Wiggs and Piercy (No.2)
[2019] FCCA 2185
•9 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WIGGS & PIERCY (No.2) | [2019] FCCA 2185 |
| Catchwords: FAMILY LAW – Parenting – application for review of a Registrar’s listing decision – application dealt with in chambers and dismissed. |
| Legislation: Federal Circuit Court Rules 2001, rr.1.06, 4.03, 15.03 |
| Cases cited: Cantrell & Cantrell [2017] FCCA 2565 Quong & Rush [2017] FCCA 1765 |
| Applicant: | MS WIGGS |
| Respondent: | MR PIERCY |
| File Number: | NCC 2334 of 2018 |
| Judgment of: | Judge Terry |
| Hearing date: | 9 August 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 9 August 2019 |
REPRESENTATION
| Orders made in chambers |
ORDERS
The Application for Review filed on 26 July 2019 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wiggs & Piercy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2334 of 2018
| MS WIGGS |
Applicant
And
| MR PIERCY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 July 2019 Ms Wiggs [“the mother”] filed an application in a case seeking orders that her daughter [X] born … 2012 be immediately returned to her and live with her full time.
[X] is living with her father Mr Piercy [“the father”]. The mother is seeking a reversal of this arrangement and the matter is listed for a three day final hearing commencing on 3 December 2019.
There is an order in place for the child to spend supervised time with the mother at a contact centre and in the affidavit she filed in support of her application in a case the mother said as follows:
Matter to be urgently relisted prior to December 3rd 2019, due to the contact centre visitations being cancelled as of June 28th 2019.
The mother’s application went before a Registrar for consideration of when it should be listed. The Registrar dealt with it as if the mother had requested a short service listing. However she did not accede that request; she listed the matter for directions at 9.30am on 16 September 2019 and endorsed on the application:
Leave to issue short service refused.
On 26 July 2017 the mother filed an Application for Review. In the section of the form which asks for details of the orders sought to be reviewed the mother wrote:
1. Child to be recovered and returned to the mother ASAP.
2. Court date to be moved forward from September 16th.
In Quong & Rush I explained why I accepted that a decision by a Registrar to refuse short service, in other words to refuse to list a matter earlier than a date which would allow a Respondent to comply with r.4.03(3) of the Federal Circuit Court Rules which provides that a Respondent has 28 days in which to file a response and affidavit in support, was a decision which could be the subject of an Application for Review.[1]
[1] Quong & Rush [2017] FCCA 1765
On the face of the mother’s application she was not seeking short service but she is self-represented and in light of her application and affidavit considered together the Registrar treated the matter as if she was and I am prepared to do the same.
Procedure
In Quong & Rush I considered at length the issue of whether it was essential to list such applications in open court or whether they could be dealt with in chambers. In that case I dealt with the matter in open court but I said as follows:
However dealing with the Application for Review in this way has been very burdensome for me given the pressure of work in this Registry and the problem created in this court by following this procedure is not a delay in trials being heard; trials usually proceed regardless, with shorter matters being fitted around them. The problems inherent in it are first the pressure it places on Judges who are already trying to manage heavy docket loads and second the fact that it disadvantages other litigants who are waiting patiently for the court to find time to deal with directions or short hearings in their matters.
If Applications for Review come in in volume then going down the path of applying r. 1.06 and dealing with the matter in chambers may be worth the risk and may well be in the interests of providing justice to litigants overall.
The workload of the court has not reduced since I decided Quong & Rush and I intend to dispense with compliance with Rule 15.03 of the Federal Circuit Court Rules and determine the matter in chambers without an oral hearing. [2]
[2] Quong & Rush [2017] FCCA 1765
As I observed in Cantrell & Cantrell:
The pressure of work in this court is such that it is unreasonable to expect that all Applications for Review of listings decisions will be listed in open court and be the subject of an oral hearing.
Unfortunately these applications tend to come in in volume when a Registry is already under severe pressure trying to deal with incoming work in a timely fashion. If judges are forced to list all such applications in open court and hear submissions about them it either compounds the problem for other litigants who are then squeezed out of hearing time or it adds to the unacceptable pressure on judicial officers who often feel compelled, out of concern for the welfare of children, to sit very long hours. [3]
[3] Cantrell & Cantrell [2017] FCCA 2565
I currently have over 500 matters in my docket although numbers fluctuate. I routinely list interim matters which require an expedited determination at 4.15p.m because I have nowhere else to put them without imperilling hearing time. The result for myself and my staff is that we routinely have to sit not just well past 5.00pm but sometimes until well after 6.00pm.
I am satisfied that this application for review can be properly dealt with in chambers and in determining it I take into account the mother’s application in a case filed on 23 July 2019, her affidavit filed on 23 July 2019, the application for review filed on 26 July 2019 and her affidavit filed on 26 July 2019.
Background
The mother commenced these proceedings on 2 August 2018. Initially an order was made for [X] to live with her but following an interim hearing on 21 December 2018 an order was made for her to live with her father.[4]
[4] Wiggs & Piercy [2018] FCCA 3992
On 4 February 2019 an order was made requiring the parties to promptly contact the Region D Children's Contact Centre with a view to [X] spending supervised time with the mother at that Centre when a place became available.
The mother was agitating for the child to be returned to her care and on the same day a Family Report was ordered. The matter was adjourned to 17 June 2019 for further consideration following the release of the report.
Interviews for the Family Report took place on 24 April 2019. As at that date the mother’s time at the contact centre had not commenced and the report writer was given conflicting reasons for why that was the case.[5]
[5] Family Report paragraph 6
The family report was released to the Independent Children’s Lawyer only on 7 June 2019.
On 13 June 2019 the father filed an affidavit. He said that he had attended his intake assessment at the contact centre on 28 May 2019. By implication the mother had also attended an assessment because the father stated that the first scheduled visit was due to take place on Friday 14 June 2019.
When the matter came before me on 17 June 2019 a copy of the family report was released to the father and to a solicitor representing the mother. The matter was stood down while the father and the mother read the report. Later that day I made an order listing the matter for final hearing commencing on 3 December 2019.
On 23 July 2019 the mother filed her application in a case and affidavit. She said that the contact centre had cancelled her visits as of June 28th 2019.
In her affidavit the mother made numerous complaints about what happened during her one and only visit with [X] at the contact centre.
She complained that she was not allowed to speak freely with the child or with staff members about her concerns for the child.
She complained that the child was poorly dressed and covered in insect bites and was nervous, timid and quiet. She alleged that the child’s education was not properly being attended to and that she was at risk of sexual and emotional harm in the father’s care. She said that she was concerned because the child was able to identify male genitals with the use of a male doll at the contact centre and that she “never knew this prior to when she was in my care, living with me.”
Finally the mother said that she was not aware of where the father and child were living.
The mother said that she had communicated her concerns to the appropriate authorities.
The mother also complained that visits at the contact centre were not conducive to her maintaining a bond with the child.
The mother provided no information about why the contact centre had ceased the visits.
Discussion
Since parenting proceedings concerning [X] commenced on 2 August 2018 there have been 9 court events before a Judge including two contested interim hearings and a Child Inclusive Child Dispute Conference Memorandum and a Family Report have been prepared.
There are cross-allegations of family violence, allegations about the father’s suitability to parent the child due to his convictions and imprisonment for methamphetamine offences, allegations about the mother’s mental health and abuse of the child and allegations about the maternal grandmother’s abuse of the child.
I cannot determine where the truth lies about the allegations. They will be tested at trial. However the family report writer interviewed [X] only a few months ago and found her to be happy and settled in her current placement and this kind of information from a family report writer is the least likely to be successfully challenged at trial.
An additional safeguard in the matter is that an Independent Children’s Lawyer was appointed on 7 August 2018 and she has been an active and engaged part of the proceedings ever since.
I am somewhat pessimistic given the history of the matter and the content of the Family Report about whether anything will be able to be done to reinstate supervised time prior to the hearing but this can be considered on 16 September with the assistance of the Independent Children’s Lawyer who may between now and then be able to obtain information from the Contact Centre about why the time ceased.
I cannot be satisfied on the state of the evidence that [X]’s welfare requires that the mother’s application be prioritised over other matters patiently waiting for court time and given an earlier listing than 16 September 2019.
The mother’s Application for Review will be dismissed.
I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 9 August 2019
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