Siipola-Fortunaso and Registrar of Marriage Celebrants

[2004] AATA 946

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 946

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/1096

GENERAL ADMINISTRATIVE DIVISION		)
Re		CARRIE SIIPOLA-FORTUNASO

Applicant

And REGISTRAR OF MARRIAGE CELEBRANTS

Respondent

DECISION

Tribunal Senior Member McCabe

Date13 September 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................Sgd........................

Senior Member

CATCHWORDS

MARRIAGE – application to become registered as marriage celebrant – whether applicant is fit and proper person within s39C Marriage Act 1961 – decision affirmed

Marriage Act 1961

Reg v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100

Clyne v New South Wales Bar Association (1960) 104 CLR 186

Phipps v Boardman [1967] 2 AC 46

REASONS FOR DECISION

14 September 2004 Senior Member McCabe    

introduction

1. Mrs Carrie Siipola-Fortunaso applied to be registered as a marriage celebrant under s 39D of the Marriage Act 1961. The respondent, the Registrar of Marriage Celebrants, declined to register the applicant. The Registrar says the applicant is not a fit and proper person to be a marriage celebrant within the meaning of s 39C of the Act.

2.      The applicant has asked the Tribunal to review the Registrar’s decision. For reasons I will explain, I am satisfied the Registrar’s decision was the correct and preferable one in the circumstances.

the material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence:

• Assorted webpages concerning wedding celebrants and planners in Brisbane;
• Two statements of the applicant dated 3 March 2004, 16 April 2004;
• A statement of Leslie Mackee dated 13 April 2004;
• A statement of Sharon McFarlane, undated;
• A circular of the Attorney General’s Department concerning conflict of interest situations;

• An affidavit of Susan de Carle dated 21 June 2004.

4.      The applicant gave evidence before the Tribunal. So did Susan de Carle.

5.      The matter was heard on 23 June 2004.  Mrs Siipola-Fortunaso represented herself. The registrar was represented by Mr Swan of counsel.

the facts

6.      Mrs Siipola-Fortunaso decided to apply to become a marriage celebrant.  She is a person with creative ideas and imagination. She was clearly impressed by her experience planning her own wedding several years before. She spoke with other celebrants to get an idea of what was involved in the work.

7.      The applicant explained in her evidence that she wanted to provide a better service to couples. She said she could make suggestions about how the ceremony might be themed. She also offered to put couples in contact with suppliers of flowers and other goods and services. She emphasised she did not intend charging couples separately for this advice. She added she did not expect to receive any commission from the service suppliers if business came their way as a result of her recommendations. The advice was all part of a service that she would supply to the couples in return for a flat fee. She felt she would be able to use her creative talents to enhance the wedding ceremony.

8.      Ms Siipola-Fortunaso contacted the Attorney-General’s department in Canberra to discuss the requirements of the marriage celebrant’s role. (The Registrar of Marriage Celebrants is an officer of that department.) She enrolled in a course of study designed to acquaint her with the various duties and responsibilities of the role.

9.      The applicant formally lodged her application for registration as a celebrant on 9 October 2003. She disclosed that she had already registered a business name so she could operate as a marriage celebrant once she was appointed. The business name referred to a “wedding planning” business.

10.     The disclosures in the application alarmed officers of the respondent. One of them contacted the applicant by email on 17 December 2003. The officer asked the applicant to confirm she would not involve herself in a wedding planning business or advertise herself as such if her application was successful.

11.     The applicant rang the officer on 17 December 2003 to discuss the email. Mrs Siipola-Fortunaso volunteered she had already placed an advertisement in the Yellow Pages which contained the following heading:

“Adorable Angel Wedding Planning: Marriage Celebrant, Wedding Planner.”

12.     The applicant wrote to the respondent that afternoon confirming she had placed an advertisement. She added it was not her intention to provide the total services of a wedding planner.

13.     The applicant said in her evidence that she knew her application might not succeed, but she was under some pressure to place an advertisement in the Yellow Pages before the opportunity to advertise was lost. She decided to take a risk and place the advertisement before the application was approved. She now realises it was a foolish and presumptuous thing to do.  I note she did not attempt to conceal what she had done from the respondent.

14.     Mrs Siipola-Fortunaso tendered a letter from Leslie Mackee, a principal consultant to AssentTECS, the education provider that conducted the training for prospective marriage celebrants. The letter records a discussion with the applicant. The writer notes the applicant is an honest person, but adds: “Mrs Siipola-Fortnuaso said she was not aware of the Department’s requirements” with respect to conflicts of interest.

15.     The applicant also tendered web-pages downloaded from the internet advertising the services provided by a number of marriage celebrants. That evidence suggests marriage celebrants are prepared to do a great deal more than officiate at ceremonies. One of the marriage celebrants described in the web-pages was prepared to offer packages which might include the celebrant’s services together with a cake, flowers, a venue and a photographer. Another offered to arrange services in bizarre locations – on horseback, in a hot air balloon or even underwater. Another celebrant offered a ceremony with a medieval theme.

16.     The Registrar wrote to the applicant on 19 December 2003 advising that her application to be registered as a marriage celebrant had been declined. The letter included a statement of reasons that said the applicant was unable to satisfy the requirements in s 39C(2) of the Marriage Act 1963.

The legislation governing marriage celebrants

17.     Marriage celebrants are regulated under Part IV of the Marriage Act 1963. Section 39A constitutes the office of Registrar of Marriage Celebrants. Section 39B creates a register of celebrants. Section 39C sets out the criteria applied to determine if a person is entitled to be registered as a celebrant, and s 39D explains the procedure for registering an eligible applicant. The dispute in this case relates to the application of the criteria set out in s 39C(2).

18.     Section 39C(1) says an applicant must be at least 18 years of age, possess the formal skills and qualifications required by the Registrar, and be a “fit and proper person” within the meaning of s 39C(2). There is no dispute in this case that the applicant is of the appropriate age, and that she has completed an appropriate course of study. It is her fitness that is in issue. Section 39C(2) says:

In determining whether the Registrar is satisfied that the person is a fit and proper person to be a marriage celebrant, the Registrar must take into account:

(a) whether the person has sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants; and

(b) whether the person is committed to advising couples of the availability of relationship support services; and

(c) whether the person is of good standing in the community; and

(d) whether the person has been convicted of an offence, punishable by imprisonment for one year or longer, against a law of the Commonwealth, a State or a Territory; and

(e) whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and

(f) whether the person's registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and

(g) whether the person will fulfil the obligations under section 39G; and

(h) any other matter the Registrar considers relevant to whether the person is a fit and proper person to be a marriage celebrant.

19.     The expression “fit and proper person” is used in many different statutes. In Hughes and Vale Pty Ltd v New South Wales (1955) 93 CLR 127, Dixon CJ, McTiernan and Webb JJ explained (at 156) that the purpose of using expressions like “fit and proper person” in a statute “is to give the widest scope for judgment and indeed for rejection.” Their Honours elaborated on the concept of fitness by quoting Sir Edward Coke:

“‘Fit’ (or ‘idoneous’) with respect to an office is said to involve three things, honesty, knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotence or poverty neglect it’…”

20.     Other authorities have made it clear the test is not to be used to punish the applicant for past errors: see, for example, Reg v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 121 per Dixon CJ, Williams, Webb and Fullagar JJ. The test is intended to protect the public from the risks flowing from having inappropriate people doing an important job: see, for example, Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 202 per Dixon CJ, McTiernan, Fullagar, Menzies, and Windeyer JJ.

21.     The statutory criteria in this case – especially the open-ended inquiry found at s 39C(2)(h) – make it clear the Registrar is entitled to consider a wide range of matters that reflect on the applicant’s ability to do the job properly. Character is only one consideration. But what other matters will be relevant to the Registrar’s decision given the scope of s 39C(2)(h) in particular? It is necessary to consider the nature of the job in question, and to determine whether the evidence suggests Mrs Siipola-Fortunaso is fit to do this job.

the office of marriage celebrant

22.     Marriage celebrants solemnize the marriage between two individuals in the course of a ceremony. Where the celebrant is not a minister of religion, s 45(2) of the Act requires the celebrant to ensure the parties state the following words, or words to the following effect, in front of the celebrant and the witnesses:

"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband)";

23.     Section 46 requires the celebrant to explain the nature of the marriage relationship to the parties. Specifically, he or she must tell the parties (in these words, or in words to the following effect):

"I am duly authorized by law to solemnize marriages according to law.

"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

"Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

24.     The term marriage is now defined in s 5 as a result of recent amendments to the Act.

25.     Section 39G refers to the obligations of marriage celebrants. Section 39G(a) says celebrants must conform to the Marriage Celebrants’ Code of Conduct set out in the regulations. Clause 3 of the Code says:

A marriage celebrant must recognise the social, cultural and legal significance of marriage and the marriage ceremony in the Australian community, and the importance of strong and respectful family relationships

26.     Clause 5 sets out general requirements for marriage ceremonies. The clause notes in its preamble that celebrants must respect the importance of the ceremony to the parties. The celebrant is also encouraged to provide information and guidance on how to compose a ceremony that will meet the expectations of the parties. Clause 6 says the celebrant must be familiar with “family relationships services in the community” and inform the parties about information and services that might enhance and sustain their relationship.

27.     The social, cultural and legal significance of marriage has recently been underscored by amendments to the Act that define marriage and which expressly exclude the recognition in Australia of marriages between same-sex couples married overseas. In the course of the second reading speech accompanying those amendments, the Attorney-General referred to:

“…the fundamental importance of the place of marriage in our society….It is a central and fundamental institution….It is vital to the stability of our society and provides the best environment for the raising of children.”

28.     The office of marriage celebrant is also a public office (like the office of justice of peace). A celebrant is entitled to charge a fee for his or her services, but the celebrant must avoid conflicts of interests between his or her work as a celebrant and other business interests. Sections 39C(2)(e) and (f) impose a strict standard. A marriage celebrant must not put himself or herself in a position where there is a “real sensible possibility of conflict” (Phipps v Boardman [1967] 2 AC 46 at 124 per Lord Upjohn) between the celebrant’s personal interests and the responsibilities associated with being a celebrant. The individual must not make a profit out of the office (apart from the fee he or she charges). A celebrant – whose responsibilities extend to providing advice and assistance on the planning of the ceremony – will be in a very difficult position if he or she carries on a business of supplying goods or services used in the course of the ceremony, or if he or she receives any sort of benefit from a supplier.

29.     Several matters are clear from the legislative scheme. Firstly, marriage celebrants have a legal role. Marriage is a legal institution, after all, and the marriage celebrant is the public official authorised to admit individuals to the institution. Once individuals are admitted to the institution, they become entitled to certain rights and take on certain obligations. Secondly, marriage celebrants are not intended to merely “rubber stamp” the decision of individuals to marry. Not everyone is eligible to be married, and the celebrant must be able to communicate the gravity of the long-term commitment the parties are making to each other. A celebrant is not expected to be a counsellor (any more than a justice of the peace is expected to provide deponents with a detailed lecture on the law of perjury) but nor is the celebrant entitled to proceed with a marriage if he or she forms the view that members of a couple do not understand or accept what a marriage entails. That wider responsibility explains why the celebrant is subject to fiduciary-like duties – duties that would be unnecessary if the celebrant was incanting the words in s 46 and filling out forms. Thirdly, the ceremony is intended to be adaptable to meet the circumstances. Subject to his or her duties at law the celebrant is able to fashion the ceremony to accommodate the parties’ legitimate desire for self-expression. Fourthly, the office of marriage celebrant is not intended to create opportunities for profit in addition to the imposition of a fee for discharging the celebrant’s legally-defined role of solemnizing marriages.

The applicant’s fitness for the role

30.     Mrs Siipola-Fortunaso has now given an undertaking that she will not conduct the business of a wedding planner. She made it clear in her evidence that her advice on themes and structure would be provided without any expectation of benefit from any suppliers she recommended. In the course of her evidence she made it clear she was prepared to acquaint couples with information about counselling services and other relevant matters. She appeared to have a grasp of the legal formalities. There is no reason to doubt her standing in the community, and there was no suggestion she had been convicted of an offence. All these things weigh in her favour.

31.     Even so, the respondent says Mrs Siipola-Fortunaso is not a fit and proper person to become a marriage celebrant. The respondent says the applicant’s concession that she would not involve herself in the business of wedding planning was given reluctantly, and suggests there is no real guarantee she will not commence the business. The applicant’s initial reluctance to make the concession must be seen in light of the fact that some marriage celebrants apparently do provide the services she has been warned not to provide.

32.     I agree with the respondent that a marriage celebrant may be putting himself or herself in a difficult position if he or she provides or facilitates the provision of other goods and services.  I am satisfied the applicant in this case has been acquainted with that risk and would not put herself in that position, if only because of the unpleasant experience of having had her application rejected and appearing before the Tribunal.

33.     I remain concerned at the applicant’s ability to appreciate and communicate the gravity of the marriage commitment to couples. Mrs Siipola-Fortunaso said in her evidence that she became interested in registering as a marriage celebrant after the happy experience of her own wedding several years ago. She indicated she wished to assist others to have a wedding experience as special as her own. That is understandable. I have already noted that a celebrant properly helps a couple to personalise their ceremony. But there are limits to what a celebrant may do. A celebrant must not lose sight of the solemn and important nature of the legal task he or she performs. A celebrant must be careful not to allow himself or herself to be compromised by the enthusiasm and romance of the event. The celebrant must ensure that a couple’s desire for romance, novelty or fantasy does not obscure the significance of the occasion. A marriage ceremony should not descend into farce.

34.     Without more, I would be prepared to accept the applicant has learned (albeit the hard way) about the risk of being compromised in the performance of her duties by the sense of romance, novelty or fantasy that many couples desire. But there is also the question-mark over her judgement created by her decision to advertise her availability to act as a marriage celebrant before her application was accepted. I have already noted it was presumptuous of her to advertise before approval had been given. She knew there was no guarantee she would be accepted. She allowed herself to be influenced by the narrow and ultimately irrelevant desire of meeting an advertising deadline in the Yellow Pages. That lapse in judgement on its own would be enough to suggest she might not scrupulously observe the legal formalities associated with the role, or communicate the seriousness of the obligations to the parties.

35.     I think the Registrar was right to regard the premature advertisement as a matter that ought to be considered pursuant to s 39C(2)(h). It was a major error in judgement, and it is enough on its own to effectively disqualify the applicant. The applicant is not being punished for the mistake; rather, the public interest is being protected from someone whose judgement has been called into question.

36.     I have considered the effect on Mrs Siipola-Fortunaso of the application being declined. There was no suggestion that her livelihood was being threatened. She has been embarrassed and was obviously distressed by what has transpired. There was nothing in the evidence to suggest the burden of the adverse decision was unduly onerous in the circumstances.

conclusion

37.     The Registrar of Marriage Celebrants was right to decline to register Mrs Siipola-Fortunaso as a marriage celebrant. She is not a fit and proper person within the meaning of s 39C. She is therefore ineligible to be registered as a marriage celebrant. The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date/s of Hearing: 23 June 2004.
Date of Decision: 13 September 2004.
The applicant represented herself.
The respondent was represented by Ms Railton and Mr Swan of counsel.