H & H
[2010] FMCAfam 1033
•23 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2010] FMCAfam 1033 |
| FAMILY LAW – PROPERTY – Orders – Consent Orders – where proposed orders not in proper form. PRACTICE & PROCEDURE – Ending a proceeding early – application for order by consent – Rules – Federal Magistrates Court Rules 2001 – Family Law Rules 2004 – what rules apply in the Federal Magistrates Court – Part 10.4 of the Family Law Rules does not apply in the Federal Magistrates Court. |
| Acts Interpretation Act 1901 (Cth) s.16C Family Law Act 1975 (Cth), s.79 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 |
| SZHGT v Minister for Immigration & Anor [2006] FMCA 263 |
| Applicant: | N A H |
| Respondent: | J D H |
| File Number: | SYC474/2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 22 September 2010 |
| Date of Last Submission: | 22 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher MacKay Lawyer |
| Solicitors for the Respondent: | Andrew Cohen Solicitor Attorney & Conveyancer |
ORDERS
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.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC474/2009
| N A H |
Applicant
And
| J D H |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for property orders concerning the former matrimonial home. Although the matter did not settle at a conciliation conference and was listed for final hearing in February next year, the matter has fortunately settled in what appears to be a just and equitable manner.
There is an application to the Court to make orders by consent in accordance with Short Minutes of Consent Orders and Notations. However, the covering Orders which have been prepared are not in proper form and are unacceptable.
The Short Minutes of Consent Orders and Notations were initially forwarded to my Associate “out of the blue” without any covering letter. Later, a letter was received from the solicitor for the respondent. The Covering Orders prepared by one of the solicitors were incorrect because:
a)They were stated to be made “Before a Registrar” and the signature block stated:
By the Court
REGISTRAR
b)They stated that they were 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”
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 in open court, it appears to be necessary to set out a few matters that some practitioners have apparently failed to grasp over the past ten years since the Court first sat in July 2000.
Applications for Orders by Consent
Federal Magistrates are not Registrars.
The Federal Magistrates Court is created as a federal court under Chapter III of the Constitution (Federal Magistrates Act 1999, s.4).
In court, Federal Magistrates are addressed as “Your Honour”. Schedule 1 Part 1 of the Federal Magistrates Act sets out in s.2 how the Chief Federal Magistrate and other Federal Magistrates are to be referred to in court documents:
2(1) Chief Federal Magistrate. The Chief Federal Magistrate is to be styled “Chief Federal Magistrate (name)” or “(name) FM.
2(2) Other Federal Magistrates. A Federal Magistrate (other than the Chief Federal Magistrate) is to be styled “Federal Magistrate (name) or “(name) FM”.
It is incorrect in law to refer to a Federal Magistrate as a “Magistrate”. That title refers to Magistrates appointed under State or Territory legislation. The difference is clearly set out in s.16C of the Acts Interpretation Act 1901 (Cth). Section 16C(3) of the Act makes it clear:
Unless the contrary intention appears, a reference in an Act to a Magistrate does not include a reference to a Federal Magistrate[1]
[1] See also SZHGT v Minister for Immigration & Anor [2006] FMCA 263 at [45]-[47]
It is all too common, at least in the Sydney Registry of the Court, for reference to be made in consent orders to Part 10.4 of the Family Law Rules. This is incorrect.
Part 10.4 does not apply in the Federal Magistrates Court.
Consent Orders are dealt with in Division 13.2 of the Federal Magistrates Court Rules. Rule 13.04 states:
13.04 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 it 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.
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
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
Associate:
Date: 23 September 2010
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