Radcliffe and Radcliffe

[2007] FamCA 554

FAMILY COURT OF AUSTRALIA

RADCLIFFE & RADCLIFFE [2007] FamCA 554

FAMILY LAW – Application by the father to vary orders made by consent in relation to the child of the parties – direction given by the Registrar that the father file and serve an Amended Application for Final Orders – Father failed to do so and failed to attend a procedural hearing and accordingly the Registrar dismissed the father’s application for variation and ordered costs against the father – Father filed a review of the Registrar’s orders – Registrar’s orders reviewed and discharged – Father given a new deadline to file an Amended Application for Final Orders and pay the mother’s costs in the sum of $1,182 prior to the Registry accepting the filing of such Amended Application – Failure to comply with such deadline results in a self-executing order dismissing the father’s application

Family Law Act 1975
Rice v Asplund (1979) FLC ¶90-725

APPLICANT: Mr Radcliffe

RESPONDENT: Mrs Radcliffe

FILE NUMBER: CAF 1339 of 2003

DATE DELIVERED: 19 January 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 19 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Friesen

SOLICITOR FOR THE RESPONDENT: Ms Osmand

Orders

1. That the order of Registrar Routh made on 23 November 2006 be reviewed.

2. That the Registrar's order be discharged.

3. That the applicant father will pay the wife's costs of and incidental to the proceedings before the Registrar referred to above and of these proceedings before me and in preparation therefore in the assessed sum of $1,182, such sum to be paid on or before noon on 28 February 2007.

4. If and only when such costs are paid the father may file an amended application in these proceedings setting out precisely the orders he seeks on a final basis, such application to be filed on or before 1 March 2007, such application not to be filed or accepted in this Registry until such time as the costs referred to above have been paid by the father to the mother. 

5. If the father should fail to file an amended application in these proceedings on or before noon on 1 March 2007, then on and from that time the husband's current application, as deemed to be an application by his Honour Justice Collier on 26 October 2005 is dismissed and removed from the pending cases inventory.

6. If the father files an amended application, the mother may, if she consents to the orders sought, arrange through a Registrar of this Court for the orders to be made by consent.

7. If the mother does not consent to the orders sought, then each of the parties will, so soon as that fact is communicated to a Registrar of this Court, file as soon as practicably thereafter a questionnaire in the form now prescribed for use by the Court in the process of proceedings under Division 12 of the Family Law Act 1975 of a less adversarial nature and Registrar will appoint a date on which a first day of trial can be commenced between the parties. 

8. The Judge conducting the first day of trial will determine the priorities that should properly be afforded to any application relating to changed and new circumstances for child orders relating to the child. 

9. Otherwise the interim matters between the parties are finalised.  

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Radcliffe v Radcliffe.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1339 of 2003

MR RADCLIFFE

Applicant

And

MRS RADCLIFFE

Respondent

REASONS FOR JUDGMENT

1. In the matter of Radcliffe v Radcliffe, the situation is as follows.

2. On 20 October 2005 the father, who was then in the middle of other proceedings before this Court, filed a document which was entitled “Minutes of Orders Sought”.  In that document the father sought a variation from the orders that had previously been made in relation to the child of the parties, a son, who was born on … April 2000.  Those orders were the subject of comment before his Honour Collier J who was conducting the other proceedings at that point.  His Honour in the course of his reasons for judgment dealt with the application by the father and first, indicated that the parties had reached agreement about certain matters and had not had reached agreement about other matters, and that he had made determinations about the matters that were not in agreement.  He added in paragraph 4 of his reasons for judgment:

   I would add here that the husband now seems to want to revisit those orders and has filed a document which he described as "Minutes of Orders Sought".  I propose to stand that matter over to a date when it can be dealt with by a Registrar.  That will be covered by the orders that I ultimate make in this regard and in respect of other issues that I have to determine.

3. His Honour then in the course of the orders that he made said in Orders 17-18:

   17That the husband's document filed on 20 October 2005 described as "Minutes of Orders Sought" be deemed to be the husband's application for further parenting orders. 

   18That such application be listed before a Registrar on Thursday, 3 November 2005 at 11 o'clock.  The husband may attend by telephone provided he notifies the Court of his intention to do so by no later than close of business on 1 November 2005. 

4. The matter was then placed by the Registrar into the list of matters awaiting a trial notice, as was then applicable, and it finally came back before the Court after it had reached a point in the list it was deemed appropriate on 26 October 2006 and both parties’ lawyers respectively were given notice of that listing.  On that occasion Mr Friesen, who presently represents the father, appeared, as did Ms Osmand, who presently represents the mother.  The Registrar on that day made a direction in the presence of the lawyers, and it is not disputed, that the matter be adjourned to 23 November 2006 at 10.30 am and directed, again without there being any cavilling with the proposition, that the applicant husband must file and serve within 21 days an Amended Application for Final Orders, a Form 1.

5. It is common ground that the father filed no further application and it is also conceded, and properly so, by Mr Friesen that the existing document which was deemed by his Honour Collier J to be an application was now couched in language which was inappropriate given the changes to legislation that occurred on 1 July 2006. 

6. The explanation for the failure to file the document in accordance with the Registrar's direction is not before me by way of evidence and it is simply the case that the matter then came back before Registrar Routh in accordance with his earlier orders on 23 November 2006 when Ms White appeared on behalf of the mother and there was no appearance on behalf of the father.  As a consequence, on that day the Registrar made orders that:

   (1)  The husband's application for variation of orders filed on 20 October 2005 is dismissed. 

   (2)  That the husband pay the wife's costs of today and the last occasion assessed in the sum of $182. 

   (3)  The husband has liberty to apply with respect to order 2, that such listing may be at risk of further costs.

7. The father through his lawyer subsequently filed an application on 30 November 2006, which I am satisfied was within the time stipulated under the Rules, seeking a review of the order made by the Registrar and seeking that the matter be re-listed before Registrar Routh to provide a timetable and directions for hearing in the Family Court without loss of priority.  No affidavit material was filed in support of that application, although an affidavit in reply to that application was filed on behalf of the mother. 

8. In that affidavit she sets out a history of the matter and also makes comments that, in paragraph 17, for example, if the litigation were to be pursued against her there would be a significant drain on her financial resources and that she is unable, she says, properly to represent herself and that she is not eligible for legal aid.  She says further in paragraph 18 that she is gravely concerned that:

   If [the father] is allowed to pursue further litigation that [the child] will not be able to enjoy extracurricular activities and other matters that he presently enjoys. 

9. And in paragraph 19 that there will be a disruption and potential trauma for the child, although it is a bit difficult to see from the material set out in that paragraph as to what that might logically be.  She says, with probably some reasonable justification, she does not want the child to feel insecure or worried about his living arrangements or his future. 

10. Having reviewed some of those matters, it then falls to say where is the matter to proceed from there. The Registrar under Rule 12.13(1) of the Family Law Rules 2004 had the power to dismiss the application, as he did, on the basis that the applicant failed to attend a procedural hearing.  The submission on behalf of Mr Friesen is that that power is ultra vires of the Rules and that the Rules themselves could not permit that action to occur, at least insofar as it represented in the circumstances a matter which would be an excluded child order. 

11. The definition of “excluded child order” under s 37A(2A) of the Family Law Act 1975 is

    a.a parenting order to the extent to which it provides that:

    i.a child is to live with a person;

    which it does not in this case

    ii.     a child is to spend time with a person;

    which it does not in fact on its terms, but in broad reasonable interpretation does, or

    iii.     a child is to communicate with a person;

    which it does, and no order is sought at present that

    iv.     a person is to have parental responsibly for a child;

    b.an order until further order; or

    c.an order made in undefended proceedings.

    It was not an interim order that the Registrar made.  I think it is properly an order made in undefended proceedings and it does not constitute - in the further exception under the Rules - an order made “with the consent of all parties”. 

12. In my opinion, the Registrar was validly able to make the order that he did and the order is then subject to review in accordance with the terms of the Rules. 

13. Those Rules provide, relevantly, in r.18.8 that the application for review may be made within the time stipulated.  I am satisfied that the relevant rule in the time limits are satisfied under the terms of the Act.  In Rule 18.10 the Court must hear an application for review of an order relevantly of a Registrar as an original hearing.  The Rules, helpfully or otherwise, point out that as a note in an original hearing the Court rehears the whole matter and does not simply review the decision of the original Court.  It provides in Rule 18.10(2) the sort of evidence that might be received in the proceedings before the Court.  I might add none of that was of course provided on this occasion.

14. Hence, my task, if I am to accept, as I do, that the Registrar validly exercised his discretion in dismissing the application, is what should I do in relation to the application that was before him on that day.  It is not a question of whether or not he acted correctly in dismissing the application, but rather what I should do in relation to it.  One choice I have in this regard is to say the presently formulated application is not valid in so far as it fails to deal with the question of parental responsibility, which Mr Friesen tells me is an issue for his client, and fails properly identify in the appropriate language of the new Act the sorts of orders that are being sought. 

15. On that basis I could simply reject the application outright, in any event, and dismiss the application.  That is the course that was originally urged on me by Ms Osmand.  Alternatively I might, as is asked of me by Mr Friesen, make a further direction that there be an Amended Application for Final Orders filed which sets out precisely the orders that Mr Friesen seeks on behalf of his client.  If I were to make such an order I would do so as an indulgence of this Court and I am entitled therefore to impose conditions in relation to the exercise of the right of the father to take advantage of that concession. 

16. That must include, as is properly conceded by Mr Friesen, that the father should pay the costs of the respondent mother in relation to these proceedings up to this point before the matter is again reconsidered.  In this regard, costs in relation to this particular application are estimated at $1,000 or thereabouts and I believe that to be reasonable.  The Registrar made an order on 23 November 2006 for $182 in favour of the wife.  That figure has not been paid to date and that seems to me to be a serious deficiency on the part of the husband in this matter.  Not only does he seek concessions but he fails to comply with directions in any event. 

17. The permission to the father to file a further application does not of course resolve the issues that may arise about whether or not it is sensible to seek a variation in orders that were made by consent and by determination a relatively short time ago. I say “relatively short time ago” because time has now expired – in accordance with the provisions of Rice v Asplund (1979) FLC ¶90-725. Whether or not that case is good authority given the changes that have been made to the Act in 2006 will be decided in due course. It could be a matter for a further application when the matter is next before the Court that the application be dismissed and that there be no further proceedings before the Court.

18. In any event, that would require more evidence than I have before me from the respondent.  But it would be permissible, it seems to me, to make an order allowing the filing of a fresh (or amended) application on conditions that the costs that I order today be paid before that happens and restricting the time limit for the filing of such an application so that if it is not filed within the designated period, then there will be an automatic dismissal (on a self-executing basis) of the husband’s current application.  It seems to be this is the preferable course.  The alternative of simply dismissing the application on this day, which in my opinion I have the power to do for a variety of reasons that I will not necessarily go into at this point, would leave it open to the father to immediately walk out and file a fresh application seeking different orders.  It may be subject to the same fate as an amended proceeding before this Court.  But that could be done with comparative impunity on the question of time for payment or the conditions about dealing with the matter promptly. 

19. I do not wish to effectively produce a situation which would be equivalent to finding that the father is vexatious in these proceedings without dealing with them under s 118 in accordance with the Act and the procedures that have been set out by the Courts over the period in relation to such proceedings.  However, it seems to me to be legitimate on the part of the mother in this matter to say that she should not be obliged, particularly given the long history of litigation between the parties, to respond to a new or different set of orders sought until such time as the father has met his obligations to pay her costs and also to file promptly and reasonably precisely the orders that he is seeking from this Court.  Accordingly I will make orders in those terms.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

Associate: 

Date: