Whitlock and Registrar of Marriage Celebrants

[2004] AATA 1109

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1109

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/335

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JENNIFER WHITLOCK

Applicant

And REGISTRAR OF MARRIAGE CELEBRANTS

Respondent

DECISION

Tribunal Senior Member McCabe

Date26 October 2004  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review. In substitution the Tribunal decides the applicant shall be registered as a marriage celebrant pursuant to s39D(4) Marriage Act 1961.   

.................[Sgd]........................

Senior Member

CATCHWORDS

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

Marriage Act 1961

Re Siipola-Fortunaso and Registrar of Marriage Celebrants [2004] AATA 946

REASONS FOR DECISION

26 October 2004 Senior Member McCabe    

1. Ms Whitlock is the applicant in these proceedings. She has applied to this Tribunal for review of a decision of the Registrar of Marriage Celebrants (“the Registrar”). On 15 April 2004 the Registrar declined to register Ms Whitlock as a marriage celebrant on the grounds she was not a “fit and proper person” within the meaning of s 39C of the Marriage Act 1961.

2. The matter was heard on 20 September 2004. Ms Whitlock represented herself. The Registrar was represented by Mr Belcher of the Australian Government Solicitor. The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were admitted into evidence.  The respondent tendered an affidavit of Susan Gaie de Carle dated 17 September 2004. (Ms de Carle is a Senior Legal Officer employed by the respondent.)  Ms Whitlock also tendered some character references.  Ms Whitlock and Ms de Carle both gave oral evidence at the hearing.  Mr Griffiths and Ms Gordon gave character evidence in favour of the applicant.  

3.      For reasons I will explain below, I think the decision under review should be set aside.  Ms Whitlock ought to be registered as a marriage celebrant.

The Facts

4.      Ms Whitlock has extensive experience as a funeral director in Victoria and, more recently, she has conducted funeral services and commitment ceremonies on the Sunshine Coast. She wished to become a marriage celebrant so that she could offer the full-range of services to potential clients.

5.      The applicant says she contacted the Marriage Celebrants’ Section of the Attorney General’s Department several times over the years before her application.  She was aware the Marriage Act 1961 was to be amended.  (Those amendments include the imposition of a cap on the number of marriage celebrants, and the requirement that prospective marriage celebrants complete a training course).  Ms Whitlock says the staff of the Marriage Celebrants Section informed her that the amendments to the Marriage Act would probably come into effect in early 2003.  She says she knew this date was merely an estimate.

6.      Ms Whitlock placed an advertisement in the Yellow Pages in anticipation of the amendments being passed in early 2003.  She advertised under the “Celebrants” section.  Her advertisement read that she performed “All celebrations”.  Her name and phone number were also placed into the 2003 PDC Directories (a local directory) under the heading “Marriage Celebrants”.  In evidence Ms Whitlock said she did not place this advertisement herself. Her details were obtained by PDC Directories without her knowledge.

7.      In fact, the amendments to the Marriage Act were not gazetted until July 2003. Ms Whitlock conceded she was wrong to place the advertisement prematurely.

8.      Ms Whitlock said she was confident she would successfully complete the training course given her experience as a funeral director in Victoria and her familiarity with the marriage process as a result of her involvement in commitment ceremonies. She was right: she successfully completed the training course in August 2003.  She did not immediately seek registration because of the serious illness of a family member.

9.      She withdrew the Yellow Pages advertisement when she became aware she might not be registered as a celebrant in 2004.  She placed a new advertisement under “Naming and/or Funerals” advertising her other services.  Once she became aware of the listing in the PDC Directory she requested that her listing be removed.

10.     Ms Whitlock says she has participated in at least one marriage ceremony alongside a registered celebrant. She explained she made it clear to the couple who were being married that there were aspects of the ceremony over which she could not officiate because she was not a registered celebrant. She also said she has been contacted on several occasions by couples who were interested in having her officiate at their marriages but she explained she could not do so because she was not a registered celebrant.

11.     On 9 January 2004 Ms Whitlock applied for registration as a marriage celebrant.  On 29 January 2004 the Department sent a letter to Ms Whitlock asking her to explain the advertisements.  She responded on 1 February 2004.  On 15 April 2004 the Department notified Ms Whitlock of the Registrar’s decision.  On 4 May 2004 she applied to this Tribunal for review.

The Law

12.     The registration of marriage celebrants is governed by the provisions of the Marriage Act. 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. Section 39D explains the procedure for registering an eligible applicant. The dispute in this case relates to the “fit and proper person” criteria of s 39C.

13. 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). The Registrar does not dispute that Ms Whitlock is at least 18 years of age and that she has completed an appropriate training course. 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.

14.     The statutory criteria make it clear the Registrar is entitled to consider a wide range of matters that reflect on the applicant’s ability to discharge the duties of the office of marriage celebrant. I commented on those matters in the course of my decision in Re Siipola-Fortunaso and Registrar of Marriage Celebrants [2004] AATA 946.

Consideration

15.     There are some similarities between the facts in Re Siipola-Fortunaso and Registrar of Marriage Celebrants [2004] AATA 946 and those in this case – most obviously the premature advertisement. I said in Siipola-Fortunaso that the decision to advertise before being accepted as a registrant indicated poor judgement that counted heavily against the applicant in those proceedings. In the absence of other evidence that might be taken to outweigh that error, I decided the decision to advertise prematurely was fatal.

16.     I consider Ms Whitlock’s premature advertisement in the Yellow Pages to be a grave error of judgement that counts heavily against her.  However I must take into account all of the available evidence that sheds light on the applicant’s fitness.  She has worked for several years as a funeral director.  Since then she has worked as a civil celebrant.  The evidence before the Tribunal all indicate she performed this work with competence and diligence.  I also note that the work of a funeral director involves complying with legal requirements.

17.       I have considered all the evidence given by Ms Whitlock, and the manner in which she gave it.  She struck me as a mature, well-organised person, and certainly a diligent person.  She gave her evidence in a considered and forthright manner.  I have also considered the character evidence given on her behalf.

18.     She admits she committed an error in advertising herself as a marriage celebrant when she was not registered.  When she realised she would not be registered in 2003 (and perhaps not in 2004) she withdrew the advertisement.

19.     The respondent pointed out the applicant has been involved in marriage ceremonies even though she is not registered. I do no think that counts against her. Indeed, given the firm view she apparently expressed to the couples that she could not officiate over the “legal” part of the proceedings, I think she has demonstrated good judgement in distinguishing between her role as a unregistered celebrant and the work of a registered celebrant.

20. Having heard all of the evidence, I am satisfied Ms Whitlock is a “fit and proper person” within the meaning of s 39C(2) Marriage Act. It is not disputed that she meets the other criteria in s 39C.

Conclusion

21. The Tribunal sets aside the decision under review. In substitution the Tribunal decides the applicant shall be registered as a marriage celebrant pursuant to s39D(4) Marriage Act 1961.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         [Sgd]
  Associate:  Thomas Ritchie

Date of Hearing: 20 September 2004.
Date of Decision: 26 October 2004.
The applicant represented herself.
The respondent was represented by Mr Belcher.