Philkin & Philkin (No 4)

Case [2021] FedCFamC1F 294

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Philkin & Philkin (No 4) [2021] FedCFamC1F 294

File number(s): DGC 2894 of 2018
Judgment of: MCGUIRE J
Date of judgment: 20 December 2021
Catchwords: FAMILY LAW – PROPERTY – Review of a Registrar’s decision – judicial or administrative functions – application for review made out of time – merits of application – application dismissed
Legislation:

Family Law Act 1975 (Cth) ss 106A, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.03 and r 14.05

Cases cited:

Philkin & Philkin (No.2) [2020] FamCAFC 264

Philkin & Philkin [2021] FedCFamC1F 22

Division: Division 1 First Instance
Number of paragraphs: 52
Date of hearing: 26 November 2021
Place: Hobart
Counsel for the Applicant: Mr Thompson
Solicitor for the Applicant: Jeff Thompson
Counsel for the Respondent: Ms Mansfield
Solicitor for the Respondent: Ryan Carlise Thomas
Counsel for the Independent Children's Lawyer: Mr Metaxas
Solicitor for the Independent Children's Lawyer: Robert Halliday and Associates

ORDERS

DGC 2894 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PHILKIN

Applicant
AND:

MS PHILKIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

20 DECEMBER 2021

THE COURT ORDERS THAT:

1.That the husband's Application for Review filed the 20 October 2021 is dismissed.

2.That the husband pay the costs thrown away of the Independent Children’s Lawyer in respect of the Review Applications dismissed in a quantum of $2,590, such to be paid within 28 days of the date of these Orders.

3.That the husband pay the wife’s costs of and incidental to the husband’s Review Applications listed before Justice McGuire on 25 November 2021 in a quantum of $5,800, such to be paid within 28 days of the date of these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym of Philkin & Philkin (No.4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGUIRE J

APPLICATION

  1. I have before me what purports to be an Application for Review by the husband, Mr Philkin, made on an Application in a Case dated 19 August 2021, but apparently filed and sealed on 20 October 2021.  The Application seeks the following:

    1.Review of decision…

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AGLC
Philkin & Philkin (No 4) [2021] FedCFamC1F 294
Case
[2021] FedCFamC1F 294
Decision Date

CaseChat Overview and Summary

In the case of Philkin & Philkin (No 4), the husband sought to review the decision of a Registrar in signing exclusive sales agreements for certain properties. This was a matter that arose from a previous consent order made on 13 July 2020, which included provisions for the Registrar to execute documents under section 106A of the Family Law Act. The husband filed the application for review more than a year after the Registrar signed the agreements, leading to the court considering whether the application was out of time and whether the Registrar's action was reviewable. The court had to determine if the husband's application was permissible under the Family Law Rules and whether the Registrar's decision was subject to judicial review.

The court addressed several legal issues, including whether the application was made out of time, whether the Registrar's actions were judicial or administrative, and the merits of the application. The court found that the application was indeed out of time as it was filed well beyond the 21-day period stipulated in the Family Law Rules. Furthermore, the court determined that the Registrar's signing of the documents was a purely administrative act, not a judicial decision, and thus not subject to review. The court also noted that the husband had already unsuccessfully challenged the original consent orders through an appeal and an application in a case, which further undermined the merits of the current application.

The court ruled that the husband's application for review was not permissible because it targeted an administrative action rather than a judicial decision or order. The court emphasised that the power to make orders under section 106A of the Family Law Act was a judicial function, while the signing of documents by the Registrar was an administrative task. Consequently, the application was dismissed on the grounds that it was out of time, sought to review an administrative act, and failed on its merits.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Application is therefore brought out of time without leave. IS THE DECISION REVIEWABLE OR AN ADMINISTRATIVE DECISION The delegation of power to Registrars, referenced above pursuant to Rule 14.03 of the Rules and clause 2 of Schedule 4 thereof, specifically describes the power being one “to make an order directing a person to execute a deed” or “to direct Judicial Registrar to sign documents pursuant to s 106A of FLA”. In this matter the husband does not seek to review Order 11 of the Consent Orders of 13 July 2020 which is, in fact, the order made anticipating and permitting s 106A of the FLA and which was made by consent (although the husband has clearly already unsuccessfully challenged those orders by way of Appeal and Application in a Case to Hartnett J). Rather, the husband seeks to review the action of the Registrar in signing the exclusive sales agreements in respect of the relevant properties. It must be emphasised here that s 106A(1) enables the Court, in its discretion, to “appoint an officer of the Court or other person to execute the deed or instrument…”. As such, the section contemplates the execution of a deed or instrument by lay – persons which common sense suggests may, at times, be circumstantially convenient or necessary. This cannot, therefore, be the delegation of a judicial function. That is, the power delegated is to make the order under s 106A, which in this case was made by consent on 13 July 2020, and is clearly indicated in the Schedule to the Rules. In Vibbard & Garcia[3] the Full Court considered an Appeal from a Federal Magistrate (as he then was) dismissing a Review application of the decision of a Registrar refusing to list a matter for urgent hearing. Their Honours considered, with approval, a decision of the F. M. Halligan (as he then was) in Myers & Myers[4] in respect of the judicial/administrative distinction where his Honour determined that such distinction rested on whether the delegated function required addressing for or implication for any Rule of the Court, such as in that case an abridgement of a prescribed time for service, as against “purely administrative tasks performed by staff in the court registry in support of the functioning of the court.”[3] [2012] FamCAFC 114.[4] [2011] FMCAfam 1104. In the matter now before me it is the making of the order under s 106A that is the judicial function delegated by the Act and Rules and here such order was made by consent on 13 July 2020 in a form anticipatory of any default. The signing of the documents is, in my view, a purely administrative flow – on function and hence the Application for Review must fail.MERITS OF THE APPLICATION In the event that I might be in error as to the two findings above, I address de novo the Registrar's decision to sign the exclusive sale authorities. The husband consented to the orders of 13 July 2020. Those orders, in themselves, contemplate action on default of the obligations of either party. Section 106A provisions were incorporated in the orders at Order 11 permitting a Registrar to sign documents in the event of default.

Ratio Decidendi

Legal Principle Established

Rule 14.07 provides that the hearing of an Application for Review will proceed as a hearing de novo.CONSIDERATION I am of the view that the Application for Review must fail on three separate bases being:(1)The Application is made out of time and without to leave to do so;(2)The Application seeks the impermissible review of an administrative act and not of a delegation of judicial decision or order; and(3)On its merits. Time The acts or decisions complained of and sought to be reviewed occurred, according to the applicant himself, on 5 November 2020 or 18 November 2020. These Applications for Review were filed 20 October 2021. I can locate no Application for leave or such been granted. The Rules provide that the Application is to be filed within 'within 21 days after the order or the decision is made'. The husband's counsel submitted before me that the husband did not know of the activation of the s 106A order until being before Hartnett J on his Application in a Case on 19 August 2021. I cannot accept this submission. The wife complied in a timely fashion with her obligations under the Consent Orders of 13 July 2020. She provided the exclusive sales authorities to the husband or through his solicitors. There was no response. The husband entered into direct communication, allegedly threatening, with the Real Estate Institute of Victoria and/or specific agents and/or conveyancers. Significantly, the husband wrote to the Registry on 19 October 2020, stating that the properties “would not be sold”. The wife had written to the Registry on 5 October 2020 seeking an activation of s 106A. The husband was copied into this correspondence. The wife's solicitors wrote again to the Registry on 19 October 2020 in similar terms. Again, the husband was copied into the correspondence. On 9 October 2020 the wife's solicitors received a copy of an email from the husband addressed to the Registrar confirming his position that the properties would not be sold. I am, therefore, entirely satisfied that the husband was aware of the wife activating Order 11 of Consent Orders of 13 July 2020 and hence s 106A. The Application is therefore brought out of time without leave. IS THE DECISION REVIEWABLE OR AN ADMINISTRATIVE DECISION The delegation of power to Registrars, referenced above pursuant to Rule 14.03 of the Rules and clause 2 of Schedule 4 thereof, specifically describes the power being one “to make an order directing a person to execute a deed” or “to direct Judicial Registrar to sign documents pursuant to s 106A of FLA”. In this matter the husband does not seek to review Order 11 of the Consent Orders of 13 July 2020 which is, in fact, the order made anticipating and permitting s 106A of the FLA and which was made by consent (although the husband has clearly already unsuccessfully challenged those orders by way of Appeal and Application in a Case to Hartnett J). Rather, the husband seeks to review the action of the Registrar in signing the exclusive sales agreements in respect of the relevant properties.