T and B

[2002] FMCAfam 221

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & B [2002] FMCAfam 221

CHILD SUPPORT – Procedure – Federal Magistrates Court Rules 2001 – Documents – Service of documents – application failing to indicate the name of the court – service by hand by the applicant on the respondent – applicant required to file and serve amended application.

Applicant: R T

Respondent: N B

File No: PAM669 of 2002

Delivered on: 3 April 2002

Delivered at: Parramatta

Hearing Date: 26 March 2002

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: The husband in person

Solicitors for the Respondent: No appearance by or on behalf of the wife

ORDERS

1. That the applicant must file an amended application bearing the heading Federal Magistrates Court if Australia at Parramatta and carry the file number PAM699/2002.

2. The applicant must serve a sealed copy of the application and the affidavit in support on the respondent and the Deputy Child Support Registrar within 14 days and service must be effected by a person other than the applicant.

3. The applicant mist file a copy of the application for review to the Child Support Agency within 14 days.

4. The matter is adjourned to Tuesday 16 April 2002 at 9:30am for further mention before Ryan FM.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP699 of 2002

R T

Applicant

And

N B

Respondent

REASONS FOR JUDGMENT

1. This is an application for a stay of an administrative assessment made by the Deputy Child Support Registrar made on 4 January 2002, requiring the Applicant to make payments of a monthly amount of $591.58. The Applicant lodged an application for a review of that assessment on

   
   

   13 January 2002.

2. The Application was filed at the Parramatta Registry of the Federal Magistrates Court on 21 February 2002. The Application is in the form of a Form 63 as used in courts of summary jurisdiction. It is not accompanied by an affidavit. The original document on the file has a note from the filing clerk attached, saying “The Form 63 form used by the applicant was from the Local Court and the applicant insisted on filing this form”.

3. It appears that the Applicant may have attempted to file the application at the Local Court before attending this court, because the filing details except for a file number have all been completed and then crossed out. Despite the crossings out, the following words and numbers are visible:

   i)“Filed at: Parramatta Local Court.

   ii)Filed on : 21/02/2002.

   iii)Place of hearing: Parramatta Local Court”

4. The filing clerk has clearly attempted to make the document comply with the rules by stamping the filing date, also 21 February 2002, by handwriting the time and date of the Application’s first court date, and stamping the address “1-3 George Street Parramatta.” The seal of the Court has also been applied, on one occasion sideways and the other upside-down. Apart from that, the words “Federal Magistrates Court” do not appear anywhere on the document.

5. When the Application came before the Court, the Applicant appeared but the Respondent did not. The Applicant did not produce an affidavit of service, explaining that the Respondent had thrown the service copy of the Application at him when he served it on her. When asked whether he had actually served the document by hand on the Respondent himself, the Applicant admitted that he did. He claimed that he had been told to do so by some person at one or other of the courts which he had attended. He had not served a copy on the Deputy Child Support Registrar.

6. It should be said at the outset that the form of application is defective, as is the method of service.

7. Child Support proceedings are proceedings within the jurisdiction of the Federal Magistrates Court that are largely governed by the relevant provisions of the Family Law Rules, rather than by any specific part of the Federal Magistrates Court Rules. Rule 1.05(3)(a) of the Federal Magistrates Court Rules provides that “the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law proceedings.” The Dictionary provided by Rule 1.04 defines the term ‘family law proceeding’ to include proceedings under the Child Support (Assessment) Act or the Child Support (Registration and Collection) Act.

8. Part 1 of Schedule 3 of the Rules includes Order 31B of the Family Law Rules as applying to proceedings in this Court. Order 31B Rule 4 provides that the application should be in accordance with Form 63 of those Rules. Of course, an applicant in the Federal Magistrates Court may also use the form of application set out in Part 1 of Schedule 2 of the Federal Magistrates Court Rules. Rule 4.01 (1) allows the use of a Form 63, when it states “Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the form of application set out in Part 1 of Schedule 2.” It is my opinion that Rule 4.01, when read in conjunction with Rule 1.05, Part 1 of Schedule 3 and Order 31B Rule 4(2) of the Family Law Rules, permits either form of application to be used. If a Form 63 is used, however, it must be adapted, because Rule 2.04(3) requires documents to be filed in a proceeding in this Court to be headed “FEDERAL MAGISTRATES COURT OF AUSTRALIA At (Registry).”

9. At the same time, Rule 2.04 does away with the pedantic approach that requires strict compliance with the Rules before a document can be regarded as valid. Rule 2.04 (1) says that:

   “Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.”

10. I am satisfied that the Application filed by the Applicant does not substantially comply with the forms required by the Rules. The Application is in the form used in courts of summary jurisdiction. It is not saved by Rule 2.04 (2), which provides that “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.” Rule 2.04(2) does not extend to documents prescribed for courts of summary jurisdiction. It follows that a form used in the Local Court or Magistrates Court of a State or Territory is not to be filed in the Federal Magistrates Court.

11. In this case, the form does not comply with Rule 2.04(3), in that it is not headed “FEDERAL MAGISTRATES COURT OF AUSTRALIA”. It does not bear the heading of any court at all. Worse still, the words “Parramatta Local Court”, whilst crossed out, may still be plainly seen. The addition of the address of this Court, by stamping the address “1-3 George Street Parramatta” does not, in my opinion, rectify the defect. I take judicial notice of the fact that Parramatta Local Court is also situated in George Street Parramatta, two blocks to the east of the Commonwealth Law Courts in which the Federal Magistrates Court is housed.

12. One of the purposes of serving a copy of an Application on a respondent is to advise the respondent of the time and date when the matter is to be heard, and the location of the court where the hearing is to take place. A document that bears the name of another court in the same street, or does not give the name of the court at all, does not afford procedural fairness to a respondent. It is not good enough for the correct address of the court to appear on the document, because the respondent will not be able to ascertain which court is to hear the case when he or she arrives at the address. There are three separate courts in George Street Parramatta which exercise jurisdiction under the Child Support (Assessment) Act. A respondent who has a reasonable excuse for not attending court, such as illness or injury, would find it difficult to telephone the court to advise that he or she cannot attend. Telephone directories list telephone numbers according to names, not addresses.

13. I am satisfied that it is not good service to serve a copy of a court document on a respondent which does not give the name of the court upon it, even if an address is provided. It is equally bad service if the document served on the respondent bears the name of another court, even if the address is correct.

14. It is also relevant that the Applicant served, or attempted to serve, the copy of the application on the respondent himself. This is a contravention of Rule 6.07(3), which states:

    “In a family law proceeding, the person serving a document must not be the party on whose behalf it is served.”

15. Finally, the Applicant failed to provide an affidavit of service. Rule 6.05 provides that “Unless the Court otherwise orders, any evidence of service to be given must be given by affidavit.” The Applicant’s explanation for the absence of an affidavit of service, that the respondent threw the documents back at him, suggests that he is perhaps confusing an acknowledgment of service with an affidavit of service. He has not produced either document.

Conclusions

1. The Federal Magistrates Court has been set up with the objects, inter alia, of operating as informally as possible and using streamlined processes[i] but this does not take away from the court the requirement to deal with all parties fairly. The Court should be very reluctant to make orders in the absence of a party unless it is satisfied that the party has been given a proper opportunity to attend court. Procedural fairness requires that a respondent be properly served with a document that tells him or her when and where and in which court the proceedings are to be held. The Applicant’s document does not come near to meeting those requirements.

2. Unrepresented litigants should be given assistance to prepare, file and serve the documents necessary to present their case. In this matter, the Applicant needs to file and serve an amended application and an affidavit in support. Copies of the appropriate form of application and affidavit should be forwarded to the applicant for him to complete.

3. In summary, I find that the Federal Magistrates Court Rules require the following:

   b)in child support proceedings, an applicant may commence proceedings either by filing an application in accordance with the form set out in Part 1 of Schedule 2 of the Rules, or a Form 63 application as provided by the Family Law Rules;

   c)whichever form of application is used, it must be headed ‘FEDERAL MAGISTRATES COURT OF AUSTRALIA At’ and give the name of the Registry at which it is filed;

   d)an application that does not bear the heading of any court at all does not substantially comply with the appropriate form for a proceeding, even if it gives a correct address;

   e)an application that bears the heading of a court other than the Federal Magistrates Court does not substantially comply with the appropriate form for a proceeding, even if it gives a correct address;

   f)an application in a form prescribed for use in the Local Court or a Magistrates Court of a State or Territory does not substantially comply with the appropriate form for a proceeding;

   g)where service by hand of an application in a child support proceeding is required by the Rules, it is not good service if the application is served by the party on whose behalf the application is served.

4. These are the reasons for the orders made by this Court on 26 March 2002.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  16 April 2002

[i] Federal Magistrates Court Rules 2001, Rule 1.03(1)