MAXIME & NETTLES

Case [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

  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.

  2. 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.

  3. 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

  1. 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 29th July 2010.

  2. The application was listed before this Court on 20th 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 22nd November 2010.

  3. 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.

  4. The covering Orders are incorrect for several reasons.

  5. First, the Orders are headed:

    IN THE LOCAL COURT OF NSW

    AT [C]  

  6. Second, there is no file number.

  7. Third, the orders are stated to be made:

    BEFORE MAGISTRATE

    on the   day of                 2010.

  8. Fourth, the Orders state 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.

  9. Fifth, the text of the Orders does not correspond with the handwritten draft tendered to the Court on 20th September. The orders made on
    20th September were interim orders, whereas the orders submitted to the Court, certified as “a true and correct copy”, are framed as final orders.

  10. The document is, unfortunately, riddled with fundamental errors and it falls well short of the standard required by this or any other federal 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 or more years since the Court first sat in July 2000.

Applications for Orders by Consent

  1. This is not the Local Court of New South Wales at [C]. It is the Federal Magistrates Court of Australia at Sydney. Rule 2.04 of the Federal Magistrates Court Rules 2001 provides that a document to be filed in a proceeding must be headed:

    FEDERAL MAGISTRATES COURT OF AUSTRALIA

    At (Registry)[1]

    [1] In this case, Sydney

  2. A file number must be placed on each document. Rule 2.02 provides:

    A document filed in connection with a particular proceeding must bear the distinctive number of the proceeding.

  3. Federal Magistrates are not Magistrates.

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

  5. It is incorrect in law to refer to a Federal Magistrate as a “magistrate”. That tile refers to Magistrates appointed under State or Territory legislation. The difference is clearly set out on 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.[2]

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

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

  8. 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 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.

  9. 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

  10. 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.

  11. The draft consent order submitted is undated. It is clear, however, that the Orders were made by consent on 20th September 2010. The date should have been entered.

  12. Also, the draft consent orders were certified by the applicant’s lawyer as “a true and correct copy of the Consent Orders dated the 20 Day of September 2010 and signed by the parties herein”. Clearly, they are not a true and correct copy. The draft orders state:

    BY CONSENT IT IS ORDERED:

  13. These orders are stated as final orders. However, the handwritten original states:

    BY CONSENT PENDING FUTHER ORDER IT IS ORDERED THAT:

  14. Clearly, these are interim Orders.

  15. It is unnecessary to discuss the meaning of the phrase “pending further order”, as Kemp FM has already held that “pending further order” is to be interpreted as “until further order” (see Malas & Charefeddine[3] at [58][4]). It is noteworthy that s.64B(1) of the Family Law Act defines the term parenting order by stating:

    A parenting order is:

    (a)    an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

    (b)    an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a). 

    [4] See also Millar & Millar (1983) 9 Fam LR 5; FLC 91-326

  16. The Act does not refer to an order pending further order.

  17. What is abundantly clear is that Consent Orders are Orders of the Court and practitioners need to prepare them with a great deal of care.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  15 October 2010


Details
AGLC
MAXIME & NETTLES [2010] FMCAfam 1060
Case
[2010] FMCAfam 1060
Decision Date

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

1.

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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