FATHER ASKS FOR PROMPT ACTION REGARDING HIS APPLICATION DUE TO “URGENT” CONSIDERATIONS
Hearnes & Jellets [2020] FCCA 2722 (5 October 2020)
This case involves an application for review of the Registrar’s decision filed by the father where he seeks that an abridgment of time and that his parenting application be given urgent consideration.
Facts:
This is an application by the Applicant (Father) for review of a Registrar’s decision with respect to an abridgment of time to hear a parenting application.
The Father seeks an abridgment of time and that his parenting application be given urgent consideration. The Father relies upon the urgency of the matter being that he has not spent any substantive time. Counsel for the Father submitted that there was prejudice to the Father as he was not seeing X, and given her age, this would cause significant damage to their relationship.
Counsel for the Mother submitted that the question of spending time and communicating with children is not an issue requiring urgent consideration of the Court and should be dealt with in the course of Court’s usual listing process. It was further submitted that if a matter such as the present case was considered urgent, then the Court would be inundated with urgent applications
Issue:
Should the court grant the father’s application for abridgment of time and his parenting application be given urgent consideration?
Law:
- Section 102(2) of the Federal Circuit Court Act relevantly provides as follows: Registrar’s Powers- The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:
(h) the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court;
- The right to apply to the Court to review the exercise of a power of a Registrar is set out in s.104 of the Federal Circuit Court Act as follows:
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) Within the time prescribed by the Rules of Court; or
(b) Within any further time allowed in accordance with the Rules of Court;
Apply to the Federal Circuit Court of Australia for review of that exercise of power.
- (3) The Federal Circuit Court of Australia may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
Analysis:
In Quong & Rush where her Honour noted that the Court has limited resources and must prioritize truly urgent cases. Her Honour said: “The Federal Circuit Court, and the Newcastle Registry of that Court in particular has to deal with a veritable deluge of matters involving children who are at risk of harm: babies who have been taken from their primary care, cases involving severe family violence, cases in which one and sometimes both parents are using ice, cases in which there are serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.”
The Newcastle Registry has to prioritize these cases and it does so notwithstanding that it is struggling with the absence of one of its three judges. Regrettably resources do not allow a case in which there are no risk-of-harm issues to be prioritized over other cases competing for judicial time.
This proceeding does not fall into an urgent category of case as described by Judge Terry in Quong & Rush and should be dealt with in the Court’s usual listing processes.
Conclusion: The Court does not have jurisdiction to hear the Review Application under s.104 (2) of the Federal Circuit Court Act. Alternatively, if the Court does have jurisdiction to hear the Review Application, this proceeding is not urgent and should not be given an urgent listing.