| JUDGMENT No, S26 4 OY A wW_o ADMINISTRATIVE LAW <- whether decision of magistrate an administrative decision - whether decision to refuse consent to marriage of minor is exercise of judicial power MARRIAGE - consent to marriage of minor - what constitutes exceptional and unusual circumstances - test to be applied - misapplication of test iv. isi Judicia Review Act 1977, s3 "decision of an administrative character" Marriage Act 1961, s12(2)(b) "so exceptional and unusual" Hilton v Wells (1985) 157 CLR 57 Love v Attorney General (NSW) (1990) 169 CLR 307 Re an Application pursuant to s20 of the Matrimonial Causes Act 1959 (Cth) (1974) 3 ACTR ae ea v_Newtow vi General Cooperative Building Society No 4 Ltd (1943) 67 CLR 25 WSGAL Pty Ltd v Trade Practices Commission (1994) 12 ALR 673 Re Application by P & P (1973) VR 533 Re Hampton (1965) 7 FLR 353 Evans v Friemann (1981) 53 FLR 235 Re 2 (1970) 15 FLR 420 Re _ SG, (1968) 11 FLR 326 s ° ommissj v_Idriss (1992) 26 ALD 257 Re Australian qasuranee Employees Union: Ex parte Academy gnsurance Pty Ltd (1988) 62 ALJR 426 Re K (1963) 5 FLR 38 Re and infant) (1964-5) NSWR 2004 Re W (1968) QWN 45 Minist fe) mmigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 Northern NSW Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 No. NG 6 994 K v DENIS ERIC CULLEN Esq and another MOORE J SYDNEY 14 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY 10 NOVEMBER 1994 IN THE FEDERAL COURT OF AUSTRALIA ) ) OUTH WALES DISTRICT REGISTRY ) No. NG 683 of 1994 ) Ny: Vv. ON ) ETWEEN: K Applicant AND: DENIS ERIC CULLEN Esq First Respondent Ai RNEY_ GEN: L_FOR TH COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: Moore J PLACE: sydney DATE: 10 November 1994 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The decision of the first respondent of 13 September 1994 refusing the application for an order authorising the applicant to marry Mr F be set aside. 2. The order made by the first respondent of 13 September 1994 dismissing the said application be quashed. ye 2) iH [n3) Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA HW: ISTRICT RE GE IVISIO: No. NG 683 of 1994 Tr ee te er ETWEEN: K Applicant AND: DENIS ERIC CULLEN Esq First Respondent ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Second Respondent JUDGE: Moore J PLACE: Sydney DATE: 10 November 1994 REASONS FOR JUDGMENT This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for an order of review of a decision made by a magistrate ("the first respondent") on 13 September 1994 under s12 of the Marriage Act 1961 (Cth) ("the Act"). The decision was to dismiss an application for an order authorising Ms K ("the applicant") to marry Mr F. The applicant is sixteen years old. She wishes to marry and it is necessary to secure an order under sil2 of the Act before she can do so. The first respondent indicated he would' abide by any order of the Court. The Commonwealth sought to be added as a party and this was not opposed by the applicant. Legislation The Act establishes the means by which couples can be lawfully married and imposes limits on the circumstances in which a marriage can occur. It requires that both parties are of a marriageable age which is 18 years: sl1 of the Act. People who are 16 years or older but not of a marriageable age may apply for an order under sl12 of the Act and if the order is made it authorises their marriage even though they have not attained the marriageable age. Section 12 provides: "(1) A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years. (2) The Judge or magistrate shall, subject to subsection (4), hold an inquary into the relevant facts and circumstances and, if satisfied that: (a) the applicant has attained the age of 16 years; and (b) the circumstances of the case are so exceptional and unusual as to justify the making of the order; the Judge or magistrate may, in his or her discretion, make the order sought, but otherwise the Judge or magistrate shall refuse the application. (3) -ee" Section 12(4) deals with the place at which the application should be considered. Section 9 enables the Governor-General to make arrangements with the Governor of a State to appoint all or any state Judges and/or all or any magistrates to perform functions under the Act. "Judge" is defined in s5 in the following terms: "Judge", in relation to the performance of a function under this Act in a State or Territory, means a person who is: (a) a Judge of the Family Court of Australia who is appointed by the Minister to be a person authorized to perform that function; (b) a Judge of a court of that State in respect of whom an appropriate arrangement in force under section 9 is applicable; or (e¢) a Judge of the Supreme Court of that Territory;" Section 18 deals with the procedure to be adopted in any inquiry under si2 and provides: "18. (1) In conducting an inquiry under this Part, a Judge or a magistrate: {a) is not bound by the rules of evidence; and (b) shall give to the applicant and, so far as is reasonably practicable, any person whose consent to the marriage of the applicant is required by this Act, an opportunity of being heard. (2) An inquiry by a Judge or a magistrate under this Part shall be held in private. (3) An applicant or other person who 1s given an opportunity of being heard at an inquiry under this Part may be represented by a barrister or solicitor." Section 12 is found in PtII of the Act, Marriageable Age and Marriage of Minors. Within that Part, s16 empowers a Judge or magistrate to give consent to a minor to marry in lieu of a person whose consent is required under ssi3 and 14 of the Act for a minor to marry. If a magistrate refuses to give consent under s16 that decision may be reviewed by a Judge: s17 of the Act. There is, however, no mechanism in the Act for review of a decision of a magistrate under s12 refusing to authorise a person to marry. e s_ and t decision o e first respo n: All the relevant facts are set out in the reasons for decision of the first respondent which were given ex tempore. His Worship refers to the applicant's fiancee as "Mr C" and it is not clear whether that is his surname or whether it is "F" though this is not material. I deal with both the facts and reasons by setting out in full the relevant part of the transcript of the proceedings: "K(deleted) makes application under Section 12 of the Marriage Act (1961) for an order that the court authorise her marriage to C(deleted), notwithstanding that she is a person who is under marriageable age. On the evidence before me I am satisfied that she was born on 24 November, 1977. That the person that she proposed to marry, if an order is made by the court is a person who has attained marriageable age, he being born on 25 June 1975. I am satisfied further that she has made no _ previous application for an order under this section of the Act, that the only person whose consent is required to her proposed marriage to Mr C(deleted) is an officer of the Department of Community Services, he being her guardian by virtue of an order made by a Children's Court on 9 May 1992 under the Children Care and Protection Act of 1987. There is an indication within the evidence placed before the court that the applicant and Mr C(deleted) have lived together since August of 1993, that they have kept company for a period of some three years, that they have been engaged for a period of 12 months and that there is a child of their relationship born on 29 June, 1994. There is an indication by Miss K(deleted), and also Mrs C(deleted), that thear relationship is seen to be a stable one. There is a suggestion of course that they are financially independent, that they have available to them the premises of Mr C's(deleted) premises (sic) at which they might reside until such time as they have available to them enough money to secure a deposit for their own home. In relation to an application such as this before an order 18 made by a court there is a requirement that exceptional or unusual circumstances exist such as would justify the court making an order of the type as sought by the applicant. In that regard of course it is put by the applicant of course that she wishes to put aside some memories that she has in relation to events in the past, that she seeks to effect the change of her name for reasons that she has indicated to the court. She indicates of course that she wishes to take as her surname the name of her proposed husband and put the events of preceding years behind her. She indicates of course that in anticipation of an order being made that she had already made some inquiries in relation to perhaps making some booking in relation to a location for the performance of a marriage ceremony as between she and the particular person that she seeks the order of the court that she marry. All things being equal of course under the Marriage Act the marriageable age of both males and females is the same of course, 18 years of age. In relation she not attaining the age of 18 years of course there is available to the court that so sees fit and is satisfied that exceptional and unusual circumstances exist to make an order authorising a marriage notwithstanding that she at this particular point of time is aged 16 and months et cetera, she is shortly to attain the age of 17 years. On the evidence that has been placed before the court I am not satisfied that there are any exceptional and unusual circumstances that have been placed before the court such as would justify the court making an order under the particular section authorising the marriage of the applicant to the respondent at this particular point in time. THE APPLICATION FOR THE ORDER WILL BE REFUSED. Have you understood what I have said Miss K(deleted) it is not merely a formality of coming and making an application for an order, the court must be satisfied that exceptional or unusual circumstances exist so far as the application is concerned such as would justify the making of the order. Those circumstances aren't there I'm afraid." Brief sworn oral evidence was given by the applicant which included the following question from the first respondent and answer from the applicant: "Q.- What's the difficulty in waiting until you're 18 before you marry? A. I'd like to take my fiancee's last name because in my past I've had troubles and I don't want to have my last name - so my son grows up he can have his father's last name too - even though he has." The application was made on a printed form that required the applicant to identify the basis of the application. It read: "5. Particulars of the exceptional and unusual circumstances alleged to justify the making of an order under the said section are as follows: The parties have been living together since August, 1993 we have a child born 29.6.94.. We have a stable relationship and wish to marry. We are saving for a deposit on our own home." The words following the colon were provided by or on behalf of the applicant. The issues The applicant submits that the decision of the first respondent is "a decision to which the (ADJR) Act applies" as that expression is defined in s3 of that Act. It is a decision of an administrative character made under an enactment. The applicant further submits that the first respondent erred when making the decision in that his Worship failed to correctly apply the provisions of s12, did not provide reasons, took into account irrelevant considerations and failed to take into account relevant considerations. The applicant further submits that the exercise of power was unreasonable: s5(2)(g) of the ADJR Act. The second respondent takes issue with each of these contentions. The character of the decision The ADJR Act provides for the judicial review of decisions of an administrative character. In issue is whether the decision to refuse to make the order was such a decision. No submission was made that the decision was not made under an enactment or was excluded from the purview of the ADJR Act on any other basis. I deal firstly with the characteristics of the power in exercise of which the decision was made. It was exercised by a magistrate and is capable of being exercised by a Judge of a state, a Judge of the Family Court of Australia or a Judge of a Territory Supreme Court. It is not a power conferred on a Court but is exercisable by those in the class appointed for that purpose under s9 or, in relation to a Judge of the Family Court, one who is authorised to perform the function: see definition of "Judge" in s5. The magistrate or Judge dealing with the application is required to hold an inquiry: s12(2), and is not bound by the rules of evidence: s18(1) (a). The inquiry is in private: si8(2). The applicant must be given an opportunity to be heard: s18(1)(b), and may be represented by a barrister or solicitor: s18(3). A decision refusing the application for . order is final ir —- -mediate tu... There is a statutory prohibition on the consideration of a further application for a period of 6 months after authorisation has been refused upon an earlier application: s19(1), unless there has been a substantial change in the relevant facts. However if, notwithstanding that statutory prohibition, a further application is considered and authorisation given, then the authorisation is validly given: $19(2). In my opinion the decision to refuse an application for an order authorising under s12 a person to marry is an administrative decision. The power to authorise or not has some of the hallmarks of judicial power though they are limited. Firstly it is a power exercised by a judicial officer, whether Judge or magistrate, upon application. However the power is conferred in a way that suggests it is conferred on a persona designata: Hilton v Wells (1985) 157 CLR 57 and Love v Attorney General (NSW) (1990) 169 CLR 307 and also Re an Application pursuant to s20 of the Matrimonial Causes Act 1959 (Cth) (1974) 3 ACTR 16. The power is not conferred on a Court though had it been, as the High Court said in Love, supra at 320: "The reasoning in Hilton v Wells demands that undue emphasis not be placed upon the fact that the power is conferred upon the Court." Rather, if conferred by virtue of appointment under s9, it is conferred on a magistr*t+e or a Judge eitre*r individually or as a member of a class for whom the arrangements have been made under s9. In relation to Judges of the Family Court of Australia, it is only those Judges appointed by the Minister to exercise the power who may exercise it. While I have not had the opportunity to fully consider the position of a Judge of a Territory Supreme Court, it is likely that the power is conferred upon them personally: Re an Application pursuant to s20, supra. Secondly the decision to refuse an application is final. However it is only final in a very limited sense. A further application may later be made after a prescribed time: s19, and if it is made before the prescribed time has elapsed and is successful, the authorisation given is effective: 519(2). On the other hand the manner in which the application is dealt with, by inquiry, in private and other than by application of the rules of evidence, suggests the exercise of the power is not the exercise of judicial power though the fact that the rules of evidence do not apply is not, of itself, decisive: Peacock v_ Newtown Marrickville and General Cooperative Building Society No 4 Ltd (1943) 67 CLR 25 at 46 per Starke J. Also suggestive of the power not being judicial is the nature of the order made. It does not determine finally the existing rights of parties, whether individuals or the state, which is one of the hallmarks of judicial power: Love, supra at 319-320 and the cases there cited and also WSGAL Pty Ltd v Trade Practices Commission (1994) 12 ALR 673. *f an order is m ~ authorising marriage, it simply permits a person to do something which they otherwise could not lawfully or effectively do, namely marry when not of a marriageable age. Support for the characterisation of the power as administrative is found in a decision of Crockett J in Re Application by P & P (1973) VR 533. Judges of the Supreme Court of Victoria were able to exercise the power to grant permission to a couple to marry whose marriage was otherwise prohibited for specified reasons. Crockett J was considering a proposed marriage that was prohibited because the woman had been the daughter-in-law of the prospective husband. While the power arose under the Matrimonial Causes Act 1959 (Cth) it was in terms similar to the power arising under s12 of the Act to which reference was made by Crockett J. His Honour expressed the view at 534: "A grant of permission to marry is not an exercise of judicial power." and later at 534: "The result is that I am empowered legislatively (see definition of Judge in 820(5(a))) to perform the extra judicial function of granting to or withholding from the applicants the permission sought." To similar effect is the judgment of Crisp J in Re Hampton (1965) 7 FLR 353. A minor sought to marry but one of his parents refused. An application was made under s16 of the Act to a magistrate who refused his consent. A review by a Judge was sought under si7 of the Act which was heard by Crisp J of the Supreme Court of Tasmania. In an ex tempore judgment his Honour said at 356: "It is an inquiry which is not bound by the rules of evidence. It is not really a trial in the strict judicial sense but an administrative proceeding." While Crisp J was speaking of a rehearing under si17, I discern nothing in his Honour's approach which would suggest that he would not have characterised the initial proceedings before the magistrate in the same way. I accept, however, that his Honour's remarks may have addressed, not' the character of the power, but matters of procedure. His Honour's views nonetheless lend limited support to the applicant's submission that the decision was an administrative one. Ultimately, what I must determine is whether the decision is an administrative one for the purposes of the ADJR Act. The ADJR Act is intended to preserve the trichotomy between judicial, administrative and legislative functions though the Act is remedial and should so far as reasonably possible be given a wide construction and application: Evans v_ Friemann (1981) 53 FLR 235 per Fox ACJ at 235-237. The decision of the first respondent is of the type comprehended by the definition of "decision to which this Act applies" in s3 of the ADJR Act. It is a decision of an administrative character and accordingly is amenable to judicial review under that Act. Alleged errors The principal submission of the applicant is that the first respondent failed to properly apply the test required to be applied by s12(2)(b), namely that "the circumstances of the case are so exceptional and unusual as to justify the making of the order". It is clear that the first respondent was generally alive to the test to be applied as it is referred to in a paraphrased form on four occasions on his ex tempore reasons. However, his Worship appears not to have seen the use of the word "so" in s12(2)(b) as significant in that he did not refer to it when paraphrasing the provision. On the view taken by Crockett J in Re Application by P & P, supra, the word "so" is of significance when ascertaining whether the circumstances of the case are of the requisite character though as Crockett J observed at 538.5, the same view of the significance of the word "so" appears not to have been adopted by Joske J in Re Z (1970) 15 FLR 420. I am inclined to view the approach of Crockett J as the correct one and, in this respect, the first respondent appears not to have correctly identified the statutory test. But as the approach of Crockett J results in a more stringent test, any error of the first respondent in this regard may not have been material. However this is a question I need not resolve as I have concluded that the first respondent has, for other reasons, not correctly applied the statutory test. The first respondent, after reciting the facts and some of the matters identified in the evidence as_ possibly constituting circumstances satisfying the statutory test, concluded: "On the evidence before me I am not satisfied there are any exceptional and unusual circumstances that have been placed before the court such as would justify the court making an order under the particular section authorising the marriage of the applicant to the respondent at this particular time." (emphasis added) Section 12(2) requires consideration of the circumstances of the case. This must be taken to include the circumstances of the applicant. In Re _Z, supra Joske J considers the meaning of the words "exceptional" and "unusual" in s12 in the following passage at 421: "The Shorter Oxford English Dictionary gives to "exceptional" the meaning "of the nature of or forming an exception, unusual", and to "unusual" the meaning "not often occurring, different from what is usual, out of the common, remarkable, exceptional". To "usual" it gives the meaning "something which ordinarily happens"; to "remarkable", "extra-ordinary, unusual, uncommon". It will be seen that "exceptional" and "unusual" have much the same meaning and that the addition of "unusual" to "exceptional" does not elucidate the meaning of either, and does little more, if anything, than add emphasis. In Martin v Martin it would seem that the meaning given to "exceptional" is "out of the ordinary" and this view, together with the dictionary meanings cited, leads me to the opinion that the legislation enables the judge to exercise his discretion in a case which appears to him to be "out of the ordinary". In considering whether a case appears to him to be "out of the ordinary" it is proper to bear in mind that the object of giving the judge a discretion is to protect the institution of marriage so that it does not fall into disrepute and also to protect the particular parties who are seeking to marry, since the marriage of such young people is often subject to substantial pressures and frequently breaks down almost immediately or very soon after it takes place owing to these pressures. Experience does show, however, that nevertheless, marriages of such young people have frequently over the centuries taken place and been successful where they are suited to one another and conditions are suitable for them to marry. The Act does not impose an absolute prohibition on the marriage of a young man between the age of sixteen and eighteen and if a judge is able to conclude on the evidence before him that it indicates that the marriage 1s likely to be a successful, happy marriage, in my opinion he is able to say that this is "out of the ordinary", and that it is "exceptional and unusual", since so many marriages of people of the young age referred to in s.12 have been absolute failures and doomed to failure from the start. The fact that a child about to be born will be able to live with both its parents in a good home is also important." I respectfully adopt this analysis by Joske J of the meaning of the words "exceptional" and "unusual". Section 12(2)(b) calls for a comparison. It is between the circumstances of the case and what might be thought to be usual circumstances. Expressed this way the difficulties in making the comparison are obvious and I do not discount the problems of identifying what might be usual circumstances given the many and varied circumstances in which minors might find themselves and the complex and diverse web of moral and social values found in contemporary Australian society. However the section calls for the circumstances of the case to be considered in this way. Some support for this approach is found in the judgment of Blackburn J in Re SG, (1968) 11 FLR 326. His Honour was considering an application under si12 by a female aged fifteen years and one month who had been born in Greece of Greek parents. They had emigrated to Australia and they maintained, in Australia, Greek cultural traditions. Evidence was given by a priest of the Greek Orthodox Church that the proposed marriage was perfectly normal and usual by Greek standards. It was submitted on the applicant's behalf that the circumstances were exceptional and unusual. His Honour said: "Counsel for the applicant submitted that all these circumstances taken together were exceptional and unusual in the sense of that phrase in s.12. The substance of his contention was that it would be exceptional to find such circumstances co-existing in a corresponding group of Australians. I agree with this contention, but in my opinion it does not make the circumstances of the application "exceptional and unusual" within the meaning of the section. Put shortly, the gist of the application is that I should approve a marriage which is in accordance with Greek law and custom, because, viewed in the light of Australian law and custom, Greek law and custom is exceptional and unusual. I venture to think that it was not the intention of the legislature to permit a departure to be made from Australian policy as to the marriageable age of girls merely because another policy, which seems normal and usual to the parties concerned, is exceptional and unusual by Australian standards. I think that the exceptional and unusual circumstances, in order to justify the order sought under s.12, must relate to the particular parties concerned, and not merely to a class or kind of persons to which those parties belong." The import of the last sentence of his Honour's remarks appears to be that it is necessary for the circumstances of parties concerned to be exceptional and unusual even when compared to the standards of the particular community from which the applicant comes let alone more general standards in the wider Australia comnunity. While the concluding remarks of the first respondent I earlier set out are, to an extent, ambiguous, his Worship appears to be expressing the view that the circumstances of the case including those of the applicant are not in any respect "exceptional and unusual" as that expression appears in $12(2)(b). Hig Worship may have meant t+r-* while they may have been in some respects exceptional and unusual, they were not so exceptional and unusual as to create in him the requisite satisfaction. However this is not what he appears to have said and while his decision should be read fairly and in a balanced way: Aus ia s ommission v Idriss (1992) 26 ALD 257 at 258 per Foster J, only the reasons given should be considered in determining whether the correct test was applied: us jan s Em es Union: arte Academy Insurance Pty Ltd (1988) 62 ALJR 426 per Dawson J. One matter identified by the applicant in her application as exceptional and unusual is the fact that she has a child, born in June 1994, which was fathered by the prospective husband. Whatever might be thought to be the _ usual circumstances with which the comparison is made under $12(2)(b), I do not accept that the fact that the couple proposing marriage already had a child and are rearing it, would be one of then. One purpose of the provisions of the Act limiting the rights of a minor to marry is to ensure that minors do not commit themselves to marriage at an age when they are not sufficiently mature to understand and appreciate the responsibilities and obligations they would assume by marrying. It must be accepted, in my opinion, that some of the responsibilities that are still accepted in the community as an aspect of marriage are those associated with having and rea~" children if t* is desired by t' married couple: as to the nature of the institution of marriage more generally: see Rv L (1992) 174 CLR 379 especially 391-402 per Brennan J. If sll, which prescribes the marriageable age, is to protect minors in the way I have just discussed, then the fact that a couple have already assumed some of the responsibilities that can arise upon marriage, would raise a question in any application that might be made by one or both of them under 812, whether the test in s12(2)(b) should operate so as to remove the protective effect of s1l. That the couple to which this application relates have a child and are rearing it, must, in my opinion, be a feature of their circumstances that stands them apart from the usual circumstances contemplated by s12(2)(b) in which minors who might seek to marry would find themselves. This is the group with which the comparison is required to be made as part of considering the circumstances of the case. In expressing this view I am not suggesting the statutory test was necessarily satisfied. In three earlier cases, the pregnancy of the applicant was not, of itself, seen as satisfying the statutory test: Re K (1963) 5 FLR 38, Re H (and infant) (1964-5) NSWR 2004 and Re W (1968) QWN 45. That test is that the circumstances of the case are "so exceptional and unusual to justify the making of an order". However the first respondent must have misunderstood the test required to be applied by s12(2)(b) having regard to his comment that he was "not satisfied t*-* there are any exceptional and unusual circumstances such that would justify the court making an order" (emphasis added). There was one and it was incumbent on the first respondent to consider that circumstance with all the other circumstances of the case to determine whether he was satisfied the statutory test was met and in so doing make the comparison required to be made by s12(2) (b). In my opinion the decision of the first respondent discloses an error of law. His Worship failed to apply the test that s12(2)(b) of the Act requires to be applied. Accordingly his decision should be set aside. It is unnecessary for me to consider the other grounds relied upon by the applicant. The applicant asks that the Court exercise the power under s12. It is a power that requires the magistrate or Judge to be satisfied as to the age of the applicant and the matter in s12(2)(b). If so satisfied, the magistrate or Judge then has a residual discretion whether or not to make the order. Even assuming I was able to exercise the power under s12 in an application such as this under the ADJR Act, the existence of the residual discretion in s12 renders it inappropriate that I do so. In Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 a Full Court allowed an appeal in which the Judge at first instance had ordered the decision maker to exercise a discretion in a particular way. Sheppard J gave the leading judgment and said at 541: "The conclusion to which the various considerations which I have mentioned leads, is that where the court comes to the question of what remedy it will grant an applicant who has made out a case for relief, it should concentrate its attention on what statutory provisions are applicable to the case. If the decision-maker, although his discretion has miscarried, is left with a residual discretion under the statute to decide the ultimate question favourably or unfavourably to the successful applicant, the order which the court makes should, notwithstanding the width of s16 of the Act, usually, if not invariably, be one which remits the matter for further consideration according to law. Where, as here, what has transpired as amounted to a constructive failure to deal with the real application which has been made, it will sometimes be appropriate, (for example, in cases of substantial urgency from the point of view of the aggrieved party) to require the decision-maker to make a decision forthwith or within a limited time." I canvassed with the parties what I should do if the decision was set aside. The applicant opposes the matter being remitted to the first respondent having regard to the findings that were made. I accept that I should not, in the circumstances, follow the course of remitting the matter to the first respondent: Nort n_ NSW Pt tad v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42. There are considerable difficulties in then deciding, if the matter is to be remitted, who the matter should be remitted to given the range of decision makers who are empowered to deal with an application under s12. The applicant expresses a preference that if the decision was set aside, I should make no consequential orders. This is not opposed. Accordingly I order that the decision of the first respondent refusing the application for an order authorising the applicant to marry Mr F be set aside and the order dismissing the application be quashed. I will make no order as to costs. I should conclude by observing that this application is, as far as I am aware, the first application under the ADJR Act seeking to have reviewed a decision made under s12 of the Act. The reason why no applications have been made prior to this one may be that it was only in 1991 that the marriageable age for women was increased from 16 to 18 years: Act No 71 of 19912. The amendment to the Act increasing the marriageable age for women was made as one of a number of measures to give further effect to a policy of eliminating discrimination on grounds of sex though reference is made in the second reading speech which was handed up by the second respondent to an Australian Law Reform Commission discussion paper entitled Multiculturalism: Family Law which called for consideration of what is an appropriate marriageable age on more _ general grounds. The change in the marriageable age for women may give rise to more applications under sl12 and, if unsuccessful, subsequent applications to this Court under the ADJR Act. The power of the Court to grant relief under s16 of the ADJR Act is discretionary. The fact that relief was given in this matter should not be taken as an indication that relief will issue in any similar application if reviewable error is established. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: Date: Counsel for the Applicants: Solicitor for the Applicants: Solicitor for the First Respondent: Counsel for the Second Respondent: Solicitor for the Second Respondent: Date of hearing: Date of judgment: ond 10 November 1994 Ms A. Ainslie-Wallace Crown Solicitor Mr Robinson, Crown Solicitors Office Ms R.M. Henderson Australian Government Solicitor 4 November 1994 10 November 1994