Family Law Amendment Rules 2003 (No. 1) (Cth)
Family Law Amendment Rules 2003 (No. 1) 1
Statutory Rules 2003 No. 172 2
We, Judges within the meaning of the
Family Law Act 1975 , make the following Rules of Court under that Act.Dated 23 June 2003
ALASTAIR NICHOLSON C.J.
J. EDWARD ELLIS
K.A. MURRAY
N.J. BUCKLEY
RODERICK JOSKE
JAMES BARRY
J. WILCZEK
G.R. MULLANE
N. MUSHIN
B.J. WARNICK
RICHARD CHISHOLM
SALLY BROWN
B. JORDAN
S.R. O’RYAN
LINDA DESSAU
SUSAN MORGAN
MICHELLE MAY
CHRISTINE E. DAWE
ROD BURR
HEATHER B. CARTER
J.M. BOLAND
S. STRICKLAND
A.R. MONTIETH
DONNA O’REILLY
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
These Rules are the
Family Law Amendment Rules 2003 (No. 1) .
These Rules commence on gazettal.
Schedule 1 amends the
Family Law Rules 1984 .
(rule 3)
[ 1 ] Order 1, subrule 4 (1), after definition of divorce
insert
electronic means includes transmission of information in the form of data, text, speech or images by telephone or video conferencing, closed circuit television, fax or e-mail.
[ 2 ] Order 1, subrule 4 (1), definition of technical medium
omit
substitute
In deciding whether to transfer a proceeding to the Federal Magistrates Court, factors that the Court may take into account, in addition to the factors to which the Court must have regard under subsection 33B (6) of the Act, include:
(a) the importance of the outcome of the proceeding to the public, such that it would be desirable for there to be a decision of the Family Court on one or more of the points in issue; and
(b) whether, if the proceeding is transferred, it is likely to be dealt with at less cost and more convenience to the parties than if the proceeding is not transferred; and
(c) whether the proceeding is likely to be dealt with earlier if it is transferred; and
(d) the availability of a judicial officer specialising in the type of proceeding to be transferred; and
(e) the availability of particular procedures appropriate for the type of proceeding; and
(f) the financial value of the claim; and
(g) the complexity of the facts, legal issues, remedies and procedures involved; and
(h) the comparative facilities available and whether they are inadequate for a party or witness; and
(i) the wishes of the parties.
omit rule 8.
insert rules 8 and 8A.
insert
(1) This rule applies if, in a proposed 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 proposed consent order, 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 proposed consent order that the parties intend to file, signed by the parties;
(b) a written notice stating that:
(i) the parties intend to file the proposed consent order 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 proposed consent order.
omit
substitute
insert
(1) In addition to the requirements of rule 2AAA, a party who proposes to adduce evidence by telephone or video conference or other electronic means from a witness in a foreign country, must satisfy the Court:
(a) that the party has researched the information published by the Attorney-General’s Department regarding its arrangements with other countries for the taking of evidence, to determine the attitude of the foreign country’s government to the taking of evidence by electronic means; and
(b) if the attitude of the foreign country’s government to the taking of evidence by electronic means cannot be ascertained from sources within Australia — that the party has made appropriate inquiries through diplomatic channels, a lawyer or a provider of technical facilities in the foreign country to determine that attitude; and
(c) of whether permission is needed from the foreign country’s government to adduce evidence from a witness in that country by electronic means; and
(d) if permission is needed, of whether permission has been granted or refused; and
(e) if permission has been refused, about the reason for refusal; and
(f) about whether there are any special requirements for the adducing of evidence, including:
(i) the administration of an oath; and
(ii) the form of the oath.
(2) In this rule:
foreign country means a country other than Canada, New Zealand, the United Kingdom and the United States of America.
Note 1 A party seeking to adduce evidence from a witness in Canada, New Zealand, the United Kingdom or the United States of America does not have to comply with the requirements in subrule (1) as these countries do not object to the taking of evidence by video link.
Note 2 The Court may, instead of granting permission for a party to adduce evidence by electronic means from a witness in a foreign country, direct the Registry Manager to send a letter of request to the judicial authorities in the foreign country, requesting the Court to take evidence from the witness in accordance with the laws of the foreign country. For the requirements for a letter of request to the judicial authorities of a foreign country, see rule 7.
insert
(c) the power to make an interim order for property settlement;
insert
(df) the power under section 34 of the Act to make orders and issue writs;
insert
(n) the power under section 105 of the Act to enforce decrees;
substitute
For paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1) of the Act, the prescribed rate of interest is 9.55% a year.
[ 13 ] Schedule 1, Form 12A, Part F, boxed note after item 42
omit
▪ insert the totals in item 49
insert
▪ insert the totals in item 52
Order 23, rule 5 | way of technical medium | electronic means |
Order 30, subrule 2AAA (2) | a technical medium | electronic means |
Order 30, paragraphs 2AAA (5) (b), (g) and (h) and subrule 2AAA (6) | technical medium | electronic means |
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, 241 and 322.
2. Notified in the
Commonwealth of Australia Gazette
0
0
0