BINNS & TIBBLES

[2010] FMCAfam 1054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BINNS & TIBBLES [2010] FMCAfam 1054

FAMILY LAW – Children – Parenting Orders – Consent Orders – where proposed orders not in proper form.

PRACTICE & PROCEDURE – Application for order by consent – Rules – Federal Magistrates Court Rules 2001 – Family Rules 2004 – rules applied in the Federal Magistrates Court – Part 10.4 of the Family Law Rules does not apply in the Federal Magistrates Court – Federal Magistrates are not Registrars.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth), s.4, Sch. 1, Part 1 s.2
Family Law Rules 2004, Part 10.4
Federal Magistrates Court Rules 2001, Division 13.2, Sch. 3

Applicant: MR BINNS

Respondent: MS TIBBLES

File Number: SYC 2738 of 2010

Judgment of: Scarlett FM

Hearing date: 27 September 2010

Date of Last Submission: 27 September 2010

Delivered at: Sydney

Delivered on: 28 September 2010

REPRESENTATION

Solicitors for the Applicant: Tonkin Drysdale Partners

Solicitors for the Respondent: Derham Houston

ORDERS

1. BY CONSENT and pursuant to Division 13.2 of the Federal Magistrates Court Rules 2001, orders, declarations and notations are made in terms of the Consent Orders attached.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2738 of 2010

MR BINNS

Applicant

And

MS TIBBLES

Respondent

REASONS FOR JUDGMENT

Application

1. The substantive proceedings concern an application for parenting orders. On 5^th July 2010 the parties entered into interim consent orders and the application was adjourned to 6^th December 2010 for further mention.

2. The parties have attended a Legal Aid mediation conference and, as a result, have agreed to vary the orders of 5^th July 2010 by adding a further paragraph to Order 2. An application has been made to the Court for content orders to be made in chambers, and Minutes of Consent Orders have been forwarded to my Associate.

3. Unfortunately, the covering Order that has been prepared is not in proper form and is unacceptable.

4. The Minute of Order was forwarded to the Court under cover of a letter dated 23^rd September 2010, advising that the parties sought an amendment to the earlier Orders as a result of an agreement reached at the mediation conference. 

5. The Covering Order prepared by one of the solicitors is incorrect because:

   a)It is stated to be made “Before a Registrar” and the signature block states:

   By the Court

   REGISTRAR

   b)The Order states that it is made “BY CONSENT and pursuant to Part 10.4 of the Family Law Rules, orders declarations and notations are made in terms of the Consent Orders attached.”  

6. The errors are fundamental and fall well below the standard required by the Court. For this reason, and in order that practitioners who appear in this Court can avoid the embarrassment of having their documents rejected, it appears to be necessary to set out a few matters that some practitioners have apparently failed to grasp over the past ten years or more since the Court first sat in July 2000.

Applications for Orders by Consent

1. Federal Magistrates are not Registrars.

2. The Federal Magistrates Court is created as a federal court under Chapter III of the Constitution (Federal Magistrates Act 1999, s.4).

3. It is all too common, at least in the Sydney Registry of the Court, for proposed consent orders to refer to Part 10.4 of the Family Law Rules. This is incorrect.

4. Part 10.4 does not apply in the Federal Magistrates Court.

5. Consent Orders are dealt with in Division 13.2 of the Federal Magistrates Court Rules. Rule 13.04 states:

   13.4 Application for order by consent

   (1)The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.

   (2)    The draft consent order must state that is made by consent.

   (3)The Court may make such orders as the Court considers appropriate in the circumstances.

   (4)If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.      

6. An appropriate form of words to be used in consent orders is:

   BEFORE A FEDERAL MAGISTRATE

   UPON APPLICATION MADE TO THE COURT IT IS ORDERED

   BY CONSENT and pursuant to Division 13.2 of the Federal Magistrates Court Rules 2001, orders, declarations and notations are made in terms of the Consent Orders attached.

   By the Court

   FEDERAL MAGISTRATE

7. A useful list of the Family Law Rules and Federal Court Rules applied in the Federal Magistrates Court can be found in Schedule 3 of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  27 September 2010