Family Law Rules (Amendment) (Cth)

Statutory Rules 1994

No. 58 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 25 February 1994.

 

 ALAN J. BARBLETT

 K. A. MURRAY

 E. R. BAKER

 ALWYNNE ROWLANDS

 T. E. LINDENMAYER

 J. V. KAY

 T. H. McGOVERN

 graham r. bell

 GEOFFREY I. WALSH

 ADRIAN SMITHERS

 R. J. BULLEY

 W. B. TREYVAUD

 ESWARD BUTLER

 PETER B. HASE

 RICHARD W. GEE

 D. BULBECK

 M. RENAUD

 J. S. PURDY

 RODNEY N. PURVIS

 J. WILCZEK

 W. ROURKE

 H. J. BURTON

 G. R. MULLANE

 JOHN COHEN

 I. R. COLEMAN

 P. F. A. HILTON

 B. J. WARNICK

 S. BROWN

 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 4 April 1994.

2.   Amendment

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

3.   Order 23a, rule 2 (Service of notice)

3.1   Omit the rule, substitute:

Service of notice

 “2. (1) If a party files a notice under subsection 70ba (2) of the Act, the party must serve a copy of the notice on each other party as soon as is practicable.

“(2)

Service  ofa copy of the notice on a person:

• (a)

  who is alleged to have abused a child; or

• (b)

  from whom a child is alleged to be at risk of abuse;

must be by assured service.”.

4.   Order 30, rule 2a (Evidence in interlocutory applications)

4.1   After subrule 2a (1)insert:

 “(1a) On the hearing of an interlocutory application, evidence in chief must be given by affidavit unless the court otherwise orders.

 “(1b) Subject to these Rules and unless the court otherwise orders, an affidavit is not admissible in evidence at a hearing except:

• (a)

  one affidavit by each party; and

(c)

one affidavit by each witness.”.

5.   Order 30, rule 3 (Court may dispense with procedures and formalities)

5.1   Omit the rule.

6.   Order 33, Rule 2 (Enforcement of maintenance etc. orders and debts due to the Commonwealth)

6.1   Paragraph 2 (1) (a):

Omit the paragraph, substitute:

• “(a)

  an order that a party pay maintenance or other money for the benefit of the other party, or of a child, made under:

  • (i)

    the Act; or

  • (ii)

    the Child Support (Registration and Collection) Act 1988;”.

6.2   Subrule 2 (5):

Omit “An order”, substitute “A matter”.

7.   Order 33, rule 3 (Summary procedures on refusal or failure to comply with certain orders)

7.1   Subrule 3 (6):

Omit “$500.00.”, substitute “$5,000.”.

8.   Order 33, rule 4 (Garnishment)

8.1   Subrule 4  (20):

Omit “$500.00.”, substitute “$5,000.”.

8.2   Subrule 4  (23):

Omit “$500.00.”, substitute “$5,000.”.

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

9.1   Subrule 9  (1):

Omit “subsection 70 (3) of the Act”, substitute “an access order”.

9.2   After subrule 9 (2), insert:

 “(2a) If an application for summary enforcement of access is filed, the Registrar of the filing registry must:

• (a)

  if the respondent is resident in Australia—fix a return date that is not more than 14 days after the date the application is filed; or

• (b)

  if the respondent is not resident in Australia—fix a return date not more than 35 days after the date the application is filed.”.

10.   Order 36a, Rule 2 (Delegation of powers to Registrars)

10.1   Subrule (1):

After paragraph 2 (1) (r), insert:

• “(ra)

  the power to give directions and make orders under subsection 105 (2) of the Child Support (Registration and Collection) Act 1988 for the resolution of any difficulty arising in relation to the application of subsection 105 (1) of that Act or in relation to a particular proceeding;”.

11.   Order 36a, Rule 3 (Delegation of powers to Judicial Registrars)

11.1   After paragraph 3 (y), insert:

• “(yaa)

  the power under subrule 8a (2) of Order 38 to make an order in relation to an agreement under rule 8 of Order 38;”.

12.   Order 40, rule 5 (Vexatious litigants)

12.1 Omit the rule, substitute:

Refusal to file if abuse of process, frivolous or vexatious

 “5. (1) A Registrar may reject a document lodged for filing if the document, on its face, appears to the Registrar to be an abuse of process or frivolous or vexatious.

“(2)

The person who sought to file the document may apply to the court for review of the decision of the Registrar.

“(3)

A Registrar must not reject an application for review of the decision.

“(4)

An application for review must, in the first instance, be made ex parte.

Order requiring leave to commence proceedings

 “6. (1) If a court considers it appropriate, the court may order that a person must not institute proceedings of a kind of kinds specified in the order, without the leave of the court.

“(2)

An order under this rule may be made by the court;

• (a)

  of its own motion; or

• (b)

  in the case of the Family Court of Australia—on the application of the Chief Executive Officer or the Principal Registrar; or

• (c)

  in the case of the Family Court of Western Australia—on the application of the Executive Officer or the Registrar.

“(3)

If an order has been made under paragraph 118 (1) (c) of the Act or under this rule, an application for leave to institute proceedings must, in the first instance, unless the order otherwise provides, be made ex parte.”.

13.   Schedule 1 (Forms)

13.1   Form 8:

Omit “a cross-application and an affidavit in support”, substitute “an affidavit setting out briefly the matters on which you rely and the orders you seek”.

13.2   Form 42a:

Omit “Order 31b, Rules 21 and 23”.

13.3   Form 49:

Add at the end:

“Note: 1. If the respondent is resident in Australia, the return date is not to be more than 14 days after the date of filing.

• 2.

  If the respondent is not resident in Australia, the return date is not to be more than 35 days after the date of filing.”.

13.4   Form 53:

Add at the end:

“Note: 1. The person named in this warrant has been committed to prison under the Family Law Act 1975. The person is NOT a federal offender and is NOT entitled to have the period specified by the Court reduced by any remissions. Furthermore, the person is NOT eligible to participate in any State pre-release schemes which apply to federal offenders.”.

13.5   Form 58:

Omit “Notes:” and all the words that follow, substitute:

“Notes: 1. A party to the taxation proceeding who objects to a decision of the taxing officer may file, within 7 days after the date of the decision, an application under Order 38, rule 40 of the Family Law Rules for the taxing officer to reconsider the decision.

• 2.

  If, after reconsideration by the taxing officer, the party objects, the party may file, not later than 14 days after a copy of this certificate has been issued to the party, an application, in accordance with Form 44, to review the decision of the taxing officer.”.

13.6   Form 66

Omit “To: (prescribed child welfare authority)”,

substitute:

“To: (prescribed child welfare authority); and

 (full name and address of person alleged to have abused the child or children or from whom the child or children are alleged to be at risk of abuse); and

 (each other party to the proceedings)”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 15 March 1994.

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 No. 25.