Case Note: Valack & Valack [2020] FCCA 1354
In Valack & Valack [2020] FCCA 1354, Judge Jarrett considered a case where an initiating application had been filed in the Federal Circuit Court seeking property and parenting orders. No section 60I certificate was provided as the applicant contended there was abuse of a child / family violence. The Registrar did not accept the application, refusing the request for non-filing of a current 60I certificate (citing r2.06 FCC rules).
Rule 2.06 of the FCC rules provides that a Registrar can refuse to accept document if the application abuse of process/frivolous, vexatious, if it is not the appropriate registry, or if the rules relating to e-filing have not been complied with.
The Applicant sought review of the Registrar’s decision per Rule 20.02 of the FCC rules.
In His Honour’s judgement, Judge Jarrett said that the work done by section 60I(7) is to prohibit a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist (that the parties have attended dispute resolution). The use of the phrases in the section ‘exercising jurisdiction’ and ‘must not hear’ are more consistent with proceedings that are on foot, rather than proceedings a party is attempting to initiate. Were it otherwise, His Honour stated the text would be directed to the commencement of proceedings, not the hearing of them. In the absence of an existing application, it was held that no occasion for the exercise of the power under section 60I(9) (exceptions where a section 60I certificate is not required) arose. It was therefore improper for the Registrar to decide whether 60I(7) did not apply as that was a decision for a judge/registrar to make during existing proceedings.
In terms of the Applicant’s request for review of the decision, in determining the amenability of the registrar’s decision for review, His Honour had to decide whether the registrar’s decision to reject the Initiating Application was an administrative decision or a judicial decision.
After considering s104(1) of the FCC 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) FCC Act and FCCR 20.02…” His Honour directed that the parties file submissions as to whether the registrar’s decision should be set aside pursuant to the Administrative Decisions (Judicial review) Act 1977 (AD (JR) Act 1977).
The registrar’s decision not to file the Initiating Application was ultimately set aside and the application was deemed to have been filed on the date it was lodged.
The main takeaway from this case is that the existence of a s60I Certificate only goes to the Court’s power to hear an Application. It does not prevent, or should not prevent, your Application at least being filed.
