Petrova & Leighton

[2017] FCCA 315

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETROVA & LEIGHTON [2017] FCCA 315

Catchwords:
FAMILY LAW – Review of registrar’s decision with respect to abridgment – registrar abridged time – applicant sought further abridgment.

Legislation:

Family Law Act 1975

Cases cited:

Vibbard & Garcia [2012] FamCAFC 114

Myers & Myers [2011] FMCAfam 1104

Applicant: MR PETROVA

Respondent: MS LEIGHTON

File Number: MLC 5706 of 2013

Judgment of: Judge Harland

Hearing date: 16 February 2017

Date of Last Submission: 16 February 2017

Delivered at: Melbourne

Delivered on: 16 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Kiernan

Solicitors for the Applicant: Vanessa Ash

The Respondent: No appearance

ORDERS

1. The Applicant have leave to withdraw the Application for Review filed 2 February 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5706 of 2013

MR PETROVA

Applicant

And

MS LEIGHTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for review of a Registrar’s decision with respect to an abridgment of a parenting application.  The application was listed on 2 February 2017.  The primary application has been given a listing of 8 March 2017, which is, in fact, an abridgment, being a little over a month from filing to first return date.  I refer to the Family Court of Australia Full Court decision of Vibbard & Garcia [2012] FamCAFC 114 which addresses applications for review of a Registrar’s decision with respect to abridgments, and in particular I refer to [27] of that decision, which approves a decision of Halligan FM (as he then was) in the decision of Myers & Myers [2011] FMCAfam 1104 and the four-step consideration that he set out with respect to whether or not the Court should grant the abridgment as sought in the review, and those factors are:

   a)Whether or not the applicant has established a reasonable basis for the substantive orders sought. In this case, in effect what the mother is seeking is that the father complies with parenting orders that were made in 2014 after a lengthy contested hearing before Judge Hughes. 

   b)That if the urgent listing is not granted, the applicant will be prejudiced with respect to the substantive relief sought other than in ways common to other matters awaiting the Court’s attention in the normal course.  As I have indicated, this matter has already been given priority over other matters. 

   c)Has the applicant acted quickly, so there has been no unreasonable or unexplained delay, and certainly in this case the mother has acted incredibly quickly. She has filed an application within a matter of a few days of the father indicating that he did not intend to return the children to the mother’s care in compliance with the orders.

   d)Whether or not a judicial officer is available to hear the substantive application, and the issue in this case is, first of all, it has been given priority over other cases, secondly, there simply is not the capacity to list it any quicker than the listing on 8 March, which is in a couple of weeks’ time. 

3. The children are 15 and 13. There certainly is, on the mother’s case, real concerns about the children not attending school and the father not complying with the final orders that were made and not appealed from in 2014.  The father instructed experienced family lawyers, yet he did not bring the application to Court, and these are issues that he is going to need to address on 8 March 2017. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 February 2017