Re M (Delegation of Powers to Deputy Registrars)
[2009] FamCAFC 91
•21 May 2009
FAMILY COURT OF AUSTRALIA
| RE M (DELEGATION OF POWERS TO DEPUTY REGISTRARS) | [2009] FamCAFC 91 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – whether the delegation to Deputy Registrars of the power to make consent orders in property matters effectively delegated by the Family Law Rules 2004 – appeal allowed by consent |
| Family Law Act 1975 (Cth) s 37A(1)(g) Family Law Rules 2004 r 18.06 |
| Harris v Caladine (1991) 172 CLR 84 |
| APPELLANT: | Mr M |
| RESPONDENT: | Ms M |
| FILE NUMBER: | SYC | 1296 | of | 2008 |
| APPEAL NUMBER: | EA | 57 | of | 2009 |
DATE DELIVERED: | 21 May 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Finn and O’Ryan JJ |
| HEARING DATE: | 21 May 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 May 2009 |
| LOWER COURT MNC: | [2009] FamCA 380 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Gayle Meredith & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Glynn |
| SOLICITOR FOR THE RESPONDENT: | Glynn’s Lawyers |
It is ordered by consent:
That the appeal be allowed.
That Orders 1 and 4 made by the Family Court of Australia in proceedings SYC 1296 of 2008 on 12 May 2009 be discharged.
And it is further ordered:
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal against the orders of Justice Cohen made 12 May 2009.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal against the orders of Justice Cohen made 12 May 2009.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these orders.
That the parties’ applications be remitted for rehearing in the Sydney Registry of the Family Court by a judge other than Justice Cohen.
IT IS NOTED that publication of this judgment under the pseudonym Re M (Delegation of powers to Deputy Registrars) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: EA 57 of 2009
File Number: SYC 1296 of 2008
| Mr M |
Appellant
And
| Ms M |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Bryant CJ
By Notice of Appeal filed 14 May 2009 the appellant appeals from orders and a declaration of Cohen J on 12 May 2009 which read as follows:
(1)That it is hereby declared that the orders of the Deputy Registrar called in the orders ‘Registrar’ made herein on 26 March 2008 are null and void ab initio.
(2)That the husband’s application for a stay and for an order postponing the operation of Order 1 is refused.
(3)That the husband’s application to restrain the wife from proceeding with her section 79 application until further order is hereby refused.
(4)That the costs of this application shall be costs in the cause to be reserved for determination by the Judicial Officer/s who finally determine the principal proceedings.
The parties to the application had married in 1977, separated in late 2007 and were divorced in December 2008.
On 6 March 2008 an Application for Consent Orders was filed in the Family Court of Australia, seeking the making of consent orders proposed pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Orders were made on that Application on 26 March 2008 (“the orders”). The orders were made by a Deputy Registrar of the Family Court of Australia pursuant to power delegated by the Family Law Rules 2004 (“the Rules”).
On 16 December 2008 the respondent commenced proceedings in the Family Court seeking leave to “review out of time” the orders and alternatively relief pursuant to s 79A of the Act. On 24 March 2009 the appellant filed a Response seeking dismissal of both those Applications and on 12 May 2009 the respondent’s applications for leave and pursuant to s 79A were listed for hearing before his Honour Justice Cohen.
On 12 May 2009 Cohen J did not hear the respondent’s Applications but rather found, of the Court’s own motion, that the orders were “null and void ab initio” and so ordered. His Honour’s conclusion was based on a finding that the power to make the orders was not effectively delegated to the Deputy Registrar.
It is understood by the parties that a decision about whether a delegation to Registrars of the power to make such orders has been effective is not only germane to the present proceeding before the Court, but if correct, all orders made since the power was purportedly delegated would be ineffective. This is not relevant to a consideration of the trial judge’s decision in this case, although it is a consequence of his decision if it were correct. It explains however why this appeal was listed with priority, and expedited.
This Court has been advised that the respondent to this appeal concedes the appeal and consents to this Court making the following orders:
(1)That the Appeal be allowed.
(2)Orders 1 and 4 made by of the Family Court of Australia in proceedings SYC 1296 of 2008 on 12 May 2009 be discharged.
(3)That subject to the Court's determination of paragraph 4 of the orders sought by the appellant in Notice of Appeal filed 14 May 2009 and in accordance with section 117 of the Family Law Act that each party bears his or her own costs in relation to the proceedings on 12 May 2009 and this Appeal.
The respondent concedes in particular that his Honour erred in declaring that the orders of 26 March 2008 were void ab initio and in finding that the power to make consent orders had not been effectively delegated to Deputy Registrars.
Whilst the appeal has been conceded on the basis that his Honour was in error in finding that the relevant power had not been delegated to Deputy Registrars pursuant to the Act, a proposition with which I agree, for the purpose of clarity I propose to set out in some detail the reasons why I agree with counsel that his Honour was in error.
The law
Section 79 of the Act, which is in Part VIII of the Act, provides a jurisdiction to make an order for property settlement.
Section 80(1) of the Act provides various powers to the Court which can be used when exercising power under Part VIII, including at subsection (j) the power to make an order by consent.
Section 37 of the Act provides that “the officers of the Court have such duties, powers and functions as are given by this Act or the standard Rules of Court or by the Chief Judge”.
Section 37A of the Act provides the power to delegate powers to Registrars and provides as follows:
37ADelegation of powers to Registrars
(1)The Judges, or a majority of them, may, subject to subsection (2), make Rules of Court delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court:
(a)the power to dispense with the service of any process under this Act;
(b)the power to make orders in relation to substituted service;
(c)the power, in proceedings under this Act, to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to the proceedings or of any other person;
(d)the power, in proceedings under this Act, to direct a party to the proceedings to answer particular questions;
(e)the power to make orders under:
(i)sections 11F and 11G; and
(ii)sections 13C and 13D; and
(iii)subsection 65LA(1); and
(iv)paragraph 70NEB(1)(a);
(ea)the power to direct a family consultant to give a report under section 62G;
(f)the power, in proceedings under this Act, to make:
(i)an order under section 66Q, 67E, 77 or 90SG; or
(ii)an order for the payment of maintenance pending the disposal of the proceedings;
(g)the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings;
(h)the power, in proceedings under this Act, to make an order adjourning the hearing of the proceedings;
(j)the power under section 117 to make an order as to costs;
(m)the power to make an order exempting a party to proceedings under this Act from compliance with a provision of the regulations or Rules of Court.
(2)The powers of the Court that may be delegated under subsection (1) do not include the power to make:
(a)a divorce order in proceedings that are defended; or
(b)a decree of nullity of marriage; or
(c)a declaration as to the validity of:
(i)a marriage; or
(ii)a divorce; or
(iii)the annulment of a marriage; or
(d)an excluded child order (as defined in subsection (2A)); or
(e)an order setting aside a registered award under section 13K.
(2A)An excluded child order is:
(a)a parenting order to the extent to which it provides that:
(i)a child is to live with a person; or
(ii)a child is to spend time with a person; or
(iii)a child is to communicate with a person; or
(iv)a person is to have parental responsibility for a child; or
(b)an order in relation to the welfare of a child;
other than:
(c)an order until further order; or
(d)an order made in undefended proceedings; or
(e)an order made with the consent of all the parties to the proceedings.
(3)A power delegated by applicable Rules of Court under subsection (1), when exercised by a Registrar, shall, for all purposes, be deemed to have been exercised by the Court or a Judge, as the case requires.
(4)The delegation of a power by applicable Rules of Court under subsection (1) does not prevent the exercise of the power by the Court or a Judge.
(5) If the power referred to in paragraph (1)(f) is delegated under subsection(1), a Registrar shall not exercise the power on application by a party to proceedings under this Act unless:
(a) the other party to the proceedings appears at the hearing of the application; or
(b) the Registrar is satisfied that notice of the intention of the first‑mentioned party to make the application has been served on the other party.
(6) If the power referred to in paragraph (1)(j) is delegated under subsection (1), a Registrar shall not exercise the power except in relation to costs of or in connection with an application heard by a Registrar.
(7) The provisions of this Act, the regulations, the standard Rules of Court, and other laws of the Commonwealth, that relate to the exercise by the Court of a power that is, by virtue of a delegation under subsection (1), exercisable by a Registrar apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Court or to a court exercising jurisdiction under this Act were references to a Registrar.
(8)Notwithstanding any other provision of this Act and any provision of the Public Service Act 1999 or of any other law, a Registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers pursuant to a delegation under subsection (1).
(9)A party to proceedings 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 is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.
(10)The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.
(11)Where:
(a)an application for the exercise of a power delegated under subsection (1) is to be, or is being, heard by a Registrar; and
(b)the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under the delegation;
the Registrar shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.
(12) Where:
(a) a power delegated under subsection (1) is proposed to be exercised in a particular case by a Registrar; but
(b) the Registrar has not commenced to exercise the power in that case;
a Judge may, on application by a person who would be a party to the proceedings before the Registrar in relation to the proposed exercise of the power, order that the power be exercised in that case by a Judge.
(13) Where an application is made to a Judge under subsection (12) seeking an order that, in a particular case, a power be exercised by a Judge, the Registrar shall not commence to exercise the power in that case until the application has been determined.
(14)The Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made under this section:
(a) as if a reference to a legislative instrument were a reference to a rule of court; and
(b) as if a reference to a rule‑maker were a reference to the Chief Judge acting on behalf of the Judges; and
(c) subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.
(15)In this section, Registrar means the Principal Registrar, a Registrar or a Deputy Registrar of the Court.
NotePowers to make Rules of Court are also contained in sections 26B, 109A and 123.
Thus the relevant power in this case is s 37A(1)(g) “the power to make, in proceedings under this Act, an order the terms of which have been agreed upon by all the parties to the proceedings”. As I have already pointed out there is power in s 80 to make an order by consent pursuant to s 79.
Section 123(1) of the Act provides the judges, or a majority of them, with power to make Rules of Court “not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts”. The section then provides in particular a number of direct descriptions of subject matter upon which the Court can make Rules.
Constitutional validity
The High Court has upheld the validity of the delegation by the judges under s 37A pursuant to what was then Order 36A of the former Rules (now Chapter 18 of the Rules) in Harris v Caladine (1991) 172 CLR 84. The validity of the delegation on constitutional grounds was not an issue in this appeal, nor before his Honour.
Delegation of the power
It remains to consider whether the judges have delegated to the Deputy Registrars the power to make a court order pursuant to s 79 and s 80(1)(j). The current Rules came into effect on 29 March 2004. Chapter 18 deals with powers of Judicial Registrars, Registrars and Deputy Registrars.
Division 18.1.3 of Chapter 18 of the Rules deals with the delegation of powers to Registrars and Deputy Registrars.
Rule 18.06 is headed “Deputy Registrars” and says:
(1)Each power of the court mentioned in an item of Table 18.4 is delegated to each Deputy Registrar.
There is set out in Table 18.4 some 37 legislative provisions and they include, relevantly, item 9 which provides the section in which the power to make orders with the consent of the parties is to be found and provides:
subsection 37A(1) (except subparagraph (e)(iv) and paragraph (f))
As the relevant power to make orders by consent is found in s 37A(1)(g), Deputy Registrars have the power to make, in proceedings under the Act, an order the terms of which have been agreed upon by all of the parties to the proceedings.
Rule 18.06(2) provides that:
Each power vested in the court by these Rules and mentioned in an item of Table 18.5 is delegated to each Deputy Registrar.
Thereafter there are set out some 43 provisions in the Table. Relevantly, item 11 includes Part 10.4, being the power to make an order in relation to a consent order.
Part 10.4 deals with Applications for Consent Orders. Rule 10.7(a) provides that:
if a party applies for a consent order, the court may make an order in accordance with the orders sought;
In accordance with the provisions of ss 37A (3) and (7) (supra), the reference to “court” includes a reference to a Registrar, or as in this case a Deputy Registrar (s 4) by virtue of the delegation.
In summary, the scheme of the Rules in relation to the delegation of the powers of judges is very clear. In relation to the jurisdiction under Part VIII of the Act Deputy Registrars have the power to make a consent order pursuant to s 79 for property settlement. The conferral of this power is made clear by item 9 in Table 18.4 in r 18.06(1) and item 11 in Table 18.5 in r 18.06(2) of the Rules.
While it is no longer necessary to deal in any detail with Cohen J’s judgment, in view of the consent to the appeal being allowed, I note that his Honour appears to have overlooked the delegation in item 9 of Table 18.4 in Rule 18.06(1). Having overlooked this delegation, his Honour fell into error in finding that the relevant power had not been delegated to Deputy Registrars of the Court and that the orders of 26 March 2008 were null and void ab initio.
Finn J
I agree with the reasons given by the Chief Justice and the proposed orders. I have nothing to add.
O’Ryan J
I also agree with the reasons and the orders proposed and have nothing to add.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 21 May 2009
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