Children – registrar’s refusal to file initiating application due to non-provision of a s60I certificate was improper

In Valack [2020] FCCA 1354 (29 May 2020) Judge Jarrett considered a case where an initiating application seeking both property and parenting orders had been lodged via the court portal.

No s60I certificate was provided. The applicant contended that there had been abuse of a child or there had been family violence.

The registrar stated ([3]) “that pursuant to rule 2.06 of the Federal Circuit Court Rules 2001…the application has not been accepted” and that “The Registrar has not approved your request for the non-filing a current” s60I certificate. The applicant sought a review of the registrar’s decision pursuant to r20.02 of the Federal Circuit Court Rules.

The court said (from [8]):

“…The work done by s60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. (…) [T]he use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. (…)

[21] (…) In the absence of an extant application no occasion for the exercise of the power set out in s 60I(9) arises. The purported exercise by the Registrar to decide whether s 60I(7) did not apply in this case was improper.”

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After considering s104(1) of the Federal Circuit Court Act, the court said ([25]):

“…[A] decision about whether to accept the application in this case…was an administrative decision. It was not a judicial decision. (…) That decision is not amenable to review using the mechanism provided for in s104(2) and FCCR 20.02…”

The court directed the parties to file submissions as to whether the registrar’s decision should be set aside pursuant to the Administrative Decisions (Judicial Review) Act 1977.

Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume loose-leaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland lawyer Craig Nicol, who is a QLS Accredited Specialist (family law).

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