Rivalli and Rivalli (No. 2)

[2018] FamCA 471

FAMILY COURT OF AUSTRALIA

RIVALLI & RIVALLI (NO. 2) [2018] FamCA 471

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s order – Rule 11.02 of the Family Law Rules 2004 (Cth) – Where Registrar ordered applications be dismissed under Rule 11.02 – Where Application for Review of Registrar’s decision under Rule 18.08 of the Family Law Rules 2004 (Cth) – Where application out of time – Where no application for leave to commence application out of time – Where application for Review dismissed –Where otherwise Registrar’s decision in any event correct.

Family Court Rules 2004 (Cth) rr 5.01, 11.02, 18.06, 18.08

APPLICANT:  Mr Rivalli

RESPONDENT:  Ms Rivalli

FILE NUMBER: PAC 3326 of 2014

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1 June 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Rivalli in person

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The Application in a Case filed by the husband on 8 May 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rivalli & Rivalli (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3326 of 2014

Mr Rivalli

Applicant

And

Ms Rivalli

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of Rivalli, the application before the Court is an Application in a Case filed by the applicant husband, Mr Rivalli, on 8 May 2018 and that application made returnable before this Court today at 2.15 pm.  The Application in a Case filed on 8 May 2018 seeks a review of the decision of the Registrar of this Court made on 10 April 2018 and on that day the Registrar made the following orders:

   (1)The Application in a Case filed on 10 November 2017 does not specify relief as prescribed by Rule 5.01. In those circumstances the said application is struck out.

   (2)The Application in a Case filed on 26 February 2018 does not specify relief as prescribed by Rule 5.01. In those circumstances the said application be struck out.

2. The Applications in a Case filed by the husband follows the completion of property proceedings in this Court that were concluded by reason of final orders made by this Court on 1 December 2017. 

3. Subsequently, there was an appeal from those orders and the appeal was discontinued. 

4. There is thus no pending application for final orders before this Court. Rule 5.01 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a party may apply for:

   …an interim, procedural or ancillary or other incidental order in relation to a cause of action only if the party has made an application for final orders in that cause of action and final orders have not been made on that application.

5. The Registrar, quite correctly, in relation to the two Applications in a Case, upon considering the nature of the orders sought, was of the view that there was no prayer for final relief sought by the applicant in circumstances where the primary property proceedings had been resolved and finalised. 

6. The Registrar exercising the delegated power pursuant to rule 11.02 of the Rules, made an order that the applications filed by the husband be dismissed pursuant to Rule 11.02(2) subparagraph (a).

7. The Rule provides:

   (2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

   (a)  dismiss all or part of the case;

   (b)  set aside a step taken or an order made;

   (c)  determine the case as if it were undefended;

   (d)  make any of the orders mentioned in rule 11.01;

   (e)  order costs;

   (f)  prohibit the party from taking a further step in the case until the occurrence of a specified event; or

   (g) make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).

8. The Rules, pursuant to Rule 18.06 delegate the power of this Court to a Registrar to exercise power under Rule 11.02 and the Registrar correctly exercised that power.

9. Rule 18.08 of the Rules, provides:

   (1)  A party may apply for a review of an order mentioned in an item of Table 18.6 by filing an Application in a Case and a copy of the order appealed from in the filing registry within the time mentioned in the item.

   Table 18.6 Orders that may be reviewed:

Item	Order	Time within which application must be made
1	Order made by a Judicial Registrar exercising a power delegated under rules 18.02 and 18.03 and subrule 18.05(1)	within 28 days after the Judicial Registrar makes the order
2	Order made by a Registrar exercising a power mentioned in subrule 18.05(1)	within 28 days after the Registrar makes the order
3	Order made by a Judicial Registrar or Registrar exercising a power delegated under subrule 18.05(2)	within 7 days after the Judicial Registrar or Registrar makes the order
4	Order made by a Judicial Registrar, Registrar or Deputy Registrar exercising a power delegated under rule 18.06	within 7 days after the Judicial Registrar, Registrar or Deputy Registrar makes the order
5	Order made by a Judicial Registrar, Registrar or Deputy Registrar in a bankruptcy case	within 21 days after the Judicial Registrar, Registrar or Deputy Registrar makes the order

1. The Rule requires that a review application of an order made by a Registrar pursuant to delegated power, in this case the exercise of the power provided for in rule 11.02(2)(a), be filed no later than seven days after the Registrar’s determination, that is, in this case, by no later than 27 April 2018.

2. The application filed by the husband in these proceedings seeking review of the Registrar’s determination was filed on 8 May 2018 and in circumstances where that application does not seek any order for leave to file the application out of time, the application filed on 8 May 2018 is accordingly dismissed.

3. For the sake of completeness, it must be said that the Registrar, in striking out the Applications in a Case for the reasons determined by the Registrar, was correct in all respects and it was a proper order to dismiss the Applications in a Case pursuant to the provisions of rule 11.02(2)(a) of the Rules.

4. The Application for Review will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 June 2018.

Legal Associate: 

Date:  22 June 2018