Vibbard & Garcia
[2012] FamCAFC 114
•7 August 2012
FAMILY COURT OF AUSTRALIA
| VIBBARD & GARCIA | [2012] FamCAFC 114 |
| FAMILY LAW – APPEAL – where the mother appealed against orders made by a Federal Magistrate which dismissed an application for the review of a decision of a Registrar refusing to list for an urgent hearing an application for parenting orders – where the Federal Magistrate determined in chambers and without hearing the parties that the Federal Magistrates Court did not have jurisdiction to review the decision of a Registrar under s 104(2) of the Federal Magistrates Act 1990 (Cth), relying on Zeller & Whitby [2011] FMCAfam 431 – where the Full Court adopted the reasoning in Myers & Myers [2011] FMCAfam 1104 and held that a decision of a Registrar is reviewable by a Federal Magistrate under s 104(2) where the application for an urgent hearing will involve the grant of an exemption from compliance with a provision of the Rules, such as the Rules concerning the time for or method of service (being the power provided in s 102(2)(h) of the Federal Magistrates Act) – appeal allowed –orders made by the Federal Magistrate set aside–the application for review remitted for re-hearing by the Federal Magistrates Court – costs certificate awarded to the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981. |
| Family Law Act 1975 (Cth) Federal Magistrates Act 1999 (Cth) Federal Magistrates Court Rules 2008 (Cth) Federal Proceedings (Costs) Act1981(Cth) |
| Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 128 FCA 353 Lynch v Dunstan [2011] FMCAfam 389 Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others [2008] FCAFC 162, (2008) 170 FCR 426 Myers & Myers [2011] FMCAfam 1104 Paramasivam v Randwick City Council [2005] FCA 369 Satchithanantham v National Australia Bank of Australia Limited [2010] FCAFC 47 Zeller & Whitby [2011] FMCAfam 431 |
| APPELLANT: | Ms VIBBARD |
| RESPONDENT: | Mr GARCIA |
| FILE NUMBER: | EA | 100 | of | 2012 |
| APPEAL NUMBER: | SYC | 4350 | of | 2012 |
| ORDERS MADE: | 1 August 2012 |
| REASONS DELIVERED: | 7 August 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney (by video link to Brisbane) |
| JUDGMENT OF: | Bryant CJ Finn and May JJ |
| HEARING DATE: | 1 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Robyn Sexton & Associates |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders made on 1 August 2012
The appeal be allowed.
The orders of Federal Magistrate Walker made on 26 July 2012 be set aside.
The Application for Review of the decision of Registrar McNamara filed on
24 July 2012 be remitted for rehearing by a Federal Magistrate.
The Court grants to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.
IT IS NOTED that publication of this judgment by this Full Court under the pseudonym Vibbard & Garcia has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 100 of 2012
File Number: SYC 4350 of 2012
| Ms VIBBARD |
Appellant
And
| Mr GARCIA |
Respondent
REASONS FOR JUDGMENT
On 1 August 2012 this Court made orders allowing an appeal against, and setting aside, orders made by Walker FM on 26 July 2012. By those orders her Honour dismissed an application for the review of a decision of a Registrar refusing to list for an urgent hearing an application for parenting orders. We also by our orders remitted the application for review for re-hearing to the Federal Magistrates Court. These are our reasons for our orders made on
1 August 2012.
Background
On 24 July this year (2012), Ms Vibbard (“the mother”) filed an application in the Federal Magistrates Court in which she sought a range of interim and final parenting orders in relation to the eleven year old child of her former marriage to Mr Garcia (“the father”). Included in the interim orders sought by the mother were orders which would:
· permit her to take the child for a holiday in Europe between 7 August and 27 August 2012;
· require the father to provide the child’s passport for purposes of that holiday;
· give leave for service on the father of “the mother’s interim application at short notice” and by email; and
· provide for an “urgent listing [of the application] before a Federal Magistrate on or before 30 July 2012”.
On the day on which the application was filed, a Registrar declined to list it before a Federal Magistrate on an urgent basis, but rather listed it on
28 August 2012. The mother immediately filed an application to review that decision.
Two days later on 26 July 2012, Walker FM made an order in Chambers dismissing the application for review and confirming the listing of the parenting application on 28 August 2012.
Her Honour’s engrossed order recorded that there was “no need for an appearance by the parties”, and importantly for present purposes, contained the following notation:
The Court does not have the jurisdiction to review the administrative decision of a Registrar as set out in the Judgment of Federal Magistrate Altobelli in Zeller & Whitby [2011] FMCAfam 431.
On 27 July 2012 the mother filed a notice of appeal seeking to appeal the orders of Walker FM dismissing the application for review of the Registrar’s decision and also seeking that that order “be reversed” and that the application for review be remitted for urgent hearing by the Federal Magistrates Court prior to 3 August 2012.
On 20 July 2012 the mother filed an application seeking that the appeal be heard on or before 2 August. That application was granted and the appeal was heard on 1 August, with the orders described at the commencement of these reasons being made on that day.
Grounds of appeal and apparently conflicting decisions of the Federal Magistrates Court
The grounds of the mother’s appeal were as follows:
1.The Federal Magistrate’s decision to dismiss the Application for Review is wrong at law.
Notice of Authorities
The appellant relies upon the decision of Federal Magistrate Halligan in Myers & Myers [2011] FMCAfam 1104 (24 October 2011), particularly at paragraphs 30 and 31.
2.Denial of natural justice – the Federal Magistrates Court cannot abrogate a responsibility to Judicially Review an approved Registrar’s decision and also fail to provide an internal administrative review mechanism in respect of the Registrar’s initial decision.
The apparent reliance on the decision in Zeller & Whitby by Walker FM in the making of her orders, and then on Myers & Myers by the mother in her grounds of appeal (and in argument in support of her appeal) suggests that there may be at least a perceived conflict between those two decisions.
Before discussing those decisions, it will be useful to set out relevant parts of
s 102, s 103 and s 104 of the Federal Magistrates Act 1999 (Cth) (“the Act”) and also of Rule 20.00A of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) because of the references to these various provisions in the decisions in question.
the relevant provisions of the Federal Magistrates Act and Rules
The Act provides for the exercise by Registrars of certain powers of the Federal Magistrates Court either under s 102(2) by direction or under s 103(1) by delegation in the Rules of Court. Those sub-sections are as follows:
102. …
(2)The following powers of the Federal Magistrates Court may, if the Federal Magistrates Court or a Federal Magistrate so directs, be exercised by a Registrar:
(a)the power to dispense with the service of any process of the Federal Magistrates Court;
(b) the power to make orders in relation to substituted service;
(c)the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Federal Magistrates Court or of any other person;
(d)the power to make orders in relation to interrogatories;
(e)the power, in proceedings in the Federal Magistrates Court, to make an order adjourning the hearing of the proceedings;
(f)the power to make an order as to costs;
(g)the power to make an order about security for costs;
(h)the power to make an order exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court;
(i)a power of the Federal Magistrates Court prescribed by the Rules of Court;
(j)the power, in family law or child support proceedings, to direct a party to the proceedings to answer particular questions;
(k) the power to make orders under the following provisions of the Family Law Act 1975:
(i)sections 11F and 11G;
(ii)sections 13C and 13D;
(iii) subsection 65LA(1);
(iv)paragraph 70NEB(1)(a);
(ka)the power to direct a family consultant to give a report under section 62G of the Family Law Act 1975;
(l)the power, in family law or child support proceedings, to make:
(i)an order under section 66Q, 67E, 77 or 90SG of the Family Law Act 1975; or
(ii)an order for the payment of maintenance pending the disposal of the proceedings;
(m)the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;
(n)the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders under the Family Law Act 1975;
(o)the power to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act 1975.
…
103.
(1)The Rules of Court may delegate to the Registrars any of the powers of the Federal Magistrates Court, including (but not limited to) all or any of the powers mentioned in subsection 102(2).
…
The delegation to Registrars under s 103(1) of the powers set out in s 102(2) is then provided for in r 20.00A of the Rules:
(1)For subsection 103 (1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Federal Magistrate for the exercise of the power.
Item
Legislative provision
Description of power (for information only)
[Federal Magistrates] Act
1
section 52
To order, at any stage, a change of venue
2
subsection 102 (2)
All of the following:
(a) to dispense with the service of any process of the Court
(b) to make orders in relation to substituted service
(c) to make orders in relation to discovery, inspection and production of documents
(d) to make orders in relation to interrogatories
(e) to make an order adjourning the hearing of proceedings
(f) to make an order as to costs
(g) to make an order about security for costs
(h) to make an order exempting a party to proceedings from compliance with a provision of these Rules
(i) to exercise a power of the Court prescribed by these Rules(j) to direct a party in family law or child support proceedings to answer particular questions
(k) to make orders under the following provisions of the Family Law Act:
(i) sections 11F and 11G
(ii) sections 13C and 13D
(iii) subsection 65LA (1)
(iv) paragraph 70NEB (1) (a)
(ka) to direct a family consultant to give a report under section 62G of the Family Law Act
(l) in family law or child support proceedings — to make:
(i) an order under section 66Q, 67E, 77 or 90SG of the Family Law Act or
(ii) an order for the payment of maintenance pending the disposal of the proceedings(m) to make an order the terms of which have been agreed upon by all the parties to the proceedings
(n) to make orders for the enforcement of maintenance orders under the Family Law Act(o) to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act
...
Subsections 104(2) and (3) of the Act then provide for the review of the exercise of power by a Registrar under s 102(2) or s 103(1) in the following terms:
104. …
(2)A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:
(a)within the time prescribed by the Rules of Court; or
(b)within any further time allowed in accordance with the Rules of Court;
apply to the Federal Magistrates Court for review of that exercise of power.
(3)The Federal Magistrates Court may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
…
Zeller & Whitby
We return now to Zeller & Whitby and Myers & Myers. In the former case, a Registrar had refused an application for a parenting matter to be given a hearing date earlier than the date initially given. On 5 May 2011, Altobelli FM dismissed an application to review that decision by the Registrar not to abridge time.
In subsequently giving reasons on 24 May 2011 for his dismissal of the review application, Altobelli FM held that the powers to review in s 104(2) and (3) of the Act are limited to an exercise of a power under s 102(2) and s 103(1), and that the exercise of the power in question (being to abridge time) in the case before him was not a power contained in s 102(2) or s 103(1), and therefore was not reviewable under s 104. (See in particular paragraphs 8 and 9 of Altobelli FM’s reasons of 24 May 2011).
His Honour went on in his reasons to suggest that the allocation of a hearing date is an administrative act and that a decision to abridge or not to abridge time is in the nature of an administrative act, and that these considerations explain why a decision to abridge, or not to abridge time, was not a reviewable decision. Altobelli FM considered that support for such a characterisation of the power in question could be found in the decision of Sackville J in Paramasivam v Randwick City Council [2005] FCA 369 and in the decisions of the Full Court of the Federal Court in Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 128 FCA 353 and Satchithanantham v National Australia Bank of Australia Limited [2010] FCAFC 47.
In his reasons Altobelli FM referred to the decision in Lynch v Dunstan [2011] FMCAfam 389 where Burchardt FM, also relying on the decision of the Full Court of the Federal Court in Satchithanantham, had also concluded that a decision by a Registrar not to abridge time for a hearing, was an administrative decision and therefore not reviewable under s 104.
Myers & Myers
Subsequent to Altobelli FM’s decision in Zeller & Whitby, Halligan FM determined on 17 October 2011 in Myers & Myers that a Registrar’s decision to refuse to list an application in relation to child support on an urgent basis was a reviewable decision under s 104(2) and he proceeded to make orders varying the Registrar’s decision.
In reasons for his decision subsequently given on 24 October 2011, his Honour outlined the provisions of the Act and Rules, which we have outlined above, and then explained that “the threshold issue” for determination in the case was whether the power exercised by the Registrar in dealing with the application for an urgent listing was a power delegated to Registrars by a rule made pursuant to s 103(1) and hence reviewable under s 104(2).
After referring to the provisions in the Rules concerning the time for service of various types of applications and for the filing of responses to applications, his Honour identified the following three “scenarios” in which a Registrar can deal with the issue of allocating a “court date”:
26. …
a)Where the Registry proposes to fix a first Court date in the normal course and the applicant seeks a different date but one that would still allow for compliance with the relevant Rules fixing time limits referable to the application;
b)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application, but does not seek any variation of time limits fixed by the Rules; and
c)Where the applicant seeks a first Court date that would not allow time for compliance with the relevant Rules fixing time limits referable to the application and seeks that any of those normal time limits fixed by the Rules be shortened or dispensed with.
His Honour observed that the first two of these scenarios do not involve the exercise of any power under the Rules or any power of the Court, but rather involve “purely administrative tasks performed by staff in the Court Registry in support of the functioning of the Court”. Then in more specific terms his Honour said:
28.Therefore, in my view it is clear that decisions about allocation of a Court date for an application that do not involve consideration of a shortening to a time fixed by the Rules are not amenable to review under s.104(2).
However, in relation to the last of the three scenarios which he had identified, his Honour observed that an application to alter a time prescribed by the Rules was in his view “quite different”, and having further observed that in “short notice” or “abridgment of time applications” the relevant time to consider is the prescribed time for service of the application, he expressed the view that:
29.… shortening or abridging a time fixed by the Rules falls within the power described in s.102(2) as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”, which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1).
His Honour further explained his reasoning and his conclusion, saying:
30.If a party seeks urgent listing on a date that would not permit compliance with the prescribed time for service of the substantive application and seeks “short notice” or an abridgment of that time, in my view the applicant is seeking to be exempted from compliance with the normal time for service as fixed by the Rules, either unconditionally or on terms. A direction that service of an application be effected by a specified date or within a specified time, being less than the prescribed period before the Court date, is an exemption from compliance with the Rules on terms.
31.Thus, unfettered by prior authority, I am satisfied that a decision of an approved Registrar to grant or refuse a short notice or abridgment of time application is reviewable under s.104(2) if the applicant seeks a court date within the prescribed time for service of the substantive application.
Halligan FM then turned to the decisions in Lynch & Dunstan and Zeller & Whitby. His Honour can be read (in paragraphs 32 to 43 of his reasons) as distinguishing those decisions on the basis that it was not clear that either case had involved an application to abridge any specific time requirement under the Rules.
In so far as those two decisions had relied on decision of the Federal Court in Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs, Paramasivam v Randwick City Council and Satchithanantham v National Australia Bank of Australia Limited (in which reliance had been placed on the decision of the Full Court of the Federal Court in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others, [2008] FCAFC 162, (2008) 170 FCR 426), Halligan FM concluded that none of those authorities were determinative of the issue before him because they were concerned with the issue of the acceptance by a Registrar of documents for filing, and were not necessarily concerned with provisions equivalent to s 102(2) or s 104(2).
Thus Halligan FM concluded that he was not satisfied that the issue had been “unequivocally decided” in either Lynch or Zeller, and that he remained of the view that the exercise of a power by a Registrar to shorten or abridge a time fixed by the Rules in relation to proceedings is the exercise of the power referred to in s 102(2)(h) which has been delegated to Registrars pursuant to
s 103(1) by Rule 20.00A (1) and is amenable to review under s 104(2).
We consider that the reasoning of Halligan FM in Myers is highly persuasive, and as presently advised, we have been prepared to adopt it in the determination of this appeal as indeed was urged upon us by Counsel for the mother. There is nothing further that we consider we can usefully add to Halligan FM’s reasoning. We do however draw attention to, and endorse the list of factors which his Honour set out at paragraph 87 of his reasons as factors which a Registrar, or the Court on review, should consider in cases where abridgement of service and thus of the time for hearing, is sought.
Application of Myers to the present case
In seeking to persuade us that the decision in Myers could be applied to establish that the decision of the Registrar in the present case was a reviewable decision, Counsel for the mother relied on the following matters:
· The mother’s initiating application filed on 24 July 2012 sought a hearing date on or before 30 July 2012 (which would be within a period of only five days when regard is had to r 3.04 of the Rules which provides that when calculating a period of more than one day under the Rules the day of the event must not be counted);
· Rule 6.19 provides that an application (other than an application in a case) must be served not less than 7 days before the day fixed for hearing; thus in this case the mother could not have complied with Rule 6.19 and would require, and did in fact seek an exemption from compliance with that rule, being to be permitted to serve “at short notice”;
· Rule 6.06 provides that service of an application starting a proceeding must be by hand subject to certain exceptions which are not apparently presently relevant or to a direction by the Court; in this case the mother sought an exemption from the rule requiring personal service and to be permitted to serve by email.
Thus it was submitted that the practical effect of the mother’s seeking an order for an urgent hearing on or before 30 July 012, was that she was impliedly seeking an exemption from compliance with the Rules concerning the time and method of service, and indeed she did expressly seek such exemptions.
Section 102(2) contains in paragraph (h) the power to make an order exempting a party from compliance with a provision of the Rules of Court. This, it was submitted, was the power which the mother sought to have exercised, and thus the decision whether or not to exercise that power was a reviewable decision under s 104(2). We agreed with that submission.
It follows, therefore, that we concluded that Walker FM should have determined the application for review on its merits rather than dismissing it summarily on the basis of a lack of jurisdiction. Accordingly, the appeal had to be allowed, the Federal Magistrate’s decision set aside, and the application for review remitted for rehearing by the Federal Magistrates Court.
The position of the father
At the hearing before us there was no appearance by, or on behalf of, the father. We were provided with an affidavit detailing unsuccessful attempts at service on him at his last known address of the notice of appeal and all other relevant documents. We were told by Counsel for the mother that the documents had also been emailed and sent by express post to him.
Notwithstanding the lack of appearance before us by the father we considered it appropriate to proceed to hear and determine the appeal in his absence. We considered that this course would not involve any procedural unfairness to him for the reasons that a respondent to an application would not be generally be heard when decisions concerning time and method of service are initially made. It is at the first return date of the substantive application that the father will be able to be heard and will be able to raise any issues of unfairness to him in relation to time or methods of service or the setting of the hearing date.
Costs
It was through no fault of the mother that she had to bring and bear the expense of representation in this appeal. Nor could it be suggested that the father be the subject of an order for costs. Accordingly, it was appropriate that she be granted the appropriate certificate under the Federal Proceedings (Costs) Act1981 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 August 2012.
Associate:
Date: 7 August 2012
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