MAXIME & NETTLES - [2010] FMCAfam 1060

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAXIME & NETTLES

[2010] FMCAfam 1060

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

PRACTICE & PROCEDURE – Requirements for documents filed at the Court – rules applied in the Federal Magistrates Court – Part 10.4 of the Family Law Rules does not apply in the Federal Magistrates Court.

Act Interpretation Act 1901 (Cth), s.16C
Family Law Act 1975 (Cth), s.64B
Federal Magistrates Act 1999 (Cth), s.4
Family Law Rules 2004, Part 10.4
Federal Magistrates Court Rules 2001, rr.2.02, 2.04, Sch 3

SZHGT v Minister for Immigration & Anor [2006] FMCA 263
Michaels & Carey [2009] FMCAfam 577
Millar & Millar (1983) 9 Fam LR 5; FLC 91-326

Applicant:

MS MAXIME

Respondent:

MR NETTLES

File Number:

SYC 4858 of 2010

Judgment of:

Scarlett FM

Hearing date:

27 September 2010

Date of Last Submission:

27 September 2010

Delivered at:

Sydney

Delivered on:

15 October 2010

REPRESENTATION

Solicitors for the Applicant:

Marsdens Law Group

Solicitors for the Respondent:

Dignan & Hanrahan

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.
That pursuant to s.62B of the Family Law Act, information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4858 of 2010

MS MAXIME

Applicant

And

MR NETTLES

Respondent

REASONS FOR JUDGMENT

Application

The substantive application concerns parenting orders for the child of the parties, who was born [in] 2009. The application was commenced at the [C] Local Court but was transferred to this Court on 29^th July 2010.
The application was listed before this Court on 20^th September 2010 and on that date the parties entered into interim consent orders. The parties agreed to adjourn the matter pending a Legal Aid mediation and the application is next before the Court for mention on 22^nd November 2010.
The applicant’s solicitors have forwarded an engrossment of the Consent Orders to the Court. However, the covering Orders which have been prepared are not in proper form and are unacceptable.
The covering Orders are incorrect for several reasons.
First, the Orders are headed:
IN THE LOCAL COURT OF NSW
AT [C]
Second, there is no file number.
Third, the orders are stated to be made:
BEFORE MAGISTRATE
on the day of 2010.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MAXIME & NETTLES

Details

AGLC: MAXIME & NETTLES [2010] FMCAfam 1060
Case: [2010] FMCAfam 1060
Decision Date: 15 October 2010

CaseChat Overview and Summary

In this case, the Federal Magistrates Court was asked to consider parenting orders between the parties, Maxime and Nettles. The dispute centred on the proposed consent orders that had been drafted in accordance with the Family Law Rules but failed to meet the specific procedural requirements set out for the Federal Magistrates Court. The court was required to determine whether these orders, which were not in the proper form as mandated by the Federal Magistrates Court, could still be approved and registered.

The central legal issue was whether the Federal Magistrates Court was bound by the same procedural requirements as the Magistrates Court when it came to the form of parenting orders. The court examined whether Part 10.4 of the Family Law Rules, which governs the form of documents filed in the Magistrates Court, also applied to the Federal Magistrates Court. The court held that the Federal Magistrates Court operates under its own rules and procedures, distinct from those of the Magistrates Court.

The court concluded that the proposed consent orders were not in the proper form required by the Federal Magistrates Court. Consequently, the orders could not be approved and registered in their current form. The court emphasised that adherence to the specific procedural rules of the Federal Magistrates Court was necessary to ensure the proper administration of justice. The court did not proceed to approve the consent orders, leaving it to the parties to redraft them in compliance with the Federal Magistrates Court's requirements.

Orders

Orders of the court

BY CONSENT and pursuant to Division 13.2 of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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