Background
In the recent case of Quong & Rush [2017] FCCA 1765 (2 August 2017) upon the separation of the parties in January 2017 the father moved 680 kilometres away with the parties’ 12 year old son. On 19 July 2017 the mother applied for a recovery order; an order that the registrar list the application urgently and leave to serve at short notice. The registrar dismissed the application, listing it for hearing on 23 October 2017. The mother filed an Application for Review of that decision.
Federal Circuit Court’s Decision
The Court stated that section 102(2)(h) of the Federal Circuit Court Act provides that one of the powers which may be exercised by a Registrar is: ‘(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 Registrar in this case declined to exercise that power and such a decision was reviewable pursuant to s 104(2) of the Federal Circuit Court Act.
In Holden & Wolff [[2014] FamCAFC 224] the Full Court held that a Federal Circuit Court judge who dealt with an Application for Review in chambers on the written material provided by the applicant was in error and it allowed an appeal against her decision to dismiss the Application for Review.
Full Court Analysis
The Full Court stated that while it might be permissible for a Federal Circuit judge to deal with a matter in chambers courtesy of Rule 1.05(2) of the FCCR and Rule 11.16 of the Family Law Rules, R 15.03 of the FCCR did not allow a Federal Circuit Court judge to make a decision without an oral hearing unless the parties to the proceedings consented, and the consent of the parties had not been sought.
In the present case, the Court decided to err on the side of caution and list the Application for Review in open court and conduct an oral hearing which took the form of inviting the applicant to make submissions.
The Court noted that there was nothing to indicate that the Application for Review had been served on the Respondent and in the Court’s view it was appropriate to deal with the application ex parte. Respondents were not consulted about listing decisions when the application was filed. If they had wanted an early listing themselves they would be the applicant and if they have a complaint about an early listing they can apply for an adjournment on the first return date.
Immediately upon separation in January 2017 the father moved to a small country town taking X with him, which is about 680 kilometres and 8 hours’ drive from the mother. The mother visited X in March 2017. She stated that he told her that he liked (omitted) but she said that she believed that this was because he did not want to go against his father.
The mother had frequent telephone contact with X and the father brought the child to (omitted) to spend time with the mother at Easter 2017 when he stayed 3 nights and in the mid-year school holidays when he stayed nearly two weeks.
The mother stated that she did not file her application earlier because she was from China and English was her second language and she did not understand that she could have come to court in or about January 2017 to get X back. She said that she also thought (wrongly as it turned out) that she would be able to negotiate with the father to have X returned to her.
In oral submissions, the mother emphasised that the reason she wanted an earlier listing than the one she had been given was that the longer her son was in (omitted) the more things he would lose. She said that there were only 17 students at his school and the facilities in the small town were very limited.
She stated that she was afraid that her ex-partner would not look after X as carefully as she would and that he would have a miserable life in (omitted).
Court’s Conclusion
The Court understood why it was disappointing for the mother to have to wait until 23 October 2017 for a mention of this matter but the Court was not satisfied that it should have been listed any earlier than the date given to it by the registrar.
There was no evidence that X was at any risk of harm. He was attending school regularly; the mother was able to speak to him regularly and she has been able to spend time with him during school holidays. The father relocated the child in January 2017 and this was not a case in which at first glance it was likely that a recovery order would be made.
The Federal Circuit Court, and the Newcastle Registry of that Court in particular, has to deal with a large number of matters involving children who are at risk of harm; babies who have been taken from their primary carer; cases involving severe family violence, cases in which one and sometimes both parents were using ice, cases in which there were serious alcohol abuse issues and cases in which one and sometimes both parents have serious mental health issues.
The Newcastle Registry has to prioritise 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 prioritised over other cases competing for judicial time.
Orders
The Court dismissed the mother’s application for review.