OFFENBURG & MANDARA
[2020] FCCA 2702
•29 September 2020
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 on matter such as this and the Court can properly determine the Review Application in chambers. In that regard I concur with the reasons expressed by Judge Terry in the 2017 decision of Cantrell & Cantrell[1] where Her Honour says:
“The pressure of work in this court is such that it is unreasonable to expect that all Applications for Review of listing decisions will be listed in open court and be the subject of an oral hearing.”
[1] Cantrell & Cantrell [2017] FCCA 2565 at para.4
Rule 1.06 permits the Court to dispense with any of the Rules, where the interest of justice require it. I conclude that the interests of justice require this matter to be determined in Chambers, without oral submissions, rather than occupying Court hearing time which can be better utilised determining substantive parenting disputes.
There is no disadvantage to the father, as I have taken into account the father’s Initiating Application, supporting Affidavit and Notice of Risk, all filed 14 September 2020, together with his Application for Review.
Background
X was born in 2012. The father says that the parties separated in April 2017, when X was approximately 5 years old. Following separation the parents reached an informal agreement where X lived with each of parent on a week about basis.
The father says in late 2019 the mother withheld X from him, claiming X was frightened to attend at his home. The parties attended mediation through B Counsellors in September 2019 and reached an agreement where X would live with the mother nine nights per fortnight and spend time with the father each alternate week from Wednesday through to the following Monday (five nights per fortnight).
This parenting regime continued until 3 July 2020 when the mother again withheld X. She has refused to allow X to spend any time with the father. The father says the mother has also withheld X from school for the whole of third term, which is particularly detrimental for X, as he experiences mild/moderate autism and benefits from a stable routine.
The father alleges that the mother suffers from bipolar disorder. He says that she fails to take her medication at times, which affects her conduct and leads to serious concerns in relation to the mother’s day-to-day care of X.
The father alleges that the mother has withheld X in response to property settlement negotiations. In correspondence the mother’s solicitors have informed the father that she is withholding X due to bruising on the child’s arms which has been reported to Police. The father denies any allegation or suggestion that he has caused bruising to X.
The father seeks orders reinstating week about care for the parties’ child X and other ancillary parenting orders.
Discussion
The father is understandably distressed by the mother’s actions in withholding X. I accept it may also be distressing for X. However, I am not satisfied that the concerns identified in the father’s documents require an urgent listing. On the father’s own evidence, the parties negotiated for X to live in the mother’s care for seven days per fortnight and more recently nine days per fortnight. This indicates the father has been satisfied that X has been safe while living in the mother’s care during the past three years.
The disruption to X’s parenting and schooling arrangements may be unsettling for X. I acknowledge that the present situation may not be in X’s best interests, but that is not the question here. The question to be determined is whether the material on the Court file identifies a significant risk of harm for X, or concerns of such pressing urgency that this parenting application should be allocated an expedited hearing.
The father’s concerns set out in his Affidavit do not reach that level. In short, the evidence on the Court file does not justify this parenting case being allocated a higher priority than so many other parenting cases pending before the Court.
I dismiss the father’s Application for Review filed 22 September 2020. Accordingly the existing listing date will remain.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge C Kelly
Associate:
Date: 29 September 2020
See also Gray & Durant, [2020] FCCA, 526
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