TIEGS & BARTON
[2012] FMCAfam 14
•9 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TIEGS & BARTON | [2012] FMCAfam 14 |
| FAMILY LAW – Children – parenting orders – application for recovery order. PRACTICE & PROCEDURE – Review of Registrar’s decision – no reviewable error. |
| Family Law Act 1975, s.67Q Federal Magistrates Court Rules 2001 Part 5, rr.5.01, 5.02, 5.03, Part 6, r. 6.06 |
| Applicant: | MS TIEGS |
| Respondent: | MR BARTON |
| File Number: | SYC 741 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 January 2012 |
| Date of Last Submission: | 9 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 9 January 2012 |
REPRESENTATION
| Application heard in Chambers: |
| Solicitors for the Applicant: | Edwards Family Lawyers |
| Solicitors for the Respondent: | Vizzone Ruggero Solicitors |
ORDERS
The Application for Review filed on 9 January 2012 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tiegs & Barton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 741 of 2009
| MS TIEGS |
Applicant
And
| MR BARTON |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant, the Mother of a little girl aged six year, is seeking to review the decision of a Registrar not to list an application for a Recovery Order on an ex parte basis. The Application seeks the following:
1. That leave be granted to the Applicant Mother to proceed with the Application on an ex parte basis.
2. That leave be granted for this matter to be listed urgently.
There are ongoing proceedings between the parties. The substantive application is next before the Court on 17th February 2012.
The Applicant filed an Application in a Case seeking leave to proceed on an ex parte basis or, in the alternative, seeking leave to serve short notice of the Application on the Respondent. The Applicant wants a Recovery Order to issue under s.67Q of the Family Law Act, because she claims the Respondent Father has not returned the child to her care and has told her in a text message that he will not return the child until the next court date, 17 February.
The Mother arranged for the police to attend the Father’s residence on Sunday 8 January but they were told that he had moved out and were not given a further address. All of this information is contained in a covering letter to the Court dated 6th January 2012, which has been updated in handwriting.
The Registrar has given leave to list the Application in a Case on 7th February 2012 and has directed that the application be served by 10th January 2012, i.e. tomorrow.
The Applicant wants an earlier hearing date. The grounds of review set out in the Application for Review say:
1. Registrar’s decision declining to hear Application in a Case filed 9 January 2012 on ex parte basis.
2. Registrar’s decision declining to allocate an earlier hearing date and listing the matter on 17 February (sic) despite letter informing the Court that the police attended at the father’s residence yesterday (Sunday 8 January 2012), discovered that the father had move d out with the child, and that the whereabouts of the child is (sic) unknown to the mother or the police.
Conclusions
The Application for Review is misconceived.
First, it is entirely a matter for the Registrar when to list an application before the Court. It is an administrative function and not a delegated judicial function.
Second, the Registrar did in fact list the Application in a Case in a way sought by the Applicant. The Application seeks these orders, in the alternative;
1. That leave be granted to the Applicant Mother to proceed with this Application on an ex parte basis.
2. Or in the alternative to Order 1, that leave be granted to serve short notice of this Application on the Respondent and service on the Respondent’s solicitor by fax be deemed proper service.
The Registrar did in fact grant leave to serve short notice, as the Applicant sought. The Application is not listed on 17th February 2012, when the substantive application is listed for final hearing before Kemp FM, but on 7th February 2012, ten days earlier.
It should be noted that the procedure for listing applications urgently is set out in Part 5 of the Rules, which require an Application in a Case and an affidavit that complies with Rule 5.03. It is not sufficient to write a letter to the Court unless the Court orders that Rule 5.03 need not be complied with.
It is important to note that the Application in a Case is brought within the context of ongoing proceedings where the Respondent has an address for service. He has solicitors on the Court record. There is no need for the Court to order that “service on the Respondent’s solicitor by fax be deemed proper service.”
Service of documents is dealt covered in some detail on Part 6 of the Rules. In this case, there is no need for service by hand on the Respondent. Rule 6.06 relevantly provides:
(1)Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
(2) However, service by hand is not required if:
(a)there are current proceedings for which there is a notice of address for service for service for the person to be served…
There is no error on the part of the Registrar. The Application for Review of the Registrar’s decision will be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 10 January 2012
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