Seidler and Cerny

[2016] FamCA 678

FAMILY COURT OF AUSTRALIA

SEIDLER & CERNY [2016] FamCA 678

FAMILY LAW – REVIEW OF REGISTRAR’S DECISION – hearing de novo

APPLICANT: Ms Seidler

RESPONDENT: Mr Cerny

FILE NUMBER: SYC 6696 of 2014

DATE DELIVERED: 18 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Schroder
SOLICITOR FOR THE APPLICANT:	McGirr Solicitors

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the orders for property settlement made 25 May 2016 be set aside.

2. That the Application – Contravention filed by the husband on 23 June 2016 be dismissed.

3. That the file be referred to the Registrar for further directions in relation to the financial proceedings.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seidler & Cerny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6696 of 2014

Ms Seidler

Applicant

And

Mr Cerny

Respondent

REASONS FOR JUDGMENT

1. Proceedings in relation to parenting and property settlement were instituted by Ms Seidler (“the wife”) in relation to the marriage between her and Mr Cerny (“the husband”).

2. On 25 May 2016, a Conciliation Conference was conducted by a Registrar and, in the course of that conference, the financial matter was resolved. Consent Orders were drawn and the Registrar, at the request of both parties, made orders accordingly.

3. On 31 May 2016, the wife filed an application to review the orders of the Registrar. That application, which was opposed by the husband, came before me in the Judicial Duty List.

THE LAW

1. There is no dispute that the Registrar properly exercised power, which was delegated to her, when the Consent Orders were made.

2. In Harris v Caladine (1991) 172 CLR 84, Mason CJ and Deane J said in relation to delegated power:

   The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.

3. The opportunity to review the exercise of delegated power is central to the validity of the delegation.

4. Thus, there is also no dispute that the wife was entitled to seek to review the making of the orders within seven days. The present application was filed within time.

5. A review of the exercise of delegated power by a Registrar proceeds by way of a hearing de novo. That is, a complete re-hearing of the matter. In circumstances where the wife no longer consents to the making of the orders, it follows that, absent her consent, the Court would not make them.

6. The orders of the Registrar will be set aside.

7. On 23 June 2016, the husband filed an Application – Contravention in relation to the asserted failure of the wife to take steps required by the orders made 25 May 2016. Before me, the husband conceded that, if the orders were set aside, then his application should be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 August 2016.

Associate: 

Date:  18 August 2016