Drury and Maloney

[2016] FCCA 2434

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRURY & MALONEY [2016] FCCA 2434

Catchwords:
FAMILY LAW – Review of Registrar’s decision – issue of the standing of a lawyer without a practising certificate to appear and make submissions on behalf of the Applicant Wife – questions of the proper form of documentation in divorce application with the Wife resident in (country omitted) – signature witnessed by non-legal practitioner over Skype – power of Registrar to reject documents for filing – rules dispensed with – divorce granted.

Legislation:

Family Law Rules 2004 , r.24.10

Federal Circuit Court of Australia Act 1999 (Cth), ss.59(2) & (3), 104(2)

Federal Circuit Court Rules 2001, r.1.05, 2.06, 20.00A, 20.03
Judiciary Act 1903 (Cth), ss.55B(1), 55C
Legal Profession Act (ACT) 2006, ss.7, 8, 16(1), 34

Cases cited:

APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322

Totev v Sfar (2008) 167 FCR 193

Zdrilic v Hickie [2016] FCAFC 101

Applicant: MS DRURY

Respondent: MR MALONEY

File Number: CAC 886 of 2016

Judgment of: Judge Neville

Hearing date: 16 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Canberra

Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Self-represented but appearance by her amicus

Counsel for the Respondent:

Solicitors for the Respondent:

ORDERS

1. The Applicant for the Application for Review be changed and Ms Drury be substituted for Mr A.

2. Compliance with section 59(2) of the Federal Circuit Court of Australia Act 1999 (Cth) be dispensed with.

3. The Divorce Application filed by the Applicant be granted.

4. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.  

IT IS NOTED that publication of this judgment under the pseudonym Drury & Maloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 886 of 2016

MS DRURY

Applicant

And

MR MALONEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6^th June 2016, an Application for Review was filed in relation to a decision by the Registrar of the Court to refuse to accept the Applicant’s Application for Divorce.  The Review Application was filed by Mr A.

2. Mr A is a friend of the Applicant, who resides in (country omitted).  He holds a law degree, has been admitted to practice, but has never held a practising certificate.  For current purposes, he cannot be a “McKenzie friend” because the Applicant is not present and because I permitted him to make submissions, which such a “friend” would not be granted leave to do.  I will treat him, for current purposes, as an amicus of the Applicant.

3. For the reasons that follow, the Application for Review, as brought by Mr A, must be dismissed. However, on the basis that the Applicant herself brings the Application, and is substituted for Mr A, the Court takes the view that the Application should be granted, and a divorce certificate should issue. To achieve this the Court must and does dispense with…