Lawson and Lawson

[2007] FamCA 1472

FAMILY COURT OF AUSTRALIA

LAWSON & LAWSON [2007] FamCA 1472

FAMILY LAW – DIVORCE – Where husband applies for divorce in Federal Magistrates Court –Divorce granted – Where wife applies to the Family Court for a review of the divorce order – Where Registrar exercised powers delegated under s 103(1) Federal Magistrates Act 1999 – Review must be determined by a federal magistrate – Review dismissed for want of jurisdiction

Federal Magistrates Act 1999 ss 103(1), 104(2)
Federal Magistrates Court Rules 2001 Pt 20 r 1(b), Pt 20.2.3
Family Law Act 1975 (Cth) s 94AAA(1)(a)

Grayden & Grayden (2003) FLC 93-146

APPLICANT: Mrs Lawson

RESPONDENT: Mr Lawson

FILE NUMBER: NCC 929 of 2007

DATE DELIVERED: 2 July 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 2 July 2007

REPRESENTATION

APPLICANT: In Person

RESPONDENT: In Person

Orders

1. That the Application filed on 25 June 2007 is hereby dismissed for want of jurisdiction.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 929 of 2007

MRS LAWSON  

Applicant

And

MR LAWSON  

Respondent

REASONS FOR JUDGMENT

1. These Reasons were delivered orally.

2. On 26 March 2007, the husband applied to the Federal Magistrates Court for a divorce.  The wife, who was the Respondent to this divorce application, filed a Response to the application on 4 June 2007.  She does not appear to challenge any of the facts the husband relies upon in order to establish jurisdiction or the ground of irretrievable breakdown of their marriage. Simply put the wife submits that marriage is a union approved by God which can only be ended by the death of one of the spouses. 

3. The divorce application was heard by Registrar Peacock on 19 June 2007.  Registrar Peacock granted the husband’s divorce application. 

4. On 25 June 2007, the wife filed an application in a case in this Court, seeking a review of the divorce order made by Registrar Peacock on 19 June 2007.

5. Registrar Peacock determined the divorce application, pursuant to powers delegated under s 103(1) of the Federal Magistrates Act 1999. 

6. Section 104(2) of the Federal Magistrates Act, provides:

   A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under sub-s 102(2) or under a delegation under sub-s 103(1) may, (a) within the times 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.

7. The time within which an application for review must be filed, is 28 days. See Pt 20 r 1(b) of the Federal Magistrate Court Rules 2001. An application for review must be listed for hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing. See Pt 20.2.3 of the Federal Magistrate Court Rules. 

8. Because the wife has filed her application in the Family Court a question arises about the competence of the review application. Section 94AAA(1)(a) of the Family Law Act 1975 (Cth) permits an appeal to this Court. The subsection provides:

   An appeal lies to the Family Court from a decree of the Federal Magistrates Court exercising original jurisdiction under this Act.

9. This in turn, raises the question about whether the review application is an appeal from the Federal Magistrates Court exercising its original jurisdiction. As the Full Court in Grayden & Grayden (2003) FLC 93-146 made plain, the wife’s review application is not an appeal from the Federal Magistrates Court in its original jurisdiction. This means that this Court’s appeal powers cannot be invoked by the applicant in this instance.

10. For the wife to seek a review of Registrar Peacock's decision, she must file a review application in the Federal Magistrates Court in accordance with that Court’s rules.  With respect to the applicant, Registrar Peacock's application is unreviewable on the application she has made to this Court.

11. Accordingly, the wife’s application filed 25 June 2007 is dismissed for want of jurisdiction. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  18 July 2007