Wiggins & Wiggins
[2023] FedCFamC2F 1462
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wiggins & Wiggins [2023] FedCFamC2F 1462
File number(s): WOC 1478 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to review a Registrar’s decision not to urgently list –Application heard in Chambers - Application upheld. Legislation: Family Law Act 1975 (Cth) ss 65Z, 65ZAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.18(2), 14.05, 14.07(2)
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021
Cases cited: Canvin & Jesney [2021] FedCFamC2F 145
Lombardi & Rider [2021] FedCFamC2F 57
Myers & Myers [2011] FMCAfam 1104
Division: Division 2 Family Law Number of paragraphs: 23 Date of last submission/s: 14 November 2023 Date of hearing: In chambers on 16 November 2023 Place: Sydney Solicitor for the Applicant: Williamson Isabella Lawyers & Public Notaries Solicitor for the Respondent: Culleton Lawyers ORDERS
WOC 1478 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WIGGINS
Applicant
AND: MS WIGGINS
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The matter is listed for Directions before a Judicial Registrar on 18 December 2023 at 10:00 am.
2.In the event the Father seeks that any Orders be made on an interim basis he is to file and serve an Application in a Proceeding by no later than 4:00 pm on 20 November 2023.
3.The mother is to file and serve any Response and material in support as required by the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) by no later than 4:00 pm on 15 December 2023.
4.The Application for Review filed by the father on 8 November 2023 is otherwise dismissed.
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).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are proceedings with respect to the child of the relationship namely X born in 2014 and currently nine years of age.
Listed today is an Application for Review filed by the father on 8 November 2023 of a listing decision made by a Registrar of the Court on 6 November 2023 (“the Review Application.”)
On 9 November 2023 orders were made by me in chambers that the matter would be heard and determined in Chambers unless a party objected. No one has objected and thus the application has been determined in Chambers.
For reasons which I will now outline, the Review Application will be upheld.
EVIDENCE
In this matter I have read the following documents on behalf of the father: -
·Application for Review filed 8 November 2023;
·Written submissions filed dated 14 November 2023;
·Application for Final Orders 6 November 2023;
·Affidavit of Mr Wiggins filed 6 November 2023;
·Family Dispute Resolution Certificate filed 6 November 2023;
·Genuine Steps Certificate 6 November 2023; and
·Notice of Risk filed 6 November 2023.
I have also read written submissions of the mother dated 14 November 2023.
Pursuant to rule 2.18(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) the respondent has 28 days after service of the Application in a Proceeding to file a Response.
Whilst there is no affidavit as to service of the Application in a Proceeding on the respondent, on 14 November 2023 the mother forwarded written submissions to my chambers in relation to the father’s Application. I am thus satisfied that the mother has notice of these proceedings and the orders sought by the father.
BACKGROUND
On 6 November 2023 the father filed an Initiating Application seeking procedural and final orders only as follows:
1.That this application be listed as a matter of urgency before a Duty Judge or Judicial Registrar.
2.That this Application be heard on an ex-parte basis if the Mother fails to attend the listing of same.
3.That the father be granted leave to serve this application on short notice.
4.That strict compliance with any Act or Regulation be dispensed with in the event there is non-compliance in that regard.
5.That the requirement for personal service be dispensed with and that an Order for substituted service be made as follows:
That the Father cause to be forwarded to the Mother a sealed copy of this Initiating Application, his Affidavit filed the same day as this Application, and his Notice of Risk filed the same day as this Application by way of email to the Mother's solicitors, being Rebecca Bailey with Culleton Lawyers, by email to [email protected].
6.That until further Order, [Mr Wiggins] born […] 1945 and [Ms Wiggins] born […] 1979, their servants and agents be and are hereby restrained by injunction, and irrespective of authenticated consent is contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child, [X] born […] 2014 from the Commonwealth of Australia.
7.It is requested that the Australian Federal Police give effect to this Order by placing the name of the said child [X] born […] 2014 on the Family Law Watch List enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until such time as the Court orders its removal.
8.That the Mother forthwith deliver to the Court any passport in the name of or relating to the said child, [X] born […] 2014, whether or not that passport is issued by the Commonwealth of Australia, [Country B], or otherwise, and that the Court thereafter hold any such passport until further Order of this Court.
The Application was accompanied by a covering letter which sought that the next listing date of the matter be brought forward. The letter dated 2 November 2023 stated: -
·The mother was born in Country B and lived there until 2013. Other than an aunt she does not have family in Australia and her primary family connections are in Country B.
·The parties recently entered into a Binding Financial Agreement resolving financial matters between them. The terms of that agreement will see each party receiving money following the sale of real property.
·The father has received advice to the following effect:
·That the respondent mother has been sending cash to Country B;
·That the respondent mother intends to buy a house in Country B and not return;
·The mother has made previous threats to take the child away and that the father would not see him again.
·The mother has made a very recent proposal to take the child to Country B on a holiday.
The matter came before a Registrar on 6 November 2023. The Registrar refused to list the matter on an urgent basis and the matter is listed for first return before a Registrar on 23 January 2023.
ISSUES BEFORE THE COURT
The sole issue for me to determine today is whether or not the Court should exercise its discretion to list the father’s interim application on an urgent basis. It is not a determination of whether any of the interim orders sought by the father should be made.
THE LAW
Pursuant to rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) “the Rules” a party may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days of the Registrar’s decision. The Review Application was filed within such time frame.
Rule 14.07 of the Rules states that the hearing of an Application for Review of a Registrar’s decision is an “original hearing”; that is, the Court will hear the whole matter afresh rather than determining whether the original decision was in error. The Court may receive further evidence in addition to the evidence before the Registrar: rule 14.07(2).
The overarching purpose and objective of the Court is to ensure the just determination of all matters whilst ensuring that the judicial and administrative resources available to the Court are used in an efficient manner: Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021.
DISPOSITION
The father submits by way of affidavit material filed in support of the Application there should be an urgent listing of his Application in a Proceeding as: -
·The father was informed by the mother’s aunt that the mother has been sending money to Country B. At this time the mother was earning between $300 and $400 each week.
·In the period before separation the father observed the mother to send numerous large boxes to her mother. The father saw the mother pack clothes and household items in such boxes.
·The mother’s aunt told the father that the mother intends to buy a house in Country B and to “stay there and not return.”
·The child is recorded on the mother’s Country B passport. The father’s understanding is that in Country B the mother and child are placed on the same passport.
·In early 2022 during an argument the mother said to the father “I am going to take [X] away. You will never see him again.”
·In mid-2022 the mother said to the father, “I am going to take my child away and you will never see him again. I am going to take him to [Country B].”
·In mid-2022 a Final Apprehended Domestic Violence Order was made for the protection of the mother and X with the standard conditions. An additional condition 6 is included on the Apprehended Domestic Violence Order that the father is not to approach or contact the mother in any way unless through a lawyer or as ordered. Such Apprehended Domestic Violence Order expires in mid-2024.
·On 23 February 2023 the parties’ entered into a parenting plan regarding the care of X. The parenting plan contains a notation that it is to be read in conjunction with condition 6 of the Apprehended Domestic Violence Order. The father spends time with X on a Monday and Wednesday evening for a period of five hours and for 9.5 hours each Saturday. The parenting plan states that the parties are to participate in a further mediation conference in 6 months with the intention to discuss overseas travel and Consent Orders. Such mediation has not occurred.
·On 1 September 2023 the father’s solicitors received correspondence from the mother’s solicitors stating the mother intended to travel with the child to Country B for a period of four weeks. Attached to such letter was a leave application form to the mother’s employer which stated the reason for her leave being “family holiday in [Country B]” from late 2023 to early 2023. The leave application states the mother will return to work in early 2024.
·On 20 October 2023 the parties’ entered into a Binding Financial Agreement. The Agreement provides for the sale of a property registered in the parties’ joint names. Upon the sale of such property monies are due to be distributed to the mother and the father.
The written submissions of the father mirror the contentions raised in his affidavit.
The mother provides evidence by way of her written submissions as follows:
·The mother does not intend to travel with the child in early 2024 without the consent of the father and the court would be satisfied that a person intending on fleeing the country would not seek permission before doing so.
·To the mother’s knowledge the child’s passport has expired and both parties are required to complete a passport renewal application to which the father has not consented to.
·The property to be sold pursuant to the parties’ financial settlement has not yet been placed on the market and the mother is unlikely to receive such funds until the new year.
·The child attend C School. He has a network of friends and attends extracurricular activities such as sports each week.
·The mother has no immediate plans to travel with the child to Country B and the mother will seek appropriate Orders from this court in relation to her travel.
Both the Chief Judge in Lombardi & Rider (2021) 64 Fam LR 103; [2021] FedCFamC2F 57 and the Deputy Chief Judge in Canvin & Jesney [2021] FedCFamC2F 145 cited with approval Halligan FM (as he then was) in Myers & Myers (2011) 253 FLR 445; [2011] FMCAfam 1104 where at [87] his Honour suggested that the following four matters might be relevant considerations in determining an application for review of a Registrar’s decision to reject an application for an urgent listing:
(a)the applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
(b)the applicant has demonstrated that absent an urgent listing the applicant will be prejudiced in relation to the substantive relief sought other than in ways common to other matters awaiting the court’s attention in the normal course;
(c)the applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the court; and
(d)a judicial officer is available to hear the substantive application.
(emphasis added)
I am prepared to accept for the purpose of the Application before me that the father has demonstrated a reasonable basis exists for arguing for the Orders now sought by him.
The provisions of section 65Z and section 65ZAA apply to matters where proceedings are on foot for the making of a parenting order. It appears that the only relief sought by the father is for injunctive relief pursuant to section 68B of the Act. In those circumstances it is unknown whether the father would be successful in making an application directly to the Australian Federal Police for the placing of the child on the Airport Watch List. The court must take a cautious approach and provide the parties in a timely manner with the opportunity to make submissions as to whether the relief sought by the father is a parenting order for the purposes of section 65Z and section 65ZAA.
The Review will be upheld. In circumstances where the only application before the court seeks orders on a final basis and the mother submits that she does not intend to leave the jurisdiction, I am satisfied that the first listing of matter should be before a Judicial Registrar.
CONCLUSION
For the reasons I have stated, the Review Application will be upheld.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 16 November 2023
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