Family Law Rules (Amendment) (Cth)

Statutory Rules 1995

No. 2 1

__________________

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 9 January 1995.

 

ALAN J. BARBLETT

J. EDWARD ELLIS

J. F. FOGARTY

K. A. MURRAY

H. R. FREDERICO

ALWYNNE ROWLANDS

J. V. KAY

T. H. McGOVERN

RODERICK JOSKE

JOSEPHINE M. MAXWELL

J. T. GUN

R. J. BULLEY

W. B. TREYVAUD

EDWARD BUTLER

P. F. UNDERHILL

RICHARD W. GEE

D. BULBECK

M. A. RENAUD

J. WILCZEK

H. J. BURTON

G. R. MULLANE

MARY JANE M. LAWRIE

A. GRAHAM

P. J. MOSS

JOHN COHEN

B. J. WARNICK

RICHARD CHISHOLM

SALLY BROWN

B. JORDAN

S. R. O’RYAN

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

____________

1.   Commencement

1.1   These Rules commence on 1 February 1995.

2.   Amendment

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

3.   Order 27, rule 3 (Matters to be considered)

3.1   Add at the end:

 “(2) In making an order under rule 1, the court may impose such terms and conditions as it thinks fit.”.

4.   Order 30, rule 6 (Order for examination of witness)

4.1   Paragraph 6 (1) (b):

Omit “either within or outside Australia”, substitute “in Australia”.

5.   Order 30, new rule 6A

5.1   After rule 6, insert:

Taking evidence by video link

 “6A.(1) The court may make an order allowing or directing evidence to be taken by video link from any place inside or outside Australia.

 “(2) In relation to evidence taken by video link from New Zealand on and after the commencement of Part 4 of the Evidence and Procedure (New Zealand) Act 1994, this rule applies subject to that Part of that Act.

 “(3) The court must not make an order unless it is satisfied that:

• (a)

  the courtroom or other place where the court is sitting, and the place where the evidence is to be given, are equipped with facilities that enable:

  • (i)

    persons who are in the place where the court is sitting to see and hear the person giving the evidence; and

  • (ii)

    persons who are in the place where the evidence is given to see and hear persons in the place where the court is sitting; and

• (b)

  the evidence can more conveniently be given from the place where the evidence is to be given.

 “(4) If the court makes an order under subrule (1), the court may make orders for the payment of expenses incurred in connection with taking the evidence in that way.”.

6.   Order 30, rule 7 (Letters of request)

6.1   Subrule 7 (1):

Omit the subrule.

6.2   Subrule 7 (2):

Omit “Where an order is made under subrule (1), the party obtaining the order shall file:”, substitute “If, under the Foreign Evidence Act 1994, an order is made by a court for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken, the party obtaining the order must file:”.

6.3   Subrule 7 (5):

Omit the subrule.

7.   Order 31B, Division 4 (Application for leave to appeal or review)

7.1   Omit the Division, substitute:

“Division 4—Application for leave to appeal or review

Leave to appeal from decision of court of summary jurisdiction

 “18.(1) An application for leave to appeal from the decision of a court of summary jurisdiction under section 105 of the Assessment Act or section 110 of the Registration Act must be made by filing an application for leave to appeal in duplicate in accordance with Form 63.

 “(2) The application must be made:

• (a)

  not later than 1 month after the day on which the decision appealed from was made; or

• (b)

  within such further time as the court allows.

Affidavit to be filed with application

 “19. In relation to an application under rule 18, there must be filed with the application an affidavit that specifies concisely:

• (a)

  the nature of the case; and

• (b)

  the questions involved in the case; and

• (c)

  the reasons why leave to appeal should be given.

Hearing date

 “20. The Registrar of the filing registry must set down an application for hearing as soon as practicable but not less than 21 days after the day of filing of the application.

Papers relating to application for leave

 “21.(1)On filing an application for leave to appeal from a court of summary jurisdiction, the applicant must file with the application a copy of the reasons for judgment of the court of summary jurisdiction, certified by the proper officer of that court.

 “(2) If the reasons for judgment were given orally in the court of summary jurisdiction but no transcript of those proceedings is available, the applicant must file an affidavit, sworn by a person who was present during the giving of those reasons, as a record of those reasons.

Service

 “22.(1)As soon as practicable after filing an application, the applicant must serve by assured service on the respondent and by delivery, post or fax on the Registrar of the court of summary jurisdiction, one copy of each of the application and any affidavit filed with the application.

 “(2) The Registrar of the filing registry must, as soon as practicable after the filing of an application, post a copy of the application and any affidavit filed with the application to the Deputy Child Support Registrar at the address prescribed under regulation 8 of the Child Support Regulations in relation to the State or Territory in which the filing registry is situated.

Transmission of papers

 “23.(1)The Registrar of the registry in which an application for leave to appeal is filed may request the Registrar of the court of summary jurisdiction to forward the papers relating to the proceedings in that court to the Registrar of the filing registry.

 “(2) The Registrar of the court of summary jurisdiction must forward the papers relating to the proceedings in the court of summary jurisdiction to the Registrar of the filing registry as soon as practicable after the Registrar of the court of summary jurisdiction receives a request under subrule (1), or is served with an application under subrule 22 (1).

Hearing

 “24.(1) On the hearing of an application for leave to appeal, the court may, with the consent of the parties or of its own motion:

• (a)

  hear and determine the application; and

• (b)

  treat the application as an application for directions; and

• (c)

  hear and determine the appeal.

 “(2) If the court grants leave to appeal, the court may give such directions as it considers appropriate for the further conduct and hearing of the appeal.

Leave to appeal to Full Court

 “25. Order 32A applies to any application for leave to appeal under:

(a)

section 102 of the Assessment Act; or

• (b)

  section 107 of the Registration Act.

Appeals to the Full Court

 “26. If an application for leave to appeal referred to in rule 25 is granted, Order 32 applies as if a reference to an appeal in that Order included a reference to an appeal within the meaning of rule 25.

Review of decision of Judicial Registrar

 “27.(1) An application to review a decision by a Judicial Registrar under the Assessment Act or the Registration Act must be filed:

• (a)

  not later than 1 month after the day on which the decision was given; or

• (b)

  within such further time as the court allows.

 “(2) Rules 20 and 22 apply in relation to an application as if the application were an appeal from a court of summary jurisdiction.”.

8.   Order 31C, rule 1 (Notice of a constitutional matter—Form 41B)

8.1   Subrule 1 (3):

Omit “Form 42B.”, substitute “Form 41B.”.

9.   Order 31C, rule 2 (Notice to Attorneys-General—Form 41B)

9.1   Omit “Form 42B.”, substitute “Form 41B.”.

10.   Order 32, rule 1 (Interpretation)

10.1   Subrule 1 (1):

Definition of “appeal”:

Omit the definition, substitute:

“appeal” means an appeal to a Full Court of the Family Court of Australia;”.

11.   Order 32, new rule 2A

11.1   After rule 2, insert:

Documents filed in connection with appeal—Form 41C

 “2A. Unless otherwise specified, a document filed in connection with an appeal must be headed in accordance with Form 41C.”.

12.   Order 32, rule 19A (Withdrawal of appeal)

12.1   Subrule 19A (1):

Omit the subrule, substitute:

 “(1)An appellant or cross-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, and on the notice being filed, the appeal is taken to be abandoned.”.

13. Order 32, new

rule 21C

13.1   After rule 21B, insert:

Withdrawal of application to Full Court

 “21C.(1) An applicant may, at any time, file in the regional appeal registry a notice of withdrawal of an application to the Full Court in accordance with Form 42B, and on the notice being filed, the proceedings are taken to be abandoned.

 “(2) A notice filed by an applicant under subrule (1) does not affect any other applicant in the proceedings.

 “(3) A party who files a notice under subrule (1) must pay the costs of each other party occasioned by the application.

 “(4) A party whose costs are payable under subrule (3) may tax the costs in accordance with Order 38.”.

14.   Order 32A (Application for leave to appeal)

14.1   Heading:

Omit the heading, substitute:

“ORDER 32A

APPLICATION FOR LEAVE TO APPEAL TO

FULL COURT”.

15.   Order 32A, rule 1 (Interpretation)

15.1   Definition of “application”:

Omit the definition, substitute:

“ ‘application’ means an application for leave to appeal to the Full Court of the Family Court of Australia;”.

15.2   Definition of “prescribed decree”:

Omit the definition, substitute:

“ ‘prescribed decree’ means the decree or order in respect of which an applicant seeks leave to appeal;”.

16.   Order 32A, rule 3 (Time for filing an application)

16.1   Paragraph 3 (b):

After “Act”, insert “under which the prescribed decree was made”.

17.   Order 32A, rule 6 (Direction to proceed without oral hearing)

17.1   Subrule 6 (2):

Omit the subrule.

18.   Order 32A, rule 7 (Procedure if a direction is given that matter be dealt with without oral hearing)

18.1   Omit the rule, substitute:

Supporting submissions

 “7.(1) If a direction is given under rule 6, the applicant must prepare, within 14 days, a supporting submission and:

• (a)

  lodge 3 copies of the submission with the regional appeal registrar; and

• (b)

  serve 3 copies of the submission on each other party to the application.

 “(2) A supporting submission must state concisely:

• (a)

  the circumstances in which the application arises; and

• (b)

  the matters on which the application is based; and

• (c)

  the reasons why leave to appeal should be granted.

 “(3) As far as practicable, a supporting submission must refer to material in a document filed in connection with the application by the page number of the document and should not extract the text of that material.

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

 “(5) A supporting submission must be signed:

• (a)

  by the solicitor who prepared the submission; or

• (b)

  if the submission was not prepared by a solicitor—by, or on behalf of, the party for whom it was prepared.

 “(6) A supporting submission must 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.

 “(7)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.”.

19.   Order 34, rule 9 (Summary enforcement of access orders)

[NOTE: The heading to Order 34, rule 9 is taken to be altered to read “Summary application—contravention of access order”.]

20.   Order 36A, rule 3 (Delegation of powers to Judicial Registrars)

20.1   After paragraph 3 (w), insert:

• “(wa)

  the power to make an order under rule 6A of Order 30 in relation to the taking of evidence by video link;”.

21.   Order 37, rule 1 (Change of solicitor)

21.1   Subrule 1 (2):

Omit “a notice of the change, which notice shall have endorsed thereon the address for service of the party,”, substitute “a notice of address for service in accordance with Form 18,”.

21.2   Subrule 1 (3):

Omit “a notice of becoming the party’s solicitor (which notice shall have endorsed thereon the address for service of that party)”, substitute “a notice of address for service in accordance with Form 18,”.

21.3   Subrule 1 (4):

Omit “a notice that the party is continuing the proceedings without a legal practitioner, which notice shall have endorsed thereon the address for service of the party,”, substitute “a notice of address for service in accordance with Form 18,”.

22.   Schedule 1 (Forms)

22.1   Form 12A, Part B (Application and Applicant’s Affidavit):

Omit paragraph 8.

22.2   Form 12A, Part B (Applicant’s Affidavit):

Omit paragraphs 2–9 (inclusive) of the applicant’s affidavit, substitute:

“2. I am aware of my right to seek independent legal advice.

“3. I *have/*have not received independent legal advice on my rights under the Family Law Act 1975 and on the effect and consequences of the making of the orders set out in Part A.

“4. At the date of filing, I am:

• *(a)

  an Australian citizen;

• *(b)

  ordinarily resident in Australia;

• *(c)

  present in Australia.

“5. The orders have been agreed upon by all parties.

“6. In applying for the orders set out in Part A, I have considered the following factors:

• *(1)

  (a) the direct and indirect financial and other contributions of each party to the acquisition, conservation and improvement of the property and financial resources of each of the parties; and

• (b)

  the contribution of each party to the welfare of the family; and

• (c)

  the present and future earning capacity of each party; and

• (d)

  the present and future circumstances of each party.

• *(2)

  the best interests of the *child/*children referred to in paragraph 4 of Part B.

“7. I have read this application (including Part A).

“8. The matters stated in this application that are within my personal knowledge are true.

“9. All other matters stated in the application are true to the best of my knowledge, information and belief.

“10. Where I give any estimate in the application, it is based on knowledge, information and belief and is given in good faith.

INSTRUCTIONS:

Omit paragraph 11 if item 7 of Part B is not required to be filled in.

“11. I have no assets or income or any interest in a superannuation fund or deceased estate or trust, present or future, except as set out in the application.”.

22.3   Form 12A, Part C (Respondent’s Affidavit):

Omit paragraphs 2–10 (inclusive) of the respondent’s affidavit, substitute:

“2. I am aware of my right to seek independent legal advice.

“3. I *have/*have not received independent legal advice on my rights under the Family Law Act 1975 and on the effect and consequences of the making of the orders set out in Part A.

“4. At the date of filing, I am:

• *(a)

  an Australian citizen;

• *(b)

  ordinarily resident in Australia;

• *(c)

  present in Australia.

“5. I consent to the making of the orders set out in Part A.

“6. The orders have been agreed upon by all parties.

“7. In consenting to the orders set out in Part A, I have considered the following factors:

• *(1)

  (a) the direct and indirect financial and other contributions of each party to the acquisition, conservation and improvement of the property and financial resources of each of the parties; and

• (b)

  the contribution of each party to the welfare of the family; and

• (c)

  the present and future earning capacity of each party; and

• (d)

  the present and future circumstances of each party.

• *(2)

  the best interests of the *child/*children referred to in paragraph 4 of Part B.

“8. I have read this application (including Parts A and B).

“9. The matters stated in this application (including Part B) that are within my personal knowledge are true.

“10. All other matters stated in the application (including Part B) are true to the best of my knowledge, information and belief.

“11. Where I give any estimate in the application, it is based on knowledge, information and belief and is given in good faith.

INSTRUCTIONS:

Omit paragraph 12 if item 7 of Part B is not required to be filled in.

“12. I have no assets or income or any interest in a superannuation fund or deceased estate or trust, present or future, except as set out in paragraph 7 of Part B of this application.”.

22.4   New Forms 41B and 41C:

After Form 41A, insert:

“form 41B Order 31C

notice of a constitutional

matter under section 78B

of the judiciary act 1903

IN THE FAMILY COURT No. of 19

OF AUSTRALIA

AT

 BETWEEN

Applicant

 

Respondent

1. (Full name of party giving notice) gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.

2.) (Specify the nature of the matter)

3.) 

4.) (Specify the facts showing that the matter is one to which section 78B of the Judiciary Act 1903 applies)

5.)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(Signature of *solicitor/*applicant)

*Omit if not applicable.

____________

“form 41C Order 32, rule 2A

HEADING OF DOCUMENT IN APPEAL

IN THE FAMILY COURT Appeal No. of 19

OF AUSTRALIA

BETWEEN

Appellant (husband,

wife or other person)

 

Respondent (husband,

wife or other person)”.

____________

22.5   Form 42:

Omit “From No.

 (filing registry number)”.

22.6   Form 42:

Omit:

“DATE OF DECREE OF JUDGMENT:

“REGISTRY OR PLACE WHERE DECREE MADE:”;

substitute:

“DATE OF DECREE OR ORDER:

“REGISTRY OR PLACE WHERE DECREE OR ORDER MADE:

“FILE NUMBER IN PLACE OR REGISTRY WHERE DECREE OR ORDER MADE:”.

22.7   Form 42B:

Omit the Form, substitute:

“form 42BOrder 32, rules 19A and 21C

NOTICE OF WITHDRAWAL

(Name of party) hereby gives notice of withdrawal of the *application/*notice of appeal filed in these proceedings on (insert date).

2. The *application/*notice of appeal is withdrawn *wholly/*only as to (give particulars).

 

. . . . . . . . . . . . . . . . . . . . . . . . . .

(*Solicitor for party/*party)

*Omit if not applicable.”.

____________

22.8   Form 50, Notes:

Add at the end:

“3. If an order made by a court (including a court of a prescribed overseas jurisdiction), under subsection 64 (9) of the Family Law Act 1975 with respect to the custody of a child, or under subsection 64 (10) of the Act entitling a person to access to a child, is in force, a court having jurisdiction under Part VII of the Act may issue a warrant authorising or directing the person, or any of the persons, to whom it is addressed, for the purpose of giving effect to the order:

• (a)

  at any time, with such assistance as he or she requires or they require, and if necessary by force:

  • (i)

    to stop and search any vehicle, vessel or aircraft, and to enter and search any premises or place, named or described in the warrant; and

  • (ii)

    to take possession of the child; and

• (b)

  to deliver the child:

  • (i)

    to the person entitled to custody or to some other person or authority (including a person or authority in or from a prescribed overseas jurisdiction) named in the order on behalf of the person entitled to custody; or

  • (ii)

    to the person entitled to access.”.

22.9   Form 66:

Omit “(name of child or children)”, substitute “the following *child/*children”.

22.10   Form 66:

Omit “*PARTICULARS OF ALLEGED ABUSE”, substitute:

“PARTICULARS OF CHILD

(Set out, in the format shown below, the following particulars of each child to whom this notice relates)

FULL NAME:

SEX:

DATE OF BIRTH:

RESIDENTIAL ADDRESS:

NAME(S) OF PERSON(S) IN WHOSE CARE CHILD RESIDES:

*PARTICULARS OF ALLEGED ABUSE”.

22.11   Form 67:

Omit the Form, substitute:

“form 67 Order 32A, rule 2

APPLICATION FOR LEAVE TO APPEAL TO FULL COURT

SECTION (insert section) OF THE (insert name of relevant Act) ACT 19

IN THE FAMILY COURT Appeal No. of 19

OF AUSTRALIA

AT

BETWEEN

Applicant (husband,

wife or other person)

 

Respondent (husband,

wife or other person)

DATE OF FILING:

THIS APPLICATION is made by: (insert full name).

 

APPLICANT’S ADDRESS FOR SERVICE:

 

DATE*S OF HEARING:

DATE OF DECREE OR ORDER:

NAME OF JUDGE:

NAME OF COURT:

REGISTRY OR PLACE WHERE DECREE OR ORDER MADE:

FILE NUMBER IN REGISTRY OR PLACE WHERE DECREE OR ORDER MADE:

 

TO: The Respondent:

 

TAKE NOTICE that the attached application has been set down before Justice (insert name) sitting at (insert place) on (insert date) at (insert time) *am/*pm for the giving of directions under Order 32A, rules 6 and 7.

 

Dated 19 .

 

.. .. .. .. .. .. .. .. .. .. .

(Regional appeals registrar)

 

APPLICATION

1. The applicant applies for leave to appeal from:

 * the whole of the decree or order. [or]

 * the following parts of the decree or order:

 (set out the relevant parts of the decree or order, using an annexure if necessary)

2. The facts on which this application is based are set out in the affidavit of (insert full name) filed with this application.

3. This application was *prepared/*settled by (name of counsel, solicitor or applicant).

 

Dated 19 .

 

.. .. .. .. .. .. .. .. .. .. .

(Signature of *counsel/*solicitor/*applicant)

 

*Omit if not applicable.”.

____________

NOTES

1. Notified in the Commonwealth of Australia Gazette on 31 January 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.