Family Law Rules (Amendment) (Cth)

Statutory Rules 1995

No. 146 1

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Family Law Rules 2 (Amendment)

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

Dated 8 June 1995.

 ALAN J. BARBLETT

 J. EDWARD ELLIS

 J. F. FOGARTY

 K. A. MURRAY

 H. R. FREDERICO

 ALWYNNE ROWLANDS

 T. E. LINDENMAYER

 J. V. KAY

 T. H. McGOVERN

 RODERICK JOSKE

 JOSEPHINE M. MAXWELL

 J. T. GUN

 GEOFFREY I. WALSH

 R. J. BULLEY

 P. F. UNDERHILL

 PETER B. HASE

 D. BULBECK

 M. A. RENAUD

 J. S. PURDY

 

 RODNEY N. PURVIS

 J. WILCZEK

 H. J. BURTON

 G. R. MULLANE

 A. GRAHAM

 N. MUSHIN

 I. R. COLEMAN

 B. J. WARNICK

 RICHARD CHISHOLM

 SALLY BROWN

 B. JORDAN

 S. R. O’RYAN

 J. FAULKS

 Judges of the Family Court

 of Australia

 

IAN J. LOUGHNAN

Principal Registrar

Family Court of Australia

 I. W. P. McCALL

 ALAN J. BARBLETT

 D. R. ANDERSON

 N. TOLCON

 MICHAEL H. HOLDEN

 Judges of the Family Court

 of Western Australia

C. E. MARTIN

Registrar

Family Court of Western Australia

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1.Commencement

1.1   These Rules commence on 1 July 1995.

2.Amendment

2.1   The Family Law Rules are amended as set out in these Rules.

3.Order 26, rule 3 (Registration of interstate custody orders)

3.1   Omit the rule, substitute:

Registration of custody or access orders—section 67 of the Act

“3.

An order made under the law of a State or Territory for the custody of, or access to, a child under 18 years of age may be registered in a Family Court or another court having jurisdiction under Part VII of the Act by filing a sealed copy of the order.”.

4.   Order 30 (Evidence)

4.1   After rule 1, insert:

Court may give directions

 “1A. Despite any other provision of these Rules, the court may give directions:

• (a)

  as to the order of evidence and addresses; and

• (b)

  generally, as to the conduct of a trial.

Order for adducing evidence

“1B.

(1) If an applicant adduces evidence, the evidence must be adduced before evidence is adduced by a respondent, or a child’s representative.

“(2)

If a respondent adduces evidence, the evidence must be adduced before evidence is adduced by a child’s representative.

Opening and closing addresses

“1C.

(1)A party or a child’s representative may make an opening address immediately before adducing evidence.

“(2)

If a child’s representative makes a closing address, the address must be made before a closing address is made by a respondent or an applicant.

“(3)

If a respondent makes a closing address, the address must be made before a closing address is made by an applicant.”.

5.   Order 31B, rule 16 (Appeal under section 88 of the Registration Act)

5.1   Paragraph 16 (c):

After “lodged”, insert “by the appellant”.

6.   Order 38, rule 8 (Solicitor and client agreement as to costs)

6.1   Omit the rule, substitute:

Solicitor and client agreement as to costs

“8.

(1) A solicitor acting for a party to proceedings may enter into an agreement relating to the costs in connection with the proceedings.

“(2)

An agreement must be:

• (a)

  in writing; and

• (b)

  signed by each party to the agreement.

“(3)

Subject to rule 8A, if a solicitor enters into an agreement under this rule:

• (a)

  the solicitor may charge in accordance with the agreement; and

• (b)

  the solicitor’s bill of costs for the amount due under the agreement may be taxed in accordance with the agreement in any court exercising jurisdiction under the Act; and

• (c)

  the agreement may be enforced, varied or set aside in the same manner, and on the same grounds, as any other agreement.

“(4)

Before entering into an agreement, a solicitor must:

• (a)

  provide each other party to the agreement with a copy of a pamphlet, prepared by the Principal Registrar, that summarises the main effects of Order 38; and

• (b)

  advise each other party to the agreement of the availability of independent legal advice.

“(5)

An agreement must be fair and reasonable.”.

7.   Order 38, rule 8A (Solicitor and client agreement—validity and enforcement)

7.1   Subrule 8A (1):

Omit the subrule, substitute:

“(1)

A party to an agreement under subrule 8 (1) may apply to a Family Court for the making of an order under this rule.”.

7.2   Subrule 8A (2):

Omit “a Judge”, substitute “a Judge, or a Judicial Registrar,”.

7.3   Paragraph 8A (2) (c):

Omit “the Judge”, substitute “the Judge, or the Judicial Registrar,”.

7.4   After subrule 8A (2), insert:

“(2A)

An agreement may be set aside if subrule 8 (2), (4) or (5) is not complied with.

“(2B)

If:

• (a)

  an application is made to the court under subrule (1); and

• (b)

  a solicitor who is a party to an agreement seeks confirmation of the agreement;

the solicitor must prove on the balance of probabilities the facts on which the solicitor relies.”.

7.5   Subrule 8A (3):

Omit “the Judge”, substitute “the Judge, or the Judicial Registrar,”.

7.6   Subrule 8A (4):

Omit “the Judge”, substitute “the Judge, or the Judicial Registrar,”.

8.   Schedule 1, Form 58 (Certification of Taxation of Costs)

8.1   Omit the Notes, substitute:

“Note: If a party objects, the party may, within 14 days after a copy of this certificate was issued to the party, file an application under Order 38, subrule 43 (1) to review the decision of the taxing officer, on any matter that was reconsidered under Order 38, rule 40.”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 21 June 1995.

2. 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 and 145.