Family Law Regulations (Amendment) (Cth)

Statutory Rules 1983 No. 2801

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Family Law Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and in pursuance of section 4 of the Acts Interpretati Act 1901, hereby make the following Regulations under the Family Law Act 1975.

Dated 23 November 1983.

N. M. STEPHEN

Governor-General

By His Excellency’s Command,

GARETH EVANS

Attorney-General

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Application for decree of dissolution of marriage

1. Regulation 33 of the Family Law Regulations is amended—

(a) by inserting in sub-regulation (1) “, other than an application referred to in sub-regulation (2),” after “application”; and

(b) by omitting sub-regulations (2) and (3) and substituting the following sub-regulation:

“(2) An application for a decree of dissolution of marriage made jointly by both parties to the marriage shall be in accordance with Part 1 of Form 4a, shall be verified by affidavit in accordance with Part 2 of that Form, and shall contain—

(a) if one or both of the applicants is represented by a legal practitioner—a declaration in accordance with Part 3 of that Form in respect of that applicant or those applicants; and

(b) a notice to the applicants in accordance with Part 4 of that Form.”.

2. After regulation 33 of the Family Law Regulations the following regulation is inserted:

Certificates of reconciliation

“33a. A certificate referred to in sub-section 44 (1b) of the Act shall be in accordance with Form 4b.”.

Application for decree of nullity of marriage

3. Regulation 34 of the Family Law Regulations is amended—

(a) by inserting in sub-regulation (1) “, other than an application referred to in sub-regulation (2),” after “application”; and

(b) by omitting sub-regulations (2) and (3) and substituting the following sub-regulation:

“(2) An application for a decree of nullity of marriage made jointly by both parties to the marriage shall be in accordance with Part 1 of Form 5 a, shall be verified by affidavit in accordance with Part 2 of that Form, and shall contain—

(a) if one or both of the applicants is represented by a legal practitioner—a declaration in accordance with Part 3 of that Form in respect of that applicant or those applicants; and

(b) a notice to the applicants in accordance with Part 4 of that Form.”.

4. After regulation 102 of the Family Law Regulations the following regulation is inserted:

Substitution of legal personal representative as a party to the proceedings

“102a. Where, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies, the court may order that the legal personal representative of the deceased party be substituted for the deceased party as a party to the proceedings upon such terms and conditions as the court considers just.”.

5. After regulation 165 of the Family Law Regulations the following regulation is inserted:

Offers of settlement

“165a. (1) Where a party to proceedings files a copy of an offer for the purposes of sub-section 117c (1) of the Act, he shall file, together with a copy of the offer, a notice in accordance with Form 29b.

“(2) A notice referred to in sub-section 117c (2) of the Act shall be in accordance with Form 29c.”.

6. After regulation 168 of the Family Law Regulations the following regulation is inserted:

Authentication of consent in writing

“168a. For the purposes of paragraphs 70a (1) (a), 70a (2) (a), 70b (1) (c) and 70b (2) (c) of the Act, a consent in writing shall be authenticated by a person referred to in section 8 of the Statutory Declarations Act 1959 endorsing on the consent a statement that—

(a) he has satisfied himself as to the identity of the person signing the consent; and

(b) that the consent has been signed in his presence.”.

7. After regulation 170 of the Family Law Regulations the following regulation is inserted:

Prescribed rate of interest—paragraph 87 (11) (b) of the Act

“170aa. For the purposes of paragraph 87 (11) (b) of the Act, the rate of interest is 10 per cent per annum.”.

8. After regulation 170a of the Family Law Regulations the following regulations are inserted:

Prescribed laws

“170b. For the purposes of sub-sections 114ab (1) and (2) of the Act, the following are prescribed laws:

(a) sections 407aa, 357f, 357g, 357h and 547aa of the Crimes Act, 1900 of the State of New South Wales as amended and in force from time to time;

(b) the Peace and Good Behaviour Act 1982 of the State of Queensland as amended and in force from time to time;

(c) sections 172, 173 and 174 of the Justices Act, 1902 of the State of Western Australia as amended and in force from time to time;

(d) section 99 of the Justices Act, 1921 of the State of South Australia as amended and in force from time to time.

Prescribed rate of interest—sub-section 117b (1) of the Act

“170c. For the purposes of sub-section 117b (1) of the Act, the rate of interest is 10 per cent per annum.”.

Schedule 1—Forms 4a and 4b

9. Schedule 1 to the Family Law Regulations is amended by inserting after Form 4 the following forms:

FORM 4a Sub-regulation 33 (2)

JOINT APPLICATION FOR DISSOLUTION OF MARRIAGE

(Title)

DATE OF FILING:

HUSBANDS ADDRESS FOR SERVICE:

WIFES ADDRESS FOR SERVICE-

PART 1

1. (Full name and occupation of husband and full name and occupation of wife)apply jointly for dissolution of the above-mentioned marriage.

2. The applicants were married at

on and, at the time of marriage, the husband was—

*a bachelor

*a widower

*a divorced person

and the wife was—

*a spinster

*a widow

*a divorced person.

3. The husband was born at on

4. The wife was born at on

5. The *husband *wife is—

*ordinarily resident in Australia, having been resident here since

*an Australian citizen

*domiciled in Australia.

6. The facts and circumstances of the residence or citizenship or domicile specified above in paragraph 5 are: (set out shortly facts relied upon).

7. The marriage between the applicants has broken down irretrievably.

*8. The applicants separated on and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of this application.

or

*8. The applicants separated on , resumed cohabitation on , separated again on , and have lived separately and apart since that later date.

9. The circumstances in which the applicants last separated are as follows: (set out shortly facts relied upon).

*10. Since the commencement of the separation, the applicants resided in the same residence during the following period or periods and in the following circumstances: (set out address or addresses of residence or residences that the applicants have shared since they separated, all relevant dates or periods, and the circumstances).

11. There is no reasonable likelihood of cohabitation between the applicants being resumed.

*12. There is no child under the age of 18 years who is a child of the marriage or who is, by virtue of section 5 of the Act, to be deemed to be a child of the marriage for the purposes of the application of the Act in relation to the marriage.

or

*12. The following are children under the age of 18 years each of whom is a child of the marriage or is, by virtue of section 5 of the Act, to be deemed to be a child of the marriage for the purposes of the application of the Act in relation to the marriage:

(set out full names, dates of birth and where residing)

The following persons are residing in the same residence or residences as the children:

(set out full names, ages and relationships)

The following arrangements are proposed by the applicants for the welfare of the children:

(set out details of housing, maintenance, supervision, access and education).

*13. The following are particulars of orders made in proceedings between the applicants that are still operative:

(set out the date of each order, the court by which it was made and brief particulars of the order).

or

*13. There are no orders made in proceedings between the applicants that are still operative.

*14. The following are particulars of proceedings between the applicants that are pending: (set out brief particulars of any pending proceedings and the court in which the proceedings are pending).

or

*14. There are no proceedings between the applicants pending.

* Strike out whichever is not applicable.

PART 2

AFFIDAVIT

WE, (full name and address and occupation of husband) and (full name, address and occupation of wife) make oath and say (or affirm) —

1. We are the applicants herein.

2. We and each of us say that the facts stated in this application that are within our personal knowledge are true. All other facts stated in this application are true to the best of our knowledge and belief.

SWORN (or AFFIRMED) by

(full name of husband)

at on

the day of

19

Before me:

A Justice of the Peace

SWORN (or AFFIRMED) by

(full name of wife)

at on

the day of

19

Before me:

A Justice of the Peace

PART 3

*DECLARATION BY SOLICITOR

(Full name and address) states:

1. I am the solicitor for the *applicants *husband.

2.In compliance with regulation 19, I have furnished to the *applicants *husband a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

(Signature)

or

*DECLARATION BY SOLICITOR

(Full name and address) states:

1. I am the solicitor for the wife.

2. In compliance with regulation 19, I have furnished to the wife a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

(Signature)

* Strike out whichever is not applicable.

PART 4

NOTICE TO APPLICANTS

1. This application has been set down for hearing by the

court at on the day of

19 at o’clock.

2. You are invited to read carefully the document furnished to you by the court setting out the legal and possible social effects of these proceedings and the counselling and welfare facilities available.

Registrar

FORM 4b Regulation 33a

CERTIFICATE UNDER SUB-SECTION 44 (1b)

(Title)

DATE OF FILING:

HUSBANDS ADDRESS FOR SERVICE:

WIFE’S ADDRESS FOR SERVICE:

DATE OF MARRIAGE OF PARTIES:

I,(1) (full name of person or organization certifying) certify/certifies(2) that (full name and address of husband and full name and address of wife), being the parties to the marriage, have considered a reconciliation with my assistance/ with the assistance of this organization(2) during the period/periods(2) of (insert the relevant date or dates).

Dated this day of 19 .

(Signature)(3)

(insert capacity in which the person signs)

(1) Strikeout if an organization is to certify

(2) Strikeout whichever is not applicable

(3) The certificate must be signed by a marriage counsellor, a suitable person nominated by the Principal Director of Court Counselling of the Family Court, an appropriate officer of a Family Court of a State or a person on behalf of an approved marriage counselling organization or an organization nominated by the Principal Director of Court Counselling of the Family Court.

Schedule 1—Forms 5a and 6

10. (1) Schedule 1 to the Family Law Regulations is amended by omitting Form 6 and substituting the following forms:

FORM 5a Sub-regulation 34 (2)

JOINT APPLICATION FOR DECREE OF NULLITY

(Title)

DATE OF FILING:

HUSBANDS ADDRESS FOR SERVICE:

WIFE’S ADDRESS FOR SERVICE:

PART 1

1. (Full name and occupation of husband and full name and occupation of wife)apply jointly for a decree of nullity of the above-mentioned marriage.

2. The applicants went through a ceremony of marriage at

on

3. The husband was born at on

4. The wife was born at on

5. The marriage is void because of (state whether bigamy or marriage within a prohibited relationship or legal invalidity or lack of consent or non-age).

6. The facts relied upon by the applicants are as follows:

(a)

(b)

*7. The following are particulars of orders made in proceedings between the applicants that are still operative: (set out the date of each order, the court by which it was made and brief particulars of the order).

or

*7. There are no orders made in proceedings between the applicants that are still operative.

*8. The following are particulars of proceedings between the applicants that are pending: (set out brief particulars of any pending proceedings).

or

*8. There are no proceedings pending between the applicants.

* Strike out whichever is not applicable.

PART 2

AFFIDAVIT

We, (full name, address and occupation of husband) and (full name, address and occupation of wife) make oath and say (or affirm) —

1. We are the applicants herein.

2. We and each of us say that the facts stated in this application that are within our personal knowledge are true. All other facts stated in this application are true to the best of our knowledge and belief.

SWORN (or AFFIRMED) by

(full name of husband)

at on the

day of

19

Before me:

A Justice of the Peace

SWORN (or AFFIRMED) by

(full name of wife) at

on the

day of

19

Before me:

A Justice of the Peace

PART 3

*DECLARATION BY SOLICITOR

(Full name and address) states:

1. I am the solicitor for the *applicants *husband.

2. In compliance with regulation 19, I have furnished to the *applicants *husband a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

(Signature)

or

*DECLARATION BY SOLICITOR

(Full name and address) states:

1. I am the solicitor for the wife.

2. In compliance with regulation 19, I have furnished to the wife a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

(Signature)

* Strike out whichever is not applicable.

PART 4

NOTICE TO APPLICANTS

This application has been set down for hearing by the

court at on the day of

19 at o’clock.

Registrar

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FORM 6 Sub-regulation 36 (1)

APPLICATION

(Title)

DATE OF FILING:

APPLICANT’S ADDRESS FOR SERVICE:

1. (Full name and occupation) applies for the following orders:

(a)

(b)

2. I am (capacity in which applicant institutes the proceedings).

3. The husband and wife were married at on

*4. An application has been filed in the

Court (bearing number ) seeking dissolution (or annulment) of the marriage. The application has not been disposed of (or On the day of 19 , that court pronounced a decree nisi (or pronounced a decree of nullity)).

*5. There are no proceedings pending between the parties to the marriage.

*6. There are no proceedings pending between the parties to the proceedings.

*7. In compliance with regulation 19, I have furnished to the applicant a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

Solicitor for the Applicant

TO THE *RESPONDENT *RES PON DENTS

1. This application has been set down for hearing by the court at on

the day of

19 at o’clock.

2. If you wish to contest the application or seek some other order, you may file and serve an affidavit in reply.

3. If you do not appear at the hearing, the court may proceed to make the orders sought, or similar orders, in your absence.

Registrar

* Strike out whichever is not applicable.

(2) Where before the commencement of these Regulations proceedings had been instituted on an application (other than an application by which proceedings for principal relief were commenced or an application under sub-regulation 133 (1), 133 (2) or 137 (4)) in accordance with Form 6 and immediately before the commencement of these Regulations those proceedings had not been finally disposed of, those proceedings are not affected by the amendment effected by sub-regulation (1).

Schedule 1—Forms 29b and 29c

11. Schedule 1 to the Family Law Regulations is amended by inserting after Form 29a the following forms:

FORM 29b Sub-regulation 165a (1)

NOTICE OF OFFER OF SETTLEMENT

(Title)

DATE OF FILING:

Attached to this notice is a copy of an offer to settle the proceedings that was made in writing to the other party to the proceedings. The offer was transmitted to the other party (insert full details of the manner in which the offer was transmitted to the other party, including particulars of place and time)

Dated this day of 19 .

(Signature)*

*This form is to be signed by the party who made the offer or his solicitor.

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FORM 29c Sub-regulation 165a (2)

NOTICE OF WITHDRAWAL OF OFFER OF SETTLEMENT

(Title)

DATE OF FILING:

The offer in writing to settle the proceedings made to (full name of the other party to the proceedings), a copy of which was filed in the

court on the day of 19 , has been withdrawn.

Dated this day of 19 .

(Signature)*

*The form is to be signed by the party who withdrew the offer or his solicitor.

 

NOTES

1. Notified in the Commonwealth of Australia Gazette on 24 November 1983.

2. Statutory Rules 1975 No. 210 as amended to date. For previous amendments see Note 2 to Statutory Rules 1983 No. 243 and see also