Father Opposes Decision of Judicial Registrar

Foys & Laidler [2021] FedCFamC2F 364 (12 November 2021)

The Judicial Registrar ordered the parties to serve a Genuine steps Certificate and that the parties and Y born in 2009 and X born in 2007 (the children) are directed to attend with a Court Child Expert.  The father filed an Application for Review of the orders made on 29 September 2021, in which he simply sought an order dismissing the Initiating Application.  The Court, in resolving this dispute, considered the best interests of the children. 

Facts:

On 10 August 2021, Ms Foys (“the mother”) filed an Initiating Application seeking orders to discharge final parenting orders made by consent on 6 March 2017 (“the 2017 orders”) and seeking somewhat different orders. 

The mother seeks to alter the frequency and duration of the time the children spend with the father Mr Laidler (“the father”) in New South Wales.  She also seeks removal of a term in the 2017 orders that she personally deliver the children to the father's care at the commencement of his time with them.  On 29 September 2021, the Judicial Registrar ordered the parties to serve a Genuine steps Certificate and that the parties and Y born in 2009 and X born in 2007 (the children) are directed to attend with a Court Child Expert. 

On 19 October 2021, the father filed an Application for Review of the orders made on 29 September 2021, in which he simply sought an order dismissing the Initiating Application. 

The Court conducted a hearing of the Application for Review on 4 November 2021.  Counsel for the father, Mr Othen, indicated that the father's position was somewhat more targeted than the terms expressed in the Application for Review.  Mr Othen contended that the mother had failed to establish a prima facie case that there had been a change in circumstances sufficient to meet the threshold required by Rice and Asplund and that the mother had taken no steps to attend mediation, contrary to the requirements of Order 9 of the 2017 orders.

Mr Othen submitted that, consistent with the objective of finality in respect of parenting proceedings, there was a need to avoid children being exposed to disputation in the court.  According to Counsel for the father, the order made by the Judicial Registrar that the parties and the children attend appointments for the preparation of the Child Impact Report (“CIR”) were contrary to the best interests of the children, as it would implicate the children having to be again interviewed by a Court Child Expert.  

Mr Othen conceded that the parties and the children's attendance to the interviews with the Court Child Expert diminished the strength of his submission that the children should not be implicated in the dispute and conflict between the parents by having to be interviewed.  Counsel submitted that there was still opportunity to ensure that the Court managed the proceedings consistent with the best interests of the children, which necessitated the parties not being made aware of the children's wishes.  

It was submitted that the failure to attend mediation of some kind before commencing the proceedings was a “major failing” because the dispute between the parties is likely to be narrow in scope.  Accordingly, in the best interests of the children they ought not be further involved.

Issue:

Whether or not the Application for Review should be granted.  

Applicable law:

Family Law Act 1975 s 60CC(3) - provides the additional considerations in determining the best interests of children.

Analysis:

Ms Gibson, Counsel for the mother, refuted the suggestion that the Initiating Application was made improperly. 

She pointed out that the Initiating Application was filed before the commencement of the new Rules on 1 September 2021.  Further, that the 2017 orders were made some years ago when the ages of the children were considerably younger and that their circumstances had changed, such that what was likely to be in their best interests now would differ.  

In addition, as referred to in the mother’s affidavit, her financial circumstances have altered and the costs of all travel required to comply with the 2017 orders are now not affordable.  Ms Gibson emphasised that the impact of these changes need to be determined on a final basis, not as a threshold issue.

The functions of a Judicial Registrar at the first court date as set out in the Central Practice Direction correlate with the powers delegated under section 254 of the Act and set out more extensively in Schedule 4, clause 2 of the New Rules.  They require discretionary assessment about what case management or procedural directions should be made in any given case, depending on the issues identified and extent of the dispute, while being guided by the overarching purpose.  Family dispute resolution whether within the Court or outside it is not likely to resolve the dispute. The contest between the parties cannot be determined without the views of the children being ascertained and shared with the parties. 

Conclusion:

The Father's Application for Review is dismissed. The stay order made on 1 November 2021 is discharged, subject to the leave given in the published order. The consequences of these orders are that the Child Impact Report should be finalised by the Court Child Expert and, subject to usual procedures, released to the parties prior to their participation in FDRC pursuant to the Judicial Registrar’s orders of 29 September 2021.