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Monday, 1 June 2009

Costs in the Federal Magistrates Court

It seems that news of the closure of the Federal Magistrates Court might be premature.

From recent media reports, some federal magistrates are unhappy about plans to integrate their court into the Family and Federal Courts. Given their tenured positions, it would appear that if they refuse to join another court it would be constitutionally impossible for the government to make them.

Some judgments of the Federal Magistrates Court make for interesting reading. Although much of the Court's work concerns sensitive matters involving family and children, orders are routinely made for parties' names to be disguised by pseudonym to allow the Court's decisions to be published.

In Robson v Johns [2008] FMCA 721 Croakes FM deemed much of the material contained in affidavits tendered in an interim parenting application to be irrelevent and unhelpful. He disregarded those parts pursuant to r 15.29 of the Federal Magistrates Court Rules 2001, but added [at 15],

It is unfortunate it was necessary for me to remind both solicitors of necessary and appropriate evidence to put before the Court in interim parenting applications and to provide relevant evidence to enable the Court to determine arrangements for their young child until the final hearing can take place. It is unfortunate that I was obliged to invoke rule 15.29 of the Federal Magistrates Court Rules 2001 and to strike out substantial portions of both the father’s affidavits and the mother’s affidavit for the reason that the material was either inadmissible or unnecessary or irrelevant and make Orders that the solicitors not charge professional fees for those parts of the affidavits.

I can't say if the order of Croakes FM to prevent the solicitors from charging their clients for part of their services is a common practice in that jurisdiction. But as more practitioners are drawn in to representing clients in the Family Violence Division of the Magistrates' Court of Victoria, it's interesting to think what might happen if state magistrates were to adopt the same approach.

With s 154 of the Family Violence Protection Act 2008 severely restricting the awarding of costs against the opposing party, affidavits in support of intervention order applications drawn up by privately briefed practitioners might become very brief indeed.

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