Tian & Heng
[2023] FedCFamC1F 61
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tian & Heng [2023] FedCFamC1F 61
File number: SYC 3144 of 2021 Judgment of: SMITH J Date of judgment: 3 February 2023 Catchwords: FAMILY LAW - Parenting – practice and procedure – expedition refused by registrar – Review Application – no immediate risk factors warranting expedition – requirement to consider competing priorities in the allocation of scarce judicial resources and final hearing dates – application dismissed. Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 3 February 2023 Place: Newcastle by Microsoft Teams Solicitor for the Applicant: JC Legal Practice Solicitor for the Respondent: E Berman & Co Solicitor for the Independent Children's Lawyer: Mr Fernie as agent for Medcalfe Grant Lawyers ORDERS
SYC 3144 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TIAN
Applicant
AND: MS HENG
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
3 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The Application for Review filed 5 December 2022 be dismissed.
THE COURT NOTES THAT:
A.The parties agree that the Orders of 10 November 2021, made by the Honourable Justice Aldridge in relation to the estoppel of the Respondent Mother from seeking parenting orders in any court in Country B, remain operative.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
Smith J:
This is an application for review of orders made by a registrar not granting expedition in the setting down of a parenting proceedings for final hearing, and said to have been made relating to the appointment of a single expert.
The proceedings commenced on 1 May 2021 and concern X (‘the child’) born 2016 and presently almost seven.
The parties are Mr Tian, the father, who is aged 38, and Ms Heng, the mother, who is aged 34.
The mother and child are in Australia. The father is in Country B. The father wants the child returned to Country B to live with him.
The father seeks expedition and, in effect, that the matter be set down for final hearing forthwith.
On 11 November 2022 the matter came before a judicial registrar of this court. The application for expedition was made and was not granted. The registrar ordered instead:
1.That matter be adjourned to 3 February 2023 at 10 am for further directions hearing before [the] Judicial Registrar […].
The registrar also made a second order which is as follows:
2.Liberty is granted to file Consent Orders in chambers (via email to […]) which go to the appointment of a single expert and which consider the scope of what the expert should consider in a report.
I note that order 2 should be read together with Note F which states:
The parties have advised they will confer on those issues, as well as what the terms of the letter of instruction to the single expert should be.
On 5 December the father filed an application for review of those orders.
The very concise and useful written submissions filed on behalf of the father were as follows:
Review the decision made by [the] Senior Registrar […] 11 November 2023
2[The] Senior Registrar […] erred in not considering the applicant’s application for expedition by reason of the fact that the [Country B] proceedings had not been finalised because the issues to be determined in [Country B] proceedings are different from the issues to be determined in this Honourable Court.
3. [The] Senior Registrar […] erred in further adjourning the proceedings by failing to consider the best interest of the child and, in turn, failing appreciate the urgency of the applicant’s application.
4.[The] Senior Registrar […] erred in making orders for a single expert evidence and considering Clayton v Bant because the [Country B] proceedings are irrelevant to the current proceedings in light of the fact that no parties had made any submission regarding jurisdiction or issue estoppel.
(Emphasis in the original)
There are no allegations that the child is presently being subjected to, or is at risk of being subjected to, any physical or psychological abuse by the mother or any other person.
The father alleges that the mother is not supporting the relationship between him and the child, and says that any delay in the determination of the proceedings may harm the child and may make it very difficult for the child if the child is returned to Country B, given there will potentially be a lack of a significant relationship with the father due to the lapse of time, and issues with schooling and the quality of the child’s Country B language.
A variety of other matters which support the matter being heard as soon as possible were identified on behalf of the father. These were factors which would support every parenting cases before the Court being given a final hearing date as soon as the case could be ready for final hearing.
All of these factors were said to have been were brought to the attention of the registrar.
It is on this basis that the father seeks an order for expedition and that the matter be set down, in effect, for final hearing forthwith.
The mother does not oppose the application, noting that she would appreciate a finalisation of these proceedings, but does not support the application for expedition.
The mother disputes that she is not supporting the child’s relationship with the father, says the father is not availing himself of the current ordered FaceTime as well as he could, and also says that now that COVID restrictions both here and in Country B have eased the father could spent time with the child in Australia if he wished. I cannot make any findings about these disputed issues.
I note there are also disputed issues about whether or not the father is presently running parenting proceedings in Country B, and again I cannot make any finding about that issue.
The above submissions were augmented skilfully by the solicitor for the father before me. However, they can go no further than saying that the father says he should be given expedition due to factors relevant to this particular case.
The allocation of final hearing dates requires a consideration not only of the individual circumstances of the particular case but a consideration of competing urgencies of other cases in the list or registry. The subjective factors of one case cannot be looked at in isolation when considering whether that case should be given expedition, and so in effect be granted an order to jump the queue and be heard before other cases in the registry. The allocation of final hearings dates involves a triaging of the competing priorities to allow the allocation of the scarce available judicial resources in line with those priorities. In a court dealing with parenting matters this is particularly complicated as not only the age of the proceedings but the assessment of possible risks is a critical issue going to the question of priority of final hearing dates.
The judicial officers charged with managing the Sydney dockets and determining in what order the hundreds of cases awaiting cases should be heard are uniquely placed to weigh and balance the competing factors and to determine which cases should have what priority.
This is not a case where the identified risks to the child’s immediate safety and welfare are so great that it is obvious that it should be immediately listed for final hearing ahead of other cases awaiting final hearing dates.
There was nothing raised with me that persuaded me that the order refusing expedition was in error.
The second issue raised by the father is a challenge to the order concerning the single expert. The father submitted that a single expert is not required as the parties already have an expert report from Ms C dated 9 September 2022, which is headed “family report”. The ICL submitted that this report did not actually deals with all the issues that need to be dealt with
However, that is not a matter I need to consider as the registrar did not in fact order that there be a single expert report. The registrar merely made provision for the parties to file consent terms for a single expert if agreed. That matter remains outstanding.
Accordingly, I dismiss the Application for Review. Those are my reasons.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 February 2023
0
0
0