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

In Valack & Valack (No.2) [2020] FCCA 1799 (2 July 2020) Judge Jarrett held that a registrar lacked power to reject an initiating application on the basis of the non-provision of a section 60I certificate, as the exemptions set out at s60I(7) required a decision “by a judge or Registrar in existing proceedings”.

Where the mother’s attempt at filing an initiating application had been rejected by a registrar, she argued that the decision should be set aside pursuant to s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act).

The court said (from [15]):

“ … The only basis upon which the Registrar could have acted when not accepting the initiating application for filing was that it was an abuse of process or was frivolous, scandalous or vexatious. I found that the application was not an abuse of process … It was plainly not frivolous or vexatious. (…)

[18] Ellwood & Ravenhill [2019] FamCAFC 153 compels the conclusion that the filing of a s60I(7) certificate is not a necessary condition of the Court’s jurisdiction under Part VII of the Family Law Act. In that case … Kent J held that a failure to file a s60I(7) certificate with an application for orders under Part VII did not deprive the Court of jurisdiction in the application. His Honour recognised at [31] that a consideration of the matters raised in s60I(9) might be required in a particular case and that could only happen in the context of an extant proceeding…

[19] It was an error to refuse the filing of the initiating application on the basis that there was no operative s60I certificate. That error engages ss5(1)(d), 5(1)(e) and 5(1)(f) of the AD(JR) Act. I am satisfied that the Registrar’s decision to refuse to file the initiating application was a decision that was not authorised by either the Family Law Act or the Federal Circuit Court Rules

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[20] Further, I am satisfied that the decision to refuse the filing of the document was an improper exercise of the power conferred by FCCR 2.06 because it took into account an irrelevant consideration, namely whether the application was accompanied by a s60I(1) certificate…”

The registrar’s decision to not file the initiating application was set aside, the court deeming it to have been filed on the day it was lodged on the Commonwealth courts portal.

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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