Z & L - [2006] FMCAfam 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Z & L

[2006] FMCAfam 311

PRACTICE AND PROCEDURE – FAMILY LAW – Requirement under Family Law Rules to file birth certificate of child with application for final parenting orders – no such requirement under the Federal Magistrates Court Rules.

Family Law Act 1975, s.69N(4)
Family Law Rules2004, rr.1.04, 1.12, 2.02, 17.01

Applicant:

Respondent:

File number:

MLM 4181 of 2006

Judgment of:

Riethmuller FM

Hearing date:

16 May 2006

Date of last submission:

16 May 2006

Delivered at:

Ballarat

Delivered on:

16 May 2006

REPRESENTATION

Counsel for the Applicant:

Ms Oomen

Solicitors for the Applicant:

Jeremy Harper and Associates

Counsel for the Respondent:

Mr Webb

Solicitors for the Respondent:

Saines & Partners

ORDERS

That the sealed copies of the State Magistrates Court orders be released to the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BALLARAT

MLM 4181 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMEN

(revised from transcript)

This is an application concerning procedural matters relating to orders made by a state magistrate at Ballarat on 8 March 2006. The learned state magistrate in dealing with the application made various orders appropriate for the case that was then before him, including appropriate procedural orders to ensure the smooth running of the proceedings once transferred to this court. Those orders included an order for the appointment of a child representative, that order being formulated in the standard terms with which I habitually order the appointment of a child representative, no doubt as a result of the learned state magistrate being aware that the matter was likely to come before me in the Federal Magistrates Court for further hearing and ultimate determination.
There is no suggestion that the state magistrate in making these orders made anything but appropriate orders. The orders, however, were not issued by the registry in sealed form and therefore not forwarded to Legal Aid Victoria for them to action the order for the appointment of the child representative because of what I am told is a policy by registry not to issue orders until such time as a birth certificate is filed with respect to each of the children.
When proceedings are issued in the state magistrates courts, they are subject to the Family Law Rules 2004 and not subject to the Federal Magistrates Court Rules2001. Rule 2.02 of the Family Law Rules2004 provides a table of documents that must be filed with the various applications to be made to the court. Included at item 2 in that table is a Form 1 application and a column that says that a document that must be filed with it is the child's birth certificate. Rule 2.02(3) of the Family Law Rules2004 is in the following terms:
If an applicant is unable to file a document mentioned in item 1, 2 or 8 of table 2.2, the applicant must file:
(a)an affidavit setting out the reasons why the document was not filed; or
(b)a written notice containing an undertaking to file the document within the time specified in the notice.
It appears that neither of these steps were taken in conjunction with the application despite the birth certificates not then being available to be filed. The orders were made but the registry refused to issue them in sealed format until they received copies of the birth certificate.
Rule 17.01 of the Family Law Rules 2004 provides for when orders are made, and importantly, 17.01(3) provides:
A party is entitled to receive:
(a)a sealed copy of an order;
(b)if the order is rectified by the court - a sealed copy of the rectified order; and
(c)a copy of any published reasons for judgment.
Rule 17.01(4) says that subrule (3) does not apply to a procedural order, however in this case the orders concerned the appointment of a child representative and the contact arrangements between the parties. At least with respect to the contact arrangements, the orders could not be considered a procedural order. Whilst there may be some argument as to whether or not an order appointing a child representative is a procedural or substantive order, as a matter of practical realities it must be considered a substantive order joining and appointing a new party. The Legal Aid office requires a sealed copy of the orders before they will take the step of appointing a child representative.
Section 69N(4) of the Family Law Act1975 provides for the state magistrates to make procedural orders and it is clear that they may exercise the other powers under the Family Law Act1975 prior to a transfer to the Family Court or to this court. It appears to me that it is appropriate, if it is a case that appears to need a child representative, for a state magistrate to make the order appointing the child representative prior to transfer, as this allows for the child representative to be appointed and appear in this court when the matter is before the court on the first return date. This speeds the litigation along and avoids unnecessary costs, which is in the interests of all of the litigants.
I note that in the Federal Magistrates Court Rules 2001 there is no provision for the filing of a birth certificate. The affidavits in support of an application together with the information sheet provided for in this court's rules are sufficient evidence of the existence of a child to leave the court without any doubt as to jurisdiction. Given the general jurisdiction of the courts over children with respect to children's matters, it seems to me that a birth certificate adds little to the basic question of jurisdiction, provided there is an affidavit referring to a child of the parties or a child relevant to the party's application under the Family Law Act 1975.
A birth certificate may become significant in a limited number of cases, such as where there is a dispute as to the identity of a child, the correct name of a child, the correct date of birth of a child or the correct parentage of a child. Invariably, in cases of this type, a birth certificate is ultimately filed or tendered in this court in the proceedings, but in the vast majority of cases the birth certificate adds little or nothing to the proceedings (other than expense) and is not filed in the court.
If it were that this court's rules applied in the state Magistrates Court, there would have been no need for the birth certificate. There is nothing in this case to indicate that it falls into the category whereby the birth certificate would be of significance or importance to the determination of the issues presently before the court.
Rule 1.12 of the Family Law Rules2004 provides the court with the power to dispense with compliance with the rules at any time, should it be appropriate to do so. Rule 1.12(3) provides:
In considering whether to make an order under this rule, the court may consider:
(a)the main purpose of these rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been promptly made;
(d)whether non-compliance was intentional; and
(e)the effect that granting relief would have on each party and parties to other cases in the court.
The reference to rule 1.04 is important as it provides:
The main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
In a case where:
a)a birth certificate does not appear to be needed for the disposition of the matter;
b)a birth certificate does not appear to add anything of a substantive rather than of a purely procedural nature; and
c)the case is to be transferred to the Federal Magistrates Court,
it appears to me that the most appropriate course generally would be to dispense with compliance with rule 2.02 to the extent that it requires the filing of a birth certificate, if one is not readily available.
This would achieve the main purpose of the rules: ‘to ensure that cases are resolved in a just and timely manner at a cost to the parties that is reasonable in the circumstances’. If the birth certificate does not add any substantive evidence, then the time taken to obtain it and the cost to the parties of obtaining copies of birth certificates, if they are not readily available, does not appear to me to be reasonable in the case. Secondly, the administration of justice would not require a birth certificate following a transfer to this court as this court does not normally require birth certificates, unless there is some specific need for them to be filed.
Almost invariably, applications in the state magistrates court are made on an urgent basis or at least in cases where there is a need for orders to be made in a timely manner between circuits of this court to circuit locations, and therefore there is a considerable likelihood that formal documents such as birth certificates may not be readily available on such applications. It would be a rare case indeed where one would consider that the failure to file a birth certificate was intentional. I would expect that almost invariably, if a birth certificate were in the possession of a party their solicitor would obtain a photocopy and annex it to an affidavit or file it with the court as required by the rules. I have no doubt that that would have occurred in this case had the birth certificate been readily available.
The effect of dispensing with that part of the rules would do no more for the parties than to place them in the same position they would have been in had they commenced in this court rather than commencing in the state magistrates court before a transfer. In any event, the appropriate course for the registry is to comply with rule 17.01.
Whilst it appears to me that the solicitors for the mother have not strictly complied with rule 2.02, it also appears clear that this was not an issue that anyone turned their mind to until the failure to issue the order in accordance with rule 17.01. The solicitors ought to have complied or drawn the learned state magistrate’s attention to the problem and sought dispensation. In the absence of such application to the state magistrate, there was no reason for him to suspect that this problem may occur.
It does not appear to me that this is a matter for which costs ought to be visited upon one party or another in this particular case, having regard to the fact that today will not be wasted proceedings as I will later make a variety of directions to ensure that a litigation plan is in place for this case and that it can move expeditiously towards hearing having regard to the particular needs of the case. I therefore refuse the application for costs.
It is appropriate that I make some comments as to how these matters should be dealt with in the future, at least with respect to this circuit. It appears to me that the solicitors making applications in the state magistrates court ought to either comply with rule 2.02(3) or alternatively seek an order dispensing with rule 2.02(1) pursuant to rule 1.12 in the interests of timely, expeditious and cost-effective dispensation of justice prior to the transfer to this court.

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

Associate: Melissa Gangemi

Date: 27 June 2006