on 2 November 2020.
On 22 September 2020 the father has filed an Application for Review of the Registrar’s decision seeking Orders as follows:
“The applicant seeks that the matter be relisted for a first return date with priority or expedition in circumstances where the respondent has terminated all time and contact as between the child and father and where the respondent has not facilitated the child’s attendance at school for the entirety of term 3 2020.
The applicant contends, contrary to the decision of the Senior Registrar that this matter is an urgent matter and should be listed as such.”

The Law

Pursuant to s.104(2) this Court has the power to review a decision made by a Registrar. When exercising the power to review a decision of a Registrar, the Court must consider the Application de novo. Rules 20.01 – 20.03 of the Federal Circuit Court Rules 2001 set out the procedure for a Review Application.
The father filed his Application for Review within seven days, in accordance with Rule 20.01. Rule 20.02 directs that the application be listed for hearing as soon as possible, and within 14 days, unless impractical to do so. The volume of work within the Court does not easily accommodate oral hearings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OFFENBURG & MANDARA

Details

AGLC: OFFENBURG & MANDARA [2020] FCCA 2702
Case: [2020] FCCA 2702
Decision Date: 29 September 2020

CaseChat Overview and Summary

The parties involved were the father and the mother, with the father seeking a review of a Senior Registrar's listing decision. The matter came before Judge C Kelly of the Federal Circuit Court of Australia. The core of the dispute concerned the father's dissatisfaction with how his case was being listed for hearing.

The primary legal issue before the court was whether to grant the father's application for a review of the Senior Registrar's listing decision. This involved considering the court's power to dispense with certain procedural rules and to determine the application on the papers, rather than through an oral hearing.

Judge C Kelly considered the relevant Federal Circuit Rules, specifically rules 15.03 and 20.02, which govern the process for applications and reviews. The court exercised its discretion to dispense with these rules, allowing the application for review to be determined in chambers on the papers. Ultimately, the court dismissed the father's Application for Review.

Orders

Orders of the court

Rules 15.03 and 20.02 of the Federal Circuit Rules 2001 are dispensed with and the father’s Application for Review filed 22 September 2020 be determined in Chambers on the papers.

The Application for Review filed 22 September 2020 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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