Family Law Amendment Rules 2002 (No. 4) (Cth)

Family Law Amendment Rules 2002 (No. 4)1

Statutory Rules 2002 No. 3222

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

Dated 12 December 2002

ALASTAIR NICHOLSON C.J.

K.A. MURRAY

H.R. FREDERICO

T.E. LINDENMAYER

N.J. BUCKLEY

RODERICK JOSKE

JAMES BARRY

J. WILCZEK

G.R. MULLANE

N. MUSHIN

M.A. HANNON

SALLY BROWN

B. JORDAN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

MICHELLE MAY

ROD BURR

HEATHER B. CARTER

LLOYD WADDY

J.M. BOLAND

S. STRICKLAND

A.R. MONTIETH

PETER YOUNG

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

Contents

1Name of Rules

 These Rules are the Family Law Amendment Rules 2002 (No. 4).

2Commencement

 These Rules commence as follows:

• (a)

  on 28 December 2002 — rules 1 to 3 and Schedules 1 and 2;

• (b)

  on 1 January 2003 — Schedule 3.

3Amendment of Family Law Rules 1984

• (1)

  Schedule 1 amends the Family Law Rules 1984.

• (2)

  Schedule 2 amends the Family Law Rules 1984, as amended by Schedule 1.

• (3)

  Schedule 3 amends the Family Law Rules 1984, as amended by Schedules 1 and 2.

Schedule 1Amendments commencing on 28 December 2002

(rule 3)

  

[1]Schedule 1, Form 3, Application, Part E, heading

substitute

GSignature of applicant or lawyer

[2]Schedule 1, Form 3, Application, Part F, heading

substitute

HLawyer’s declaration (complete only if lawyer is filing application)

[3]Schedule 1, Form 3A, Part F, heading

substitute

HSignature

[4]Schedule 1, Form 3A, Part G, heading

substitute

ILawyer’s declaration (complete only if lawyer is filing response)

[5]Schedule 1, Form 3B, Part B, heading

substitute

DSignature

[6]Schedule 1, Form 12A, Part F, item 42, heading

substitute

Total net property (not including superannuation)

[7]Schedule 1, Form 12A, Part F, items 45 to 52

renumber as items 53 to 60 respectively

[8]Schedule 1, Form 12A, Part G, item 53

renumber as item 63

[9]Schedule 1, Form 17, Part D, heading

substitute

ELiabilities — what you owe

[10]Schedule 1, Form 17, Part E, heading

substitute

FFinancial resources

[11]Schedule 1, Form 17, Part F, heading

substitute

GOrders for maintenance or child support

[12]Schedule 1, Form 17, items 42 to 54

renumber as 44, 45, 46, 47, 48, 49, 50, 51, 51A, 52, 53, 54 and 55 respectively

Schedule 2Amendments following amendments made by Schedule 1

(rule 3)

[1]Order 1, subrule 4 (1), after definition of State child order

insert

superannuation information form, for a property settlement proceeding involving a superannuation interest, means the form approved by the Principal Registrar.

[2]Order 1, subrule 4 (1), at the foot

insert

Note 1 Several other words and expressions used in these Rules have the meaning given by section 4 of the Act. For example:

· appeal

· Appeal Division

· court

· decree

· financial matters

· Full Court

· proceedings

· Registrar.

Note 2 Section 90MD of the Act defines several words and expressions for Part VIIIB of the Act in relation to superannuation interests. For example:

· eligible superannuation plan

· flagging order

· member spouse

· non-member spouse

· payment flag

· payment split

· RSA

· splitting order

· superannuation agreement

· superannuation interest

· trustee.

Note 3   A number of words and expressions commonly used in Commonwealth legislation, and in these Rules, have, unless the contrary intention is indicated, the meaning or effect set out in certain Acts of general application. See, for example, the Acts Interpretation Act 1901 and the Crimes Act 1914.

[3]Order 14, after rule 3

insert

3AOrder for superannuation interest

• (1)

  This rule applies if, in an application for a consent order:

  • (a)

    a party seeks an order in relation to a superannuation interest (the order sought); and

  • (b)

    the order sought will impose an obligation on the trustee of the eligible superannuation plan in which the interest is held to take particular action in relation to the interest (for example, a payment split).

• (2)

  At least 28 days before filing the application, the party must serve the following documents on the trustee of the eligible superannuation plan in which the superannuation interest is held:

  • (a)

    a copy of the draft consent order that the parties intend to apply for, signed by the parties;

  • (b)

    a written notice stating that:

    • (i)

      the parties intend to apply for the order sought if no objection to the order is received from the trustee within the time mentioned in subrule (3); and

    • (ii)

      if the trustee objects to the order sought, the trustee must give the parties written notice of the objection within the time mentioned in subrule (3).

• (3)

  If the trustee does not object to the order sought within 28 days after receiving a notice under subrule (2), the parties may file the application.

[4]Order 17, rule 2

substitute

2Superannuation information form and financial statement (Form 17)

• (1)

  This rule applies to a person who:

  • (a)

    files an application instituting proceedings to which this Order applies; or

  • (b)

    is a respondent to proceedings to which this Order applies and who files a response in those proceedings.

• (2)

  The person must file with the application or response a financial statement in accordance with Form 17.

• (3)

  If the person is seeking an order for property settlement and has a superannuation interest, the person must attach to Form 17 a completed superannuation information form in relation to that interest.

[5]Order 17, paragraph 3 (a)

omit

personal property and

insert

personal property, superannuation and

[6]Order 17, paragraph 4 (1) (c)

substitute

• (c)

  if the person is a member of a superannuation plan:

  • (i)

    if not already filed or exchanged — the completed superannuation information form for any superannuation interest of the person; and

  • (ii)

    for a self-managed superannuation fund — the trust deed and copies of the 3 most recent financial statements for the fund;

[7]Order 18, after rule 8

insert

8AService of application or order for superannuation interest

• (1)

  This rule applies if, in an application, response or reply, a person:

  • (a)

    seeks a flagging or splitting order in relation to a superannuation interest under Part VIIIB of the Act; or

  • (b)

    applies under section 79A of the Act for an order to set aside an earlier order made in relation to a superannuation interest.

• (2)

  The person must, immediately after filing the application, response or reply, serve a sealed copy of that document on the trustee of the eligible superannuation plan in which the interest is held.

• (3)

  If the court makes an order splitting, flagging or otherwise affecting a superannuation interest, the applicant must serve a copy of it on the trustee of the eligible superannuation plan in which the interest is held.

[8]Order 24, paragraph 2 (2) (b)

substitute

• (b)

  the value of any item of property in which any party attending the conference has an interest, including:

  • (i)

    if the party is not relying on a superannuation information form — any documents containing evidence of the basis on which the value of the superannuation interest has been calculated; and

  • (ii)

    any documents calculating the value of the superannuation interest; or

[9]Order 36A, rule 3A

omit

Where in proceedings:

insert

• (1)

  If in proceedings:

[10]Order 36A, rule 3A

insert

• (2)

  For subparagraph (1) (b) (i), the gross value of the property includes the value of any superannuation interest.

[11]Schedule 1, Form 3, Application, after Part D

insert

ESuperannuation interests (complete only in property settlement proceedings)

• 9

  Have the parties entered into a binding financial agreement under Part VIIIA of the Act?

No □

Yes □

• 10

  If either party has a superannuation interest, have the parties entered into a binding superannuation agreement under Part VIIIB of the Act in relation to the superannuation interest?

 

No □

Yes □

[12]Schedule 1, Form 3A, after Part E

insert

FSuperannuation interests (complete only in property settlement proceedings)

• 11

  Have the parties entered into a binding financial agreement under Part VIIIA of the Act?

No □

Yes □

• 12

  If either party has a superannuation interest, have the parties entered into a binding superannuation agreement under Part VIIIB of the Act in relation to the superannuation interest?

No □

Yes □

[13]Schedule 1, Form 3B, after Part A

insert

BSuperannuation interests (complete only in property settlement proceedings)

• 6

  Have the parties entered into a binding financial agreement under Part VIIIA of the Act?

No □

Yes □

• 7

  If either party has a superannuation interest, have the parties entered into a binding superannuation agreement under Part VIIIB of the Act in relation to the superannuation interest?

No □

Yes □

[14]Schedule 1, Form 12A, Part F

omit

• ▪

  Column 1 should contain details of all property, liabilities and financial resources of the applicant.

• ▪

  Column 2 should contain details of all property, liabilities and financial resources of the respondent.

insert

• ▪

  Column 1 should contain details of all property, superannuation, liabilities and financial resources of the applicant.

• ▪

  Column 2 should contain details of all property, superannuation, liabilities and financial resources of the respondent.

[15]Schedule 1, Form 12A, Part F, after item 42

insert

Superannuation

Notes on superannuation

If you are seeking an order that imposes an obligation on the trustee of the plan to deal with the superannuation interest

• ▪

  you must satisfy the court that the trustee has been given procedural fairness; and

• ▪

  the proposed consent orders must contain a provision that each party and the trustee have liberty to apply in relation to the implementation of the orders affecting the superannuation interest.

• ▪

  You must attach a completed superannuation information form for each superannuation interest

If you have more than 1 superannuation interest

▪

attach a list of the interests

• ▪

  include the details required in 44 – 50 for each

▪

insert the totals in item 49

[16]Schedule 1, Form 12A, Part F, items 43 and 44

substitute

column 1 — applicant	column 2 — respondent
43 Do you have a superannuation interest?	No □ Go to item 53 Yes □ Go to item 44	No □ Go to item 53 Yes □ Go to item 44
44 Name of eligible superannuation plan	name	name
45 Type of interest	accumulation interest □ partially vested accumulation interest  □ defined benefit interest □ self managed fund □ retirement savings account □ small superannuation account □ percentage only interest □ approved deposit fund □	accumulation interest □ partially vested accumulation interest □ defined benefit interest □ self managed fund □ retirement savings account □ small superannuation account □ percentage only interest □ approved deposit fund □
46 Have the parties entered into a superannuation agreement under Part VIIIB of the Act in relation to the superannuation interest?	No □  Yes □ Attach a copy of the agreement	No □  Yes □ Attach a copy of the agreement
47 Has the non‑member spouse served a waiver notice on the trustee of the eligible superannuation plan under section 90MZA of the Act for a payment split made in relation to the superannuation interest?	No □  Yes □ Attach a copy of the notice	No □  Yes □ Attach a copy of the notice
48 Is there a payment flag in operation in relation to the superannuation interest?	No □  Yes □ Attach a copy of the order or agreement creating the flag	No □  Yes □ Attach a copy of the order or agreement creating the flag
49 Specify the agreed gross value of the interest in superannuation	$	$
50 Has the agreed value in item 49 been calculated in accordance with the Family Law (Superannuation) Regulations 2001? (Complete only if paragraph 90MT (2) (a) of the Act applies to the superannuation interest)	Yes □	Yes □
51 Have you attached a completed superannuation information form for each interest in superannuation?	Yes □	Yes □
52 Total gross value of all superannuation interests	$	$

[17]Schedule 1, Form 12A, Part F

omit

Financial resources

Notes on superannuation

If you have more than one fund

▪

attach a list of funds

• ▪

  include the details required in 43 – 44 for each

▪

insert the totals on this page

Notes on item 45

If space is insufficient

▪

attach a list for each interest

▪

include all the details required in 45

• ▪

  add the value of each interest and put only the total on this page

[18]Schedule 1, Form 12A, Part F, after item 52

insert

Financial resources

Notes on item 53

If space is insufficient

▪

attach a list for each interest

▪

include all the details required in 53

• ▪

  add the value of each interest and put only the total on this page

[19]Schedule 1, Form 12A, Part F, item 53

omit

• 53

  Give details – include interest in any deceased estate, trust, redundancy package or similar

insert

• 53

  Give details — include interest in any deceased estate, trust or similar

[20]Schedule 1, Form 12A, Part F

omit

Effect of financial orders sought

• ▪

  Show the effect of the financial orders sought by setting out your proposal for the distribution of property, resources and liabilities. Complete both columns.

insert

Effect of financial orders sought

• ▪

  Show the effect of the financial orders sought by setting out your proposal for the distribution of property, superannuation, resources and liabilities. Complete both columns.

[21]Schedule 1, Form 12A, Part F, item 60

substitute

60 Proposed superannuation	total $ …………….	total $ …………….
61 What are the taxation consequences of any order sought in relation to any interest in superannuation? attach an extra page if you need more space	Give details	Give details
62 Will the orders sought affect your financial resources as set out in item 53? attach an extra page if you need more space	No □  Yes □ Give details	No □  Yes □ Give details

[22]Schedule 1, Form 12A, Part H, item 8

omit

property or a financial resource

insert

property, superannuation or a financial resource

[23]Schedule 1, Form 12A, Part H, item 10

omit

section 79 and subsection 75(2)

insert

subsection 75 (2), section 79 and Part VIIIB

[24]Schedule 1, Form 12A, Part H, after item 11

insert

• 12

  For property orders in relation to a superannuation interest — the trustee of the superannuation plan:

  • (a)

    at least 28 days before this application is filed — has been served with written notice:

    • (i)

      of the intention to seek orders from the court in the terms of the attached orders sought; and

    • (ii)

      that the trustee may object to the orders sought by giving written notice of the objection before this application is filed; and

  • (b)

    has not objected to the orders sought □

[25]Schedule 1, Form 12A, Part J, item 8

omit

property or a financial resource

insert

property, superannuation or a financial resource

[26]Schedule 1, Form 12A, Part J, item 10

omit

section 79 and subsection 75(2)

insert

subsection 75 (2), section 79 and Part VIIIB

[27]Schedule 1, Form 12A, Part J, after item 11

insert

• 12

  For property orders in relation to a superannuation interest — the trustee of the superannuation plan:

  • (a)

    at least 28 days before this application is filed — has been served with written notice:

    • (i)

      of the intention to seek orders from the court in the terms of the attached orders sought; and

    • (ii)

      that the trustee may object to the orders sought by giving written notice of the objection before this application is filed; and

  • (b)

    has not objected to the orders sought □

[28]Schedule 1, Form 17, Affidavit, paragraph (d)

omit

property or

insert

property, superannuation or

[29]Schedule 1, Form 17, Financial summary, note

omit

Important: Complete all the items A – E on the following pages before inserting relevant totals in this summary

insert

Important: Complete all of Parts A – F on the following pages before inserting relevant totals in this summary

[30]Schedule 1, Form 17, Financial summary

omit

D Total Liabilities —

what you owe

total item D

$ .00

E Total Financial Resources

total item E

$ .00

insert

D Total superannuation

total Part D

$ .00

E Total liabilities —

what you owe

total Part E

$ .00

F Total financial resources

total Part F

$ .00

[31]Schedule 1, Form 17, after Part C

insert

DSuperannuation
▪ You must attach a completed superannuation information form for each superannuation interest
42 Interest in superannuation		NAME OF SUPERANNUATION PLAN 1	GROSS VALUE $ .00
TYPE OF INTEREST □ Accumulation interest □ Partially vested accumulation interest □  Defined benefit interest □ Self managed fund □ Retirement savings account □ Small superannuation account □ Percentage only interest □ Approved deposit fund
NAME OF SUPERANNUATION PLAN 2	GROSS VALUE $ .00
TYPE OF INTEREST □ Accumulation interest □ Partially vested accumulation interest □  Defined benefit interest □ Self managed fund □ Retirement savings account □ Small superannuation account □ Percentage only interest □ Approved deposit fund
NAME OF SUPERANNUATION PLAN 3	GROSS VALUE $ .00
TYPE OF INTEREST □ Accumulation interest □ Partially vested accumulation interest □  Defined benefit interest □ Self managed fund □ Retirement savings account □ Small superannuation account □ Percentage only interest □ Approved deposit fund
43	TOTAL GROSS VALUE OF SUPERANNUATION ASSETS WRITE THIS ITEM 43 TOTAL AT ITEM D ON PAGE 1 OF THIS FORM			$ .00

[32]Schedule 1, Form 17, item 51A

omit

Schedule 3Amendments commencing on 1 January 2003

(rule 3)

[1]Order 1, subrule 4 (1), note 1

substitute

Note 1 Several other words and expressions used in these Rules have the meaning given by section 4 of the Act. For example:

· appeal

· Appeal Division

· court

· decree

· DPP

· financial matters

· forfeiture application

· Full Court

· proceedings

· proceeds of crime order

· property settlement or spousal maintenance proceedings

· Registrar.

[2]Order 8, after subrule 3 (2)

insert

• (2A)

  An application:

  • (a)

    under section 79C or 90N of the Act to stay property settlement or spousal maintenance proceedings; or

  • (b)

    under section 79D or 90P of the Act to lift a stay of property settlement or spousal maintenance proceedings;

must be in accordance with Form 8.

[3]Order 8, rule 3A

omit

Without

insert

• (1)

  Without

[4]Order 8, rule 3A

insert

• (2)

  However, the DPP may make an application mentioned in subrule 3 (2A) without filing an application for final orders in the cause of action to which the application relates.

[5]Order 8, paragraph 12 (1) (d)

omit

certificate.

insert

certificate; or

[6]Order 8, after paragraph 12 (1) (d)

insert

• (e)

  for an application under section 79C or 90N of the Act to stay property settlement or spousal maintenance proceedings — a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed; or

• (f)

  for an application under section 79D or 90P of the Act to lift a stay of property settlement or spousal maintenance proceedings — either of the following documents, if not already filed:

  • (i)

    the written notice of the DPP’s consent under section 79D or 90P of the Act;

  • (ii)

    proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined.

[7]Order 8, after rule 13

insert

Division 3AProceeds of crime orders and forfeiture applications

13ANotification of proceeds of crime order or forfeiture application (Act, ss 79B and 90M)

• (1)

  This rule applies if a party to property settlement or spousal maintenance proceedings is required to give the Registrar written notice under subsection 79B (3) or 90M (3) of the Act of a proceeds of crime order or forfeiture application.

• (2)

  The written notice must:

  • (a)

    have attached to it a sealed copy of the proceeds of crime order or forfeiture application, if not already filed; and

  • (b)

    be filed as soon as possible after the party is notified by the DPP under paragraph 79B (3) (b) or 90M (3) (b) of the Act.

[8]Schedule 1, Form 3, Application, after Part E

insert

FProceeds of crime legislation (complete only in property settlement or spousal maintenance proceedings)

• 11

  Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

[9]Schedule 1, Form 3A, after Part F

insert

GProceeds of crime legislation (complete only in property settlement or spousal maintenance proceedings)

• 13

  Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

[10]Schedule 1, Form 3B, after Part B

insert

CProceeds of crime legislation (complete only in property settlement or spousal maintenance proceedings)

• 8

  Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

[11]Schedule 1, Form 12, Part E, heading

substitute

ECurrent orders

[12]Schedule 1, Form 12, Part E, after item 14

insert

14A Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

[13]Schedule 1, Form 12A, Part C, item 13

omit

Omit 14a, b and 15 if no financial orders are sought

insert

Omit 14 a, b, 15 and 15A if no financial orders are sought

[14]Schedule 1, Form 12A, Part C, after item 15

insert

15A Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

[15]Schedule 1, Form 12B, Part E, heading

substitute

ECurrent orders

[16]Schedule 1, Form 12B, Part E, after item 9

insert

9A Is there a proceeds of crime order or forfeiture application covering the property of any of the parties? (see Proceeds of Crime Act 2002)

No □

Yes □ Attach a sealed copy of the order or application

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 Nos. 23, 151 and 241.

2. Notified in the Commonwealth of Australia Gazette on 19 December 2002.