Grayden & Grayden

[2003] FamCA 359

[2003] FamCA 359

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY  Appeal No. EA 13 of 2003

File No. SYM 6188 of 2002

IN THE MATTER OF:  GRAYDEN
  ANNE THERESE

Appellant Wife

AND:  GRAYDEN
  DAVID

Respondent Husband

CORAM:  WARNICK, MAY AND BOLAND JJ

DATE OF HEARING:  10 April 2003

DATE OF JUDGMENT:  11 April 2003

JUDGMENT OF THE COURT

Appearances:              Mr Broun QC appeared on behalf of the Appellant Wife

Wife’s address for service: 34/2 Adcock Avenue, West Gosford, NSW, 2250

Mr Neil of Queens Counsel with Mr Bell instructed by Dettman & Dettman, Solicitors, 85/47 Neridah Street, Chatswood, NSW, 2067 appeared on behalf of the Respondent Husband

Name of Appeal	GRAYDEN AND GRAYDEN
Appeal Number	EA 13 of 2003
Date of Appeal Hearing	10 April 2003
Date of Judgment	11 April 2003
Coram	Warnick, May and Boland JJ

Catchwords: APPEAL FROM A DECREE NISI OF A REGISTRAR OF THE FEDERAL MAGISTRATES SERVICE – Incompetent Appeal – Registrar exercising delegated power not exercising original jurisdiction for the purpose of section 94AAA Family Law Act – An essential part of the delegation of power was the provisions for review by a Federal Magistrate

APPEAL FROM A DECREE NISI OF A REGISTRAR OF THE FEDERAL MAGISTRATES SERVICE – Jurisdiction cannot be acquired by consent

This was an appeal by the wife against the decision of a Deputy Registrar of the Federal Magistrates Service to dispense with the service of the husband’s application for divorce and to grant a decree nisi.  Both orders were made on 4 February 2002.  On the hearing of the appeal, counsel for both parties proffered orders to be made by consent which would have had the effect of allowing the appeal, remitting the application for divorce for re-hearing and granting leave to the husband to withdraw that application.  Both parties disputed that the appeal was otherwise than competent.

HELD:-

1. When the Deputy Registrar made the order and decree appealed from, she was exercising delegated jurisdiction, an essential part of that delegation being the provision of a system of review by the Federal Magistrates who, pursuant to section 8(4) of the Federal Magistrates Act 1999 comprise the Federal Magistrates Court. The Deputy Registrar was not exercising original jurisdiction under the Family Law Act.

2. Accordingly, no appeal lies from the exercise of power to this Court and the appeal is incompetent. 

   Horne v. Horne (1997) FLC 92-734; Briggs v. Glentham Pty Ltd (1992) 8 WAR 339; Hunt v. Knabe (No 2) (1992) 8 WAR 96 considered and applied.

1. Jurisdiction cannot be acquired by consent.

   Hunt v. Knabe (No 2) (1992) 8 WAR 96.

Appeal dismissed.

Reportable.

1. The first and possibly the only question requiring answer in this appeal is “is it competent?”.

2. The issue arises in this way.  On 4 February 2003, a Deputy Registrar, serving in the Federal Magistrates Court at Sydney, dispensed with service of an application for divorce by David Grayden and then granted a Decree Nisi.

3. On 24 February 2003, Anne Grayden (the respondent to the proceedings below) filed a notice of appeal to this Court against both the order for dispensation and the decree.

4. Upon application, directions were made for the urgent hearing of the appeal.  Written summaries of argument from each of counsel for the appellant and counsel for the respondent were received.

5. In his submissions counsel for the appellant (Mr Broun QC) argued that the appeal was competent.  Counsel for the respondent (Mr Bell) raised a question of competence in relation to the order for dispensation with service, apparently based on its “interlocutory” nature.  In relation to the appeal against the decree nisi, he suggested that because the Deputy Registrar was acting under delegated power, review of the exercise of that power “may require to be addressed to the Federal Magistrates Court, not the Family Court” and he concluded:

   “However the point need to be necessary (sic) as on any view it is submitted the appeal must fail anyway”.

6. When the appeal was called on, the Court was informed that orders by consent were sought in respect of it as follows:

   “1.  That the Appeal filed by the wife on 24 February 2003 is allowed.

   2.   That the Application for Divorce be remitted for re-hearing.

   3.   That leave be granted to the husband to withdraw the Application for Divorce which THE COURT NOTES is hereby withdrawn and discontinued.

   4.   That there be no order for costs.”

7. We expressed the view that if the appeal was incompetent, as we were concerned it might be, we could not make the orders sought.

8. Counsel for both parties (now Mr Neil QC with Mr Bell representing the respondent) pressed the position that the appeal was competent, but did not add to the written submissions.  The matter was stood down on two occasions during the morning, at least partly to allow counsel to consider alternative courses, but ultimately counsel have asked for an order to be made in respect of the appeal and that reasons be given.

9. The question about competence is whether in the above circumstances, s 94AAA(1)(a) of the Family Law Act 1975 as amended (“FLA”) permits an appeal to this Court.  That sub‑section provides:

   “An appeal lies to the Family Court from:

   (a)a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …”

   Thus, in turn, two questions arise:

   Is the appeal against a decree of the Federal Magistrates Court?

   and

   Was the Federal Magistrates Court in the making of the order and decree exercising original jurisdiction under the Family Law Act?

10. It is common ground that the Deputy Registrar, in making the order and decree, was exercising delegated power pursuant to s 103(1) Federal Magistrates Act (“FMA”) and rule 1.4(2) of the Federal Magistrates Court (Delegation to Registrars) Rules 2000.

The submissions of the appellant.

1. Counsel for the appellant submitted that the exercise of power by the Deputy Registrar produced the same result as an exercise of that power by a Federal Magistrate because of the terms of s 103(2) of the FMA. That section provides:

   “A power delegated by Rules of Court under sub‑section (1), when exercised by a Registrar, is taken, for all purposes, to have been exercised by the Federal Magistrates Court or a Federal Magistrate, as the case requires.”

2. In our opinion, in the face of this sub‑section, it cannot be argued that the order and decree made by the Deputy Registrar are not decrees of the Federal Magistrates Court. (the word decree – as used in the Family Law Act – is defined to include an order - s 4(1) FLA). That is not to say, however, that they are decrees made by that Court in the exercise of original jurisdiction under the FLA.

3. As to this point, Counsel for the appellant merely submitted that the power to dissolve marriages is part of the original jurisdiction of the Family Court of Australia. For that matter, it is also part of the original jurisdiction of the Federal Magistrates Court (s 10 FMA, s 39(2) FLA). But the real question is, was the Deputy Registrar exercising original jurisdiction under the FLA when she made the order and decree?

4. In Horne v Horne (1997) FLC 92-734, the Full Court of this Court was considering an exercise of power by the Registrar of the Family Court of Western Australia against which a party had appealed. In the delegation of power to the Registrar of the Family Court of Western Australia, no provision was made for review of any orders made in the exercise of that power and in that situation the Full Court found that the appeal to it was competent (see p 83,916). However, in the course of discussion, their Honours, Fogarty, Lindenmayer and Moore JJ, compared the situation in the Family Court of Western Australia to that of the Family Court of Australia. That discussion was part of a broader consideration of the principles relating to the delegation of judicial power, particularly deriving from the decision of the High Court in Harris v Caladine (1991) FLC 92‑217: (1991) 172 CLR 84.

5. At FLC p 83,912, their Honours said:

   “The delegation of unreviewable judicial power goes well beyond a mater of “practice and procedure” (or “necessary and convenient”).   …

   That this is so irrespective of whether the Court is a Ch III court or not, and whether the power in question is a federal power or not, is clearly illustrated by the decisions of the Full Court of the Supreme Court of Western Australia in Briggs v Glentham Pty Ltd (1992) 8 WAR 339 and Hunt v Knabe (No 2) (1992) 8 WAR 96, cases which bear a striking similarity to this case.”

6. Their Honours then discussed the two Western Australian cases referred to (and a further Western Australian case Hazart v Rademaker (1993) 11 WAR) and said of them (at p 83,914):

   “… It is clear from the wider context in these cases that the reference to “appeal” means an appeal or review by the delegating judges and not by a Full Court of that or another court, and must be a re‑hearing on all issues of fact and law.  What is required is a de novo review (or appeal) by a judge of the delegating court.  In Hazart v Rademaker, supra, Malcolm CJ referred to the requirement as being “a complete review de novo by a judge of the District Court”.  In Harris v Caladine, supra, McHugh J, discussing the necessity for such a review of power delegated to officers of the Family Court, said at FLC 78,509:

   “Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by that officer be sufficient.  That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer.  Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court.”

   The availability of an appeal to this Full Court in this case is insufficient.”

   (Emphasis added)

7. Later, in directly considering the right of appeal in the case before them, their Honours said (at p 83,916):

   “The matter that caused us to pause is the circumstance that it is a decree of a registrar whereas customarily appeals to the Full Court of this Court are from decrees made by a judge of either the Family Court of Australia or the Family Court of Western Australia.  In the former Court this circumstance creates no actual difficulty.  The delegation of powers to a registrar to make a decree is subject to the specific process of review contained in s 37A and that procedure needs to be completed before any appeal to the Full Court under s 94 would be entertained.  This issue is referred to briefly in Briggs v Glentham, supra, and Hunt v Knabe (No 2), supra.”  (Emphasis added)

8. We are in full agreement with what was said by their Honours in Horne v Horne (supra). We note that the opinion, that in the Family Court the review procedure needed to be completed before any appeal to the Full Court, was expressed notwithstanding that there is in the FLA a matching provision to s 103(2) FMA, namely s 37A(3) which reads:

   “(3)A       power delegated by Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires.”

9. When the Deputy Registrar made the order and decree appealed from, she was exercising delegated jurisdiction, an essential part of that delegation being the provision of a system of review by the Federal Magistrates who (pursuant to s 8(4) FMA) comprise the Federal Magistrates Court.

10. The Deputy Registrar was not exercising original jurisdiction under the FLA.

11. Accordingly, no appeal lies from the exercise of power to this Court and the appeal is incompetent.

12. The fact that the order allowing the appeal is sought by consent makes no difference.  In Hunt v Knabe (No.2) supra, the Court said:

    “Although the point was not raised by counsel for either party, it is, we believe, necessary for us to consider whether the appeal from the decision of the Principal Registrar to this Court is competent.  The issue goes to the jurisdiction of this Court to entertain the appeal and jurisdiction cannot be acquired by consent: see Hocky v Yelland (1984) 157 CLR 124 at 141.”

ORDERS

1. That the appeal filed 24 February 2003 be dismissed.

I certify that the 22 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:  T. Zellner

Associate