Faber & Milan [2025] FedCFamC2F 725 (29 May 2025)

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. Listed for determination is An Application for Review filed by the wife on 23 May 2025.
2. These are proceedings commenced by Mr Faber ("the husband") on 1 April 2025 seeking orders as to parenting for the parties' two children. By way of Response to Final Orders filed 29 April 2025, Ms Milan ("the wife") sought orders as to property adjustment and spousal maintenance.
3. The wife relies upon, and I have read, the following documents:
   • Application for Review filed 23 May 2025;
   • Affidavit of 29 April 2025.
   • Her Affidavit filed 23 May 2025 with leave;
4. The husband opposes the Review Application.

1. The wife's Genuine Steps Certificate filed with her Response records that she has complied with the pre-action procedures in that she has:
   • Cooperated with the father to agree on an appropriate dispute resolution service
   • Participated in dispute resolution with the father
   • Exchanged copies of relevant documents with the other party; and
   • Has taken genuine steps to resolve the dispute before filing the response to the application.
2. The Wife did not at this time, as was open to her, seek an exemption from her obligations to comply with the pre-action procedures, instead certifying that she had complied.
3. Despite her assertions, the wife did not file an Undertaking as to Disclosure with her suite of documents prior to the First Return as is required pursuant to section 4(1) of Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules").
4. It was then noted by the Judicial Registrar at the First Return of the matter on 6 May 2025 at the First Return that:

At 10:40am the Respondents legal representative advised the Court that it was his error regarding the Respondents non-compliance with pre action procedures regarding the financial application.

(As per original)

1. Orders were thus made by a Judicial Registrar that:-
   • the financial aspect of the proceedings introduced by the wife in her Response be stayed for 90 days pursuant to rule 10.27(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") pending the wife:
     • providing evidence of compliance with, or exemption from, the pre-action procedures required in this court as set out in paragraph 3 - Pre-Action procedures as set out in Part 1 Schedule 1 of the Rules. In the event that the wife seeks an exemption from such compliance, she must file evidence to allow the court to consider those matters as set out in rule 4.01(2).
     • The wife was also directed to file and serve an Undertaking as to Disclosure.
   • Upon the wife complying with these orders the husband was directed to file and serve a response within 28 days.
   • The parenting issues were adjourned to 16 July 2025 for a directions hearing.
   • Leave was granted to the wife to notify chambers by email to the Judicial Registrar when there had been compliance with the filing of the wife's material.
   • It was noted that in the event the wife did not comply with the orders, the financial cause of action contained within her Response filed 29 April 2025 may be dismissed without further notice to her.
2. Inferentially, whilst the matter was stayed for a period of 90 days pending the wife's compliance, the matter could have been listed earlier if the wife complied with the directions for her to comply with the requirements as a litigant pursuant to the rules and advised the Judicial Registrar's chambers as to such compliance. This view is supported by the notation made by the Judicial Registrar that in the event the financial application was reinstated, it would also be listed to the next court event on 16 July 2025 - a period less than 90 days.
3. Pursuant to rule 1.05 of the Rules, pre-action procedures refer to the set of principles and procedures with which the parties must comply before commencing a proceeding or cause of action. Compliance with the pre-action procedures is not necessary if the court is satisfied that it was not appropriate for the party to comply in the circumstances.[1] Those circumstances include where there has been allegations of family violence or child abuse, where there is urgency and where undue prejudice may be faced by the applicant.[2]
4. The wife had two choices. She could comply with the pre-action procedures or seek an exemption from the court in the usual manner on the grounds that it was not appropriate for the party to comply in the circumstances.
5. The wife did neither. There is no evidence that the wife has:-
   • Attended mediation with the purpose of attempting to resolve spousal maintenance and property issues;
   • Provided a notice of intention to start a proceeding; nor
   • Filed an Undertaking as to Disclosure.
6. The wife did not, in accordance with the directions made and the rules, seek an exemption from the court. Such exemption would have been dealt with by a delegated judicial officer of this court as it appropriate having regard to the issues requiring determination. It would not have required the attendance of the husband nor his legal representative. If such an exemption were granted having regard to any urgency or undue prejudice, the wife could have then forwarded an email to the registrars' chambers and the financial aspects of the matter would have then been listed.
7. Rather, the wife, with the benefit of legal advice, filed on 23 May 2025 an Application to Review the orders and directions of the Judicial Registrar. Such Application seeks that all of the orders of 6 May 2025 be set aside, and instead that:
   • The rule 1.14 requirement for "strict compliance with any Rule or Regulation not complied with" be dispensed with;
   • The wife's interim property and spousal maintenance application be heard on an urgent basis and via WebEx;
   • The husband file and serve his response as to property and spousal maintenance within seven days;
   • The husband comply with all outstanding disclosure obligations within five days;
   • The existing parenting arrangements remain in effect;
   • When the substantive matter is listed for further case management, it be listed before a Judicial Registrar other than that who made the 29 April orders; and
   • Other orders "deemed necessary or appropriate" in the circumstances of the case.

1. The wife's Response filed on 29 April 2025 seeking both interim and final property adjustment and spousal maintenance did not seek that the matter be listed on an urgent basis; rather that it be listed for interim hearing on the question of spousal maintenance "on the next available date." The wife now seeks that both property and spousal maintenance issues be heard on an urgent basis and via Webex. It is inappropriate to now seek by way of the Review process different relief to that sought in the first instance. The wife's application to have her interim application listed on an urgent basis by way of a Review Application will be refused.
2. The wife otherwise seeks that she be excused from complying with the rules in circumstances where she has not sought that her interim application be listed on an urgent basis. The delegated Judicial Officer has made appropriate orders and directions for the management of this matter and to enable the wife to either comply with the pre-action procedures or make application that such requirement be waived. In the interests of quick and fair resolutions to matters, efficient management of proceedings and the controlling of costs, parties to a proceeding are required to make a "genuine effort" to resolve their dispute before approaching the court.[3] This is for the benefit of the parties; being an avenue by which parties can try and resolve or minimise the issues in dispute prior to undertaking costly (both financially and emotionally) litigation. The court expects compliance.
3. The wife's Application for Review has resulted in an inopportune use of scarce judicial resources and, as I have stated, the attendance of the husband and his legal representatives.
4. No orders have been made as to the parenting arrangements for the children. The application to have the "existing parenting arrangements per the parenting plan dated 29 November 2024 on an interim basis..." cannot be determined by way of a Review Application.
5. There is no evidence to ground an order that the substantive proceeding not be listed before the Judicial Registrar who made the directions the subject of review. In any event such an application if it is to be made should be by way of an Application in a Proceeding with appropriate evidence to ground a finding of perceived or actual bias on behalf of a judicial officer, delegated or otherwise.
6. A party simply not liking the fact that a delegated Judicial Officer has proactively and appropriately case managed a matter in accordance with the overarching principles as set out in section 95 and section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") which mandates that this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible does not ground a finding of perceived or actual bias. This overarching principle includes as its objectives the efficient use of the judicial and administrative resources available for the purpose of this court, the efficient disposal of the court's overall caseload, disposal of all proceedings in a timely manner and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. Section 96 of the Act and section 191 of the FCFCOA Act obliges parties to act consistently with this overarching purpose and is complemented by rule 1.04 of the Rules. Lawyers must assist their clients to comply with this duty.
7. For these reasons the Application for Review filed by the wife will be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.

[1] Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), rule 4.01(2)(e).

[3] Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), Schedule 1, section 1(1).