Lynch & Dunstan - [2011] FMCAfam 389

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYNCH & DUNSTAN

[2011] FMCAfam 389

FAMILY LAW – Application for review of a decision of a Registrar not to abridge time – whether such application competent – whether Registrar’s decision involved exercise of power of a judicial character – Registrar’s decision purely administrative – application dismissed.

Federal Magistrates Act 1999, ss.102, 103, 104
Family Law Act 1975
Federal Court of Australia Act 1976
Family Law Regulations 1984
Administrative Decisions (Judicial Review) Act 1977, s.5

Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47
Bahonko v Sterjov [2007] FCA 1717

Applicant:

MR LYNCH

Respondent:

MS DUNSTAN

File Number:

MLC 2139 of 2011

Judgment of:

Burchardt FM

Hearing date:

1 April 2011

Date of Last Submission:

1 April 2011

Delivered at:

Melbourne

Delivered on:

1 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr A. Barbayannis

Solicitors for the Applicant:

Not disclosed

The Respondent:

No attendance

ORDERS

The application for review filed on 17 March 2011 be dismissed.
The matter be otherwise adjourned to this Court in the Duty List as previously fixed on 3 May 2011 at 9.45 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2139 of 2011

MR LYNCH

Applicant

And

MS DUNSTAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is what purports to be an application for review filed on 17 March 2011 by the father in this proceeding. He is also the applicant in the substantive proceeding. His affidavit filed on 15 March 2011 deposes that following a history of living overseas, the mother returned to Australia with his permission with two children; [X], now 6, and [Y], now 4, on a date not precisely identified but at some point after 10 May 2009, (I infer relatively shortly). The children returned with their mother and lived with her in Melbourne. The father, to his credit, decided he would relocate to Australia from London to be closer and to spend time with his children and he did so in December 2010. Orders had previously been made by the relevant applicable Court in Great Britain, and those orders provided a regime whereby the children would spend regular time with the father. I am told that they spent time with the father in accordance with those orders, although it should be noted the orders had not yet been registered in Australia - until relatively recently.
About four weeks before the affidavit sworn by the applicant father on 10 March 2011, he received a telephone call from the mother in which she told him that she was going to move to [B] with the children because she could no longer afford to live in Melbourne. He replied with words to the effect that he did not consent because it was too far away, being about an hour and a half travel time from Melbourne, and that he would only agree if valid reasons for the relocation were given. The affidavit goes on to say that during the week, including Wednesday 2 March, he discovered that the mother was packing to move and that on Monday 7 March she sent him an email, which is annexed to his affidavit. That email relevantly says:
“We are moving to [B] this weekend. We had a conversation on the phone 4 weeks ago and you said as long as I did not move away any further than an hour and a half you would be okay with that. You have done this to me before, agreeing to the children leaving England and then taking me to Court.”
She then goes on to make other complaints. She says:
“I am moving to [B] because it is much cheaper to rent. [X] needs to go to a small school. I want to be able to stay home and look after my daughter before she has to go to full time education. I can do that in [B], I can not in Melbourne. My move has been planned for the last 6 months. [B] is an hour up the road that is all.”
And she then goes on to make other complaints about the father and to say how excited she is about moving to [B]. It seems fairly clear that if she was planning her move for the last six months she certainly failed to tell the father about it.
That impelled the father to file the application to which I have referred on 15 March 2011 together with his affidavit, filed the same date. The initiating application sought, amongst other interim orders, that leave be granted to the applicant to serve this application on short notice and that the requirement for a s.60I certificate be waived, that the mother be restrained from relocating, and that the parties attend a child dispute conference with a family consultant. Although the application did not say so in terms, what was really being sought was that there be an early date before a Federal Magistrate. The registry allocated a return date of 3 May 2011. The materials do not say so in terms, but it is within my knowledge that the allocation of dates and the question of abridgements, which is what in substance this is, are referred by the counter staff to a Registrar and it is reasonable to infer, as the application for review does, that the allocation of the date on 3 May 2011 was to all effects and purposes exercised by a Registrar. The application for review states:
“I am seeking for a review of the Court hearing date due to the urgency of the matter (file number). The application relates to the relocation of my children, which would cause them distress and cause untold inconvenience to them in contacting their father (me). I hope the Court hearing can happen this week due to the seriousness and urgency of this children matter.”
I should note in parenthesis that the mother had been served. When the matter came on on 24 March 2011, I drew Mr Lynch’s attention to the difficulties that might be said to be raised by the fact that the matter he was seeking to review might be characterised as an administrative action rather than an exercise of judicial power. I adjourned the matter until today to enable him to get legal representation, which he has done. Unfortunately, but very understandably, Mr Lynch did not quite understand the basis on which I was adjourning so that counsel has effectively been given one morning to prepare an argument that is not without its complexities. I wish to record my indebtedness to counsel for his assistance.
The Federal Magistrates Act 1999 (“the Federal Magistrates Act”) really, in many ways, mirrors the Family Law Act 1975 (“the Act”) and the Federal Court of Australia Act 1976 (“the Federal Court Act”) inasmuch as it provides for delegation of various functions to Registrars. Relevantly, for these purposes, the Federal Magistrates Act contains provision at s.103 and s.104 for such delegation. Section 103(1) provides that:
“The Rules of Court may delegate to the Registrars any of the powers of the Federal Magistrates Court including (but not limited to) all or any of the powers mentioned in subsection (102)(2).”
Section 102(2) sets out Registrars’ powers in some detail although it might be said in passing that the matters therein referred to expressly would seem in the main, at the least, more realistically to be described as exercises of judicial rather than administrative power.
The relevant interacting rule, if I can so describe it, is contained in part 20. Sub regulation 20.00A sets out each legislative provision and the various powers that a Registrar has. I note that the powers set out in the Act and the Family Law Regulations 1984 do not extend to the express power to abridge time that is referred to in the Family Law Rules at r.20.12A, which is an express power to expedite a first day before a Judge.
As I said, there are mirror rules for the delegation of powers in the Act, namely s.37(A). Section 37(A)(9) provides that:
“A party to a proceeding in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by or within such further time as allowed in accordance with applicable rules of Court made by Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.”
It should be noted that the delegation power contained in s.37(A)(1) provides that:
“The Judges, or a majority of them, may, subject to sub section (2), make Rules of Court delegating to the Registrars all or any of the powers of Court including:”
And then it goes on to set out a number of express matters, rather akin in many ways to those set out in s.102 of the Federal Magistrates Act. There are, once again, similar rules governing the Federal Court although they are not precisely the same in their terms. This brings us to the case of Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47, a decision of the Full Court consisting of Marshall, Cowdroy and Buchanan JJ, given on 21 May of last year. The subrule with which that Court was there concerned was O.46, r.7A(1) which provides:
“A Registrar may refuse to accept or issue a document (including any document which is or if issued will become an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious.”
I refer to and incorporate the whole of that judgment by reference but I note in particular what the Court said at paragraph [18], (and this was referring to a previous case).
“At [49] the primary Judge said:
The power to reject a document presented for filing given to the Registrar under Order 46, r 7A(1) is not a power of the Court within the meaning of that expression in s 35A(1) of the Act. It is a power given to the Registrar directly by the Federal Court Rules. Section 35A is intended to deal with powers of the Court other than powers already specifically given to the Registrar under the Rules. Furthermore, even if it were such a power, it does not fall within the specific powers referred to in s 35A(1)(a) to (h) of the Act. Finally, in this case, the second respondent did not act as she did pursuant to a direction from a Judge. For

s 35A(1) to be engaged there must be a direction given by the Court or a Judge.”
I should say that s.35A is in slightly different terms, but it is clear that in this case, in any event, what the Registrar did was not done by direction of any judicial officer.
At [39] the Court continued:
“In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 the Full Federal Court, at [15]-[17] referred to the purpose of O 46, r 7A and the consequence of the exercise of that power. Those paragraphs state:
The rule in its current form removed a clog on the Registrar’s discretion to act by committing the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a register and thereby the Court. Even without a rule in the terms of 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing in which, on its face, would be an abuse of Court process or frivolous or vexatious. No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar discretion to seek a direction from a Judge as to the performance of the Registrar’s duties, the direction sought is administrative in character. It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power. Rule 7A provides for a Judge to act in aid of the administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A.”
At [41] the Full Court continued - quoting Lander J in Bahonko v Sterjov [2007] FCA 1717:
“A direction under O 46, r 7A is made by a Judge to assist the Registrar in the administration of the registry and “is not a determination of right made by a Judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power”; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; Thus, it is not a judgment which is subject to appeal by a person whose document has been rejected by the Registrar in accordance with a direction by a Judge.”
At [42] the Full Court continued:
“In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others, the Full Court held at [19] that where a Registrar was directed by a judge pursuant to O 46, r 7A(2) not to accept a document for filing, the conduct of the Registrar in compliance with such a direction was not open to judicial review under s 35A(5) of the Court Act. Further, the Court held at [20] that such a direction of the judge was not open to judicial review under s 24(1)(a) of the Court Act.
The Full Court (Gray, Branson and Besanko JJ) referred to the power of the Registrars of both this Court, the High Court and the Family Court of Australia (“the Family Court”) to make orders of the kind referred to under O 46, r 7A. In referring to Legal Aid Commission - (WA) v Edwards and Others [1982] FCA 103 the Court noted the observations of Toohey J at [423]-[424] in which his Honour referred to the fact that the decision of Deputy Registrar of the Family Court not to accept the filing of a notice disputing a bill of costs was one which did not involve any formal or procedural attributes associated with judicial decisions. No hearing had been held and his Honour concluded that such a decision “lacked the attributes ordinarily associated with judicial decisions”.”
I would refer to, without reading out, paragraph [48] of those Reasons for Judgment and read paragraph [49]:
“We respectfully adopt the reasoning of the Full Court in Manolakis and of the primary judge in this appeal. In the present circumstances, we conclude that the decision of the Registrar made under O 46, r 7A(1) in the absence of a judge’s direction is one which was administrative in nature and, for the reason referred to in the authorities discussed above, not of a judicial character.”
There are some things one can extrapolate from that decision which, as I say, is a decision given by a superior Federal Court and therefore if applicable, in my respectful view, binding upon me. First, whether the act of the Registrar in setting a time date, which can be properly construed, I think, as refusing to abridge time any further, was a power of the sort identified either in s.102 of this Court’s Act or in the Act and Rules set out at s.37A of the Act and O.18 of the Family Law Rules may be open to question.
The particular part which I personally think is engaged is not one to which Registrars of this Court are attributed by s.102 or the Court’s Rules in terms but whether that be so or not, the decision to allocate a particular date is not, in my respectful view, an act of the sort which the Full Court in the National Bank case identified as of a judicial character. It does not involve anything more than an administrative assessment of the materials filed and the administrative allocation of a date. Accordingly, while paying as I do proper respect to the skilful arguments advanced by Mr Barbayannis, it follows that this application for review must be incompetent because the matter sought to be reviewed was not an exercise of judicial power.
I have also turned my mind to whether or not I could, so to speak, treat the application nunc pro tunc as an application under the Administrative Decisions (Judicial Review) Act 1977. The only ground that seemed to me, in s.5 of that Act, to touch upon this matter is the ground of a denial of natural justice. But here, in a sense, the applicant has been heard. His materials were read, no doubt, by the Registrar. It cannot be the case that every such decision requires an oral hearing. I think that the proper conclusion, which is one I arrive at with considerable reluctance I may say, is that there is simply no power in these circumstances to entertain the application.
In my opinion, this shows up a serious shortfall in the Court’s regulations and governance which I propose to bring to the attention of the relevant authorities as a matter of urgency. It may have the capacity in a case to cause very considerable difficulty. However, if I am wrong in all those regards I think I should, nonetheless, make some remarks about what would be the merits of the matter in the event that I had been persuaded I did have power to review it.
It is clear that the children have lived with their mother for a considerable period of time from December until March, accepting for the moment that the father’s version of events is correct – and it may yet be denied but I am prepared to accept that it is correct. Time was being regularly spent by the children in accordance with, or at least in conformity with, the United Kingdom orders. I presume, as a matter of course, that those orders were in the best interests of the children because no doubt that is why they were made in the British Court.
It is put by counsel for the father that, putting it bluntly, if there is not a quick hearing of the matter the whole question of relocation will be pre-judged and at an end. It is readily understandable why that must seem so to the father, but the mother is on clear notice of this application. The delay until the return date isolated by the Registrar will not in any way in my view defeat the father’s application. I would imagine – not being certain I may say whether this matter is in my docket on that date – that the judicial officer concerned will move rapidly thereafter to take interlocutory steps to determine the interim relocation issue and, certainly, all I would say is that I would not, for my part, regard the delay as being in any way decisive, especially where the father has moved with commendable promptness to assert his position and to protect it.
Accordingly, even had I been minded otherwise to assume that I had power to accede to the application for review in exercising the power de novo I would, in all the circumstances, not have abridged the time further. Accordingly, I will simply adjourn the matter until 3 May 2011.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 1 April 2011