FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALCOCK & BARESSI | [2012] FMCAfam 60 |
| FAMILY LAW – Application to review a Registrar’s decision in relation to abridgment of time – no jurisdiction to do so – decision characterised as administrative rather than judicial. |
| Federal Magistrates Act 1999, ss.102, 103, 104 Federal Magistrates Court Rules 2001, r.20A |
| Applicant: | MR ALCOCK |
| Respondent: | MS BARESSI |
| File Number: | SYC 298 of 2012 |
| Judgment of: | Kemp FM |
| Hearing date: | 20 January 2012 |
| Date of Last Submission: | 20 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Respondent: | No appearance |
ORDERS
That the Application for Review filed 20 January 2012 be dismissed.
UPON NOTING THAT:
(a)The decision sought to be reviewed is not an exercise of one of the judicial powers of the Court given to a Registrar under section 102(2) of the Federal Magistrates Act 1999, or under a delegation pursuant to section 103(1) of the Federal Magistrates Act 1999; and
(b)Therefore the decision cannot be reviewed pursuant to section 104(2) of the Federal Magistrates Act 1999.
(c)The affidavit material filed by the Father is sufficient to ground short service, but not sufficient to ground any further relief.
IT IS NOTED that publication of this judgment under the pseudonym Alcock & Baressi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 298 of 2012
| MR ALCOCK |
Applicant
And
| MS BARESSI |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
On 20 January 2012, the applicant father filed his substantive Initiating Application in these proceedings seeking a number of parenting orders. The matter was given a first Court date of 20 February 2012. The applicant had, in fact, applied to abridge time so that the matter could be dealt with at the earliest available time. A Registrar had granted leave for the application to be listed on 20 February 2012 and had directed that service be effected by 24 January 2012 at 8.00pm.
The learned Registrar, S Truong, had provided, as would appear on the form described as the Application to abridge time to an urgent hearing/hearing without notice worksheet, which forms part of the Court file, her reasons for the allocation of the 20 February 2012 as being the “1st urgent slot available”. The first normal return date, would appear from the Registrar’s form to be a date, then being offered, as the 19 March 2012 at 9.30am.
The applicant father was not satisfied with this and filed an Application for Review on 20 January 2012 which was made returnable on that same day before me. I dismissed the application and formally noted the matters set out at the commencement of these reasons.
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- Case
- [2012] FMCAfam 60
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court addressed was whether the decision sought to be reviewed constituted an exercise of judicial power that could be reviewed by the court itself. The court needed to determine if the decision in question was one that fell within the purview of judicial power as outlined in section 102(2) of the relevant legislation. Additionally, the court had to examine the nature of the decision made by the Registrar and assess whether it was subject to judicial review.
In its reasoning, the court found that the decision sought to be reviewed did not represent an exercise of judicial power as defined in the legislation. The court concluded that the decision made by the Registrar did not fall within the category of judicial decisions that could be reviewed by the court. Consequently, the court dismissed the application for review, reaffirming the limits of its review powers over decisions made by its Registrars. The court's decision underscored the importance of distinguishing between administrative and judicial functions when considering the scope of judicial review.
The court ordered that the application for review filed on 20 January 2012 be dismissed, thereby upholding the decision of the Registrar. The court's decision clarified the boundaries of its review powers, ensuring that only decisions that qualify as exercises of judicial power under section 102(2) could be subject to judicial review. This ruling serves as a reminder of the jurisdictional constraints that govern the court's authority in reviewing decisions made by its Registrars.
Orders
Orders of the court
1.
That the Application for Review filed 20 January 2012 be dismissed.
UPON NOTING THAT:
(a) The decision sought to be reviewed is not an exercise of one of the judicial powers of the Court given to a Registrar under section 102(2) of the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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