Father Seeks Urgent Listing of Interim Parenting Matter
Canvin & Jesney [2021] FedCFamC2F 145 (13 October 2021)
The Applicant was served with the Interim Intervention Order which caused him to vacate the matrimonial home. The Applicant has since made an application to revoke that order. The Applicant father seeks review of a decision by a Registrar of the Court to reject the Applicant’s application, for an abridgment of time, to provide the listing of his Application for Interim Parenting Orders (‘the Application’) ‘as soon as practicable’. The Review Application is opposed by the Respondent mother Ms Jesney.
Facts:
The parties have previously experienced marital difficulties in 2014 during which time the parties continued to live under the one roof with their eldest child while being separated. The parties subsequently reconciled and their second child was born in 2017. During the course of August of that year the parties respectively engaged legal representatives to communicate their respective positions to the other party despite the fact that the parties were, at that time, living under the one roof. On 9 September 2021, the Respondent applied for an Intervention Order against the Applicant.
The Respondent and the children were named as affected family members on the order. The Applicant attests that on Friday, 9 September 2021, the police attended the former matrimonial home and served the Applicant with the Interim Intervention Order which had been obtained by the Respondent on the previous day. It appears, however, that the reference should be to Friday 10 September 2021. Upon being served with the Interim Intervention Order, the Applicant vacated the former matrimonial home and resided with his sister approximately 10 kilometres away from the former matrimonial home.
On 10 November 2021, however, the Applicant has since made an application to revoke that order. The Applicant contends that the Respondent made the application for the Intervention Order for strategic purposes being, primarily, to remove him from the former matrimonial home. The counsel for Respondent stated that she intends to present evidence that the Applicant engaged in aggressive, intrusive and dysregulated behaviour that was potentially caused or exacerbated by the consumption of marijuana. The Applicant father, Mr Canvin commenced proceedings in this Court on 15 September 2021 by filing an Application for Final and Interim Parenting Orders seeking an order that all necessary times be abridged to enable this application to be listed for interim hearing as soon as practicable.
Having considered the material filed by the Applicant pursuant to his application for the matter to be listed “as soon as practicable”, the Registrar denied the Applicant's application. On 22 September 2021, the Applicant, applied for a review of the decision by a Registrar of the Court rejecting the Applicant’s application, for an abridgment of time, to provide the listing of his Application for Interim Parenting Orders (‘the Application’) ‘as soon as practicable’. The Respondent opposed the Review Application. The Respondent has not, as yet, filed any evidence in the proceedings in circumstances where the time for filing a Response to an Initiating Application is 28 days after service of the application. The Respondent must file a Response and supporting documents by 13 October 2021.
Issue:
Whether or not the application for an abridgment of time, to provide the listing of the Application for Interim Parenting Orders should be granted.
Applicable law:
Family Law Act 1975 (Cth) s 60CC - provides that in the exercise of the Court’s discretion, in respect to matters of practice and procedure, the Court will, in parenting matters, have regard to the best interests of the child.
- the just determination of all proceedings before the Court;
- the efficient use of the judicial and administrative resources available for the purposes of the Court; and
- the efficient disposal of the Court’s overall caseload.
Analysis:
The evidence presented by the Applicant in support of his application for ‘abridgment of time’ or urgency poses concerns regarding the Respondent’s parenting capacity because the latter's emotional state is fragile, having a history of depression and mood swings which she has refused to engage in counselling or seek the assistance of any professionals.
Despite the Applicant’s apparent concerns, he proposes what is commonly referred to as a ‘nesting arrangement’ where the children continue to remain living in the matrimonial home but the parents move in and out of their home on a rotating basis according to the arrangement for their time to care for the children.
The evidence that has been presented by the Applicant is not such that the Court would conclude that the children are at immediate risk of harm in the period pending further consideration of this matter by the Court. In the Applicant’s ‘Notice of Risk’, he does not identify that he is at risk as result of the prospect of him being the victim of family violence. At the same time, the issues of risk, from the Respondent’s perspective, have been dealt with in the form of an Interim Intervention Order.
The Registrar’s decision to reject the Applicant’s application for ‘that all necessary times be abridged to enable this application to be listed for interim hearing as soon as practicable’ was an exercise of delegated judicial power and is therefore a reviewable decision pursuant to s 256(1) of the FCFCOA Act. Counsel for the Applicant submitted that the Applicant has demonstrated a reasonable basis for arguing for the substantive orders he is seeking. However, consistent with the overarching purpose of ensuring the ‘just determination’ of these proceedings, the Respondent should have a reasonable opportunity to file her evidence in reply.
Absent urgency, a respondent is ordinarily entitled to have a period of 28 days after being served with an application in which to file their response and supporting documentation. The fact that the Applicant desired a judge or Senior Registrar to preside at the First Court Event is not a reasonable basis for the Applicant seeking expedition of this matter. The Central Practice Direction has been structured in a manner such that the interests of individual litigants are balanced against the legislative obligation on the Court to effectively and efficiently manage the Court’s overall case load.
Conclusion:
The Court dismissed the Applicant Father’s Application in a Case filed on 22 September 2021. In the event of the Respondent Mother seeking an order for costs in respect to the Applicant Father’s Application above, she is to provide to the Court's Associate and the Applicant Father’s solicitor written submissions of no more than 3 pages within 7 days of the date of these orders. In the event of the Applicant Father disputing any Application for Costs by the Respondent Mother, he is to, within 7 days of receipt of the Respondent Mother’s written submissions, provide written submissions in reply, of no more than 3 pages, to the Court's Associate and to the Respondent Mother’s solicitors.
