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

1. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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

1. 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.

2. 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…