Balfour & Ferber (No 3) [2026] FedCFamC2F 102 (30 January 2026)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings concern an Application for Review ("the Review") filed by Mr Balfour ("the Applicant") on 17 December 2025. The Respondent is Ms Ferber ("the Respondent"). The Review challenges the decision of Deputy Registrar Metz made on 10 December 2025 refusing an urgent listing of the Applicant's Application in a Proceeding ("the Application"), filed on 9 December 2025. The Application is currently listed for an interim defended hearing on 11 March 2026 at 10.00 am.
2. The Applicant submits that the matter is urgent because of the Respondent's alleged non‑compliance with existing interim orders. Those orders require, among other things, that both parties undertake supervised urinalysis drug screening at specified times. The Applicant contends that the alleged non‑compliance has created immediate uncertainty as to the child's wellbeing.

1. Pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules"), an Applicant may seek a review of an exercise of power by a Registrar by filing an Application for Review within 21 days after the decision of the Registrar is made.
2. Rule 14.07 of the Rules provides:

(1) A Court must hear an Application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.

Note: in an original hearing, the Court rehears the whole matter and does not simply review the decision of the original Court.

(2) The Court may receive as evidence:

(a) any affidavit or exhibit tendered in the first hearing; or

(b) any further affidavit or exhibit; or

(c) the transcript (if any) of the first hearing; or

(d) if a transcript is not available - an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.

1. Registrars of this Court have delegated powers pursuant to section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the Act"). Examples of those powers are set out at s 254(2)(a) to (s) of the Act. The right to apply to the Court to review the exercise of a power of a Registrar is set out in s 256 of the Act.
2. In Myers & Myers [2011] FMCAfam 1104 at [87] Halligan FM (as he then was), considered three scenarios in which a Registrar can deal with the issue of allocating a "court date":

(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.

1. His Honour observed that scenario's (a) and (b) do not involve the exercise of any power under the Rules or any power of the Corut but rather involve "purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court." These scenarios are not amenable to review. Where, however, an Applicant seeks a different first court date and seeks that the normal time limits fixed by the Rules be shortened or dispensed with, the Court has jurisdiction to review the Registrar's power.
2. Halligan FM also set out some matters to take into account when considering a Review of a decision relating to the allocation of a listing date setting:
   • the Applicant has demonstrated a reasonable basis for arguing for the substantive orders sought;
   • 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;
   • the Applicant has demonstrated that there has been no unreasonable or unexplained delay in approaching the Court; and
   • a judicial officer is available to hear the substantive Application.
3. I intend to apply the approach of Halligan FM to assist with the determination of this case.

1. This Review seeks to bring forward the allocated Court date 11 March 2026 at 10.00 am. As recently observed in Dyne & Dyne [2021] FedCFamC1F 96 at [11] where a review Application concerns a listing decision, the review's sole purpose is to determine the pending interim disputes hearing date.

Is the Review clearly one where an Applicant seeks a different first Court date and seeks that the normal time limits fixed by the Rules be shortened or dispensed with, such that the Court has jurisdiction to review the Registrar's power?

1. The Application was filed on 9 December 2025. The Applicant has not provided evidence of when the Application was served on the Respondent. The Application does not record the Respondent's address. The Commonwealth Court Portal file shows that Notices of Address for Service previously filed by the Respondent list the address of legal representatives who no longer act for her. In the absence of evidence to the contrary from either party, I proceed on the assumption, for the purposes of these reasons, that service occurred on or about 9 December 2025.
2. Under Rule 2.18(2) of the Rules, the Respondent had 28 days to file a response from the date of service ("the period"). The Application does seek to shorten or dispense with the period, and as of 30 January 2026 - the date of the Review hearing - 52 days had elapsed since the Application was filed and, on the imputed facts, served. As such the time to respond to the Application cannot be shortened
3. Given that the time to file the responding documents cannot be shortened the decision of Deputy Registrar Metz is not reviewable. As Halligan FM observed in Myers & Myers [2011] FMCAfam 1104 at [87], in such a scenario the Registrar performs a "purely administrative" function by refusing an urgent listing and maintaining the hearing date initially allocated by the registry.

1. In dismissing the Review, I note for completeness that I had the benefit of the Independent Children's Lawyer written submission dated 23 December 2025, which states at paragraph 1:

To date, the Independent Children's Lawyer considers that the Respondent Mother has failed to comply with the following orders:

• To undergo drug screening by urinalysis under supervision within the time frame pursuant to order 3 of the interim orders made on 1 December 2025.
• To undergo drug screening by urinalysis requested by the Independent Children's Lawyer on 12 January 2026.
• To file and serve a Notice of Address for Service pursuant to order 2 of the interim orders made on 22 September 2025.
• To file and serve her responding documents pursuant to order 3 of the interim orders made on 22 September 2025

1. Nevertheless, the Independent Children's Lawyer submits that the matter does not require an urgent hearing, and that an earlier interim defended hearing would only be supported if the Respondent failed to participate in the Child Impact Report appointment. There is no evidence before me as to the Respondent's engagement in that process.
2. Accepting the Independent Children Lawyer's position, the Applicant has not demonstrated that, absent an urgent hearing, he 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. As such the Review also fails on this basis.
3. For the reasons set out above, the Review is dismissed. I so Order.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.