VALACK & VALACK (No.2) - [2020] FCCA 1799

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALACK & VALACK (No.2)

[2020] FCCA 1799

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of registrar’s decision – review of the decision to refuse exemption from filing a current family dispute resolution certificate – purported exercise of registrar improper.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of registrar’s decision – review of the decision not to accept for filing an initiating application pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where decision not authorised by Family Law Act or Federal Circuit Court Rules – where decision took into account an irrelevant consideration – where decision was contrary to law.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1), 5(1)(d), 5(1)(e), 5(1)(f), 5(2), 5(2)(a), 11(1)(c), 16(1)

Family Law Act 1975 (Cth), ss.60I(7), 60I(9)(b), 60I(9)(c), 60I(11)

Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 99(1)(a), 99(6)

Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 2.05(3)(a), 2.06

Cases cited:

Ellwood & Ravenhill (2019) FLC 93-915

Emanuele v Australian Securities Commission (1997) 188 CLR 114

Valack & Valack [2020] FCCA 1354

Applicant:

MS VALACK

Respondent:

MR VALACK

File Number:

BRC 2009 of 2020

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

15 June 2020

Delivered at:

Brisbane

Delivered on:

2 July 2020

REPRESENTATION

Solicitors for the Applicant:

Madsen law

Solicitors for the Respondent:

DV Lawyers

ORDERS

The application for review filed on 6 March 2020 be treated as if it were an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977.
Compliance with so much of the Federal Circuit Court Rules 2001 (Cth) as is required to permit the application for review filed on 6 March 2020 to be heard and determined as an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 be dispensed with.
The decision of the Registrar made on 16 March 2020 to not file the initiating application presented for filing on 21 February 2020 be set aside.
Upon presentation of the initiating application dated 21 February 2020 to the Registrar of the Federal Circuit Court of Australia at Brisbane accompanied by the appropriate filing fee, if any, the Registrar cause the initiating application to be filed.
Upon filing the initiating application, it be deemed to have been filed on 21 February 2020.
The respondent file and serve a response and any other documents required by the Federal Circuit Court Rules 2001 no later than 4.00pm on 16 July 2020.
The initiating application filed on 21 February 2020 is adjourned to 8 September 2020 at 9:30am for its first return date.

IT IS NOTED that publication of this judgment under the pseudonym Valack & Valack (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading VALACK & VALACK (No.2)

Details

AGLC: VALACK & VALACK (No.2) [2020] FCCA 1799
Case: [2020] FCCA 1799
Decision Date: 2 July 2020

CaseChat Overview and Summary

The Federal Circuit Court of Australia, presided over by Judge Jarrett, considered an application for review concerning the Registrar's decision not to file an initiating application presented on 21 February 2020. The applicant sought to have this decision set aside and the initiating application deemed to have been filed on its original presentation date.

The central legal issue before the court was whether the Registrar's refusal to file the initiating application was a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, if so, whether the court should set aside that decision and order the application to be filed retrospectively. The court also had to consider the procedural steps necessary to bring the matter before it for determination.

Judge Jarrett reasoned that the Registrar's decision not to file the application constituted an administrative decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977. The court exercised its power to treat the application for review as if it were made pursuant to s.11(1) of that Act for relief under s.5(1), and dispensed with compliance with certain Federal Circuit Court Rules to facilitate this. The court found that the Registrar's refusal was not justified and ordered that the decision be set aside. The court further ordered that upon presentation of the initiating application with the appropriate fee, the Registrar should file it and deem it to have been filed on 21 February 2020. The respondent was directed to file a response by 16 July 2020, and the matter was adjourned for its first return date on 8 September 2020.

Orders

Orders of the court

The application for review filed on 6 March 2020 be treated as if it were an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977.

Compliance with so much of the Federal Circuit Court Rules 2001 (Cth) as is required to permit the application for review filed on 6 March 2020 to be heard and determined as an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 be dispensed with.

The decision of the Registrar made on 16 March 2020 to not file the initiating application presented for filing on 21 February 2020 be set aside.

Upon presentation of the initiating application dated 21 February 2020 to the Registrar of the Federal Circuit Court of Australia at Brisbane accompanied by the appropriate filing fee, if any, the Registrar cause the initiating application to be filed.

Upon filing the initiating application, it be deemed to have been filed on 21 February 2020.

The respondent file and serve a response and any other documents required by the Federal Circuit Court Rules 2001 no later than 4.00pm on 16 July 2020.

The initiating application filed on 21 February 2020 is adjourned to 8 September 2020 at 9:30am for its first return date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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