SRM and PTA
[2002] FMCAfam 79
•25 February 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SRM & PTA | [2002] FMCAfam 79 |
| FAMILY LAW — Contravention Application(s) — Strike Out Application — formal aspects in documents — strict compliance with Rules and forms not required — Federal Magistrates Court Act 1999 s.57, Federal Magistrates Court Rules2001 rules 1.01, 1.03, 2.04. |
| Applicant: | SRM |
| Respondent: | PTA |
| File No: | ZH 2239 of 2000 |
| Delivered on: | 25 February 2002 |
| Delivered at: | Launceston |
| Hearing Date: | 25 February 2002 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the Respondent: | Mr Paterson |
| Solicitors for the Respondent: | Kim Paterson & Associate |
ORDERS
Notwithstanding the terms of paragraphs 1 and 2 of the orders made on 24 January 2002, the contravention application filed 8 January 2002 be adjourned for mention on the date referred to in paragraph 18 of the orders made on 25 January 2002 (“the 25 January Orders”).
For the purpose of assisting in the implementation of paragraph 3 of the 25 January Orders:
(a)the husband and ALASTAIR CAMPBELL be at liberty to contact each other to exchange relevant information as to the wishes of the child D;
(b)The said ALASTAIR CAMPBELL do assess D’s wishes not less than 48 hours prior to the commencement of any relevant contact period.
Paragraph 5 of the 25 January Orders be discharged with effect from
4 March 2002.Subject to paragraph 4 of the 25 January Orders, the children’s contact described in paragraph 5(a) of the orders made on 7 August 2001 re-commence on 22 March 2002 (provided that, for the contact period incorporating the specific date of Friday 22 March 2002, and for that contact period only, contact commence on such time on 21 March 2002 as DR. IAN MICHAEL SALE shall fix, with the handover occurring at Dr Sale’s rooms in Hobart).
The husband have liberty to withdraw the form 47 applications filed on 5 September 20001, 1 October 2001 and 8 October 2001.
The husband have leave to file a form 48 contravention application (dealing with the matter referred to in paragraph 2 of Part B of the form 47 filed on 8 October 2001) and a form 49 application (dealing with the matters referred to in paragraph 2 of the form 47 application filed
5 September 2001) — such applications, together with the appropriate supporting affidavit material, to be filed by the close of registry business on 8 March 2002.In the event of the husband filing either or both of the contravention applications referred to in the preceding paragraph within the time limit expressed, the said contravention application(s) be listed for mention on the date referred to in paragraph 18 of the 25 January Orders.
The wife’s costs be reserved to the date referred to in the preceding paragraph of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
ZH 2239 of 2000
| SRM |
Applicant
And
| PTA |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The application before me is to strike out or dismiss the form 47 applications filed by the husband in this matter — the relevant applications being the form 47 filed by the husband on 5 September 2001, the form 47 filed on 1 October 2001 and the form 47 filed on
8 October 2001. Reliance has been placed by counsel for the wife upon two decisions, both being ex tempore decisions of learned Justices of the Family Court of Australia in matters heard in the Launceston Registry. The first is the decision in Knowles (delivered on 11 October 1993) and the second is the decision in Shaw and Hawkins (delivered on 4 February 2002). In both of those matters the relevant applications were dismissed as being void ab initio due to technical deficiencies within the forms used by the applicant.
This is not the Family Court of Australia. The objects of the Rules of the Federal Magistrates Court of Australia are set out in Rule 1.03. They include at Rule 1.03(1):
The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
It is apparent from Rule 1.03(2) that the Rules aim to help the Federal Magistrates Court to operate as informally as possible, to use streamlined processes and to encourage the use of appropriate dispute resolution procedures.
The Court is obliged to apply the Rules in accordance with their objects (Rule 1.01(3)). To assist the Court, the parties must avoid undue delay, expense and technicality, amongst other things (see Rule 1.03(4)). In rule 1.06 it is provided that:
The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
In rule 2.04 dealing with forms, the Rules provide that:
Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.
Further:
A document prepared in the form prescribed for a similar purpose for the Family Court or the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.
I refer, as well, to the provisions of section 57 of the Federal Magistrates Court Act 1999, which is as follows:
(1) Proceedings in the Federal Magistrates Court are not invalidated by a formal defect or an irregularity, unless the Federal Magistrates Court is of opinion that:
(a) substantial injustice has been caused by the defect or irregularity; and
(b) the injustice cannot be remedied by an order of the Federal Magistrates Court.
(2) The Federal Magistrates Court or a Federal Magistrate may, on such conditions (if any) as the Federal Magistrates Court or Federal Magistrate thinks fit, make an order declaring that the proceeding is not invalid:
(a) by reason of a defect that it or he or she considers to be formal; or
(b) by reason of an irregularity.
On my reading of the Act and Rules, it would appear that the applicant could have commenced the proceedings by way of application in the usual form set out in schedule 2 to the Federal Magistrates Court Rules. He has elected, however, to file documents with the heading “Family Court of Australia” and to use documents which are headed “Application — Contempt — Form 47”.
There is no doubt that the Family Law Rules as they relate to contravention matters apply in this Court, but on my reading of the Rules of this Court the general requirements that strict compliance with forms should not be insisted upon and that substantial compliance is sufficient cover the use of forms otherwise prescribed in the Family Law Rules. It seems to me to be unhelpful — insofar as the Court’s requirement to assist the just, efficient and economical resolution of proceedings is concerned — to insist upon strict technical compliance with all aspects of the Rules of another Court, particularly when the intention of the relevant applications is clear on their face.
When this matter came before me about a month ago and certain technical objections were raised by counsel for the wife, I gave the husband the opportunity to re-swear his documents to enable those technical problems to be overcome. Counsel for the wife has not particularised the technical problems associated with the present applications, but they are apparent on their face.
For me to now dismiss the husband’s applications on the basis of technical defects would mean, of course, that the proceedings have not been heard and determined on their merits.
It is clear that the doctrine of res judicata would therefore not apply and that the husband would be free to file further applications in precisely the same terms as those which have been dismissed. In any event, it seems to me that the appropriate order would not be to dismiss the applications (implying as it does that they have been heard and determined on their merits) but to strike them out for non-compliance with the relevant Rules, so they could be considered void ab initio (to use the term referred to in the judgment of Butler J).
But the problems raised by the wife are capable of being cured. One alternative, for example, is for me adjourn the proceedings again to enable the husband, who is unrepresented, to uplift the documents that he has filed and re-swear them before an appropriate witness.
That seems to me to be a waste of both Court resources and the Court's and the parties’ time. It also indicates an unduly strict and technical approach to what is, in the end, a fairly straight forward set of allegations on the part of the husband. In my view, where there are technical objections of this nature, they should be raised by or on behalf of the wife at the first available opportunity. What has occurred, and that which the wife through her advisers has allowed to happen, is that a date has been fixed in Launceston specifically for the purpose of dealing with the contravention applications, however so called, filed by the husband.
That date required a Federal Magistrate to travel from Melbourne for the commencement of the hearing this afternoon. The hearing was expected to continue tomorrow. It now appears that the husband, for reasons that have not been made clear to me, may not be available to attend at court tomorrow.
It is now late in the day and these reasons are being delivered on an ex tempore basis at approximately 4.15 p.m. Before I deal further with the wife's application, I seek that counsel for the wife particularise those aspects of the applications now before the Court that he says are deficient. I propose to then inquire of the husband how he wishes to deal with the matter.
If the reality is that the applications cannot properly be treated as being before the Court, then I would propose to adopt precisely the same course of action as I adopted on either 24 or 25 January this year and allow the husband to re-swear the applications before an appropriate witness. As far as the Court is concerned, the strict use of a particular form is unnecessary. The most important consideration is that the wife be able to understand the case that she is obliged to meet. Irrespective of the form used, in my view, it is clear that the wife does understand the case that she is obliged to meet.
I shall now stand the matter down for the purpose indicated above. The wife’s application to dismiss or strike out the husband’s applications will be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Paul O’Halloran
Date: 21 March 2002
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