Palmer and Palmer

[2012] FMCAfam 522

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALMER & PALMER [2012] FMCAfam 522

FAMILY LAW – Application for review of a decision of Registrar not to abridge time – whether Registrar’s decision involved exercise of power of judicial character.

Family Law Act 1975
Administrative Decisions (Judicial Review) Act 1977
Child Support (Registration and Collection) Act 1988
Federal Magistrates Act 1999, ss.102, 103(1), 104
Federal Magistrates Court Rules 2001, rr.6.19, 20A

Lynch & Dunstan [2011] FMCAfam 389
Zeller & Whitby [2011] FMCAfam 431
Alcock & Baressi [2012] FMCAfam 60
Myers & Myers [2011] FMCAfam 1104
Lam & Downie [2011] FMCAfam 389

Applicant: MS PALMER

Respondent: MR PALMER

File Number: NCC 1042 of 2012

Judgment of: Myers FM

Hearing date: 8 May 2012

Date of Last Submission: 8 May 2012

Delivered at: Newcastle

Delivered on: 8 May 2012

REPRESENTATION

Solicitors for the Applicant: Ms Urach

Solicitors for the Respondent: Mr Haricharan

ORDERS

1. The mother’s Application in a Case is dismissed.

2. The father’s costs of the hearing are reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1042 of 2012

MS PALMER

Applicant

And

MR PALMER

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a matter in which an Initiating Application was filed before this court on 24 April 2012.  In that application the mother sought essentially what can be best terms as recovery orders in respect of three children, X, born (omitted) 2005, Y, born (omitted) 2008 and Z, born (omitted) 2010.  The Initiating Application was listed before this court for a first return date on 4 June 2012 at 9.30 am.

2. The mother then caused to be filed in this court an Application in a Case on 26 April 2012. The Application in a Case was listed today on 8 May 2012.  In the Application in a Case the mother sought orders set out as follows:

   “(i)   Decision to review date.

   (ii)Matter on urgent order for review date.”

3. The orders sought were handwritten and it was clear from the submissions made by Ms Urach, Duty Solicitor for the mother that the mother prepared the Application in a Case without legal assistance.  Having regard to the wording of the orders sought it is clear and certainly agitated by the duty solicitor, Ms Urach, who is before the court today, that the mother sought to review the decision of the Registrar with respect to the failure to abridge time allocating an early  date for the Initiating Application.

4. Reviewing a decision of a Registrar to abridge time is an issue that has been agitated before this court now on a number of occasions.  I particularly note the decisions of Burchardt FM in the matter of Lynch & Dunstan [2001] FMCAfam 389. The decision of Altobelli FM in Zeller & Whitby [2011] FMCAfam 431, the decision of Kemp FM in Alcock & Baressi [2012] FMCAfam 60 and the decision of Halligan FM in the matter of Myers & Myers [2011] FMCAfam 1104.

5. Registrars of this court are delegated powers pursuant to section 102 of the Federal Magistrates Act 1999. Those powers are set out at subparagraph (2)(a) to (o). Pursuant to section 104 of the Federal Magistrates Act 1999 at subparagraph (2), a party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:

   (a)within the time prescribed the Rules of Court;

   (b)with any further time allowed in accordance with the Rules of Court;

   (c) apply to the Federal Magistrates Court for review of that exercise of power.

6. As I have stated previously, the issue of whether or not this Court is able to review the allocation of a first return date has been the subject of various hearings before this court.  In the matter of Alcock & Baressi Kemp FM held that the decision sought to be reviewed is not an exercisable one of the judicial powers the court has given to a Registrar under section 102 of the Federal Magistrates Act 1999 or under a delegation pursuant to section 103(1) of the Federal Magistrates Act 1999 and therefore the decision cannot be reviewed pursuant to section 104(2) of the Federal Magistrates Act 1999.

7. In the matter of Lynch & Dunstan Burchardt FM, with some concern also considered this issue stating at paragraph 5 of his decision:

   “The Federal Magistrates Act 1999 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 provisions at section 103 and 104 for such delegation. Section 103(1) provides that:

   “ the rules of the court may delegate to the registrars any of the powers of the Federal Magistrates Court including, but not limited to, all of the powers mentioned in subsection 102(2)”.

   “Subsection 102(2) sets out registrars’ powers in some details, although it might be said in passing that matters therein referred to expressly would seem in the main at least more realistically to be described as exercises of judicial rather than administrative power”.

8. At paragraph 16, Burchardt FM, found that:

   “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 B, it follows that this application for review must be incompetent because the matter sought to be reviewed was not an exercise of judicial power.”

9. Interestingly, Burchardt FM looked at whether or not the court could deal with the matter under the Administrative Decisions (Judicial Review) Act 1977.  At paragraph 18,  Burchardt FM stated:

   “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 seems to me in section 5 of that Act to touch upon this matter is the ground of 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 arrived at with considerable reluctance I must say is that there is simply no power in these circumstances to entertain the application.”

10. Altobelli FM in the case of Zeller v Whitby stated at paragraph 4 of his judgment:

    “The issue in this case is whether the court has jurisdiction to review a decision of a registrar not to abridge time.  As this is a legal issue, I do not propose to set out further background facts.  If the court lacks jurisdiction, the facts of the case are irrelevant.”

11. Altobelli FM went on to say at paragraph 5:

    “Section 102 of the Federal Magistrates Act 1999 allows certain powers of the Federal Magistrates Court to be exercised by a Registrar. Those powers are enumerated in section 102(2). Section 103 of the Act provides that the rules of the court may delegate to the Registrar any of the powers of the Federal Magistrates Court. Regulation 20A of the Federal Magistrates Court Rules 2001 specify the powers delegated. It is significant to note that the delegated powers do not include the power to abridge time so that the matter can be dealt with earlier than the date allocated in the Registry at the time of filing.”

12. Ultimately, Altobelli FM held at paragraph 9:

    “The exercise of power in this case ie not to abridge time is not a power under section 102(2) or section 103(1) and is therefore not reviewable under section 104.”

13. Altobelli FM referred to the case of Lam & Downie [2011] FMCAfam 389 and ultimately held:

    “It must follow that the application for review must be dismissed.”

14. Probably the most interesting of the cases is that of the case of Myers & Myers in which Halligan FM looked at the issue but in the context of an application for a stay in relation to child support.  In this case, Halligan FM sought to question the applicant.  At paragraph 54, Halligan FM stated:

    “When I asked him (referring to the applicant) how urgently he had asked the Registrar to list his application, he indicated he had sought a listing as soon as possible and mentioned within a week or two weeks. Regulation 6.19 of the Federal Magistrates Court Rules 2001 allows the time of service for applications, unless the court orders otherwise an application any documents filed with it may not be served (a) less than three days before the day fixed for hearing of

    an application in a case or (b) less than seven days before the date fixed for hearing of any other application.”

15. Halligan FM noted that the application in the matter of Myers & Myers was not one in respect of a matter brought under the Family Law Act 1975, but it was instead a matter brought under the Child Support (Registration and Collection) Act 1988 and was thus governed by Part 25A of the Federal Magistrates Court Rules 2001. An application to which Part 25A applies must be served 28 days before the hearing date. At paragraph 58, Halligan FM noted that:

    “As the applicant indicated he sought a listing within a week or two, I propose to proceed on the basis that whichever time for service of the substantive application applied, the Registrar was being asked to exempt the applicant from compliance with it and was therefore being asked to exercise the power in section 102(2)(h).”

16. Section 102(2)(h) of the Federal Magistrates Act 1999 reads:

    “The following power of the Federal Magistrates Court may, if the Federal Magistrates Court or Federal Magistrate so directs be exercised by a Registrar the power to make an order exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of the Court.”

17. Whilst the comments and decision of Halligan FM in Myers & Myers are interesting, they unfortunately have no application in this matter in circumstances where the orders sought in the Initiating Application were ones relating to a recovery order and that the only order sought with respect to timing of the matter was order 4 that read “the matter be short listed as a matter of urgency”.  The requested order in my view did not require that the Registrar exempt the mother from compliance with a provision of the Rules.

18. It is my view that when the Registrar dealt with the Initiating Application and made a decision assigning a first return date, he/she did not make a decision of a type referred to in section 102(2) of the Federal Magistrates Act 1999 and consequently this court is not, pursuant to section 104(2) of the Federal Magistrates Act 1999, entitled to review such a decision. It is an administrative decision. It is not, in my view, an exercise of judicial function or judicial delegation as provided for at section 102 or 103 of the Federal Magistrates Act 1999.

19. Perhaps had the Initiating Application contained an order sought framed in the following terms a different result may have been achieved:

    “That the Registrar list the matter within 4 business days dispensing with the with the requirements as to service at regulation 6.19 of the Federal Magistrates Court Rules 2001”,

    In such circumstances the Registrar’s allocation of a first return date may have been an exercise of judicial function and therefore captured by the reasoning in the decision of Halligan FM in Myers & Myers. I am not, however, convinced that the Initiating Application sought in any way to dispense with the requirements at Regulation 6.19 of the Federal Magistrates Court Rules 2001 which if sought would have in my view been a decision to exercise or a refusal to exercise the Registrar’s powers pursuant to section 102(h) of the Federal Magistrates Act 1999 and therefore have the result that this court is able to review the decision pursuant to section 104(2) of the Federal Magistrates Act 1999.

20. I therefore note the decision in the matter of Myers & Myers but find it has no application to the current set of circumstances.  In any case I note that the mother’s solicitor during the course of submissions advised the Court she no longer sought to agitate the Court for the orders sought in her Application in a Case and on that basis the Application in a Case is dismissed.  There has been some indication to this court by the duty solicitor appearing for the mother that perhaps she might seek to file a further Application in a Case seeking to review the decision of the Registrar.  I suggest that the mother have some regard to those matters that I have set out in the decision in this matter.

21. I reserve the costs of the respondent in these proceedings.  The court notes that the matter is listed before this court with respect to the Initiating Application on 4 June 2012 at 9.30 am. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Myers FM

Date:  25 June 2012