Family Law Amendment Rules 2002 (No. 1) (Cth)

Family Law Amendment Rules 2002 (No. 1)1

Statutory Rules 2002 No. 232

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

Dated 14 February 2002

J. EDWARD ELLIS

H.R. FREDERICO

T.E. LINDENMAYER

N.J. BUCKLEY

J.V. KAY

RODERICK JOSKE

JAMES BARRY

J. WILCZEK

G.R. MULLANE

N. MUSHIN

M.A. HANNON

B.J. WARNICK

RICHARD CHISHOLM

SALLY BROWN

B. JORDAN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

MICHELLE MAY

CHRISTINE E. DAWE

J.A. JERRARD

ROD BURR

PAUL M. GUEST

HEATHER B. CARTER

LLOYD WADDY

R. FLOHM

D.J. COLLIER

J.M. BOLAND

S. STRICKLAND

A.R. MONTIETH

JANINE STEVENSON

Judges of the Family Court

of Australia

A.M. FILIPPELLO

Principal Registrar

Family Court of Australia

MICHAEL H. HOLDEN

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

1Name of Rules

 These Rules are the Family Law Amendment Rules 2002 (No. 1).

2Commencement

 These Rules commence on gazettal.

3Amendment of Family Law Rules 1984

Schedule 1 amends the Family Law Rules 1984.

Schedule 1Amendments

(rule 3)

  

[1]Order 31B, subrule 33 (1)

substitute

• (1)

  This rule applies to a child support agreement, or provisions of a child support agreement, that may be registered in a court having jurisdiction under Part VII of the Act or under the Assessment Act.

• (1A)

  A child support agreement, or provisions of a child support agreement, may be registered in a court mentioned in subrule (1) by filing in a registry of that court:

  • (a)

    a copy of the agreement, or of the provisions of the agreement, to be registered; and

  • (b)

    an affidavit of a party to the agreement, or the lawyer for that party, verifying that the copy mentioned in paragraph (a) is a true copy of the original.

[2]Order 31B, subrule 33 (2)

omit

subrule (1),

insert

this rule,

[3]Order 33, rule 1

substitute

1Definitions

 In this Order:

obligation means an obligation to which rule 2 applies.

prescribed personal property, in relation to a person, means:

• (a)

  clothes, bed, bedding and kitchen furniture (including a stove, oven and refrigerator, but not including a washing machine or automatic dishwasher); and

• (b)

  ordinary tools of trade, plant and equipment, and professional instruments and reference books, the combined value of which is not more than $1 000.

[4]Order 33, rule 2, heading

substitute

2Enforcement of obligations

[5]Order 33, paragraph 2 (1) (bb)

omit

[6]Order 33, subrule 2 (4)

omit everything before paragraph (a), insert

• (4)

  Subject to subrule (4A), if an obligation arises under an order and the person under the obligation was not present, or represented by a lawyer, in court when the order was made, a sealed copy of the order must be served on the person in accordance with Order 18 by:

[7]Order 33, after subrule 2 (4A)

insert

• (4B)

  If a person seeks to enforce an obligation that is not an order of the court, or is not deemed by the court to be an order of the court, the person may apply to the court for:

  • (a)

    an order declaring the amount of the obligation; and

  • (b)

    a second order that the obligation be paid.

[8]Order 33, subrule 2 (5)

omit

A matter to which this rule applies

insert

An obligation

[9]Order 33, subrule 2 (8)

omit

Where a person ordered to pay a fine under an order to which this rule applies fails or refuses to do so,

insert

If a person ordered to pay a fine under an obligation fails to do so,

[10]Order 33, subrule 2 (11)

omit

an order under this rule

insert

an obligation

[11]Order 33, subrule 2 (11)

omit each mention of

the order

insert

the obligation

[12]Order 33, subrule 2 (12)

omit

an order under this Order

insert

an obligation

[13]Order 33, subrule 2 (12)

omit

the order,

insert

the obligation,

[14]Order 33, rule 3, heading

substitute

3Summary procedures on failure to comply with obligation

[15]Order 33, subrule 3 (1)

omit everything before paragraph (a), insert

• (1)

  If a person fails to satisfy an obligation, a person seeking to enforce the obligation may file an affidavit requesting the issue of:

[16]Order 33, paragraph 3 (1A) (b)

omit

order;

insert

obligation;

[17]Order 33, paragraph 3 (1A) (c)

omit

order

insert

obligation

[18]Order 33, paragraph 3 (1B) (a)

substitute

• (a)

  a person has taken proceedings to enforce an obligation; and

[19]Order 33, paragraph 3 (1B) (b)

omit

the order;

insert

the obligation;

[20]Order 33, paragraphs 3 (3) (a) and (b)

substitute

• (a)

  in the case of an obligation, other than an obligation to which paragraph (b) of this subrule applies — the Registrar is satisfied that the person under the obligation has failed to make a payment for a period of at least 2 weeks; and

• (b)

  in the case of an order mentioned in paragraph 2 (1) (f), (g), (h) or (i) — the Registrar is satisfied that the person against whom the order was made has failed to comply with the order.

[21]Order 33, paragraph 3 (6) (c)

omit

refusal or failure to comply with the relevant order or agreement;

insert

failure to satisfy the obligation sought to be enforced;

[22]Order 33, subrule 3 (9)

substitute

• (9)

  If a court is satisfied that a person appearing before it, whether in person or represented by a lawyer, has failed to satisfy an obligation, the court may:

  • (a)

    order the payment of the amount found to be owing under the obligation; and

  • (b)

    enforce the obligation by any of the following means:

    • (i)

      a garnishment order under rule 4;

    • (ii)

      an order under rule 5 for the seizure and sale of personal property belonging to the person;

    • (iii)

      an order under rule 6 that the estate of the person be sequestrated;

    • (iv)

      an order under rule 7 for the sale of an interest in real property belonging to the person;

    • (v)

      any order it considers necessary to enable enforcement of the obligation or to prevent the dissipation of property or the wasting of assets.

[23]Order 33, subrule 4 (1), definition of respondent

substitute

respondent means the person who has failed to satisfy an obligation.

[24]Order 33, subrule 4 (2)

substitute

• (2)

  If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for a garnishment order to enforce the obligation.

[25]Order 33, subrule 5 (1)

substitute

• (1)

  If a person fails to satisfy an obligation, a person entitled to take proceedings to enforce the obligation may apply to the court for an order to seize personal property belonging to the first-mentioned person to enforce the obligation.

[26]Order 33, paragraph 5 (12) (a)

omit

financial obligation to a party or to a child of the marriage

insert

obligation

[27]Order 33, subrule 5 (13)

omit

financial obligation that the person named in the order may have to a party or to a child of the marriage,

insert

obligation the person named in the order may have,

[28]Order 33, subrule 6 (1)

substitute

• (1)

  If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that the estate of the first-mentioned person be sequestrated.

[29]Order 33, paragraph 6 (2) (b)

omit

compliance with the order

insert

satisfaction of the obligation

[30]Order 33, rule 7

substitute

7Power of sale of real property

• (1)

  If a person fails to satisfy an obligation, a person who is entitled to take proceedings to enforce the obligation may apply to the court for an order that any interest in real property of the first-mentioned person be sold to enforce the obligation.

• (2)

  On an application under subrule (1), the court may do any of the following:

  • (a)

    appoint the Marshal or another person (including a party to the proceedings) as trustee for the sale of the interest;

  • (b)

    order that the interest be transferred or assigned to the trustee, and direct a party to execute a deed or instrument necessary for the transfer or assignment;

  • (c)

    give any necessary directions for the sale of the interest, including directions about the possession or occupancy of the real property until the sale;

  • (d)

    give directions about the disposition of the proceeds of the sale of the interest.

[31]Order 34, rule 3

omit

67Q

insert

67U

[32]Order 36A, paragraph 2 (2) (t)

substitute

• (t)

  Order 28;

[33]Schedule 1, Form 34

omit

67Q

insert

67U

[34]Schedule 1, Form 45B

omit

Form 45BEnforcement summons — child support

(order 33, rule 3)

ENFORCEMENT SUMMONS — CHILD SUPPORT

insert

Form 45BSummons — child support

(order 33, rule 3)

[35]Schedule 1, Form 45B, clause 1

after

Child Support Registrar may

insert

sue for and

[36]Schedule 1, Form 45B, clause 4

omit

refusal or

[37]Schedule 1, Form 45B, clause 5

substitute

• 5.

  The court, on hearing this summons and on being satisfied that you have failed to pay, or to make arrangements to pay, the debt, may order payment of the debt and may enforce the order by making any of the following orders:

  • (a)

    a garnishment order in respect of money owing to you, including any wages or salary;

  • (b)

    an order for the seizure and sale of personal property belonging to you;

  • (c)

    an order that your estate be sequestrated;

  • (d)

    an order for the sale of any interest in land belonging to you;

  • (e)

    any other order it considers necessary to ensure payment of the debt or to prevent the dissipation of property or the wasting of assets.

[38]Schedule 1, Form 45B, note 1

omit

$5,000.

insert

50 penalty units.

[39]Schedule 1, Form 46, clause 1

omit

a financial agreement)

insert

a financial agreement or a debt for an amount of child support has been found, under a notice of assessment given to you under section 76 of the Child Support (Assessment) Act 1989, to be payable by you to (name of carer entitled to child support))

[40]Schedule 1, Form 46, clause 4

omit all the words before paragraph (b), insert

• 4.

  The court, on hearing this summons and on being satisfied that you have failed to comply with an obligation mentioned in clause 1, may make such of the following orders as it thinks fit:

  • (a)

    an order for the payment of the amount of money owing under the obligation mentioned in clause 1;

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, 118 and 279; 2000 Nos. 172 and 190; 2001 Nos. 1, 19, 191 and 257.

2. Notified in the Commonwealth of Australia Gazette