Wiggs and Piercy (No.2)

[2019] FCCA 2185

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
Wiggs & Piercy [2018] FCCA 3992

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

1. 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

1. 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.

2. [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.

3. 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 3^rd 2019, due to the contact centre visitations being cancelled as of June 28^th 2019.

4. 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.

5. 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 16^th.

6. 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

7. On the face of the mother’s application she was…