Family Law Amendment Rules 1999 (No. 3) (Cth)

Family Law Amendment Rules 1999 (No. 3)

Statutory Rules 1999 No. 279

We, Judges within the meaning of the Family Law Act 1975, make the following Rules of Court under that Act.

Dated 19 November 1999.

ALISTAIR NICHOLSON C.J.

J. EDWARD ELLIS

K.A. MURRAY

H.R. FREDERICO

T.E. LINDENMAYER

N.J. BUCKLEY

ALWYNNE ROWLANDS

RODERICK JOSKE

J.S. PURDY

J. WILCZEK

W. ROURKE

JOHN COHEN

C.A. MOORE

I.R. COLEMAN

P.F.A. HILTON

M.A. HANNON

B.J. WARNICK

RICHARD CHISHOLM

SALLY BROWN

B. JORDAN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

MICHELLE MAY

JOHN STEELE

HEATHER B. CARTER

LLOYD WADDY

ANN ROBINSON

P. ROSE

R. FLOHM

D.J. COLLIER

J.M. BOLAND

Judges of the Family Court

of Australia

A.M. FILIPPELLO

Principal Registrar

Family Court of Australia

N. TOLCON

C.E. MARTIN

J.G. BARLOW

J. PENNY

Judges of the Family Court

of Western Australia

S.E. THACKRAY

Principal Registrar

Family Court of Western Australia

Family Law Amendment Rules 1999 (No. 3)1

Statutory Rules 1999 No. 2792

made under the

Family Law Act 1975

   

Contents

Page

• •
• •

 

Do not delete: Part placeholder

Do not delete: Division placeholder

1Name of Rules

 These Rules are the Family Law Amendment Rules 1999 (No. 3).

2Commencement

 These Rules commence on 6 December 1999.

3Amendment of Family Law Rules 1984

Schedule 1 amends the Family Law Rules 1984.

Schedule 1Amendments

Do not delete: Schedule Part placeholder

(rule 3)

[1]Order 36A, paragraph 2 (1A) (k)

omit

of the Act, to make an order in relation to enforcement proceedings instituted under Order 33;

insert

of the Act;

[2]Order 36A, paragraph 2 (1A) (o)

omit

subsection 114 (1)

insert

subsection 114 (3)

[3]Order 36A, after paragraph 3 (g)

insert

• (h)

  the power to make an order or grant an injunction under section 68B of the Act;

[4]Order 36A, paragraph 3 (n)

omit

[5]Order 38, after Division 1

insert

Division 1ANotification of costs

4AApplication of Division 1A

 This Division applies to defended proceedings.

4BNotification to party before directions hearing

 Immediately before the directions hearing in a proceeding, the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

• (a)

  the actual costs incurred by the party up to and including the directions hearing; and

• (b)

  the estimated future costs of the party up to and including the conciliation conference; and

• (c)

  the estimated future costs of the party up to and including the pre-hearing conference; and

• (d)

  the estimated future costs of the party up to the conclusion of the final hearing.

4CNotification to party before first conciliation conference

 Immediately before the first conciliation conference in a proceeding, the legal practitioner for each party must give to the party a written memorandum stating:

• (a)

  the actual costs incurred by the party up to and including the conciliation conference; and

• (b)

  the estimated future costs of the party up to and including the pre-hearing conference; and

• (c)

  the estimated future costs of the party up to the conclusion of the final hearing.

4DNotification to party before pre-hearing conference

 Immediately before the pre-hearing conference in a proceeding, the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

• (a)

  the actual costs incurred by the party up to and including the pre-hearing conference; and

• (b)

  the estimated future costs of the party up to the conclusion of the final hearing.

4ENotification to party before final hearing

 Immediately before the commencement of the final hearing in a proceeding (except a proceeding for an interim or procedural order), the legal practitioner for each party to the proceeding must give to the party a written memorandum stating:

• (a)

  the actual costs incurred by the party up to and including the first day of the hearing (including any costs paid or payable to an expert); and

• (b)

  the costs payable for each day of the hearing; and

• (c)

  the estimated length of the hearing.

4FNotification to Court and other party of costs

• (1)

  At the directions hearing, first conciliation conference, pre-hearing conference and final hearing in a proceeding, the legal practitioner for a party must give the Court or Registrar, and each other party to the proceeding, a copy of the memorandum of costs given to the party under this Division.

• (2)

  At the directions hearing, first conciliation conference, pre-hearing conference and final hearing in a proceeding, an unrepresented party or separate representative must give the Court or Registrar, and each other party to the proceeding, a statement of the actual costs incurred by the party or separate representative up to and including that stage of the proceeding and of the estimated future costs up to the conclusion of the final hearing.

• (3)

  The memorandum or statement of costs referred to in subrule (1) or (2) must be accompanied by a statement of the source of the funds for the costs paid or to be paid, unless, where the source is a third party, the Court or Registrar directs that the source not be disclosed to the other party to the proceeding.

• (4)

  The Court or Registrar must return the copy of the memorandum or statement of costs to the legal practitioner, the unrepresented party or the separate representative, after the directions hearing, conciliation conference, pre-hearing conference or final hearing.

[6]Order 40, rule 6

substitute

6Frivolous and vexatious proceedings

• (1)

  If a court is satisfied that a person has instituted frivolous or vexatious proceedings, the court may order that the person may not, without leave of the court, institute an action, appeal or other proceeding in the court of the kind or kinds specified in the order:

  • (a)

    against a person named as a respondent in the frivolous or vexatious proceedings; or

  • (b)

    in the same cause of action as the frivolous or vexatious proceedings.

• (2)

  An order under this rule may be made:

  • (a)

    in the case of the Family Court of Australia — of the court’s own motion or on the application on the Marshal; or

  • (b)

    in the case of the Family Court of Western Australia — of the court’s own motion or on the application of the Executive Officer; or

  • (c)

    in any court having jurisdiction under the Act —on the application of a party.

• (3)

  An order may not be made in relation to a person unless the court has given the person a reasonable opportunity to be heard.

• (4)

  A court may discharge or vary an order made under this rule.

• (5)

  A court must not grant leave under this rule to institute an action, appeal or other proceeding unless the court is satisfied that:

  • (a)

    the action, appeal or other proceeding is not an abuse of the process of the court; and

  • (b)

    there is prima facie ground for the action, appeal or other proceeding.

7Application for leave

• (1)

  If an order has been made under paragraph 118 (1) (c) of the Act or under subrule 6 (1), an application for leave to institute a proceeding must, in the first instance, unless the order otherwise provides, be made ex parte.

• (2)

  On the return day of an application, the Court may:

  • (a)

    dismiss the application; or

  • (b)

    make orders as the Court thinks fit for service of the application.

[7]Schedule 1, Forms 45B and 46, note 1

omit

$500.

insert

$5,000.

[8]Schedule 2

substitute

Schedule 2Scale of costs (including counsel’s fees)

 (order 38)

Part 1Costs for work done

Column 1 Item	Column 2 Matter for which charge is made	Column 3 Charge
1	Drawing documents
(a) court documents	$32.60 for each page
(b) other documents	$11.65 for each folio
2	Engrossing documents
(a) court documents	$11.00 for each page
(b) other documents	$4.00 for each folio
3	Drafting and typing
(a) short letter (1 folio or less)	$15.75
(b) circular letter (1 folio or less)	$6.55
(c) any other letter	$13.35 for each folio
4	Telephone attendance
(a) 5 minutes or less	$11.00
(b) more than 5 minutes	$136.00 for each hour
5	Perusal of documents
(a) for each page	$15.75
(b) fewer than 30 folios	$5.40 for each folio
(c) 30 or more folios	an amount at the discretion of the taxing officer
6	Scanning of documents (where perusal is not necessary)
(a) fewer than 10 pages	$6.45 for each page
(b) 10 or more pages	an amount at the discretion of the taxing officer
7	Preparation of the appeal papers in a solicitor’s office	an amount at the discretion of the taxing officer
8	Photographic reproduction, carbon or other copy of a document	40 cents for each page
8A	Transmitting urgent and necessary written material by the solicitor’s facsimile machine Note   STD and ISD transmission fees may be claimed as a disbursement properly incurred	$6.45 for the first page $2.70 for each additional page
8B	Receiving written material by the solicitor’s facsimile machine	$1.50 for each page
9	Time reasonably spent by a solicitor on work requiring the skill of a solicitor (except work mentioned in item 1, 2, 3, 4, 5, 6, 7, 8, 8A, 8B or 10)	$136.00 for each hour
10	Time reasonably spent by a solicitor, or by a clerk of a solicitor, on work (except work mentioned in item 1, 2, 3, 4, 5, 6, 7, 8, 8A, 8B or 9)	$88.50 for each hour

Part 2Counsel’s fees

Column 1 Item	Column 2 Matter for which charge is made	Column 3 Charge
11	Chamber work (including preparing or settling any necessary document, opinion, advice or evidence, and any reading fee (if allowed))	$158–$222 for each hour, or part of an hour
12	Conferences (including court appointed conferences), if necessary	$158–$222 for each hour, or part of an hour
13	Short appearances (for example, directions hearings, interim or procedural hearings, summary hearings taking less than 3 hours)	$141–$655
14	Short defended hearings (taking at least 3 hours but not more than 1 day)	$478–$1108
15	Other defended hearings	$1108–$1631 for each day
16	Reserved judgment	$158–$222 for each hour, or part of an hour

Part 3Basic composite amount

Undefended dissolution proceedings

Column 1 Item	Column 2 Matter for which charge is made	Column 3 Charge
17	If the solicitor employed another solicitor or counsel to appear for the applicant and there is a child of the marriage under 18 years old	$593
18	If the solicitor employed another solicitor or counsel to appear for the applicant and there is no child of the marriage under 18 years old	$442
19	If the solicitor did not employ another solicitor or counsel to appear for the applicant and there is a child of the marriage under 18 years old	$558
20	If the solicitor did not employ another solicitor or counsel to appear for the applicant and there is no child of the marriage under 18 years old	$418

Notes

1. These Rules amend Statutory Rules 1984 No. 425, as amended by 1985 No. 341; 1986 Nos. 6 and 193; 1987 Nos. 15, 74 and 222; 1988 Nos. 9, 15, 16, 46, 166 and 236; 1989 Nos. 49, 65, 175, 201, 266 and 331; 1990 Nos. 20, 74, 348 and 474; 1991 Nos. 122, 414, 475 and 476; 1992 Nos. 8, 45, 161 and 304; 1993 Nos. 51 and 160; 1994 Nos. 25, 58, 59, 60, 61, 62, 152 and 401; 1995 Nos. 2, 144, 145, 146, 319 and 371; 1996 Nos. 28 and 60; 1997 Nos. 97, 154 and 155; 1998 Nos. 117 and 299; 1999 Nos. 61 and 118.

2. Notified in the Commonwealth of Australia Gazette on

26 November 1999.