Pacana and Kellems
[2018] FCCA 1293
•29 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PACANA & KELLEMS | [2018] FCCA 1293 |
| Catchwords: FAMILY LAW – Application for review of Registrar’s decision to refuse short service – application determined in chambers and dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.1.06, 15.03 |
| Cases cited: Cantrell & Cantrell [2017] FCCA 2565 Quong & Rush [2017] FCCA 1765 |
| Applicant: | MR PACANA |
| Respondent: | MS KELLEMS |
| File Number: | NCC 1388 of 2018 |
| Judgment of: | Judge Terry |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 29 May 2018 |
REPRESENTATION
No appearances required.
ORDERS
The application for review filed on 15 May 2018 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Pacana & Kellems is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1388 of 2018
| MR PACANA |
Applicant
And
| MS KELLEMS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 May 2018 Mr Pacana filed an Application for Review of a decision by a Registrar to refuse short service of his Initiating Application filed on 8 May 2018. The Registrar listed Mr Pacana’s application on 27 June 2018.
I have read Mr Pacana Initiating Application, Notice of Risk and Affidavit filed on 8 May 2018 and his Application for Review filed on 15 May 2018.
I intend to dispense with compliance with Rule 15.03 of the Federal Circuit Court Rules and to determine the Application for Review in chambers without an oral hearing. [1]
[1] Quong & Rush (2017) FCCA 1765
I repeat my observations in Cantrell & Cantrell which were as follows:
The pressure of work in this court is such that it is unreasonable to expect that all Applications for Review of listings decisions will be listed in open court and be the subject of an oral hearing.
Unfortunately these applications tend to come in in volume when a Registry is already under severe pressure trying to deal with incoming work in a timely fashion. If judges are forced to list all such applications in open court and hear submissions about them it either compounds the problem for other litigants who are then squeezed out of hearing time or it adds to the unacceptable pressure on judicial officers who often feel compelled, out of concern for the welfare of children, to sit very long hours.[2]
[2] Cantrell & Cantrell [2017] FCCA 2565
Discussion
Mr Pacana & Ms Kellems are the parents of [X] born on 2004 and [Y] born 2010. They separated in 2015 and Mr Pacana is currently spending time with the children in week one each fortnight from Thursday to Monday and in week two each fortnight from Thursday overnight to Friday.
Mr Pacana filed his application for parenting orders on 8 May 2018 because of his belief that Ms Kellems intends to move from her current home in Suburb D to a home she is purchasing in Suburb A. Mr Pacana lives in Suburb B but he generally stays with his partner in Suburb C when the children are spending time with him. The driving distance between Suburb C and Suburb D is about 15 to 20 minutes. Mr Pacana asserts that the driving distance between Suburb C and Suburb A will be between 40 minutes to an hour.
Mr Pacana wishes the children to continue to reside close to Suburb C.
As a result of things the children have told him, Mr Pacana believes that Ms Kellems intends to relocate as soon as the purchase of her new home settles which he believes will be on or about 12 June 2018. He would like his application dealt with prior to that.
I do not accept that this application should be given short service and prioritised over other applications patiently waiting for judicial time. It has been given a very reasonable return date 7 weeks from the date of filing. There are no risk of harm issues and there is nothing to suggest that if Ms Kellems moves the children will cease spending time with Mr Pacana.
The Application for Review will be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Terry.
Date: 29 May 2018
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