McNamara & Rose

McNamara & Rose concerned an appeal to the Full Court of the Family Court of Australia from a decision of a single judge of that Court. The primary dispute involved an application for permission to institute proceedings under s 118 of the Family Law Act 1975 (Cth), which the trial judge had refused on the basis that there was no reasonable likelihood of success. The appeal also touched upon the jurisdiction of a Family Court judge to issue writs of prohibition, mandamus, and certiorari, both against another Family Court judge and against a State Magistrates Court.

The Full Court was required to determine whether the trial judge erred in refusing leave to institute proceedings, and more broadly, whether a judge of the Family Court possessed the authority to issue writs of prohibition, mandamus, or certiorari. This included considering whether such writs could be directed to quash orders made by another Family Court judge or by a State Magistrates Court. The Court also considered an application for contempt, which had been dismissed by the trial judge due to the lack of specificity in the consent orders, making it difficult to prove contravention and insufficient to establish a flagrant challenge to the Court's authority.

The Full Court held that a judge of the Family Court did not have the authority to issue writs of prohibition, mandamus, or certiorari. Their Honours reasoned that the Family Court was a statutory court and did not possess the inherent jurisdiction of superior courts to issue such prerogative writs. Consequently, the trial judge had no power to issue the writs sought. Regarding the contempt application, the Court found that the consent orders lacked the necessary specificity regarding the commencement of contact, rendering it impossible to prove a contravention beyond reasonable doubt. The appeal was therefore dismissed.