Family Law Rules (Amendment) (Cth)

Statutory Rules 1997

No. 155 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 19 June 1997.

J.F. FOGARTY

H.R. FREDERICO

E.R. BAKER

T.E. LINDENMAYER

RODERICK JOSKE

JOESEPHINE M. MAXWELL

ADRIAN SMITHERS

P.F. UNDERHILL

PETER B. HASE

D. BULBECK

M.A. RENAUD

J.S. PURDY

RODNEY N. PURVIS

J. WILCZEK

W. ROURKE

H.J. BURTON

G.R. MULLANE

MARY JANE M. LAWRIE

A. GRAHAM

N. MUSHIN

I.R. COLEMAN

M.A. HANNON

SALLY BROWN

B. JORDAN

LINDA DESSAU

SUSAN MORGAN

MICHELLE MAY

CHRISTINE E. DAWE

Judges of the Family Court

of Australia

A. RADZEVICIUS

Acting Principal Registrar

Family Court of Australia

D.R. ANDERSON

Judge of the Family Court

of Western Australia

S. THACKRAY

Acting Registrar

Family Court of Western Australia

____________

1.   Commencement

1.1   These Rules commence on 30 June 1997.

2.   Amendment

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

3.   Order 1, rule 4 (Interpretation)

3.1   Subrule 4 (1) (definition of “cause of action”):

Omit “interlocutory”, substitute “procedural”.

3.2   Subrule 4 (1) (definition of “respondent”):

Omit “an applicant, a third party or an intervener;”, substitute “an applicant or a third party;”.

4.   Order 5, rule 2A (Register of approved family and child counsellors)

4.1   Omit the rule.

5.   Order 5, rule 2B (Register of approved mediators)

5.1   Omit the rule.

6.   Order 8, rule 1 (Application of Order)

6.1   Omit the rule, substitute:

Application of Order

 “1. Unless these Rules provide otherwise, this Order applies to all applications.

[NOTE:  Order 7 applies to applications for principal relief.]”.

7.   Order 8, rule 3 (Form of application—Form 7, 7A, 8 or 12)

7.1   Omit the rule, substitute:

Form of application—Form 7 or 8

 “3. (1) An application for a final order for relief (except an application for an order under the Marriage Act 1961) must be in accordance with Form 7.

 “(2) An application for an order under the Marriage Act 1961 must be in accordance with Form 8.

 “(3) An application for an interim or procedural order (whether or not a cross-vesting law is involved) must be in accordance with Form 8.

Application for interim or procedural order to be accompanied by application for final order

 “3A. (1) This rule applies to a person who:

• (a)

  wishes to apply for an interim or procedural order in a cause of action; and

• (b)

  has not applied for a final order in that cause of action.

 “(2) The person must file, at the same time as the application for the interim or procedural order is filed:

• (a)

  an application in accordance with Form 7, or a response in accordance with Form 7A, seeking a final order in the cause of action for which the interim or procedural order is sought; or

• (b)

  if the person has filed an application, or a response, seeking a final order in another cause of action—an amendment of that application, or response, seeking a final order in the cause of action for which the interim or procedural order is sought.”.

8.   Order 8, rule 13 (Application seeking financial relief)

8.1   Omit “relief under Order 11, or”.

9.   Order 9, rule 3 (Adjournment of hearing date or directions hearing)

9.1   Omit the rule, substitute:

Adjournment of directions hearing

 “3. (1) If the parties to proceedings agree that, because of short service or other special circumstances, it is not appropriate for a directions hearing to proceed on the date fixed by the Registrar, the parties may request the Registrar to adjourn the directions hearing.

 “(2) A request must be made by a letter that sets out:

• (a)

  why it is appropriate to adjourn the directions hearing; and

• (b)

  the date to which the directions hearing is sought to be adjourned.

 “(3) The request must:

• (a)

  be signed by all parties; and

• (b)

  be delivered to the Registrar before 12 noon on the day before the date fixed for the directions hearing.

 “(4) If a request is made, the Registrar, without requiring the parties to appear before the court, but subject to subrules (5) and (6), must adjourn the directions hearing to:

• (a)

  the date requested; or

• (b)

  a date that is practicable.

 “(5) The Registrar must not adjourn the directions hearing more than twice under this rule.

 “(6) An adjournment must not be for more than 4 weeks.”.

10.   Order 11 (Summary proceedings for maintenance or contribution)

10.1   Heading:

Omit “Summary”.

11.   Order 11, rule 1 (Application for maintenance or contribution—Form 12)

11.1   Omit the rule, substitute:

“Division 1—General

Application of Order

 “1. This Order applies to an application for:

• (a)

  maintenance; or

• (b)

  a contribution mentioned in section 67B of the Act.

“Division 2—Applications for maintenance and property

Application for maintenance and property

 “1A. An application for maintenance or contribution that is made at the same time as an application with respect to the property of the parties to the application, or of either of them, must be made in accordance with Order 8.

“Division 3—Applications for maintenance only

Application for maintenance or contribution only—Form 12

 “1B. (1) This Division applies to all applications for maintenance or contribution except an application mentioned in Division 2.

 “(2) An application for maintenance or contribution must be in accordance with Form 12.”.

12.   Order 11, rule 2 (Hearing date)

12.1   Subrule 2 (1):

Omit “filed under this Order,”, substitute “filed,”.

13.   Order 11, rule 3 (Certain documents not required)

13.1   Omit “application under this Order,”, substitute “application,”.

14.   Order 11, rule 4 (Response—Form 12B)

14.1   Omit “under this Order”.

15.   Order 11, rule 5 (Information to be provided)

15.1   Subrules 5 (1) and (2):

Omit “under this Order”.

16.   Order 11, rule 6 (Documents to be provided by respondent)

16.1   Omit “under this Order”.

17.   Order 11, rule 7 (Hearing)

17.1   Omit “application under this Order:”, substitute “application:”.

18.   Order 15, rule 4 (Documents to be filed by intervener)

18.1   Subparagraph 4 (1) (a) (ii):

Omit “an application in accordance with Form 8”, substitute “an application, as directed by the court or a Registrar,”.

19.   Order 17, rule 1 (Application of Order)

19.1   Paragraph 1 (2) (b):

Omit “Order 11”, substitute “Order 11, Division 3”.

20.   Order 23A, new rule 4

20.1   After rule 3, insert:

Variation of Division 11 contact order—Form 23A

 “4.(1) For subsection 68T (1) of the Act, an order making, reviving, varying, discharging or suspending a Division 11 contact order must be in accordance with Form 23A.

 “(2) In this rule, ‘Division 11 contact order’ has the meaning given by section 68P of the Act.

[NOTE:  An order under subsection 68T (1) of the Act must be registered in the Family Court: see subsection 68T (6) of the Act and regulation 12CC of the Regulations.]”.

21.   Order 24, rule 1 (Conciliation conferences)

21.1   Subrule 1 (2):

Omit the subrule, substitute:

 “(2) Unless the court or a Registrar otherwise orders:

• (a)

  a party must attend a conciliation conference in person; and

• (b)

  if the party is represented by a legal practitioner—the legal practitioner must also attend the conciliation conference.”.

21.2   Subrules 1 (8) and (9):

Omit the subrules.

22.   Order 24, rule 2 (Documents required at a conciliation conference)

22.1   Omit the rule, substitute:

Documents about financial matters

 “2. (1) This rule applies to a conciliation conference in relation to proceedings with respect to financial matters.

 “(2) Each party who attends the conciliation conference must produce all relevant and significant documents in the party’s possession, custody or control, or which, with reasonable diligence, the party can obtain, about:

• (a)

  the financial matters referred to in a financial statement filed by the party in accordance with Order 17, rule 2; or

• (b)

  the value of any item of property in which any party attending the conference has an interest; or

• (c)

  the financial matters referred to in the conciliation conference particulars produced by the party.

 “(3) The documents must be produced:

• (a)

  at the conciliation conference; or

• (b)

  if ordered or directed by the court or a Registrar—at an earlier time.”.

23.   Order 24, rule 4 (Unresolved issues)

23.1   Subrule 4 (1):

After paragraph (b), insert:

• “; and (c)

  make any other order, including an order for costs.”.

24.   Order 24A, rule 3 (Attendance by parties)

24.1   Omit the rule, substitute:

Attendance at pre-hearing conference

 “3. Unless the court or a Registrar otherwise orders:

• (a)

  a party must attend a pre-hearing conference in person; and

• (b)

  if the party is represented by a legal practitioner—the legal practitioner must also attend the pre-hearing conference.”.

25.   Order 24A, rule 4 Conduct of pre-hearing conference)

25.1   Paragraph 4 (a):

After “agreement;”, insert “and”.

25.2   Paragraph 4 (b):

Omit the paragraph, substitute:

• “(b)

  make any necessary orders, including an order for costs; and”.

26.   Order 25, rule 2 (Notice or request seeking counselling)

26.1   Subrule 2 (1):

Omit “must”, substitute “may”.

26.2   Subrule 2 (2):

Omit “must”, substitute “may”.

27.   Order 25A, rule 4 (Interview to decide whether dispute may be mediated)

27.1   Subrule 4 (2):

Omit the subrule, substitute:

 “(2) In this rule, ‘authorised’ means authorised by:

• (a)

  if the dispute is before the Family Court of Australia—the Chief Executive Officer; or

• (b)

  if the dispute is before a State Family Court—the Registrar of that court.”.

28.   Order 26A, new rule 11A

28.1   After rule 11, insert:

Service of application

 “11A. A sealed copy of an application for registration must be served, in accordance with Order 18:

• (a)

  on each respondent to the application who has not consented to the registration of the parenting plan, or the agreement revoking a parenting plan, in respect of which the application is made; and

• (b)

  if a respondent to the application has consented to the registration of the parenting plan, or the agreement revoking a parenting plan, in respect of which the application is made, and the consent has ceased to have effect—on that respondent.”.

29.   Order 26A, rule 13 (Court may require service or additional information)

29.1   Paragraph 13 (a):

Omit the paragraph, substitute:

• “(a)

  may direct that a sealed copy of the application be served, in accordance with Order 18, on a specified person; or”.

30.   Order 30, rule 2 (Evidence in chief)

30.1   Paragraph 2 (2) (a):

Omit “an affidavit”, substitute “1 affidavit”.

30.2   Subparagraph 2 (2) (b) (i):

Omit “an affidavit”, substitute “1 affidavit”.

31.   Order 30, rule 2A (Evidence in interim or procedural applications)

31.1   Subrule 2A (1A):

Omit “interlocutory”, substitute “interim or procedural”.

32.   Order 31A, rule 6 (Conduct of proceedings in Family Court)

32.1   Subrule 6 (1):

Omit the subrule, substitute:

 “(1) A party to proceedings in the Family Court who intends to rely on the law of a State or Territory that may be applied under paragraph 11 (1) (b) of the Cross-vesting Act must:

• (a)

  specify in the party’s application the particular State or Territory law on which the party intends to rely; and

• (b)

  attach to the application a statement of claim.

 “(1A) A respondent who wishes to object to the proceedings being heard in the Family Court may apply to the court for a transfer of the proceedings to another court.

 “(1B) An application for transfer of proceedings must be:

• (a)

  in accordance with Form 8; and

• (b)

  accompanied by an affidavit setting out the grounds in support of the application.

 “(1C) The date fixed for a hearing in relation to an application for transfer of proceedings must be the same date as the date fixed for the directions hearing in relation to the application that instituted the proceedings sought to be transferred.”.

32.2   Subrule 6 (2):

Omit “or in an affidavit filed with the application,”.

33.   Order 31B, rule 4 (Form of application—Form 63 or 64)

33.1   Subrule 4 (1):

Omit “shall be made by filing in duplicate”, substitute “must be made by filing”.

34.   Order 31B, rule 6 (Service of application or appeal)

34.1   Omit the rule, substitute:

Service of application or appeal

 “6.(1) As soon as practicable after filing an application or an appeal under the Assessment Act, the applicant, or appellant, must serve, in accordance with Order 18, a sealed copy of the application or appeal, and of any document filed with the application or appeal:

• (a)

  on the respondent to the application or appeal; and

• (b)

  on the appropriate Deputy Child Support Registrar.

 “(2) As soon as practicable after filing an application or an appeal under the Registration Act, the applicant, or appellant, must serve, in accordance with Order 18, a sealed copy of the application or appeal, and of any document filed with the application or appeal:

• (a)

  on each other person who is a parent or carer of the child in relation to whom the application or appeal is made; and

• (b)

  on the appropriate Deputy Child Support Registrar.”.

35.   Order 31B, rule 12 (Application under section 117 of the Assessment Act)

35.1   Omit the rule, substitute:

Application under section 117 of the Assessment Act

 “12. An application under section 117 of the Assessment Act must be accompanied by a copy of:

• (a)

  the administrative assessment mentioned in subsection 116 (2) of that Act; and

• (b)

  a financial statement in accordance with Form 17; and

• (c)

  an affidavit, in accordance with Order 16, setting out the facts in support of the application.”.

36.   Order 31B, rule 12A (Application under section 123 of the Assessment Act)

36.1   Omit the rule, substitute:

Application under section 123 of the Assessment Act

 “12A. An application under section 123 of the Assessment Act must be accompanied by a copy of the administrative assessment mentioned in subsection 116 (2) of that Act.”.

37.   Order 31B, rule 13 (Application under section 129 of the Assessment Act)

37.1   Omit the rule, substitute:

Application under section 129 of the Assessment Act

 “13. An application under section 129 of the Assessment Act must be accompanied by a copy of the order under section 124 of that Act in relation to which the application is made.”.

38.   Order 31B, rule 14 (Appeal against decision of Child Support Registrar under section 132 of the Assessment Act)

38.1   Subrule 14 (2):

Omit the subrule, substitute:

 “(2) The appeal must be accompanied by a copy of the notice of decision, given under section 96 of the Assessment Act, in relation to which the appeal is made.”.

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

39.1   Omit all the words before paragraph (a), substitute “An appeal under section 88 of the Registration Act must be accompanied by a copy of:”.

40.   Order 31B, rule 22 (Service of application for leave to appeal)

40.1   Omit the rule, substitute:

Service of application for leave to appeal

 “22. (1) As soon as practicable after filing an application, the applicant must serve, in accordance with Order 18, a sealed copy of the application and of any affidavit filed with the application:

• (a)

  on the respondent to the application; and

• (b)

  on the appropriate Deputy Child Support Registrar.

 “(2) The applicant must also serve, by hand delivery, post or facsimile transmission, a sealed copy of each of the documents referred to in subrule (1) on the Registrar of the court of summary jurisdiction that made the decision in respect of which the application is made.”.

41.   Order 32, rule 14 (Appeal papers)

41.1   Subrule 14 (5):

Omit the subrule, substitute:

 “(5) The pages of the appeal papers (including pages of transcript) must be numbered consecutively.”.

42.   Order 32, rule 21 (Case stated)

42.1   After subrule 21 (7), insert:

 “(8) A summary of the arguments to be presented and a list of the authorities to be relied on at the hearing of a special case must be filed and served:

• (a)

  by the party who prepares the draft special case—no later than 5 clear working days before the date fixed for the hearing; and

• (b)

  by each other party—no later than 2 clear working days before the date fixed for the hearing; and

• (c)

  by a child’s representative (if any)—no later than 2 clear working days before the date fixed for the hearing.”.

43.   Order 32, rule 27 (Party and party costs—counsel’s fees)

43.1   Omit the rule.

44.   Order 33, rule 10 (Payment into court by order)

44.1   Omit the rule, substitute:

Payment into court by order

 “10. If a party to proceedings pays money into court under paragraph 66P (1) (f), 67D (2) (e) or 80 (1) (f) of the Act, the party must file a notice of payment in accordance with Form 46A.”.

45.   Order 34, new rule 4A

45.1   After rule 4, insert:

Service of recovery order

 “4A.(1) This rule applies to a recovery order that authorises or directs a person to take action of the kind described in paragraph 67Q (b), (c) or (d) of the Act.

 “(2) If the person to whom the recovery order is addressed finds and recovers the child who is the subject of the recovery order, the person must serve a sealed copy of the recovery order on the person from whom the child is recovered at the time the child is recovered.”.

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

46.1   After paragraph (a), insert:

• “(b)

  the powers of the Court delegated to each Registrar under the Regulations;”.

46.2   Paragraph 3 (x):

Omit “interlocutory or interim”, substitute “interim or procedural”.

47.   Schedule 1 (Forms)

47.1   Omit Forms 1A, 4, 6, 7, 7A, 8A, 12, 12A, 12B, 14, 15A, 19, 22, 26A, 26B, 34, 43, 44 and 69, substitute, in correct numerical sequence, Forms 1A, 4, 6, 7, 7A, 8A, 12, 12A, 12B, 14, 15A, 19, 22, 26A, 26B, 34, 43, 44 and 69, set out in Schedule 1.

47.2   New Form 23A

After Form 23, insert Form 23A set out in Schedule 2.

 SCHEDULE 1 Subrule 47.1

NEW FORMS—SCHEDULE 1

 FORM 1A Order 2, subrule 3 (3)

For Form 1A see Statutory Rules 1997 No. 155

 FORM 4 Order 7, rule 4

For Form 4 (page 1) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 2) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 3) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 4) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 5) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 6) see Statutory Rules 1997 No. 155

 FORM 4—continued

For Form 4 (page 7) see Statutory Rules 1997 No. 155

 FORM 6 Order 7, rule 5

For Form 6 (page 1) see Statutory Rules 1997 No. 155

 FORM 6—continued

For Form 6 (page 2) see Statutory Rules 1997 No. 155

 FORM 6—continued

For Form 6 (page 3) see Statutory Rules 1997 No. 155

 FORM 7 Order 8, rule 3

For Form 7 (page 1) see Statutory Rules 1997 No. 155

 FORM 7—continued

For Form 7 (page 2) see Statutory Rules 1997 No. 155

 FORM 7—continued

For Form 7 (page 3) see Statutory Rules 1997 No. 155

 FORM 7—continued

For Form 7 (page 4) see Statutory Rules 1997 No. 155

 FORM 7A Order 8, rule 14

For Form 7A (page 1) see Statutory Rules 1997 No. 155

 FORM 7A—continued

For Form 7A (page 2) see Statutory Rules 1997 No. 155

 FORM 8A Order 8, rule 17

For Form 8A (page 1) see Statutory Rules 1997 No. 155

 FORM 8A—continued

For Form 8A (page 2) see Statutory Rules 1997 No. 155

 FORM 12 Order 11, rule 1B

For Form 12 (page 1) see Statutory Rules 1997 No. 155

 FORM 12—continued

For Form 12 (page 2) see Statutory Rules 1997 No. 155

 FORM 12—continued

For Form 12 (page 3) see Statutory Rules 1997 No. 155

 FORM 12—continued

For Form 12 (page 4) see Statutory Rules 1997 No. 155

 FORM 12—continued

For Form 12 (page 5) see Statutory Rules 1997 No. 155

 FORM 12—continued

For Form 12 (page 6) see Statutory Rules 1997 No. 155

 FORM 12A Order 14, rule 2

For Form 12A (page 1) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 2) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 3) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 4) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 5) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 6) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 7) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 8) see Statutory Rules 1997 No. 155

 FORM 12A—continued

For Form 12A (page 9) see Statutory Rules 1997 No. 155

 FORM 12B Order 11, rule 4

For Form 12B (page 1) see Statutory Rules 1997 No. 155

 FORM 12B—continued

For Form 12B (page 2) see Statutory Rules 1997 No. 155

 FORM 12B—continued

For Form 12B (page 3) see Statutory Rules 1997 No. 155

 FORM 12B—continued

For Form 12B (page 4) see Statutory Rules 1997 No. 155

 FORM 12B—continued

For Form 12B (page 5) see Statutory Rules 1997 No. 155

 FORM 12B—continued

For Form 12B (page 6) see Statutory Rules 1997 No. 155

 FORM 14 Order 7, rule 9

Order 8, rule 19

For Form 14 (page 1) see Statutory Rules 1997 No. 155

 FORM 14—continued

For Form 14 (page 2) see Statutory Rules 1997 No. 155

 FORM 15A Order 9, rule 12

For Form 15A see Statutory Rules 1997 No. 155

 FORM 19 Order 18, rules 11 and 14

For Form 19 see Statutory Rules 1997 No. 155

 FORM 22 Order 18, rule 15

For Form 22 see Statutory Rules 1997 No. 155

 FORM 26A Order 26A, rule 7

For Form 26A (page 1) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 2) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 3) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 4) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 5) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 6) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 7) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 8) see Statutory Rules 1997 No. 155

 FORM 26A—continued

For Form 26A (page 9) see Statutory Rules 1997 No. 155

 FORM 26B Order 26A, rule 11

For Form 26B see Statutory Rules 1997 No. 155

 FORM 34 Order 34, rule 3

For Form 34 (page 1) see Statutory Rules 1997 No. 155

 FORM 34—continued

For Form 34 (page 2) see Statutory Rules 1997 No. 155

 FORM 43 Order 32, rule 22

For Form 43 (page 1) see Statutory Rules 1997 No. 155

 FORM 43—continued

For Form 43 (page 2) see Statutory Rules 1997 No. 155

 FORM 44 Order 36A, rule 7

For Form 44 (page 1) see Statutory Rules 1997 No. 155

 FORM 44—continued

For Form 44 (page 2) see Statutory Rules 1997 No. 155

 FORM 69 Order 25, rule 4A

For Form 69 see Statutory Rules 1997 No. 155

 SCHEDULE 2 Subrule 47.2

NEW FORM 23A

 FORM 23A Order 23A, rule 4

For Form 23A see Statutory Rules 1997 No. 155

NOTES

1. Notified in the Commonwealth of Australia Gazette on 26 June 1997.

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, 145, 146, 319 and 371; 1996 Nos. 28 and 60; 1997 Nos. 97 and 154.