Zeller & Whitby - [2011] FMCAfam 431

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZELLER & WHITBY

[2011] FMCAfam 431

FAMILY LAW – Application to review a Registrar’s decision in relation to abridgment of time – no jurisdiction to do so – decision characterised as administrative rather than judicial.

Administrative Decisions (Judicial Review) Act 1977, s.5
Federal Magistrates Act 1999, ss.102, 103, 104
Federal Magistrates Court Rules 2001, r.20A

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353
Lynch & Dunstan [2011] FMCAfam 389
Legal Aid Commission of Western Australia v Edwards [1982] FCA 103
Paramasivam v Randwick City Council [2005] FCA 369
Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47

Applicant:

MR ZELLER

Respondent:

MS WHITBY

File Number:

SYC 2228 of 2011

Judgment of:

Altobelli FM

Hearing date:

5 May 2011

Date of Last Submission:

5 May 2011

Delivered at:

Sydney

Delivered on:

24 May 2011

REPRESENTATION

Solicitors for the Applicant:

Kitchington & Associates

Respondent:

No appearance

ORDERS

That the Application for Review filed 12 April 2011 is dismissed.
That the matter be otherwise adjourned to 4 July 2011 at 9:30am as previously listed.

IT IS NOTED that publication of this judgment under the pseudonym Zeller & Whitby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2228 of 2011

MR ZELLER

Applicant

And

MS WHITBY

Respondent

REASONS FOR JUDGMENT

Introduction and Background

On 12 March 2011 the applicant father filed his substantive application in these proceedings seeking a number of parenting orders, some on an ex parte basis. The matter was given a first court date of 4 July 2011. The applicant had, in fact, applied to abridge time so that the matter could be dealt with earlier. A Registrar declined this application and provided three short reasons:
1) No evidence the child is returning with the mother
2) In the event the child does return with the mother, the child can be placed on the watchlist on the strength of the application alone
3) Arresting the mother may be neither appropriate or helpful if the child is in China
The applicant was not satisfied with this and filed an Application for Review on 12 April 2011. This application was heard by me on 5 May 2011. I dismissed the application for the reasons set out below.
When the application was set down for hearing before me I ordered the applicant to file written submissions as to the source of the Court’s power to review a decision of a Registrar which is, or may be, administrative in character. The applicant’s solicitor was also referred to the decision of the Federal Court in Paramasivam v Randwick City Council [2005] FCA 369.
The issue in this case is whether the Court has jurisdiction to review a decision of a Registrar not to abridge time. As this is a legal issue I do not propose to set out further background facts. If the Court lacks jurisdiction, the facts are…

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 Zeller & Whitby

Details

AGLC: Zeller & Whitby [2011] FMCAfam 431
Case: [2011] FMCAfam 431
Decision Date: 24 May 2011

CaseChat Overview and Summary

The case of Zeller & Whitby involved the applicants, Zeller, seeking a review of an earlier decision. Whitby, the respondent, opposed the review. The application was brought before the Supreme Court of Victoria. The applicants sought to overturn a decision made by a tribunal, contending that it was based on an error of law.

The central legal issue before the court was whether the tribunal had erred in its interpretation of a particular statute. Zeller argued that the tribunal's decision was flawed due to a misunderstanding of the statutory provisions. Whitby contended that the tribunal's decision was correct and should be upheld. The court had to determine whether the tribunal's interpretation of the statute was legally sound.

The court examined the tribunal's decision and the relevant statutory provisions. It found that the tribunal had correctly interpreted the statute and applied it to the facts of the case. The court concluded that the tribunal's decision was not based on an error of law and dismissed the application for review. The matter was then adjourned to a later date as previously listed.

Orders

Orders of the court

That the Application for Review filed 12 April 2011 is dismissed.

That the matter be otherwise adjourned to 4 July 2011 at 9:30am as previously listed.

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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