D and C
[2003] FMCAfam 497
•21 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & C | [2003] FMCAfam 497 |
| FAMILY LAW – Contravention – transfer to Family Court – right of citizen to commence action in Court of choice – registry practice. |
| Applicant: | D J D |
| Respondent: | L C |
| File No: | MLM 6108 of 2003 |
| Delivered on: | 21 October 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 October 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms B.M. Phelan |
| Solicitors for the Respondent: | Power & Bennett |
ORDERS
The application filed 26 September 2003 with a hearing date of 3 November 2003 and the Application for Contravention filed on
15 September 2003 be transferred to the Family Court of Australia at Melbourne.Costs reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6108 of 2003
| D J D |
Applicant
and
| L C |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The court has before it an application for contravention of child order filed on 15 September 2003. The application is made by D J D (the Applicant) alleging contravention of orders made in the Family Court of Australia on 14 July 2003. Specifically, allegations are made in the contravention application, albeit in the incorrect parts of the form, that certain orders made that day by the Family Court have been contravened.
Reliance is placed upon orders 4(a) and 4(e) of those orders of the court of 14 July 2003. It is relevant in considering those orders to note that in the context of this application there is indeed an order in place that the father should deposit a sum of $700 each calendar month into the wife's bank account. That is provided in order 5 which then provides that upon that payment the wife will deliver the children to and collect them from the residence of the husband “for all contact in paragraphs 4(a) and (d)” hereof.
Order 4(e) relates to Father's Day contact. It is asserted in the material and from the bar table from the father that the handwritten orders made by consent, which form the basis of the orders in the Family Court, on 14 July 2003 had at one point included a reference to 4(e) so that the delivery of the children on Father's Day contact would be the same as for delivery for contact on other occasions.
What is common, however, of course is the requirement that the husband deposit the sum of $700 each calendar month. It is alleged that has not been paid and as a consequence the breaches may well have occurred. It is not for this court to hear and determine that in circumstances where, as I indicated to the parties, that I was minded in any event to transfer this matter to the Family Court.
The reason I am minded to transfer it to the Family Court is because I also have on the file a further application filed by the Applicant on
25 September 2003 which seeks to agitate the issue of the alleged discrepancy between handwritten orders of consent and the ultimate final orders sealed by the Family Court as indicated on 14 July 2003. Other orders are sought in that application which currently is listed before this court on 3 November 2003.
It is of concern to this court that the application for contravention which is presently filed does not bear any court heading at all, and to that extent, contravenes the Federal Magistrates Court Rules (see Rule 2.04(3)). Without deciding that matter finally, it seems to me on the face of it that where quasi-criminal proceedings are instituted and where in those circumstances there has been an obvious breach of the rules, that may have consequences as to the validity of that application. For the present purposes I do not rule on that issue as that may be a matter to be dealt with in another court.
What is of concern is that the applicant has indicated from the bar table is that when he brought the matter before the court registry he intended that the applications both be heard and determined in the Family Court of Australia. There is no reason why I should not accept what the Applicant claims in this regard. That was his clear intention and indeed it would appear to be his intention even before this court in terms of at least not opposing any transfer to the Family Court.
In my view, in a matter of this kind considering the discretion I have under s.39 of the Federal Magistrates Act, it is appropriate that I take into account the nature of both applications, albeit that the contravention application is the only application before this court. It is clear to me on the material that an integral part of the alleged contravention relates to some extent to the claimed discrepancy between the handwritten minutes of consent orders and what ultimately became the typed and sealed copy of the orders made by the Family Court.
It is appropriate to transfer the matters to the Family Court in circumstances when the accuracy of the orders is at least a part of the contravention application and certainly an integral part of the subsequent application currently scheduled to be heard in this court on 3 November 2003. In any event it was the intention of the Applicant to actually commence an application in the Family Court of Australia. It was not his intention to commence an application in this court. He was instructed by an unnamed officer of registry to do so. Apparently, I am told by counsel, there is some informal practice arrangement which requires counter staff to issue an application in this court despite the request being made that it be issued in the Family Court of Australia.
In my view, if there is such a practice it is an unfortunate practice and it is a practice which is in clear contravention of a citizen's right that upon payment of appropriate fee or waiver of the fee to commence an action in the citizen's court of choice provided that court is properly constituted and has jurisdiction to deal with the matter.
For all those reasons, in my view, it is appropriate that I should make the following orders.
(1)The application filed 26 September 2003 with a hearing date of 3 November 2003 and the Application for Contravention filed on 15 September 2003 be transferred to the Family Court of Australia at Melbourne.
(2)Costs reserved.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 October 2003
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