Family Law Amendment Rules 2002 (No. 2) (Cth)

Family Law Amendment Rules 2002 (No. 2)1

Statutory Rules 2002 No. 1512

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

Dated 24 June 2002

ALASTAIR NICHOLSON C.J.

J. EDWARD ELLIS

T.E. LINDENMAYER

N.J. BUCKLEY

J.V. KAY

I.R. COLEMAN

JAMES BARRY

J. WILCZEK

N. MUSHIN

RICHARD CHISHOLM

SALLY BROWN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

ROD BURR

PAUL M. GUEST

 

HEATHER B. CARTER

R. FLOHM

D.J. COLLIER

J.M. BOLAND

S. STRICKLAND

A.R. MONTIETH

Judges of the Family Court

of Australia

A.M. FILIPPELLO

Principal Registrar

Family Court of Australia

MICHAEL H. HOLDEN

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

Contents

• •
• •
• •

1Name of Rules

 These Rules are the Family Law Amendment Rules 2002 (No. 2).

2Commencement

 These Rules commence as follows:

• (a)

  on 1 July 2002 — rules 1 to 3 and Schedule 1;

• (b)

  on 1 August 2002 — Schedule 2.

3Amendment of Family Law Rules 1984

 Schedules 1 and 2 amend the Family Law Rules 1984.

Schedule 1Amendments commencing on 1 July 2002

(rule 3)

  

[1]Order 1, subrule 4 (1), definition of corporation

omit

Corporations Law.

insert

Corporations Act 2001.

[2]Order 2, paragraph 3 (4) (b)

omit

Corporations Law.

insert

Corporations Act 2001.

[3]Order 20, after rule 4

insert

4AElectronic exchange

 The court may make an order directing the exchange of documents by electronic means.

[4]Order 28, rule 7

omit

The court

insert

• (1)

  The Court

[5]Order 28, rule 7

insert

• (2)

  An application to set aside a subpoena relating to an appeal to be heard by a Full Court must be heard by the Full Court before which the appeal is listed for hearing.

[6]Order 31, rules 1 and 4

omit

[7]Order 31A, rule 1, definition of cross-vesting law, paragraph (a)

omit

Corporations Act 1989;

insert

Corporations Act 2001;

[8]Order 40, rule 1

omit

11.3%

insert

10.1%

[9]Order 41, Divisions 1 and 2

substitute

Division 1Preliminary

1Definition

 In this Order:

Corporations Rules means the Federal Court (Corporations) Rules 2000.

Division 2Applications under the Corporations Act 2001

2Application of Division

 This Division applies to proceedings started in, or transferred to, a Family Court under the Corporations Act 2001.

3Application of Corporations Rules

The Corporations Rules, as modified by Schedule 3 and by the court, if necessary, in a particular proceeding, apply to an application under the Corporations Act 2001 in a Family Court as if those Rules were provisions of these Rules.

4Applications under the Corporations Act 2001

 An application under the Corporations Act 2001 must not be dismissed only because it has been made in the wrong form.

[10]Order 41, Division 3, heading

substitute

Division 3Transfer of proceedings under the Corporations Act 2001

[11]Order 41, rule 7

omit

Corporations Law.

insert

Corporations Act 2001.

[12]Order 41, rule 9, heading

substitute

9Application for transfer of proceedings under the Corporations Act 2001

[13]Order 41, paragraph 10 (a)

substitute

• (a)

  any relevant provision of the Corporations Act 2001;

[14]Order 41, subrule 13 (1)

omit

subsection 54 (1) of the Corporations Act 1989:

insert

subsection 1337P (1) of the Corporations Act 2001:

[15]Schedule 1, form 36

omit

Subpoena

Form 36 — Family Law Rules Order 28, rules 1 and 13

insert

Subpoena filed on behalf of (insert name)

Form 36 — Family Law Rules Order 28, rules 1 and 13

[16]Schedule 1, form 36

omit

send to lawyer in 5   □ other   □  give details:

insert

lawyer in 5   □ other   □ give details:

[17]Schedule 1, form 36

omit

4

Address for service of documents for person(s) in 3 as already provided to the Court

insert

4

Address for service of party/parties in 3 filing this document

[18]Schedule 1, forms 39 and 41

omit

[19]Schedule 1, form 51, note

substitute

[NOTES:

1. Section 122A of the Family Law Act 1975 provides that, if a person to whom this warrant is addressed reasonably believes that the person to be arrested is in or on premises, a place, vehicle, vessel or aircraft, that person may:

(a) without warrant, enter and search the premises, place, vehicle, vessel or aircraft; and

(b) may use such force and assistance as is necessary and reasonable to enable the exercise of these powers.

2. If no date is specified in item 3, this warrant stops being in force:

(a) if it is issued under subsection 65Q (2) of the Family Law Act 1975 — 6 months after the date it is issued; or

(b) in any other case — 12 months after it is issued.]

[20]Schedule 1, form 55

omit

*I am not instructed as to any future address for service of that party.

insert

I advise that the last known address of the party is (insert address).

*I advise that the last known telephone number, fax number or e-mail address is (insert number or address).

[21]Schedule 1, form 55

omit

*have/*have not notified my client that the matter is next listed before the court on (date) for (action).

insert

have notified my client at their last known address that the matter is next listed before the court on (date) for (action).

[22]Schedule 1, form 55

omit

19

insert

20

[23]After Schedule 2

insert

Schedule 3Modifications of the Federal Court (Corporations) Rules 2000 in relation to these Rules

(Order 41, rule 3)

1Rule 1.5, definition of interlocutory process

omit

Form 3.

insert

Form 8 of the Family Law Rules 1984.

2Rule 1.5, definition of originating process

omit

Form 2.

insert

Form 8 of the Family Law Rules 1984.

3Rule 2.2, heading

substitute

2.2Originating process and interlocutory process — Form 8 (Family Law Rules 1984)

4Paragraph 2.2 (3) (a)

omit

Form 2;

insert

Form 8 of the Family Law Rules 1984;

5Paragraph 2.2 (4) (a)

omit

Form 3;

insert

Form 8 of the Family Law Rules 1984;

6Rule 5.9, heading

substitute

5.9Appearance before Judicial Registrar

7Paragraphs 5.9 (a) and (b)

omit each mention of

Registrar

insert

Judicial Registrar

8Rules 15.1 and 15.2

omit

Order 50

insert

Order 32, rule 21 of the Family Law Rules 1984

9Division 16, heading

substitute

Division 16Powers of Judicial Registrars

10Rule 16.1, heading

substitute

16.1Powers of Judicial Registrars

11Subrules 16.1 (1), (2) and (3)

omit each mention of

Registrar

insert

Judicial Registrar

12Rule 16.2, heading

substitute

16.2Reference by Judicial Registrar

13Subrules 16.2 (1) and (2)

omit each mention of

Registrar

insert

Judicial Registrar

14Schedule 2, heading

substitute

Schedule 2Powers of the Court that may be exercised by a Judicial Registrar

(rule 16.1)

Schedule 2Amendments commencing on 1 August 2002

(rule 3)

[1]Order 1, subrule 4 (1), definition of case conference

substitute

case assessment conference means a conference held in accordance with Order 9, Division 1A.

[2]Order 1, subrule 4 (1), definition of pre-hearing conference

omit

[3]Order 1, subrule 4 (1), after definition of prescribed child welfare authority

insert

pre-trial conferencemeans a conference held under Order 24, paragraph 4 (1) (b).

[4]Order 1, subrule 4 (1), after definition of technical medium

insert

trial notice, in relation to proceedings, means a notice issued by the court, setting out orders for the preparation of the proceedings for trial.

[5]Order 9, Division 1A, heading

substitute

Division 1ACase assessment conference

[6]Order 9, rule 1A, heading

substitute

1ACase assessment conference

[7]Order 9, rule 1B, heading

substitute

1BAfter case assessment conference

[8]Order 17, subrule 4 (2)

substitute

• (2)

  The documents must be served no later than 3 days before the case assessment conference or first directions hearing.

[9]Order 20, subrule 2 (2)

substitute

• (2)

  In proceedings commenced by an application in accordance with Form 3, a party may only serve a request to make discovery:

  • (a)

    in financial matters — after the conciliation conference and no later than 42 days before the pre-trial conference; or

  • (b)

    in proceedings relating to children — after the issue of the trial notice and no later than 42 days before the pre-trial conference; or

  • (c)

    if the court, or a Registrar, grants leave to do so.

[10]Order 20, subrule 2 (3)

omit

subrule (2)

insert

paragraph (2) (c)

[11]Order 24, paragraph 2 (2) (c)

substitute

• (c)

  the financial matters referred to in those parts of the case summary document that the party must complete for the conference.

[12]Order 24, rule 3

omit

[13]Order 24, paragraph 4 (2) (j)

omit

guidelines.

insert

directions.

[14]Order 24A, heading

substitute

Order 24APre-trial conferences

[15]Order 24A, rule 2, heading

substitute

2Matters to be considered at pre-trial conference

[16]Order 24A, rule 3, heading

substitute

3Attendance at pre-trial conference

[17]Order 24A, rule 4, heading

substitute

4Conduct of pre-trial conference

[18]Order 30, subrule 2 (2)

substitute

• (2)

  No later than 14 days before the date fixed for the pre-trial conference, or as directed by the Registrar, each party must file and serve on each other party who has filed an address for service in the proceedings:

  • (a)

    1 affidavit setting out the party’s evidence; and

  • (b)

    for each witness whom the party intends calling at the hearing:

    • (i)

      1 affidavit of the witness setting out the witness’s evidence; or

    • (ii)

      if the witness refuses to make an affidavit — a notice to that effect setting out the name of the witness.

[19]Order 30, paragraph 2AA (a)

omit

at a pre-hearing conference; or

insert

by a court; or

[20]Order 30, subrule 2AAA (2)

substitute

• (2)

  A party may seek leave to make a submission or adduce evidence by a technical medium by filing an application:

  • (a)

    for a trial — in accordance with Form 8; and

  • (b)

    for a hearing (other than a trial) — in the form of a written request.

[21]Order 30, after subrule 2AAA (4)

insert

• (4A)

  A party who makes an application under paragraph (2) (a) may appear by telephone at the hearing of the application.

• (4B)

  An application made under paragraph (2) (b) must be considered in chambers in the absence of the parties, unless otherwise ordered by the court.

[22]Schedule 1, Form 17A

omit

[23]Further amendments — case assessment

 The following provisions are amended by omitting each mention of ‘case’ and inserting ‘case assessment’:

 · Order 8, paragraph 9 (1) (a)

 · Order 8, subrule 9 (2)

 · Order 8, rule 16

 · Order 9, subrule 1A (1)

 · Order 9, paragraphs 1A (2) (a) and (b)

 · Order 9, subrules 1A (3), 1A (4), 1B (1) and 1B (2)

 · Order 38, paragraph 4 (a)

 · Order 38, subparagraph 4 (a) (i)

 · Order 38, subrules 6 (1), (2) and (4).

[24]Further amendments — pre-trial

 The following provisions are amended by omitting each mention of ‘pre-hearing’ and inserting ‘pre-trial’:

 · Order 9, subparagraph 2 (5) (b) (x)

 · Order 24, paragraph 4 (1) (b)

 · Order 24A, paragraphs 3 (a) and (b)

 · Order 24A, rule 4

 · Order 38, subparagraph 4 (a) (iii)

 · Order 38, paragraph 4 (c)

 · Order 38, subparagraph 4 (c) (i)

 · Order 38, subrules 6 (1), (2) and (4)

 · Order 38, paragraph 17 (1) (a).

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; 2002 No. 23.

2. Notified in the Commonwealth of Australia Gazette