Mother Seeks Review of Registrar's Refusal to List Matter on Urgent Basis
Lombardi & Rider [2021] FedCFamC2F 57 (16 September 2021)
The parties entered into a Parenting Plan which as alleged by the Mother, the Father did not abide. The Mother then applied for parenting orders that all times and rules be abridged to allow the matter to be heard on an urgent basis. The Registrar was not satisfied of the urgency of the application.
The Court, in assessing whether or not it should exercise its discretion to abridge the time for consideration of the Mother’s substantive application, relied largely upon the case of Myers & Myers[2011] 253 FLR 445.
Facts:
On 14 December 2020, the parties entered into a Parenting Plan which provides for the children to live with each party on a shared care week about basis, with changeover taking place at each parties’ respective residence. According to the Mother, during the relationship and following separation, the Mother was primarily responsible for the children’s ongoing welfare, development and day to day needs. According to the Mother, on 18 July 2021, the Father did not provide the children to the Mother at changeover. The Mother also alleges that since 18 July 2021, the Father has withheld the children from her, and has failed to permit the children to spend time with her, and instead made allegations that the Mother has been using illicit substances.
On 18 August 2021, the Mother filed an Initiating Application seeking parenting orders that all times and rules be abridged to allow the matter to be heard on an urgent basis. On 19 August 2021, a Registrar of the Court decided they were not satisfied the urgency of the application had been demonstrated and refused to give the case greater priority than it would have received in the usual course of events in respect of cases awaiting hearing. On 23 August 2021, the Mother served the Initiating Application on the Father, stamped with a return date of 29 September 2021. The Mother requested that the orders be given “urgent consideration” by answering “yes” to a question on the first page of the Initiating Application under the heading Risk of abuse, neglect, family violence/urgent, in response to the question “Are you seeking orders for urgent consideration?”.
The urgency is due to the fact that it concerns urgent Recovery Order matters. On 6 September 2021, the Mother filed an Application for Review seeking review of the Registrar’s Decision. The Review Application was filed 19 days after the Registrar’s Decision for failure to exercise discretion to list this matter urgently. The Mother made no specific request to the Court to abridge the time for service of her Initiating Application pursuant to r 2.13 of the Rules, nor did she seek an abridgement of time for the Father to file his Response to Initiating Application, Notice of Child Abuse, Family Violence or Risk and supporting affidavit, under rr 2.18, 2.04 and 5.04 respectively.
The Mother argues that the Registrar failed to exercise their discretion to list the matter urgently on the grounds that the Registrar has erred on the weight given as to the urgency of this issue, and that the children, X born in 2008 and Y born in 2009, have not been returned to Applicant Mother’s care since 18 July 2021.
Issues:
I. Whether or not the Registrar’s decision on 19 August 2021 is a reviewable decision under the Act.
II. Whether or not the Court should exercise its discretion to abridge the time for consideration of the Mother’s substantive application.
Applicable law:
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254 - provides that a party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia 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 Court for review of that exercise of power.
(2) The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256 - sets out the right to apply to the Court to review the exercise of a power of a Registrar.
(a) Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;
(b) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and
(c) Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.
(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.
Analysis:
Decisions about the allocation of a Court date for an application that does not involve consideration of a shortening a time fixed by the Rules are not amenable to review. However, a circumstance where the applicant seeks a different first Court date and also seeks that the normal time limits fixed by the rules be shortened or dispensed with, is a matter whereby the Court would have jurisdiction to review the Registrar's power. The Mother’s application falls within the third “scenario” referred to by Halligan FM in Myers. That is, the Mother sought a first court date that would not allow time for compliance with the Rules and sought that the time frames stipulated by the Rules be shortened or dispensed with.
The Mother submitted that she is very concerned about the Father’s actions including his abusive, denigrating and alienating behaviour, his consumption of alcohol and his deteriorating mental health. The affidavits of the Mother do not sufficiently demonstrate the required need for urgency bearing in mind the listing on 29 September 2021 is only 15 days from the date the Review Application was heard. According to the Mother, the last time she spent any substantive time with the children was on 18 July 2021. Her Initiating Application was filed on 18 August 2021, and the abridgement of that application was refused on 19 August 2021. It was not until 6 September 2021, some 3 weeks later, that the Mother filed the Review Application.
Conclusion:
The Court is satisfied that the Registrar’s Decision on 19 August 2021 was a reviewable decision. As to whether 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, the Court is not satisfied that this criteria has been made out. The Court dismissed the Mother’s Application for Review filed 6 September 2021. Each party shall bear their own costs of the Application for Review.
