Alcock and Baressi
[2012] FMCAfam 60
•23 January 2012
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 |
| Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 Lynch & Dunstan [2011] FMCAfam 389 Paramasivam v Randwick City Council [2005] FCA 369 Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 Zeller & Whitby [2011] FMCAfam 431 |
| 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.
The applicant has sought reasons and I now provide those reasons as set out below.
The issue in this case is whether the Court has jurisdiction to review a decision of a Registrar not to abridge time. While this is a legal issue, as to whether the Court has jurisdiction or not, I, nevertheless, set out the following background facts.
Background facts
The proceedings concern a child, X (“X”) born (omitted) 1997, currently aged 14 years.
The father seeks as a final order joint parental responsibility with the mother. He seeks an order that the child “reside” with him. As an urgent interim order he seeks that he be given immediate “custody” of the child and that the proceedings be dealt with on an urgent basis as the child was to return to the mother on Saturday, 21 January 2012.
The Court notes that the date whereby the father asserted that the child needed to be returned to the mother expired prior to the date when the learned Registrar required the father to effect service on the mother of his Initiating Application.
The father lives at Property B in New South Wales and the mother lives at Property M in Queensland.
The father was born on (omitted) 1972, being aged 39 years and is currently unemployed.
The mother was born on (omitted) 1972, being aged 39 years and her occupation is not disclosed by the father.
The father says that he and the mother commenced in a relationship together on 15 October 1993, were married on (omitted) 1996 and separated on 1 April 2004.
There are two children of the relationship being Y (“Y”) born (omitted) 1994 (currently aged 17 years) and X.
No parenting order is sought by the father with respect to Y.
There are existing orders made in the Federal Magistrates Court in Brisbane on 1 April 2004 which provide for both parties to exercise “joint responsibility” for both children and both children were to “reside with the mother”. The orders provide for specific time to be spent with the father and for arrangements to effect air transport to and from Sydney to implement such time. Specific vacation and holiday time were also provided for in those orders.
The father relies on an affidavit sworn 18 January 2012 to ground his Initiating Application wherein he asserted that the mother had breached and continues to breach the order as to the children spending half of their school holidays with the father. No contravention proceedings have been, it would appear, filed.
The father says that during X’s visit to him during the 2012 school holidays he had a number of conversations with her wherein she confided that she was scared and feared for her safety returning to Queensland. The father says that she described in detailed instances where her mother has slapped her across the face and other instances of “bullish type behaviour” from the mother and step-father. The father refers also to X informing him that the mother has called her “vulgar names” and “other instances of poor behaviour”.
The father further says that X has “constantly asked that she not return to Queensland” and as a result of those requests he makes this application.
The father says that X has attended counselling through Catholic Care Australia who have told him it takes “up to 2 weeks to initiate these changes”.
The father says that he has notified children protection services and been given a reference number and has also notified the Queensland South East Intake Regional Intake Services to record a complaint on 18 January 2012.
The father says that there should be a change to the current parenting orders so as to permit X to stay with him pending the matter coming before the Court on its first return date.
The father is self-represented.
There is no evidence that service has been effected on the mother.
No s.60I Certificate has been filed and the father, in that regard, relies on an affidavit sworn 19 January 2012 deposing to a circumstance of urgency, to the effect that X is with him on her Christmas holidays but is required to return to the mother on Saturday, 21 January 2012 to the (omitted), where she lives. The father says that X is afraid to go back as she is exposed to family abuse where the mother and her step-father are “always fighting and arguing and police has been called to the family domestic. X has been emotionally abusive by her step-father and has been grabbed by her step-father”. Further, the father says that “X as well Attend Dr B family doctor on 19 January 2012 to seek a mental health plan as she has very bad depression from what is happening at home with her mother and step-father.” The Court has quoted in the words used by the father.
What should be noted from the father’s description in his affidavits is that at no time has he made any contact with the mother to discuss what X has allegedly said to him in accordance with his obligations pursuant to the existing orders as to joint parental responsibility.
Applications for Review of a Registrar’s decision in these matters are problematic given the urgent nature in which the original application is made to the Registrar and given the urgency with which this matter is currently brought before me. Applications of this nature can potentially occupy substantial judicial resources.
The Court further notes that at this time of the year the Court’s resources are, in any event, severely impacted upon by the Court’s vacation.
Applicable law
The Court has had regard to the decision of Federal Magistrate Altobelli in Zeller & Whitby [2011] FMCAfam 431 where his Honour has provided the following analysis, which I adopt.
a)“Section 102 of the Federal Magistrates Act 1999 allows certain powers of the Federal Magistrates Court to be exercised by a Registrar. Those powers are enumerated in s 102(2). Section 103 of the Act provides that the Rules of Court may delegate to the Registrars any of the powers of the Federal Magistrates Court.
b)Regulation 20A of the Federal Magistrates Court Rules 2001 specifies the powers delegated. It is significant to note that the delegated powers do not include the power to abridge time so that a matter can be dealt with earlier than the date allocated in the registry at the time of filing. The delegated powers are indeed broad. Most of the powers facilitate the orderly and efficient case management of a matter after the proceedings have been commenced. Some of the powers deal with the proceedings at a very early stage, e.g. dispensing with service and ordering substituted service. What all of the powers seem to have in common is that proceedings have actually been commenced, i.e. an application has been filed and a Court date allocated. None of the powers seem to deal with any controversy about when the first Court date should be. Indeed one way of characterising the powers delegated to Registrars in Regulation 20A is that they facilitate the determination of issues between the parties to the litigation. Indeed perhaps one reason why the power to abridge time is not included here is because this is an issue between the applicant and the Court, and not an issue between the parties.
c)Section 104 of the Federal Magistrates Act 1999 contains additional provisions relating to the Registrars. In the present context the relevant provisions are in subsections (2) and (3).
Registrars--additional provisions
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court;
or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Magistrates Court for review of that exercise of power.
(3) The Federal Magistrates Court may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
d)As is plainly apparent from these provisions, the power of review is strictly limited to an exercise of power under ss 102(2) and 103(1).
e)The exercise of power in this case, i.e. not to abridge time, is not a power under s 102(2) or s 103(1) and is therefore not reviewable under s 104: see also Lynch & Dunstan [2011] FMCAfam 389. It must follow that the Application for Review must be dismissed.
f)The applicant, and perhaps others on reading these reasons, might be surprised by this outcome. Indeed FM Burchardt in Lynch & Dunstan at para 19 refers to the ‘serious shortfall in the Court’s regulations and governance’. I would not express the gravity of the situation in such serious terms. It may well be that the power to abridge time is an exercise of power quite different to the other powers enumerated in regulation 20A. As I stated in paragraph 6 [paragraph b) above] of these reasons, abridgement of time is an issue between the applicant and the Court, and not an issue between the parties.
g)The allocation of a hearing date in the registry is an administrative act. The decision not to abridge time is in the nature of an administrative decision. What the Registrar is, in effect, undertaking is an administrative act. It is pre-case management, rather than case management. The applicant’s real concern in this case is that the registry was unable to allocate an earlier date. This was, no doubt, reflective of the lack of availability of judicial resources compared to the demand for the same. When the Registrar reviewed this decision, the essential nature of the decision did not change from administrative. Viewed from another perspective, the issue remained one between the applicant and the registry, and not an issue between the parties to the litigation about, for example, case management.
h)The characterisation of the Registrar’s decision as being an administrative one finds support in the decision of Sackville J in Paramasivam v Randwick City Council [2005] FCA 369. The Registrar’s decision ‘had none of the formal or procedural attributes associated with judicial decisions’. Indeed it is hard to imagine that the legislature would intend this type of decision, in the context of a high volume court such as the Federal Magistrates Court, to be one that requires the application of any judicial process.
i)Sackville J also refers to the decision of the Full Court of the Federal Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 in support of the proposition that the Registrar was acting administratively and not judicially. Indeed, drawing on some of the language used by the Full Court at paragraphs 15-19 of their reasons, the Registrar’s actions in the present matter can be described as involving ‘determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face.’
j)The decision of Sackville J in Paramasivam, and the Full Court in Bizuneh has been affirmed by later Full Courts including Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47.
k)Whilst the characterisation of the Registrar’s power as administrative does not change the jurisdictional fact that there is no power to review the decision under ss 103 or 104, it might help explain why the power is not contained in regulation 20A.”
Discussion
The Court adopts the reasoning of Federal Magistrate Altobelli as set out above as determinative of the Application now before it.
The Court does not have the power to deal with the Application for Review, and it is, therefore, dismissed.
The Court is of the view that it is the Registrar who is in a far better position to make an objective and an informed decision about any abridgement as to time given the Registrar’s access to Court calendars. The Registrar has had access to the same affidavit material that is currently before me.
The Court is of the view that leaving aside any issue as to jurisdiction, the Registrar appears to have considered that the matter is one of some urgency and was to be given an expedited return date ahead of the usual return dates offered. That expedited return date was provided to this applicant. That date requires the applicant to effect service so as to afford all parties procedural fairness.
As the Federal Magistrate to whom the Application for Review was presented, I have no ability within the docket structure system to second guess a Registrar as to the allocation of a hearing date. The date allocated by the Registrar is, in fact, a dated listed before Federal Magistrate Foster in Sydney and when it comes before him on that date it will be in his docket and subject to his judicial administration.
The Court is of the view that it is the Registrar who is in a much better position to be able to understand the many competing priorities raised by a party at the filing counter in determining the listing of matters so as to provide the first available return date, considering all issues as to urgency, including the need to protect any child, given that in those circumstances the Registrar is hearing from only one party and given the fact that judicial resources are a finite resource.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Kemp FM
Date: 23 January 2012
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