Family Law Amendment Rules 2004 (No. 1) (Cth)

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Family Law Amendment Rules 2004 (No. 1)1

Statutory Rules 2004 No. 52

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

Dated 30 January 2004

J. EDWARD ELLIS

N.J. BUCKLEY

B.J. WARNICK

MICHELLE MAY

K.A. MURRAY

GRAHAM R. BELL

J. WILCZEK

G.R. MULLANE

N. MUSHIN

M.A. HANNON

RICHARD CHISHOLM

SALLY BROWN

B. JORDAN

S.R. O’RYAN

LINDA DESSAU

SUSAN MORGAN

CHRISTINE E. DAWE

ROD BURR

J.M. BOLAND

S. STRICKLAND

A.R. MONTEITH

PETER YOUNG

DONNA O’REILLY

TIM CARMODY

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

DAVID MONAGHAN

Acting Principal Registrar

Family Court of Western Australia

1Name of Rules

These Rules are the Family Law Amendment Rules 2004 (No. 1).

2Commencement

These Rules commence on gazettal.

3Amendment of Family Law Rules 1984

Schedule 1 amends the Family Law Rules 1984.

Schedule 1Amendments

(rule 3)

[1]Order 25, rule 1

omit

the Principal Director of Court Counselling of the Family Court of Australia,

insert

the Registry Manager of the court,

[2]Order 25, rule 1

omit

the Director

insert

the Registry Manager

[3]Order 25, rule 4A

omit

Director of Court Counselling

insert

Manager Mediation

[4]Order 25A, rule 1, definition of Principal Director of Mediation

substitute

Principal Mediator includes the appropriate officer of a State Family Court.

[5]Order 25A, paragraph 10 (1) (b)

omit

Principal Director of Mediation.

insert

Principal Mediator.

[6]Order 26A, Divisions 1 and 2

substitute

Division 1General

1Application of Order

This Order applies to:

  1. (a)

    an application under section 63E of the Act for registration of a revocation agreement; and

  2. (b)

    an application:

    1. (i)

      under subsection 63H (1) of the Act to set aside a registered parenting plan; or

    2. (ii)

      to discharge, vary, suspend or revive provisions of a registered parenting plan as permitted by a provision mentioned in subsection 63H (3) of the Act.

2Definitions

In this Order:

registered parenting plan has the meaning given by subsection 63C (6) of the Act.

revocation agreement, in relation to a registered parenting plan, means an agreement revoking the registered parenting plan.

Division 2Registration of revocation agreements

3Application of Division

This Division applies to an application under section 63E of the Act for registration of a revocation agreement.

4Requirements for revocation agreement

A revocation agreement in respect of which an application for registration is made:

  1. (a)

    must be:

    1. (i)

      mechanically or electronically printed; or

    2. (ii)

      legibly hand-printed on ruled paper; and

  2. (b)

    must be signed by each party to the registered parenting plan to which the revocation agreement relates; and

  3. (c)

    must be contained in a single document.

5Application for registration of revocation agreement

  1. (1)

    A party to a revocation agreement may apply to register the agreement by filing an affidavit setting out the facts on which the application is based.

Note Paragraph 63E (2) (b) of the Act provides that the following documents must accompany an application for registration of a revocation agreement:

(a) a copy of the revocation agreement (see subparagraph 63E (2) (b) (i));

(b) a statement, in relation to each party, to the effect that the party has been provided with independent legal advice as to the meaning and effect of the revocation agreement, signed by the practitioner who provided the advice (see subparagraph 63E (2) (b) (iii)).

  1. (2)

    The affidavit must include the following information:

    1. (a)

      the name, age and place of residence of each child to whom the agreement relates;

    2. (b)

      the current and proposed arrangements for the child;

    3. (c)

      the reasons for revoking the registered parenting plan;

    4. (d)

      details of any current order made under the Act relating to the welfare of the child;

    5. (e)

      details of any current family violence order relating to the care, welfare and development of the child;

    6. (f)

      details of any current State child order relating to the care, welfare and development of the child;

    7. (g)

      if the person with whom the child is to reside, or have contact, has been convicted of an offence under a law relating to child welfare, or a criminal offence relevant to the care, welfare and development of the child — details of the conviction;

    8. (h)

      details of any proceedings pending in relation to any of the above matters;

    9. (i)

      a statement that the revocation agreement accompanying the application for registration is a true copy of the original agreement.

  2. (3)

    When the affidavit mentioned in subrule (1) and any accompanying documents are filed, the applicant must produce to the Registry sufficient copies of the documents to enable a sealed copy to be served on each party to the revocation agreement.

6Court may require service or additional information

Before making a decision about whether to register a revocation agreement, the court may:

  1. (a)

    order that a copy of the affidavit filed under subrule 5 (1) be served, in accordance with Order 18, on a specified person; or

  2. (b)

    require a party to file additional information in relation to the application for registration.

7Application may be heard in chambers

An application for registration of a revocation agreement may be dealt with in chambers, in the absence of the parties and their lawyers (if any).

Note Subsection 63E (3) of the Act provides that the court may register a revocation agreement if it considers it appropriate to do so, having regard to the best interests of the child to whom the agreement relates.

8Notice of decision in relation to registration

As soon as practicable after a decision is made on an application to register a revocation agreement, the Registry Manager of the filing registry must give to each party to the revocation agreement:

  1. (a)

    if the decision is to register the agreement — a copy of the agreement endorsed with a certificate, signed by a Registrar, specifying:

    1. (i)

      the court in which the revocation agreement was registered; and

    2. (ii)

      the date when the revocation agreement was registered; and

  2. (b)

    if the decision is to not register the agreement — written notice of the decision.

[7]Order 30, subrule 2AAA (2)

after

seek leave to

insert

appear,

[8]Order 30, paragraph 2AAA (5) (c)

after

the person to

insert

appear,

[9]Order 32, rule 17B

omit

[10]Order 34, rule 5

omit

[11]Order 35, rule 15

omit

[12]Order 35, rule 17

omit

paragraph 16 (2) (a).

insert

subrule 16 (2).

[13]Order 36A, after paragraph 2 (1A) (ha)

insert

  1. (hb)

    the power to make an order under subsection 65LA (1) of the Act;

[14]Schedule 1, Forms 26A and 26B

omit

[15]Schedule 1, Forms 31 and 32

omit

the Principal Director of Court Counselling of the Family Court of Australia,

insert

the Registry Manager of the court at (name of Registry),

[16]Further amendments — Order 23A

Provision

omit

insert

Subrules 1 (2) and 3 (1)

Registrar

Registry Manager

Subrule 3 (2)

Registrar.

Registry Manager.

Subrules 3 (3) and (4)

Registrar

Registry Manager

Subrule 3 (4)

Registrar:

Registry Manager:

Subrule 3 (5)

The Registrar

The Registry Manager

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 Nos. 172 and 183.

2. Notified in the Commonwealth of Australia Gazette

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