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Vibbard & Garcia

Vibbard & Garcia

Case [2012] FamCAFC 114 7 August 2012

Jurisdiction

Review of Administrative Decisions

Appeal

Standing

Family Law

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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:

100

2012

APPEAL NUMBER:

SYC

4350

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…

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 Vibbard & Garcia

Details

AGLC: Vibbard & Garcia [2012] FamCAFC 114
Case: [2012] FamCAFC 114
Decision Date: 7 August 2012

CaseChat Overview and Summary

In this case, Ms Vibbard, the mother, appealed against orders made by a Federal Magistrate, Walker FM, which dismissed her application for the review of a decision of a Registrar who had refused to list for an urgent hearing her application for parenting orders. The legal issues the court was required to decide were whether the Federal Magistrates Court had jurisdiction to review the decision of a Registrar under s 104(2) of the Federal Magistrates Act 1999 (Cth), and whether the Federal Magistrate's decision to dismiss the application for review was wrong at law.

The Full Court of the Family Court of Australia 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. The Court adopted the reasoning in Myers & Myers [2011] FMCAfam 1104 and concluded that the decision of the Registrar in the present case was a reviewable decision under s 104(2). The appeal was allowed, the Federal Magistrate's decision was set aside, and the application for review was remitted for rehearing by the Federal Magistrates Court.

In the absence of the father, the Court considered it appropriate to proceed to hear and determine the appeal. It was appropriate for the mother to be granted a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) as she had to bear the expense of representation in this appeal through no fault of her own.

Orders