Quong & Rush - [2017] FCCA 1765

FEDERAL CIRCUIT COURT OF AUSTRALIA

QUONG & RUSH

[2017] FCCA 1765

Catchwords:
FAMILY LAW – Application for review of a Registrar’s refusal to give a matter a short service listing.

Legislation:

Family Law Rules 2004, r.11.16

Federal Circuit Court Act 1999, ss.102, 104

Federal Circuit Court Rules 2001, rr.1.05, 1.06, 6.19, 15.03, 20.2, 20.3

Cases cited:

Holden & Wolff [2014] FamCAFC 224

Kassis & Kassis [2014] FamCA 1067

Myers & Myers [2011] FMCAfam 1104

Vibbard & Garcia [2012] FamCAFC 114

Applicant:

MS QUONG

Respondent:

MR RUSH

File Number:

NCC 2102 of 2017

Judgment of:

Judge Terry

Hearing date:

1 August 2017

Date of Last Submission:

1 August 2017

Delivered at:

Armidale

Delivered on:

2 August 2017

REPRESENTATION

Appearance for the Applicant:

By telephone

Appearance for the Respondent:

Not Required

ORDERS

The application for review filed on 20 July 2017 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ARMIDALE

NCC 2102 of 2017

MS QUONG

Applicant

And

MR RUSH

Respondent

REASONS FOR JUDGMENT

Introduction

On 19 July 2017 Ms Quong (“the mother”) filed an application seeking a recovery order in respect of her son X aged almost 12. X is currently living with his father Mr Rush in a location 680 kilometres from where the mother lives.
On a final basis the mother sought orders that the parents have equal shared parental responsibility and that X live with her and spend time with the father as agreed between the parties.
The mother also sought an order that:
The Registrar list the matter urgently dispensing with the requirements as to service at Regulation 6.19 of the Federal Circuit Court Rules.
The Registrar gave the matter a return date of 23 October 2017 and stated on the face of the application that:
Leave to serve short notice refused.
On 20 July 2017 the mother filed an Application for Review of the refusal of “leave to serve short notice”. She again sought an order that the matter be listed urgently dispensing with the requirements as to service at Regulation 6.19 of the Federal Circuit Court Rules (FCCR).

The applicable law

S.102(2)(h) of the Federal Circuit Court Act provides that one of the powers which may be exercised by a Registrar is:
(h)the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court.
The Registrar in this case declined to exercise that power and such a decision is reviewable pursuant to s.104 (2) of the Federal Circuit Court Act[1]. S.104 (2) & (3) provide that:
(2)A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a)within the time prescribed by the Rules of Court; or
(b)within any further time allowed in accordance with the Rules of Court;
[1] Myers & Myers [2011] FMCAfam 1104, Vibbard & Garcia [2012]FamCAFC 114
apply to the Federal Circuit Court of Australia for review of that exercise of power.
(3)The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
R. 20.02 of the FCCR provides that an Application for Review must be listed for a hearing as soon as possible and unless impractical to do so within 14 days after the date of filing. R. 20.03 provides that the review must proceed by way of a hearing de novo and that the court can give a party leave to rely on further evidence.

The procedure to be followed in determining an Application for Review

Prior to the Full Court decision in Holden & Wolff in 2014 it was common for judges of this court to deal with applications for review of listings decisions in the same way that applications for short service listings were dealt with by Registrars or Deputy Registrars in the first instance, in other words:
Expeditiously, in chambers, on the written material provided by the applicant and without any or any detailed reasons.[2]
[2] Kassis & Kassis [2014] FamCA 1067
However in Holden & Wolff[3] the Full Court held that a Federal Circuit Court Judge who dealt with an Application for Review in chambers on the written material provided by the applicant was in error and it allowed an appeal against her decision to dismiss the Application for Review.
[3] Holden & Wolff [2014] FamCAFC 224
The Full Court said that while it might be permissible for a Federal Circuit Judge to deal with a matter in chambers courtesy of Rule 1.05(2) of the FCCR and Rule 11.16 of the Family Law Rules, R. 15.03 of the FCCR did not allow a Federal Circuit Court Judge to make a decision without an oral hearing unless the parties to the proceedings consented, and the consent of the parties had not been sought.
The Full Court noted that r. 1.06 of the FCCR provided that the court may in the interests of justice dispense with compliance with the Rules but rather ominously observed that:
We accept that r 1.06 of the Federal Circuit Court Rules enables the court to dispense with full compliance with any of the rules “in the interests of justice”, but there is nothing to indicate that her Honour dispensed with compliance with r 15.03 or considered the obvious consequences of so doing.
Watts J considered the decision of Holden & Wolff in Kassis & Kassis, a matter which he was dealing with an application for review of a listing decision made by a Deputy Registrar. He said as follows about the Full Court’s observation concerning the use of r. 1.06:
As set out above, the Full Court commented that one would need to “consider the obvious consequences of dispensing with the rule that required an oral hearing” (see [57] Holden & Wolff set out above). Presumably the consequences referred to are a reference to a denial of natural justice or a lack of procedural fairness to the applicant who is denied a shortening of time. Given that the applicant can, within reason, file whatever evidence he or she wishes to establish urgency, it is difficult to see how those consequences arise in the majority of cases.
On the other hand, whilst r 15.03 FCCR remains and if r 1.06 FLR cannot be readily applied, one consequence will be that the majority of reviews of decisions shortening time in the Federal Circuit Court (in respect of which reviews are available – see Mears & Mears [2011] FMCA Fam 1104) will need to be listed for oral hearing at a court event and it might be that other matters which are waiting their turn will need to wait longer.[4]
[4] Kassis & Kassis (supra)
Watts J went on to say as follows:
The Full Court’s decision in Holden & Wolff can be confined to its facts. It involved proceedings in the Federal Circuit Court in which the consent required by r 15.03 FCCR had not been given by the applicant to allow the hearing de novo to be conducted in chambers without an oral hearing. Nor was there any dispensation of r 15.03 FCCR which would have allowed a hearing in chambers without consent (r 1.05(2) FCCR and r 11.16 FLR).
Kassis & Kassis is a decision by a single judge of the Family Court and is not binding on me but Watts J’s analysis of Holden & Wolff is persuasive.
In the present case I decided to err on the side of caution and list the Application for Review in open court and conduct an oral hearing which took the form of inviting the applicant to make submissions. The applicant is Chinese and referred in her material to a lack of understanding of Australian Family Law. It would have been both potentially unfair to her and perhaps as time-consuming as conducting an oral hearing to seek her consent to dispense with such a hearing, and utilising r. 1.06 does as the Full Court observed carry some risks.
However dealing with the Application for Review in this way has been very burdensome for me given the pressure of work in this Registry and the problem created in this court by following this procedure is not a delay in trials being heard; trials usually proceed regardless, with shorter matters being fitted around them. The problems inherent in it are first the pressure it places on Judges who are already trying to manage heavy docket loads and second the fact that it disadvantages other litigants who are waiting patiently for the court to find time to deal with directions or short hearings in their matters.
If Applications for Review come in in volume then going down the path of applying r. 1.06 and dealing with the matter in chambers may be worth the risk and may well be in the interests of providing justice to litigants overall.
A final issue is whether it is necessary to provide reasons or at any rate extensive reasons.
One of the grounds of appeal in Holden & Wolff was that the Federal Circuit Court Judge did not provide reasons for her decision. The Full Court left open the matter of whether this was an error, having set aside her decision on other grounds.
In Kassis & Kassis Watts J considered that he was not obliged to give reasons and he stated his conclusion based on consideration of the papers, in other words he dealt with the application in the same way that a Registrar or Deputy Registrar is entitled to do.
However it may always be necessary for a Judge in this court to give some reasons in light of the existence of FCCR 15.03 and the need to indicate whether FCCR 1.06 has been relied on and I have elected to give comprehensive written reasons in this matter as a consequence of having dealt with the matter in open court.
I finally note that there was nothing to indicate that the Application for Review had been served on the Respondent and in my view it was appropriate to deal with the application ex parte. Respondents are not consulted about listing decisions when an application is filed. If they had wanted an early listing themselves they would be the applicant and if they have a complaint about an early listing they can apply for an adjournment on the first return date.

Background

The mother is 49 and the father 57.
The mother is Chinese and came to Australia in 2002 to study. She asserts and I have no present reason to disbelieve that the parties met in 2003, married in 2004 and separated in January 2017.
The parties have one child, X, born on (omitted) 2005 who is now almost 12.
The mother did not make it clear in her affidavit exactly where the parties lived during the relationship but she said that X started school at (omitted) Public School and continued to attend there until the parties separated. (omitted) is near (omitted) in the (omitted).
Immediately upon separation in January 2017, the father moved to (omitted), a small country town in the (omitted), taking X with him. The mother rented a 1 bedroom unit in (omitted) in (omitted). (omitted) is about 680 kilometres and 8 hours’ drive from (omitted).
The mother visited X in (omitted) in March 2017. She said that he told her that he liked (omitted) but she said that she believed that this was because he did not want to go against his father.
The mother has frequent telephone contact with X and the father brought the child to (omitted) to spend time with the mother at Easter 2017 when he stayed 3 nights and in the mid-year school holidays when he stayed nearly two weeks.
The mother wishes X to live with her in (omitted). In her affidavit she said that if he returned he could resume attending (omitted) Public School and he would have the opportunity to attend a high school in a large urban centre. She said that she was concerned about what she perceived to be the limitations for the child of living in a very small country town and attending a small rural school.
In her affidavit the mother alleged that the father was verbally abusive to her during the relationship but did not give any particulars. She also alleged that he was moody and cold during the relationship. However she did not give evidence of any issues which meant that X was at any immediate risk of harm in the father’s care. She said that X was in good health and she did not allege that the father was failing to care for him properly.
The mother said that she did not file her application earlier because she was from China and English was her second language and she did not understand that she could have come to court in or about January 2017 to get X back. She said that she also thought (wrongly as it turned out) that she would be able to negotiate with the father to have X returned to her.
In oral submissions the mother emphasised that the reason she wanted an earlier listing than the one she had been given was that the longer her son was in (omitted) the more things he would lose. She said that there were only 17 students at his school and the facilities in the small town were very limited.
She said that she was afraid that her ex-partner would not look after X as carefully as she would and that he would have a miserable life in (omitted).

Conclusion

I can understand why it is disappointing for the mother to have to wait until 23 October 2017 for a mention of this matter but I am not satisfied that it is should be listed any earlier than the date given to it by the Registrar.
There is no evidence that X is at any risk of harm. He is attending school regularly, the mother is able to speak to him regularly and she has been able to spend time with him during school holidays. The father relocated the child in January 2017 and this is not a case in which at first glance it is likely that a Recovery Order would be made.
The Federal Circuit Court, and the Newcastle Registry of that Court in particular, has to deal with a veritable deluge of matters involving children who are at risk of harm: babies who have been taken from their primary carer, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.
The Newcastle Registry has to prioritise these cases and it does so notwithstanding that it is struggling with the absence of one of its three judges. Regrettably resources do not allow a case in which there are no risk- of-harm issues to be prioritised over other cases competing for judicial time.
Historically when there were three judges sitting in Newcastle, it was usually possible to list all matters for mention no more than 8 weeks from their first filing date. This matter has been listed about 13 weeks from its first filing date but it is not an inordinate amount of time for a party to wait for the mention of a non-urgent matter.
The Registrar gave this matter the next mention date for a non-urgent matter which was available at the time the application was filed and on 23 October 2017 I will make appropriate orders to progress the matter.
I intend to dismiss the mother’s application for review.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 3 August 2017