Family Law Amendment Rules 2003 (No. 2) (Cth)

Case
No judgment structure available for this case.

Family Law Amendment Rules 2003 (No. 2)1

Statutory Rules 2003 No. 1832

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

Dated 9 July 2003

ALASTAIR NICHOLSON C.J.

J. EDWARD ELLIS

K.A. MURRAY

N.J. BUCKLEY

RODERICK JOSKE

JAMES BARRY

G.R. MULLANE

N. MUSHIN

M.A. HANNON

B.J. WARNICK

RICHARD CHISHOLM

SALLY BROWN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

MICHELLE MAY

 

CHRISTINE E. DAWE

ROD BURR

HEATHER B. CARTER

P. ROSE

J.M. BOLAND

S. STRICKLAND

A.R. MONTIETH

M. LE POER TRENCH

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

1Name of Rules

 These Rules are the Family Law Amendment Rules 2003 (No. 2).

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, rules 25 and 26

substitute

25Application for leave to appeal

  • (1)

    Order 32A applies to an application for leave to appeal under:

    • (a)

      subsection 102 (1) or (2) or 102A (1) of the Assessment Act; or

    • (b)

      subsection 107 (1) or (1A) or 107A (1) of the Registration Act.

  • (2)

    Order 32C applies to an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act for leave to appeal to the Family Court of Australia from a decree of the Federal Magistrates Court.

26Appeals to the Full Court

  • (1)

    Order 32 applies to an appeal in relation to which an application for leave to appeal under any of the following provisions has been granted:

    • (a)

      subsection 102 (1) or (2) or 102A (1) of the Assessment Act;

    • (b)

      subsection 107 (1) or (1A) or 107A (1) of the Registration Act.

  • (2)

    Order 32B applies to an appeal in relation to which an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act for leave to appeal to the Family Court of Australia from a decree of the Federal Magistrates Court has been granted.

[2]Order 32, heading

substitute

Order 32Appeals to Full Court

[3]Order 32, before rule 1

insert

1AApplication of Order 32

 This Order applies to an appeal to the Full Court of the Family Court of Australia.

[4]Order 32, subrule 1 (1), definitions of appeal, appeal registrar, appeal registry and regional appeal registrar

substitute

appeal means an appeal to the Full Court of the Family Court of Australia under:

  • (a)

    subsection 94 (1), 94 (1AA) or 94AAA (1) of the Act; or

  • (b)

    subsection 102 (1), 102 (2) or 102A (1) of the Assessment Act; or

  • (c)

    subsection 107 (1), 107 (1A) or 107A (1) of the Registration Act.

Appeal Registrar, in relation to an appeal, means the Registrar at the Appeal Registry for that appeal.

Appeal Registry, in relation to an appeal, means the Registry determined to be the Registry for that appeal.

Regional Appeal Registrar, in relation to an appeal, means the Registrar at the Regional Appeal Registry for the appeal.

[5]Order 32, subrule 1 (1), definition of regional appeal registry

omit

regional appeal registry

insert

Regional Appeal Registry

[6]Order 32, rule 2

substitute

2Institution of appeal

  • (1)

    A person may institute an appeal:

    • (a)

      by filing in the Regional Appeal Registry:

      • (i)

        a notice of appeal in accordance with Form 42; and

      • (ii)

        2 copies of the notice; and

      • (iii)

        a copy of the decree appealed from; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice of appeal and the decree appealed from.

  • (2)

    If an appeal is instituted in accordance with paragraph (1) (b), the notice of appeal, and 2 copies, and a copy of the decree appealed from, must be filed in the Regional Appeal Registry within 3 days after the copy of the notice was sent under paragraph (1) (b).

  • (3)

    If a notice of appeal is sent by fax, it must be sent with a cover sheet that clearly states:

    • (a)

      the sender’s name, postal address, document exchange number (if any), telephone number and fax number; and

    • (b)

      the number of pages transmitted.

  • (4)

    If a notice of appeal is sent by e‑mail, the sender must:

    • (a)

      send it:

      • (i)

        to the e‑mail address approved by the Principal Registrar for receiving documents; and

      • (ii)

        in the electronic format approved by the Principal Registrar; and

    • (b)

      state clearly, in the notice, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address.

  • (5)

    If a notice of appeal sent by fax or e‑mail is accepted for filing, it is taken to be filed:

    • (a)

      if the notice is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and

    • (b)

      in any other case — on the next day when the Regional Appeal Registry is open for business.

Note   A Registrar must not accept a notice of appeal for filing unless the court fee has been paid, exempted or waived: see subregulations 16 (2A) and (3) of the Family Law Regulations 1984.

  • (6)

    An appeal must be instituted within 28 days after the day on which the decree appealed from was made.

  • (7)

    A notice of appeal must:

    • (a)

      state whether the appeal is from the whole or part of the order; and

    • (b)

      if the appeal is from part of the order — specify the part appealed from; and

    • (c)

      set out briefly but specifically the grounds relied on in support of the appeal; and

    • (d)

      specify the order sought in the appeal in place of the order appealed from.

2AAReferral to Chief Justice

  • (1)

    This rule applies if an appeal under subsection 94AAA (1) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is instituted under rule 2.

  • (2)

    As soon as practicable after the appeal is instituted, the Regional Appeal Registrar must refer it to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the appeal should be exercised by a Full Court or a single Judge.

(3) If the jurisdiction of the Family Court in relation to the appeal is to be exercised:

  • (a)

    by a Full Court — this Order applies to the appeal; and

  • (b)

    by a single Judge — Order 32B applies to the appeal.

[7]Order 32, subrule 3A (1)

omit

child’s representative.

insert

child’s representative, within 14 days after filing the notice.

[8]Order 32, rules 6 and 7

substitute

6Amendment of notice of appeal

(1)An appellant may amend a notice of appeal:

  • (a)

    by filing in the Regional Appeal Registry 3 copies of the notice with the amendments clearly marked; or

  • (b)

    by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice with the amendments clearly marked.

  • (2)

    If a copy of an amended notice is sent by fax or e-mail:

    • (a)

      the sender must comply with subrule 2 (2), and subrule 2 (3) or (4), as appropriate, as if the amended notice were a notice of appeal without amendments; and

    • (b)

      subrule 2 (5) (except the note) applies to the amended notice in the same way as it applies to a notice of appeal without amendments.

  • (3)

    An appellant may amend a notice of appeal:

    • (a)

      if the amendment is made before the date fixed for the directions hearing — without leave; and

    • (b)

      if the amendment is made on or after the date fixed for the directions hearing — with the leave of:

      • (i)

        the Full Court; or

      • (ii)

        a Judge of the Appeal Division (or, if a Judge of the Appeal Division is not reasonably available, another Judge).

(4)As soon as practicable after making an amendment of a notice of appeal, the appellant must serve, in accordance with Order 18, a sealed copy of the amended notice, with the amendments clearly marked, on:

  • (a)

    each other party to the appeal; and

  • (b)

    any child’s representative.

7Cross-appeals

  • (1)

    A party to an appeal may institute a cross-appeal:

    • (a)

      by filing in the Regional Appeal Registry for the matter:

      • (i)

        a notice of appeal in accordance with Form 42 endorsed as a notice of cross-appeal; and

      • (ii)

        2 copies of the notice; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice of appeal endorsed as a notice of cross-appeal.

  • (2)

    A cross-appeal must be instituted:

    • (a)

      within 14 days after the day on which a sealed copy of the notice instituting the appeal was served on the party instituting the cross-appeal; or

    • (b)

      within such further time as a Judge orders.

  • (3)

    Subrules 2 (2), (3), (4), (5) and (7) and rules 3 and 6 apply to a notice of cross-appeal as if it were a notice of appeal.

  • (4)

    Rules 4, 7A to 7F and 16 to 19A apply to a cross-appeal as if it were an appeal.

7APre-argument statement

  • (1)

    An appellant must file a pre-argument statement, and 2 copies of that statement, in the Regional Appeal Registry for the matter within 14 days after instituting an appeal.

  • (2)

    The pre-argument statement must concisely state the issues to be raised at the hearing of the appeal.

  • (3)

    The appellant must serve, in accordance with Order 18, a sealed copy of the pre-argument statement on each other party to the appeal, within 7 days after filing the statement.

7BDirections hearing

  • (1)

    On the filing of a pre-argument statement, the Regional Appeal Registrar must fix a time and place for a directions hearing by a Judge of the Appeal Division (or, if a Judge of the Appeal Division is not reasonably available, another Judge).

  • (2)

    The Regional Appeal Registrar must give written notice to each party to the appeal:

    • (a)

      identifying the registry that is to be the Appeal Registry; and

    • (b)

      setting out the time and place fixed for the directions hearing; and

    • (c)

      directing the appellant to attend the directions hearing; and

    • (d)

      if the respondent has instituted a cross-appeal, directing the respondent to attend the directions hearing.

  • (3)

    The following people must attend the directions hearing unless a Judge of the Appeal Division or the Judge conducting the directions hearing otherwise orders:

    • (a)

      the appellant and the appellant’s lawyer (if any);

    • (b)

      if a respondent has instituted a cross-appeal — that respondent and the respondent’s lawyer (if any).

  • (4)

    A respondent who has not instituted a cross-appeal, and the respondent’s lawyer (if any), may attend the directions hearing.

  • (5)

    However, if the Judge conducting the directions hearing decides to conduct a settlement conference, the respondent mentioned in subrule (4) must attend that conference.

7CConduct of directions hearing

  • (1)

    The Judge conducting a directions hearing may do any of the following:

    • (a)

      make an order that is appropriate to the conduct of the appeal to which the directions hearing relates, including:

      • (i)

        an order under subsection 94 (2B) of the Act; and

      • (ii)

        an order limiting the length of any written submission;

    • (b)

      adjourn the hearing from time to time;

    • (c)

      adjourn the hearing to enable it to be conducted by the Regional Appeal Registrar.

  • (2)

    When making an order, the Judge must give paramount consideration to the interests of justice.

7DSettlement conference

  • (1)

    The Judge before whom a directions hearing is listed may, before the start of, during or at the end of, the directions hearing:

    • (a)

      conduct a settlement conference; or

    • (b)

      order that a settlement conference be conducted by another Judge or a Regional Appeal Registrar.

  • (2)

    A Regional Appeal Registrar conducting a directions hearing may:

    • (a)

      conduct a settlement conference; or

    • (b)

      order that a settlement conference be conducted by an Appeal Registrar.

7EConduct of directions hearing or settlement conference by electronic means

 A Judge, Regional Appeal Registrar or Appeal Registrar may order that the directions hearing or settlement conference be conducted by electronic means.

Note For the definition ofelectronic means, see Order 1, subrule 4 (1). Order 30, rule 2AAA sets out the requirements for taking evidence by electronic means.

7FDirections at conclusion of directions hearing or settlement conference

  • (1)

    This rule applies if all the issues raised by an appeal are not resolved at a directions hearing or, if a settlement conference was conducted, at the settlement conference.

  • (2)

    The Judge or Regional Appeal Registrar conducting the directions hearing or settlement conference must:

    • (a)

      decide which documents and other material are to be included in the appeal papers; and

    • (b)

      decide which parts of the transcript of the proceedings from which the appeal has arisen are relevant to the appeal and are to be included in the appeal papers; and

    • (c)

      settle the index to the appeal papers in accordance with the order of arrangement mentioned in subrule 14 (4); and

    • (d)

      decide how many copies of the appeal papers are required and how the copies are to be prepared; and

    • (e)

      estimate how long the hearing is likely to take; and

    • (f)

      make an order, in accordance with subrule 15 (1), directing who is to be responsible for preparing the appeal papers; and

    • (g)

      fix a date by which the appeal papers must be filed and served.

  • (3)

    When settling the index to the appeal papers, the Judge or Regional Appeal Registrar and the parties must:

    • (a)

      leave out of the appeal papers those parts of the transcript, or other documents, that are irrelevant or unnecessary; and

    • (b)

      reduce, as far as practicable, the number and the length of documents to be included in the appeal papers, taking care to avoid:

      • (i)

        unnecessary inclusion of merely formal parts of documents; and

      • (ii)

        unnecessary duplication of material.

(4)If a party does not agree with a decision of the Regional Appeal Registrar under subrule (2), the party may apply to a Judge of the Appeal Division (or, if a Judge of the Appeal Division is not reasonably available, another Judge), in accordance with these Rules, for a review of the Regional Appeal Registrar’s decision.

[9]Order 32, rule 8

omit

[10]Order 32, rule 10

omit

[11]Order 32, rule 11

omit everything before paragraph (a), insert

 An appellant must, at least 3 days before the date fixed for the directions hearing:

[12]Order 32, rule 12

omit

[13]Order 32, subrule 13 (1)

omit

if so directed by the appeal registrar,

insert

if so directed by the Judge or Regional Appeal Registrar conducting the directions hearing relating to the appeal,

[14]Order 32, paragraph 14 (1) (c)

substitute

  • (c)

    the Judge or the Regional Appeal Registrar conducting the directions hearing relating to the appeal;

[15]Order 32, subrules 15 (1), (2), (3) and (4)

substitute

  • (1)

    Subject to subrules (2) and (2B), the Judge or Regional Appeal Registrar conducting a directions hearing must direct the appellant to be responsible for preparing the appeal papers.

  • (2)

    If, in a directions hearing conducted by a Judge, the Judge is satisfied that it would impose hardship on the appellant for the appellant to be responsible for preparing the appeal papers, the Judge may:

    • (a)

      direct the Regional Appeal Registrar to prepare the appeal papers; or

    • (b)

      if there is a cross-appellant — order the cross-appellant to do so.

  • (2A)

    A direction under paragraph (2) (a) to a Regional Appeal Registrar does not affect an appellant’s or cross-appellant’s obligation under subrule 13 (1) to arrange to obtain the transcript of the proceedings from which the appeal has arisen.

  • (2B)

    If, in a directions hearing conducted by a Regional Appeal Registrar, the Regional Appeal Registrar is satisfied that it would impose hardship on the appellant for the appellant to be responsible for preparing the appeal papers, the Regional Appeal Registrar may:

    • (a)

      prepare the appeal papers; or

    • (b)

      if there is a cross-appellant — order the cross-appellant to do so.

  • (3)

    By the date fixed under paragraph 7F (2) (g), or a later date (if any) fixed by the Judge who conducted the directions hearing, a Judge of the Appeal Division or a Regional Appeal Registrar, the party responsible for preparing the appeal papers, or any part of them, must:

    • (a)

      file the appeal papers in the Appeal Registry with:

      • (i)

        a certificate by that party, or the lawyer for that party, to the effect that the appeal papers have been examined and have been prepared in accordance with the index to the appeal papers as settled by the Judge or Regional Appeal Registrar; and

      • (ii)

        the number of copies of the appeal papers that the Judge or Regional Appeal Registrar directs; and

    • (b)

      serve 2 sealed copies on each other party to the appeal.

  • (4)

    However, if the appeal papers are prepared by the Regional Appeal Registrar, or by the Regional Appeal Registrar and a party to the appeal, reasonable directions for filing the papers and serving copies on the parties may be given by the Judge conducting the directions hearing or the Regional Appeal Registrar.

[16]Order 32, subrule 15 (5)

omit

paragraph 12 (1) (h),

insert

paragraph 7F (2) (g),

[17]Order 32, subrule 15 (5)

omit

28 days

insert

21 days

[18]Order 32, rules 16 and 16A

substitute

16Hearing date for appeal

 The Regional Appeal Registrar must:

  • (a)

    list the appeal for hearing during a sitting of the Full Court; and

  • (b)

    at least 28 days before the date of commencement of the sitting, give written notice to each party to the appeal of the commencement date and place of that sitting.

16AFurther evidence on appeal

(1) The provisions of this rule apply unless otherwise ordered by a Judge.

(2)An application to the court to receive evidence on the hearing of an appeal, additional to evidence in the court below, must:

  • (a)

    be made in accordance with Form 42A, subject to any alterations that are necessary; and

  • (b)

    have attached to it an affidavit stating the grounds for the application; and

  • (c)

    be filed, with any related affidavit, in the Regional Appeal Registry at least 21 days before date of commencement of the sittings in which the appeal is listed for hearing or as determined by the Judge conducting the directions hearing or hearing the appeal.

(3) Any evidence necessary to establish the grounds for the application and any other evidence that the applicant wants the court to receive must be given by affidavit.

(4)The evidence of any other party to the appeal must be given by affidavit filed at least 7 days before the hearing of the appeal.

(5) A party to the appeal must, within the time allowed for that party to file an application or affidavit under this rule:

  • (a)

    lodge as many copies of the application or affidavit as the Regional Appeal Registrar directs; and

  • (b)

    serve a copy of the application or affidavit on each other party to the appeal.

[19]Order 32, rule 17

substitute

17Expediting an appeal

 A Judge of the Appeal Division may at any time make any order that seems just for expediting an appeal.

[20]Order 32, rules 17B and 18

substitute

17BHearing appeal by electronic means

 A Full Court may be constituted by Judges sitting in different venues to hear an appeal by electronic means.

18Dismissal of appeal

(1)If an appellant has not met a requirement of these Rules or the Regulations, or in some other way has not shown reasonable diligence in proceeding with the appeal, a Full Court may, of its own motion or on application by a party to the appeal:

  • (a)

    dismiss the appeal; or

  • (b)

    make:

    • (i)

      an order fixing a time at which, or within which, the requirement is to be met; and

    • (ii)

      at the same time, an order that the appeal will be dismissed if the requirement is not met at or within the time fixed; or

  • (c)

    make any other order as appears just.

(2) However, the court may make an order under this rule only if, at least 14 days before the court intends making the order, an Appeal Registrar has given notice to the appellant of the date and time at which the court will consider whether to make the order.

  • (3)

    Subrule (2) does not apply to an order arising from an application.

(4)A Full Court may vary an order at any time before the dismissal of the appeal to which the order relates and, in special circumstances, may vary or revoke the order after that time.

[21]Order 32, rule 18A

omit

[22]Order 32, subrule 19 (1)

substitute

(1) If a respondent or another party applies for an order under subrule 18 (1), then, unless the Full Court or a Judge of a court having jurisdiction under the Act orders otherwise, a copy of each of:

  • (a)

    an application in accordance with Form 42A; and

  • (b)

    an affidavit setting out concisely the matters relied on in support of the application;

must be filed in the Regional Appeal Registry by or for the applicant at least 14 days before the return day for the application.

[23]Order 32, after rule 19

insert

19AAShort reasons for decision

 The court, when exercising its power under subsection 94 (2A) or 94AAA (7) of the Act, subsection 102 (5) or 102A (6) of the Assessment Act or subsection 107 (4) or 107A (6) of the Registration Act, to give reasons in short form for its decision to dismiss an appeal, must do so by stating them in accordance with Form 42C.

[24]Order 32, rule 19A

substitute

19AWithdrawal of appeal

(1) An appellant may, at any time, file in the Regional Appeal Registry, and serve, a notice of withdrawal of an appeal in accordance with Form 42B. 

  • (2)

    On the filing of a notice, the appeal to which the notice relates is taken to be abandoned.

(3)The filing of a notice does not affect any other appellant in the appeal.

(4) An appellant filing a notice must pay the costs of each other party occasioned by the appeal, unless otherwise fixed or ordered by the court.

(5) A party whose costs are payable under subrule (4) may have the costs taxed in accordance with Order 38.

[25]Order 32, subrule 21 (1)

omit

that section

insert

that Act

[26]Order 32, subrule 21 (8)

substitute

  • (8)

    A summary of the arguments to be presented and a list of the authorities to be relied on at the hearing of a special case must be filed and served:

    • (a)

      by the party who prepares the draft special case — at least 14 days before the commencement of the sittings at which the special case is listed for hearing; and

    • (b)

      by each other party — at least 7 days before the commencement of the sittings at which the special case is listed for hearing; and

    • (c)

      by a child’s representative (if any) — at least 3 days before the commencement of the sittings at which the special case is listed for hearing.

[27]Order 32, rules 21A to 25

substitute

22Application to court

  • (1)

    This rule applies to an application in relation to an appeal, including an application under subsection 94 (2D) or 94AAA (10) of the Act, subsection 102 (8) or 102A (9) of the Assessment Act or subsection 107 (7) or 107A (9) of the Registration Act.

  • (2)

    An application to the court in relation to an appeal may be instituted:

    • (a)

      by filing in the Regional Appeal Registry an application in accordance with Form 42A with an affidavit in support and 2 copies of the application and affidavit; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application and affidavit in support.

  • (3)

    If a copy of an application and affidavit in support is sent by fax or e-mail:

    • (a)

      the sender must comply with subrule 2 (2), and subrule 2 (3) or (4), as appropriate, as if the application and affidavit in support were a notice of appeal; and

    • (b)

      subrule 2 (5) (except the note) applies to the application and affidavit in support in the same way as it applies to a notice of appeal.

23Hearing an application

  • (1)

    This rule applies to an application under:

    • (a)

      subsection 94 (2B), 94 (2D), 94AAA (8) or 94AAA (10) of the Act; or

    • (b)

      subsection 102 (6), 102 (8), 102A (7) or 102A (9) of the Assessment Act; or

    • (c)

      subsection 107 (5), 107 (7), 107A (7) or 107A (9) of the Registration Act.

  • (2)

    An application must be listed before:

    • (a)

      the Full Court; or

    • (b)

      a Judge of the Appeal Division (or, if a Judge of the Appeal Division is not reasonably available, another Judge).

  • (3)

    On hearing the application, the Judge may make any appropriate directions and determine the application.

24Withdrawal of application

(1)An applicant may, at any time, file in the Regional Appeal Registry a notice of withdrawal of an application to the court in accordance with Form 42B.

  • (2)

    On the filing of a notice, the proceedings to which the notice relates are taken to be abandoned.

(3) The filing of a notice does not affect any other applicant in the proceedings.

(4)An applicant who files a notice must pay the costs of each other party occasioned by the application, unless otherwise ordered by a Judge.

(5) A party whose costs are payable under subrule (4) may have the costs taxed in accordance with Order 38.

[28]Order 32A, heading

substitute

Order 32AApplications for leave to appeal to Full Court

[29]Order 32A, before rule 1

insert

1AApplication of Order 32A

 This Order applies to an application for leave to appeal to be determined by the Full Court.

[30]Order 32A, rule 1, definition of application

substitute

application includes:

  • (a)

    an application under subsection 94AA (1) of the Act for leave to appeal from a prescribed decree of a court other than the Federal Magistrates Court; or

  • (b)

    an application under subsection 94AA (2A) of the Act for leave to appeal from a prescribed decree of the Federal Magistrates Court; or

  • (c)

    an application for leave to appeal under subsection 102 (1) or (2) or 102A (1) of the Assessment Act or subsection 107 (1) or (1A) or 107A (1) of the Registration Act.

Note    Regulation 15A of the Family Law Regulations 1984 sets out which decrees are prescribed decrees for the purposes of subsections 94AA (1) and (2A) of the Act.

[31]Order 32A, rule 1, definition of prescribed decree

omit

[32]Order 32A, rules 2 and 3

substitute

2Institution of applications

  • (1)

    A person may institute an application:

    • (a)

      by filing in the Regional Appeal Registry:

      • (i)

        an application in accordance with Form 67; and

      • (ii)

        2 copies of the application; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application.

  • (2)

    If an application is instituted in accordance with paragraph (1) (b), the application, and 2 copies, must be filed in the Regional Appeal Registry within 3 days after the copy of the application was sent under paragraph (1) (b).

  • (3)

    If an application is sent by fax, it must be sent with a cover sheet that clearly states:

    • (a)

      the sender’s name, postal address, document exchange number (if any), telephone number and fax number; and

    • (b)

      the number of pages transmitted.

  • (4)

    If an application is sent by e‑mail, the sender must:

    • (a)

      send it:

      • (i)

        to the e‑mail address approved by the Principal Registrar for receiving documents; and

      • (ii)

        in the electronic format approved by the Principal Registrar; and

    • (b)

      state clearly, in the application, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address.

  • (5)

    If an application sent by fax or e‑mail is accepted for filing, it is taken to be filed:

    • (a)

      if the application is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and

    • (b)

      in any other case — on the next day when the Regional Appeal Registry is open for business.

2AReferral to Chief Justice

  • (1)

    This rule applies if an application under subsection 94AA (2A) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is instituted under rule 2.

  • (2)

    As soon as practicable after the application is instituted, the Regional Appeal Registrar must refer it to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the application should be exercised by a Full Court or a single Judge.

3Time for filing an application

 An application must be filed:

  • (a)

    within 28 days after the day on which the decree to which the application relates was made; or

  • (b)

    within such further time as a Judge of a court having jurisdiction under the Act directs.

[33]Order 32A, subrule 4 (2)

substitute

(2) The affidavit must have attached:

  • (a)

    a copy of the decree from which leave to appeal is sought; and

  • (b)

    the reasons for judgment (if any); and

  • (c)

    a draft notice of appeal setting out briefly but specifically the grounds of appeal to be relied on if leave to appeal is granted; and

  • (d)

    the reasons why leave to appeal should be granted.

[34]Order 32A, subrule 5 (1)

omit

prescribed

[35]Order 32A, paragraph 5 (2) (a)

omit

prescribed

[36]Order 32A, paragraph 5 (2) (b)

omit

Federal Magistrate of the court in which the prescribed decree was made;

insert

Federal Magistrate;

[37]Order 32A, subrule 5 (3)

omit everything after

is filed,

insert

the Regional Appeal Registrar must give a copy of the application and any affidavit filed with it to the Child Support Registrar.

[38]Order 32A, rule 5A, heading

substitute

5AStay of execution of decree appealed from

[39]Order 32A, paragraph 5A (1) (a)

omit

prescribed

[40]Order 32A, paragraph 5A (1) (b)

omit

Federal Magistrate of the court in which the prescribed decree was made;

insert

Federal Magistrate;

[41]Order 32A, subrules 5A (1)

omit

operation of the prescribed decree

insert

operation of the decree

[42]Order 32A, subrule 5A (2)

omit

prescribed

[43]Order 32A, subrule 6 (2)

omit

(or, in the case of an appeal from the Federal Magistrates Court, the Court)

[44]Order 32A, rules 8 and 9

omit

(or, in the case of an appeal from the Federal Magistrates Court, the Court)

[45]After Order 32A

insert

Order 32BAppeal for hearing by a single judge

1Application of Order 32B

 This Order applies to an appeal from a decree of the Federal Magistrates Court.

2Definitions

 In this Order:

appeal means an appeal from a decree of the Federal Magistrates Court, including a decree mentioned in subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act, for which the jurisdiction of the court is exercised by a single Judge.

Appeal Registrar has the same meaning as in Order 32.

Appeal Registry has the same meaning as in Order 32.

Regional Appeal Registrar has the same meaning as in Order 32.

Regional Appeal Registry means:

  • (a)

    if the appeal is from an order made in proceedings heard in the Northern Territory or Queensland — the Brisbane Registry; and

  • (b)

    if the appeal is from an order made in proceedings heard in the Australian Capital Territory or New South Wales — the Sydney Registry; and

  • (c)

    if the appeal is from an order made in proceedings heard in South Australia, Tasmania or Victoria — the Melbourne Registry; and

  • (d)

    if the appeal is from an order made in proceedings heard in Western Australia — the Perth Registry.

3Institution of appeal

  • (1)

    A person may institute an appeal:

    • (a)

      by filing in the Regional Appeal Registry:

      • (i)

        a notice of appeal in accordance with Form 42; and

      • (ii)

        2 copies of the notice; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice of appeal.

  • (2)

    If an appeal is instituted in accordance with paragraph (1) (b), the notice of appeal, and 2 copies, must be filed in the Regional Appeal Registry within 3 days after the copy of the notice was sent under paragraph (1) (b).

  • (3)

    If a notice of appeal is sent by fax, it must be sent with a cover sheet that clearly states:

    • (a)

      the sender’s name, postal address, document exchange number (if any), telephone number and fax number; and

    • (b)

      the number of pages transmitted.

  • (4)

    If a notice of appeal is sent by e‑mail, the sender must:

    • (a)

      send it:

      • (i)

        to the e‑mail address approved by the Principal Registrar for receiving documents; and

      • (ii)

        in the electronic format approved by the Principal Registrar; and

    • (b)

      state clearly, in the notice, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address.

  • (5)

    If a notice of appeal sent by fax or e‑mail is accepted for filing, it is taken to be filed:

    • (a)

      if the notice is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and

    • (b)

      in any other case — on the next day when the Regional Appeal Registry is open for business.

Note   A Registrar must not accept a notice of appeal for filing unless the court fee has been paid, exempted or waived: see subregulations 16 (2A) and (3) of the Family Law Regulations 1984.

  • (6)

    An appeal must be instituted within 28 days after the day on which the order appealed from was made.

  • (7)

    A notice of appeal must:

    • (a)

      state whether the appeal is from the whole or part of the order; and

    • (b)

      if the appeal is from part of the order — specify the part appealed from; and

    • (c)

      set out briefly but specifically the grounds relied on in support of the appeal; and

    • (d)

      specify the order sought in the appeal in place of the order appealed from.

4Referral to Chief Justice

  • (1)

    This rule applies if an appeal under subsection 94AAA (1) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is instituted under rule 3.

  • (2)

    As soon as practicable after the appeal is instituted, the Regional Appeal Registrar must refer it to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the appeal should be exercised by a Full Court or a single Judge.

(3) If the jurisdiction of the Family Court in relation to the appeal is to be exercised:

  • (a)

    by a Full Court — Order 32 applies to the appeal; and

  • (b)

    by a single Judge — this Order applies to the appeal.

5Documents filed with appeal — Form 41C

(1)Unless otherwise specified, a document filed for an appeal must be headed in accordance with Form 41C.

(2)Subrule (1) does not apply to a document prepared in accordance with Form 41B, 42, 42A or 42B.

6Service of notice of appeal

(1)Within 14 days after instituting an appeal, an appellant must serve, in accordance with Order 18, a sealed copy of the notice of appeal on:

  • (a)

    each other party to the appeal; and

  • (b)

    the Registrar of the Federal Magistrates Court.

  • (2)

    If an appeal has been instituted, the Federal Magistrate who made the decree appealed from, or if that Magistrate is not reasonably available, another Federal Magistrate, may, on application by a party to the appeal, direct the appellant to serve a sealed copy of the notice of appeal on a person other than a party to the appeal.

7Child welfare appeals — child’s representative

(1)If an appellant files a notice of appeal in relation to proceedings in which a child was separately represented, the appellant must serve, in accordance with Order 18, a sealed copy of the notice of appeal on the child’s representative, within 14 days after the appellant files the notice.

(2)The child’s representative may appear at the hearing of the appeal.

8Stay of proceedings

(1)An appeal does not operate as a stay of proceedings.

(2) If an appeal has been instituted:

  • (a)

    the Federal Magistrate who made the decree appealed from (or, if that Magistrate is not reasonably available, another Federal Magistrate); or

  • (b)

    the Judge conducting a directions hearing in relation to the appeal;

may make an order, on such terms as the Federal Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided.

(3) If an order under subrule (2) has been made, a court having jurisdiction under the Act must not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal is decided.

9Security for costs

 If an appeal has been instituted, a Judge may make an order, on terms that the Judge considers appropriate, for security for costs.

10Amendment of notice of appeal

(1)An appellant may amend a notice of appeal:

  • (a)

    by filing in the Regional Appeal Registry 3 copies of the notice with the amendments clearly marked; or

  • (b)

    by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the notice with the amendments clearly marked.

  • (2)

    If a copy of an amended notice is sent by fax or e-mail:

    • (a)

      the sender must comply with subrule 3 (2), and subrule 3 (3) or (4), as appropriate, as if the amended notice were a notice of appeal without amendments; and

    • (b)

      subrule 3 (5) (except the note) applies to the amended notice in the same way as it applies to a notice of appeal without amendments.

  • (3)

    An appellant may amend a notice of appeal:

    • (a)

      if the amendment is made before the date fixed for the directions hearing — without leave; and

    • (b)

      if the amendment is made on or after the date fixed for the directions hearing — with the leave of a Judge.

(4)As soon as practicable after making an amendment of a notice of appeal, the appellant must serve, in accordance with Order 18, a sealed copy of the amended notice, with the amendments clearly marked, on:

  • (a)

    each other party to the appeal; and

  • (b)

    any child’s representative.

11Cross-appeals

(1) A party to an appeal may institute a cross-appeal:

  • (a)

    by filing in the Regional Appeal Registry:

    • (i)

      a notice of appeal in accordance with Form 42 endorsed as a notice of cross-appeal; and

    • (ii)

      2 copies of the notice; or

  • (b)

    by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of a notice of appeal endorsed as a notice of cross-appeal.

(2) A cross-appeal must be instituted:

  • (a)

    within 14 days after the day on which a sealed copy of the notice instituting the appeal was served on the party instituting the cross-appeal; or

  • (b)

    within a further time directed by a Judge of a court having jurisdiction under the Act.

(3)Subrules 3 (2), (3), (4), (5) and (7) and rules 6 and 10 apply to a notice of cross-appeal as if it were a notice of appeal.

  • (4)

    Rules 8, 9 and 19 to 25 apply to a cross-appeal as if it were an appeal.

12Exhibits etc

(1)As soon as practicable after an appeal has been instituted, the Appeal Registrar must arrange to acquire:

  • (a)

    the exhibits in the proceedings in which the decree appealed from was made; and

  • (b)

    all other documents that were before the court in those proceedings and a list of those documents.

(2)If an exhibit mentioned in paragraph (1) (a) is not immediately available, the Appeal Registrar must find out where it is and arrange to acquire it as soon as practicable.

(3)The Appeal Registrar must keep the documents and exhibits received under subrule (1) until the appeal is decided and then return them to the officer or person from whom they were acquired.

13Notifying parties about appeal etc

 If an appeal has been instituted, the Regional Appeal Registrar must give written notice to each party to the appeal:

  • (a)

    identifying the registry that is to be the Appeal Registry; and

  • (b)

    setting out the time and place fixed for a directions hearing in relation to the appeal.

14Directions hearing

  • (1)

    The Judge conducting a directions hearing in relation to an appeal:

    • (a)

      must give any directions necessary to enable the appeal to be heard, including a direction that:

      • (i)

        the appellant serve a sealed copy of the notice of appeal, and the order appealed from, on a person who is not a party to the appeal; or

      • (ii)

        the respondent serve a sealed copy of the notice of cross-appeal, and the order appealed from, on a person who is not a party to the cross-appeal; and

    • (b)

      must decide:

      • (i)

        which applications, responses, affidavits and other documents are to be before the court at the hearing of the appeal; and

      • (ii)

        the date by which the documents mentioned in subparagraph (i) are to be before the court; and

      • (iii)

        which parts of the transcript of the proceedings from which the appeal has arisen are relevant to the appeal; and

      • (iv)

        who is to acquire the transcript; and

    • (c)

      must direct the party who is to acquire the transcript to do so and direct that party to serve a copy of the transcript on each other party to the appealand file a copy of the transcript in the Appeal Registry by the date specified by the Judge; and

    • (d)

      must fix the dates by which each party to the appeal must file and serve a summary of the arguments to be presented at the hearing of the appeal or cross-appeal and a list of the authorities that party will be relying on; and

    • (e)

      must, as far as practicable, fix the date for the hearing of the appeal; and

    • (f)

      may adjourn the directions hearing from time to time.

  • (2)

    The Regional Appeal Registrar must give written notice to each party to the appeal:

    • (a)

      directing the appellant to attend the directions hearing; and

    • (b)

      if the respondent has instituted a cross-appeal, directing the respondent to attend the directions hearing.

  • (3)

    The following people must attend the directions hearing unless a Judge of the Appeal Division or the Judge conducting the directions hearing otherwise orders:

    • (a)

      the appellant and the appellant’s lawyer (if any);

    • (b)

      if a respondent has instituted a cross-appeal — that respondent and the respondent’s lawyer (if any).

  • (4)

    A respondent who has not instituted a cross-appeal, and the respondent’s lawyer (if any), may attend the directions hearing.

  • (5)

    However, if the Judge conducting the directions hearing decides to conduct a settlement conference, the respondent mentioned in subrule (4) must attend that conference.

15Filing and service of reasons for judgment

 An appellant must acquire, file and serve on each other party to an appeal, by the date specified by the Judge conducting the directions hearing for the appeal, the reasons for the Federal Magistrate’s judgment.

16Settlement conference

  • (1)

    The Judge conducting a directions hearing may:

    • (a)

      conduct a settlement conference; or

    • (b)

      direct that an Appeal Registrar conduct a settlement conference.

  • (2)

    If a settlement conference is conducted, the Judge or Appeal Registrar may adjourn it from time to time.

17Conduct of directions hearing or settlement conference by electronic means

 A Judge or Appeal Registrar conducting a directions hearing or settlement conference may order that the directions hearing or settlement conference be conducted by electronic means.

18Transcript of proceedings

 If a party is directed, under paragraph 14 (1) (c), to acquire a transcript of the proceedings in which the decree appealed from was made, the transcript must be prepared by the contractor providing transcription services to the Federal Magistrates Court.

19Further evidence on appeal

(1) The provisions of this rule apply unless otherwise ordered by a Judge.

(2)An application to the court to receive evidence on the hearing of an appeal, additional to evidence in the court below, must:

  • (a)

    be made in accordance with Form 42A, subject to any alterations that are necessary; and

  • (b)

    have attached to it an affidavit stating the grounds for the application; and

  • (c)

    be filed, with any related affidavit, in the Regional Appeal Registry at least 14 days before date of commencement of the sittings in which the appeal is listed for hearing or as determined by the Judge conducting the directions hearing or hearing the appeal.

(3) Any evidence necessary to establish the grounds for the application and any other evidence that the applicant wants the court to receive must be given by affidavit.

(4)The evidence of any other party to the appeal must be given by affidavit filed at least 7 days before the hearing of the appeal.

(5) A party to the appeal must, within the time allowed for that party to file an application or affidavit under this rule:

  • (a)

    lodge as many copies of the application or affidavit as the Regional Appeal Registrar directs; and

  • (b)

    serve a copy of the application or affidavit on each other party to the appeal.

20Expediting an appeal

 A Judge of the Appeal Division may at any time make an order that seems just for expediting an appeal.

21Certain applications may proceed without oral hearing

  • (1)

    A Judge may order that an application for an order mentioned in subsection 94AAA (8) or (10) of the Act, subsection 102A (7) or (9) of the Assessment Act or subsection 107A (7) or (9) of the Registration Act may be dealt with without an oral hearing.

  • (2)

    The order may include conditions in relation to:

    • (a)

      the time for filing affidavits; and

    • (b)

      the length of, and time for filing, written submissions; and

    • (c)

      any other matter that the Judge considers fit in the interests of justice.

22Dismissal of appeal

(1)If an appellant has not met a requirement of these Rules or the Regulations, or in some other way has not shown reasonable diligence in proceeding with the appeal, a Judge may, of his or her own motion or on application by a party to the appeal:

  • (a)

    dismiss the appeal; or

  • (b)

    make:

    • (i)

      an order fixing a time at which, or within which, the requirement is to be met; and

    • (ii)

      at the same time, an order that the appeal will be dismissed if the requirement is not met at or within the time fixed; or

  • (c)

    make any other order as appears just.

(2) However, the Judge may make an order under this rule only if, at least 14 days before he or she intends making the order, an Appeal Registrar has given notice to the appellant of the date and time at which the Judge will consider whether to make the order.

  • (3)

    Subrule (2) does not apply to an order arising from an application.

(4)The Judge may vary an order at any time before the dismissal of the appeal to which the order relates and, in special circumstances, may vary or revoke the order after that time.

23Procedures on application for dismissal

(1) If a respondent or another party applies for an order under subrule 22 (1), then, unless a Judge orders otherwise, a copy of each of:

  • (a)

    an application in accordance with Form 42A; and

  • (b)

    an affidavit setting out concisely the matters relied on in support of the application;

must be filed in the Regional Appeal Registry by or for the applicant at least 14 days before the return day for the application.

(2) As soon as practicable after the application and supporting affidavit are filed, the applicant must serve, in accordance with Order 18, a sealed copy of the application and supporting affidavit on:

  • (a)

    each other party to the appeal; and

  • (b)

    any child’s representative.

24Short reasons for decision

 A Judge, when exercising the power under subsection 94AAA (7) of the Act, subsection 102A (6) of the Assessment Act or subsection 107A (6) of the Registration Act, to give reasons in short form for a decision to dismiss an appeal, must do so by stating them in accordance with Form 42C.

25Withdrawal of appeal

(1) An appellant may, at any time, file in the Regional Appeal Registry, and serve, a notice of withdrawal of an appeal in accordance with Form 42B. 

  • (2)

    On the filing of a notice, the appeal to which the notice relates is taken to be abandoned.

(3)The filing of a notice does not affect any other appellant in the appeal.

(4) An appellant filing a notice must pay the costs of each other party occasioned by the appeal, unless otherwise fixed or ordered by the court.

(5) A party whose costs are payable under subrule (4) may have the costs taxed in accordance with Order 38.

26Application for certificate to appeal to High Court

(1) An application for a certificate mentioned in paragraph 95 (b) of the Act must, unless the court making the decree orders otherwise, be filed in the Regional Appeal Registry:

  • (a)

    within 21 days after the day on which the decree was made; or

  • (b)

    within a further time directed by a Judge of a court having jurisdiction under the Act.

(2)Within 7 days after filing the application, the applicant must serve, in accordance with Order 18, a sealed copy of the application on each other party to the proceedings in which the decree was made.

27Application to court

  • (1)

    This rule applies to an application in relation to an appeal, including an application under subsection 94AAA (10) of the Act, subsection 102A (9) of the Assessment Act or subsection 107A (9) of the Registration Act.

  • (2)

    An application to the court in relation to an appeal may be instituted:

    • (a)

      by filing in the Regional Appeal Registry an application in accordance with Form 42A with an affidavit in support and 2 copies of the application and affidavit; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application and affidavit in support.

  • (3)

    If a copy of an application and affidavit in support is sent by fax or e-mail:

    • (a)

      the sender must comply with subrule 3 (2), and subrule 3 (3) or (4), as appropriate, as if the application and affidavit in support were a notice of appeal; and

    • (b)

      subrule 3 (5) (except the note) applies to the application and affidavit in support in the same way as it applies to a notice of appeal.

28Withdrawal of application

(1)An applicant may, at any time, file in the Regional Appeal Registry a notice of withdrawal of an application to the court in accordance with Form 42B.

  • (2)

    On the filing of a notice, the proceedings to which the notice relates are taken to be abandoned.

(3) The filing of a notice does not affect any other applicant in the proceedings.

(4)An applicant who files a notice must pay the costs of each other party occasioned by the application, unless otherwise ordered by a Judge.

(5) A party whose costs are payable under subrule (4) may have the costs taxed in accordance with Order 38.

Order 32CApplications for leave to appeal to a single judge from the Federal Magistrates Court

1Application of Order 32C

 This Order applies to an application for leave to appeal that is to be determined by a single Judge.

2Definitions

 In this Order:

application means:

  • (a)

    an application under subsection 94AA (2A) of the Act for leave to appeal to the Family Court of Australia from a prescribed decree of the Federal Magistrates Court; or

  • (b)

    an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act for leave to appeal to the Family Court of Australia from a decree of the Federal Magistrates Court.

Note    Subregulation 15A (1) of the Family Law Regulations 1984 sets out which decrees are prescribed decrees for the purposes of subsection 94AA (2A) of the Act.

Regional Appeal Registrar has the same meaning as in Order 32.

Regional Appeal Registry has the same meaning as in Order 32.

3Institution of applications

  • (1)

    A person may institute an application:

    • (a)

      by filing in the Regional Appeal Registry:

      • (i)

        an application in accordance with Form 67; and

      • (ii)

        2 copies of the application; or

    • (b)

      by sending to the Regional Appeal Registry, by fax or e‑mail, a copy of the application.

  • (2)

    If an application is instituted in accordance with paragraph (1) (b), the application, and 2 copies, must be filed in the Regional Appeal Registry within 3 days after the copy of the application was sent under paragraph (1) (b).

  • (3)

    If an application is sent by fax, it must be sent with a cover sheet that clearly states:

    • (a)

      the sender’s name, postal address, document exchange number (if any), telephone number and fax number; and

    • (b)

      the number of pages transmitted.

  • (4)

    If an application is sent by e‑mail, the sender must:

    • (a)

      send it:

      • (i)

        to the e‑mail address approved by the Principal Registrar for receiving documents; and

      • (ii)

        in the electronic format approved by the Principal Registrar; and

    • (b)

      state clearly, in the application, his or her name, postal address, document exchange number (if any), telephone number, fax number and e‑mail address.

  • (5)

    If an application sent by fax or e‑mail is accepted for filing, it is taken to be filed:

    • (a)

      if the application is received by 4.30 pm on a day when the Regional Appeal Registry is open for business — on that day; and

    • (b)

      in any other case — on the next day when the Regional Appeal Registry is open for business.

4Referral to Chief Justice

  • (1)

    This rule applies if an application under subsection 94AA (2A) of the Act, subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act, is instituted under rule 3.

  • (2)

    As soon as practicable after an application is instituted, the Regional Appeal Registrar must refer the application to the Chief Justice to determine whether the jurisdiction of the Family Court in relation to the application should be exercised by a Full Court or a single Judge.

5Time for filing an application

 An application must be filed:

  • (a)

    within 28 days after the day on which the decree to which the application relates was made; or

  • (b)

    within such further time as a Judge of a court having jurisdiction under the Act directs.

6Affidavit in support of application

(1)An application must be supported by an affidavit setting out briefly:

  • (a)

    the facts on which the application is based; and

  • (b)

    the specific questions of law (if any) raised by the application.

(2) The affidavit must have attached:

  • (a)

    a copy of the decree from which leave to appeal is sought; and

  • (b)

    the reasons for judgment (if any); and

  • (c)

    a draft notice of appeal setting out briefly but specifically the grounds of appeal to be relied on if leave to appeal is granted; and

  • (d)

    the reasons why leave to appeal should be granted.

7Service

(1) Within 7 days after instituting an application, the applicant must serve, in accordance with Order 18, a sealed copy of the application on each person who was a party to the proceedings when the decree to which the application relates was made.

(2) If an application has been instituted:

  • (a)

    the Federal Magistrate who made the decree (or, if that Federal Magistrate is not reasonably available, another Federal Magistrate); or

  • (b)

    a Judge of the Family Court;

may, on application by a party to the application, direct the applicant to serve a sealed copy of the application on a person who is not a party to the application.

(3) As soon as practicable after an application under subsection 102A (1) of the Assessment Act or subsection 107A (1) of the Registration Act is filed, the Regional Appeal Registrar must give a copy of the application and any affidavit filed with it to the Child Support Registrar.

8Stay of execution of decree

(1) If an application has been instituted:

  • (a)

    the Federal Magistrate who made the decree from which an appeal is sought (or, if that Federal Magistrate is not reasonably available, another Federal Magistrate); or

  • (b)

    a Judge of a court having jurisdiction under the Act;

may make an order, on such terms as the Federal Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly, or in part, until the application is determined.

(2) If an order under subrule (1) has been made, a court having jurisdiction under the Act must not enforce the decree or entertain proceedings for its enforcement, in so far as its execution or operation has been stayed, until the application is determined.

9Directions

(1)Before an application is heard, it must be listed for directions before a Judge, unless otherwise directed by the Chief Justice.

(2)The Judge before whom the application is listed for directions may make directions in relation to the conduct of an application, including a direction that the application be dealt with, without an oral hearing.

10Supporting submissions

(1)If an applicant is directed, under rule 9, to prepare a supporting submission, the applicant must:

  • (a)

    within 14 days after the direction is made, prepare a supporting submission; and

  • (b)

    lodge a copy of the submission with the Regional Appeal Registrar; and

  • (c)

    serve a copy of the submission on each other party to the application.

(2) A supporting submission must:

  • (a)

    concisely state:

    • (i)

      the circumstances in which the application arises; and

    • (ii)

      the matters on which the application is based; and

    • (iii)

      the reasons why leave to appeal should be granted; and

  • (b)

    as far as practicable, refer to material in a document filed in relation to the application by the page number of the document and not extract the text of that material; and

  • (c)

    be signed:

    • (i)

      by the lawyer who prepared the submission; or

    • (ii)

      by the party; and

  • (d)

    include the signatory’s name and telephone number, and a fax number (if any) or central document exchange number (if any) at which the signatory can be contacted.

(3) The paragraphs of a supporting submission must be numbered consecutively.

(4)Within 7 days after a copy of a supporting submission is served on a party, the party:

  • (a)

    may lodge with the Regional Appeal Registrar a concise response to the matters raised in the submission; and

  • (b)

    if paragraph (a) is acted on — must serve a copy of the response on each other party to the application.

11Leave to appeal may be on terms

 A Judge hearing an application may grant leave to appeal on terms.

Order 32DAppeals from courts of summary jurisdiction

1Application of Order 32D

This Order applies to an appeal under section 96 of the Act to the Family Court of Australia from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Act.

2Definition

 In this Order:

appeal means an appeal under section 96 of the Act to the Family Court of Australia from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Act.

3Institution of appeal

  • (1)

    A person may institute an appeal:

    • (a)

      by filing, in the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made, a notice of appeal in accordance with Form 43; or

    • (b)

      by sending, by fax or e-mail, a copy of the notice of appeal to the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made.

  • (2)

    If an appeal is instituted in accordance with paragraph (1) (b), the notice of appeal must be filed in the registry of the court appealed to that is nearest the court of summary jurisdiction from which the appeal is made within 3 days after the copy of the notice was sent under paragraph (1) (b).

4Time for filing a notice of appeal

 A notice of appeal must be filed:

  • (a)

    within 28 days after the day on which the decree from which an appeal is sought was made; or

  • (b)

    within such further time as a Judge of a court having jurisdiction under the Act directs.

5Fixing a hearing date

 On the filing of the notice of appeal, the Registry Manager must fix a date for a directions hearing or the hearing of the appeal that is as near as practicable to 28 days after the notice was filed.

6Service

 Within 2 days after filing a notice of appeal, the appellant must:

  • (a)

    serve, in accordance with Order 18, a sealed copy of the notice on each party to the appeal; and

  • (b)

    file a sealed copy of the notice in the court appealed from.

7Stay of proceedings

(1) An appeal does not operate as a stay of proceedings or invalidate any intermediate act or proceedings.

(2) If an appeal has been instituted:

  • (a)

    the Magistrate who made the decree appealed from; or

  • (b)

    if that Magistrate is not reasonably available, a Judge of the court in which the appeal is instituted;

may make an order, on such terms as the Magistrate or Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided.

(3) If an order under subrule (2) has been made, a court must not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal is decided.

8Transmission of papers

 As soon as practicable after a sealed copy of a notice of an appeal has been filed in the court appealed from, the Registrar of that court must send all the documents in the Registrar’s possession relating to the appeal to the Registrar of the court in which the appeal has been instituted.

[46]Schedule 1, Form 41C, heading

omit

(order 32, rule 2A)

insert

(Order 32, rule 2A)

(Order 32B, rule 5)

[47]Schedule 1, Form 42

omit

(order 32, rule 2)

insert

(Order 32, rule 2)

(Order 32B, rules 3 and 11)

[48]Schedule 1, Form 42

omit

Form 42 — Family Law Rules Order 32, Rule 2

insert

Form 42 — Family Law Rules 1984

Order 32, rule 2

Order 32B, rules 3 and 11

[49]Schedule 1, Form 42A, heading

omit

(order 32, rules 16A and 19)

(order 32, rules 20 and 21A)

insert

(Order 32, rules 16A, 19 and 22)

(Order 32B, rules 19, 23 and 27)

[50]Schedule 1, Form 42A

omit

Form 42A — Family Law Rules Order 32

Rules 16A, 19, 20 & 21A

insert

Form 42A — Family Law Rules 1984

Order 32, rules 16A, 19 & 22

Order 32B, rules 19, 23 & 27

[51]Schedule 1, Form 42B, heading

omit

(order 32, rules 19A (and 21C))

insert

(Order 32, rules 19A and 24)

(Order 32B, rules 25 and 28)

[52]Schedule 1, Form 42B

omit

Form 42B — Family Law Rules Order 32

Rules 19A & 21C

insert

Form 42B — Family Law Rules 1984

Order 32, rules 19A & 24

Order 32B, rules 25 & 28

[53]Schedule 1, Form 42C, heading

omit

(Order 32, rule 18A)

insert

(Order 32, rule 19AA)

(Order 32B, rule 24)

[54]Schedule 1, Form 43

omit

(order 32, rule 22)

insert

(Order 32D, rule 3)

[55]Schedule 1, Form 43

omit

Form 43 — Family Law Rules Order 32 rule 22

insert

Form 43 — Family Law Rules 1984

Order 32D, rule 3

[56]Schedule 1, Form 67, heading

omit

(order 32A, rule 2)

insert

(Order 32A, rule 2)

(Order 32C, rule 3)

[57]Schedule 1, Form 67

omit

Form 67 — Family Law Rules Order 32A, Rule 2

insert

Form 67 — Family Law Rules 1984

Order 32A, rule 2

Order 32C, rule 3

[58]Schedule 1, Form 67

omit

Notice

Take notice that this application is set down before a Judge of the Appeal Division for a directions hearing under Order 32A at the time and place in box B above.

insert

Notice

Take notice that this application is set down for a directions hearing at the time and place shown in box B above:

  • (a)

    if the application is made under Order 32A — before a Judge of the Appeal Division; or

  • (b)

    if the application is made under Order 32C — before a single Judge.

[59]Schedule 1, Form 67, paragraph 8

substitute

8

Details of affidavit filed supporting this application

(Order 32A, rule 4; Order 32C, rule 6)

date of affidavit

 

/

/20 

name of person making this affidavit

family name (surname)

   

given names

[60]Further amendments

 

Provision

omit

insert

Order 32, subrules 9 (1), (2) and (3)

appeal registrar

Appeal Registrar

Order 32, paragraph 11 (a)

appeal registry

Appeal Registry

Order 32, subrule 20 (1)

regional appeal registry

Regional Appeal Registry

Order 32, paragraph 21 (6) (a)

regional appeal registry

Regional Appeal Registry

Order 32, subrule 21 (7)

regional appeal registrar

Regional Appeal Registrar

Order 32A, rule 1, definition of regional appeal registrar

regional appeal registrar

Regional Appeal Registrar

Order 32A, rule 1, definition of regional appeal registry

regional appeal registry

Regional Appeal Registry

Order 32A, paragraphs 7 (1) (a) and (7) (a)

regional appeal registrar

Regional Appeal Registrar

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, 241 and 322; 2003 No. 172.

2. Notified in the Commonwealth of Australia Gazette

Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0