Family Law Rules (Amendment) (Cth)

Statutory Rules 1993

No. 160 1

__________________

Family Law Rules2(Amendment)

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

 Dated 21 June 1993.

 ALAN J. BARBLETT

 J. F. FOGARTY

 E. R. BAKER

 P. E. NYGH

 N. J. BUCKLEY

 ALWYNNE ROWLANDS

 T. H. McGOVERN

 GRAHAM R. BELL

 T. E. LINDENMAYER

 B. ROSS-JONES

 GEOFFREY I. WALSH

 R. J. BULLEY

 EDWARD BUTLER

 P. F. UNDERHILL

 PETER B. HASE

 D. BULBECK

 M. A. RENAUD

 J. S. PURDY

 J. WILCZEK

 W. ROURKE

 H. J. BURTON

 J. V. KAY

 G. R. MULLANE

 MARY JANE M. LAWRIE

 JOHN COHEN

 MARY FINN

 N. MUSHIN

 I. R. COLEMAN

 P. F. A. HILTON

 M. A. HANNON

 B. J. WARNICK

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 July 1993.

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 (1):

Insert the following definitions:

‘‘‘Chief Justice’ means the Chief Judge;

‘conciliation conference’ means a conference held under Order 24;

‘pre-hearing conference’ means a conference held under Order 24a, rule 2;”.

4. Order 2 (Documents and forms)

4.1  Add at the end:

Filing a document by facsimile transmission

“5.

(1)  Any document to be filed, except an application referred to in Order 7, Division 2 or a subpoena, may be lodged by fax if:

• (a)

  the matter is urgent; and

• (b)

  where the party filing the document is not legally represented—the party lives more than 20 kilometres from the registry; and

• (c)

  where the party filing the document is legally represented—the legal representative’s principal office is more than 20 kilometres from the registry; and

• (d)

  it is not practicable to lodge the document in the registry in any other way.

“(2)

A document to be filed must not be lodged by fax in any other circumstances without the leave of the court.

“(3)

Unless the court otherwise directs, if a document is lodged by fax it must be accompanied by a letter to the Registrar, signed by the unrepresented party or the party’s legal representative, explaining:

• (a)

  the nature and immediacy of the damage or harm that may result if the document is not lodged by facsimile; and

• (b)

  any other circumstances that justify lodging the document by fax instead of lodging it in the registry.

“(4)

If a document is lodged by fax, the party filing the document must lodge the original document in the registry within 7 days after it was sent by facsimile.

“(5)

The cover sheet of the original document must be endorsed to the effect that the document is the original of a document previously lodged by fax.”.

5.   Order 4, new rule 1a

5.1   After rule 1, insert:

Failure to comply with Rules or court orders

 ‘‘1a. (1)  Subject to any dispensation under rule 1, if a party does not do all things required by the Rules or by an order of the court, the court or a Registrar may:

• (a)

  dismiss the application or cross application; or

• (b)

  strike out any pleading; or

• (c)

  stay the proceedings or part of the proceedings; or

• (d)

  make any other order the court thinks fit.”.

6.   Order 4, rule 6 (Applications may be heard together)

6.1   Omit the rule.

7.   Order 5, rule 1(Seals)

7.1   Subrule (2):

Omit “Chief Judge”, substitute “Chief Justice”.

7.2   Subrule (3):

Omit “Chief Judge”, substitute “Chief Justice”.

7.3   Subrule (4):

Omit “Chief Judge”, substitute “Chief Justice”.

8.   Order 6, rule 1 (Sittings and holidays)

8.1   Subrule (1):

Omit “Chief Judge”, substitute “Chief Justice”.

8.2   Paragraph (3) (c)

Omit “Chief Judge”, substitute “Chief Justice”.

9. New Order 9A

9.1  After Order 9, insert:

"ORDER 9A

APPLICATIONS FOR CONSENT ORDERS

Applications for consent orders

"1.(1)

Despite any other provision of these Rules, a person may file an initiating application for consent orders.

"(2)

An application must be in accordance with Form 12A.

Filling in the application

"2.

(1) The applicant must swear or affirm the affidavit at the end of Part B of the application.

"(2)

The respondent must swear or affirm the affidavit in Part C of the application.

"(3)

If there is more than one respondent:

• (a)

  the particulars set out in item 7 of Part B must be supplied for each respondent; and

• (b)

  each respondent must fill in a Part C and swear or affirm the affidavit in Part C.

(4)

Item 7 of Part B does not have to be filled in:

• (a)

  if the consent orders set out in Part A of the application relate only to non-financial matters (such as custody or access); or

• (b)

  where the consent orders relate to financial matters—if the applicant and the respondent (or the respondents, if there is more than one) have separate legal representation and have each been advised by their legal representative of their rights under the Act and of the effect and consequences of the making of the orders.

Filing period—consent lapses after 60 days

"3.(1)

The respondent’s consent to the making of the consent orders set out in Part A of the application lapses if the application is not filed within 60 days after the day on which the respondent made the affidavit at the end of Part C of the application.

"(2)

If there is more than one respondent, the consent of the respondents lapses if the application is not filed within 60 days after the last day on which a respondent made the affidavit at the end of Part C.

Who can make the consent orders?

"4.(1)

Despite any other provision of these Rules, where an application for consent orders is filed within the period specified in rule 3, the Registrar:

• (a)

  may bring the matter before a Judge, Judicial Registrar or Magistrate in Chambers; or

• (b)

  if a Registrar of a Family Court—may make the orders in Chambers.

"(2)

At any time before the orders are made, the Judge, Judicial Registrar, Registrar or Magistrate may require a party to file any additional information required by the Judge, Judicial Registrar, Registrar or Magistrate.”.

10.   Order 11, rule 20 (Scope of directions hearing)

10.1   Paragraph (2) (r):

Omit “and”.

10.2   New paragraph (2) (na):

After paragraph (2) (n), insert:

• “(na)

  the appointment of a pre-hearing conference;".

10.3   Subrule (2):

Add at the end:

“; and (t) if there is more than 1 application that has not been determined in the proceedingsÑany applications that are to be heard together; and

• (u)

  the party who is to have carriage of the proceedings.”.

11.   ORDER 24 (Conferences and enquiries—court officers)

11.1   Omit the heading to the Order, substitute:

“order 24—conciliation conferences and enquirIes—court officers”.

12.   Order 24, rule 1 (Conciliation conferences between the parties)

12.1   Subrule (1):

Omit “ a conference”, substitute “a conciliation conference”.

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

13.1   Omit “Where a conference”, substitute “Where a conciliation conference”.

14.   Order 24, rule 2a (Pre-hearing conference)

14.1   Omit “conference”, substitute “conciliation conference”.

15.   New Order 24a

15.1   After Order 24, insert:

“ORDER 24aÑPRE-HEARING CONFERENCES

Interpretation

 “1. In this Order, unless the contrary intention appears:

‘court’ means a Family Court.

Pre-hearing conferences

 “2. If, at the conclusion of a conciliation conference, final resolution of all the issues has not been reached, a Registrar may:

• (a)

  conduct a pre-hearing conference immediately; or

• (b)

  fix a date and time for a pre-hearing conference.

Attendance by parties

 “3. Unless excused from attendance by the court or a Registrar, each party must attend the pre-hearing conference in person and may do so either with or without counsel or solicitor.

Conduct of pre-hearing conference

 “4. At a pre-hearing conference a Registrar may:

• (a)

  attempt to resolve the proceedings or any part of them by agreement;

• (b)

  make any necessary orders; and

• (c)

  if all the issues are not resolved:

  • (i)

    fix a date for the hearing; and

  • (ii)

    give any appropriate directions to facilitate the hearing of the matter.”

16.   Order 28, rule 7 (Non-compliance with subpoena)

16.1   Omit “$500”, substitute “$5,000”.

17.   Order 30, rule 2 (Evidence in chief by affidavit)

17.1   Subrules (2) and (3):

Omit the subrules, substitute:

"(2)

Within 28 days after a hearing day is fixed or within any other period that the Registrar directs, the applicant must file and serve on each other party to the proceedings who has an address for service:

• (a)

  an affidavit setting out the applicant’s evidence in chief; and

• (b)

  for each witness whom the applicant intends to call at the hearing:

  • (i)

    an affidavit of the witness setting out the witness's evidence in chief; or

  • (ii)

    if the witness refuses to make an affidavit—a notice to that effect setting out the name of the witness.

“(3)

Within a further 14 days or within any other period that the Registrar directs, each party except the applicant must file and serve on each other party including the applicant:

• (a)

  an answering affidavit setting out the party's evidence in chief; and

• (b)

  for each other witness whom the party intends to call at the hearing:

  • (i)

    an affidavit of the witness setting out the witness’s evidence in chief; or

  • (ii)

    if the witness refuses to make an affidavit—a notice to that effect setting out the name of the witness.

Admissibility of affidavits

 “2aa. An affidavit is not admissible in evidence at the hearing of the proceedings unless:

• (a)

  it was filed as directed at a pre-hearing conference; or

• (b)

  it was filed and served under rule 2; or

• (c)

  the court orders otherwise.

Admissibility of oral evidence

 “2ab. Oral evidence in chief is admissible at the hearing only if:

• (a)

  the witness refused to swear an affidavit and a notice to that effect was filed under rule 2; or

• (b)

  the court gives leave.”.

18.  Order 30a, Division 2 (Evidence of Experts)

18.1  Omit the Division.

19.  Order 31 (Decrees)

19.1  Add at the end:

Form of undertakings

“10.

   An undertaking to the Court must:

• (a)

  be in accordance with Form 41a; and

• (b)

  must be signed:

  • (i)

    by the person giving the undertaking; or

  • (ii)

    if the person is not available to sign it personally—by the person’s legal representative;

unless the Court allows otherwise.

When may a legal representative give an undertaking?

“11.

(1)  A person’s legal representative may give an undertaking on behalf of the person if:

• (a)

  the person is not available to give the undertaking personally; and

• (b)

  the person has authorised the legal representative to give an undertaking on his or her behalf.

“(2)

If a person who proposes to give an undertaking to the court is legally represented, the person’s legal representative must:

• (a)

  before the undertaking is given, explain to the person the nature and terms of the proposed undertaking and the possible consequences of breaching it; and

• (b)

  unless the Court otherwise orders, certify in writing to the Court that he or she has complied with paragraph (a).”.

20.   Order 36a, rule 2 (Delegation of powers to Registrars)

20.1   After paragraph 2 (2) (l), insert:

• “(laa)

  Order 24a;”.

20.2   Paragraph 2 (2) (m):

Omit “rules 1, 2, 3”, substitute “rules 1, 3”.

21.   Order 38, rule 4 (Basic composite amount—undefended dissolution proceedings)

21.1   Subaragraph 4 (1) (a) (i):

Omit “$460”, substitute “the amount specified in Item 17 in Part 3 of Schedule 2”.

21.2   Subaragraph 4 (1) (a) (ii):

Omit “$325”, substitute “the amount specified in Item 18 in Part 3 of Schedule 2”.

21.3   Subaragraph 4 (1) (b) (i):

Omit “$565”, substitute “the amount specified in Item 19 in Part 3 of Schedule 2”.

21.4   Subaragraph 4 (1) (b) (ii):

Omit “$435”, substitute “the amount specified in Item 20 in Part 3 of Schedule 2”.

22. Schedule 1 (Forms)

22.1  After Form 12 insert:

FORM 12a

Order 9a, rule 1

APPLICATION FOR CONSENT ORDERS

DATE OF FILING: [ 19 ]

INSTRUCTIONS:

• 1.

  The applicant must make the affidavit at the end of Part B.

• 2.

  The respondent (or each respondent, if there is more than one) must make the affidavit in Part C.

• 3.

  The application should be filed promptly.The consent of the respondent lapses if the application is not filed within 60 days after the day on which the respondent made the affidavit in Part C.If there is more than one respondent, the consent of the respondents lapses if the application is not filed within 60 days after the last day on which a respondent made the affidavit in Part C.

PART A

THE PROPOSED CONSENT ORDERS

The orders sought are as follows:

1.  .......................................................................................................................................................................................................................................................................................................................................

2.  ..................................................................................................................................................................................................................................................................................................................................etc.

PART B

APPLICATION AND APPLICANT’S AFFIDAVIT

APPLICANT’S ADDRESS FOR

SERVICE:  [ ]

 [ ]

 [ ]

 postcode [ ]

I, .......................................................(applicant’s full name), am the applicant.

I apply for the orders set out in Part A.

*1. The applicant and the respondent were married at ........................ on ................................. , 19.....

*1. The applicant and the respondent were never married.

*2. The parties separated on .........................................., 19.....

*2. The parties have never cohabited.

*3. The marriage was dissolved by the ..................................... Court at ......................... on ................................ , 19.....

*3. The marriage has not been dissolved.

*4. The *date/*dates of birth of the *child/*children under 18 years of age who *is/*are *a child/*children of the parties *is/*are as follows:

 NAME DATE OF BIRTH

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

*4. There is no child under 18 years of age who is a child of the parties.

*5. The following are the details of any orders in force, in relation to any of the parties, relating to custody, access, maintenance or property, any child support assessments in force in relation to a child named in paragraph, and any agreements that are in force, in relation to any of the parties or children, that relate to child support, custody, access, maintenance or property and that have been registered in or approved by any court.

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

*6. There are no pending family law or child welfare proceedings concerning the applicant, the respondent or the *child/ *children under 18.

*6. The following family law or child welfare proceedings concerning the applicant, the respondent or the *child/*children under 18 are pending.

INSTRUCTIONS:

Set out brief details of pending proceedings, including the names of parties, court in which issued, orders sought and stage reached.

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

INSTRUCTIONS:

1.If there is more than one respondent whose particulars are to be set out in column 2 of item 7, the particulars may be set out separately and attached to the application.

2.Omit item 7 if:

• (a)

  the consent orders set out in Part A relate only to non-financial matters (such as custody or access); or

 (b)the consent orders set out in Part A relateto financial matters and the applicant and the respondent (or the respondents, if there is more than one) have separate legal representation and have been advised by their legal representative of their rights under the Act and of the effect and consequences of the making of the orders.

*7. The particulars of the property, the present and future financial resources and the liabilities of the applicant and the respondent are as follows:

PROPERTY

Applicant	Respondent
Real estate (specify, giving estimated market value)
...............................................	.................	.................
...............................................	.................	.................
Total credit in savings account(s) in
(a) bank(s)	.................	.................
(b) building societies, etc.	.................	.................
Cheque account balance	.................	.................
Cash in hand	.................	.................
Shares and debentures (annex list)	.................	.................
Insurance policies (specify, giving term, maturity and surrender value)
other assets.(specify)	.................	.................
...............................................	.................	.................

...............................................	.................	.................
TOTAL	$...............	.................

OTHER FINANCIAL RESOURCES

Applicant	Respondent
Gross weekly income	.................	.................
Superannuation:	.................	.................
Name of fund	.................	.................
Years of membership (total)	.................	.................
Total contributions by contributor	.................	.................
Superannuation benefits payable on:
Immediate retirement	.................	.................
Retirement at minimum permitted   age of........years	.................	.................
Compulsory retirement at age  of........years	.................	.................
Death before retirement	.................	.................
Retirement for incapacity	.................	.................
Interest in any deceased estate or trust (specify name and interest)
...............................................	.................	.................
...............................................	.................	.................

LIABILITIES

 

Applicant	Respondent
Mortgage balance	.................	.................
Overdraft	.................	.................
Credit cards	.................	.................
Loans	.................	.................
Hire purchase:   balance and number of payments to be made	.................	.................
Other liabilities (specify)
...............................................	.................	.................
...............................................	.................	.................

8. 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 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.

APPLICANT’S AFFIDAVIT

I, ......................................................................(applicant’s full name, address and occupation) *make oath and say/*affirm:

1. I am the applicant for the consent orders set out in Part A.

2. The orders have been agreed upon by all parties.

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

4. 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.

5. I have read this application (including Part A).

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

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

8. 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 9 if item 7 of Part B is not required to be filled in.

9. 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.

*SWORN/*AFFIRMED by the applicant

at.........................................................

on ............................................., 19 ....

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

 (Applicant’s signature)

Before me:

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

(Signature and title of person before whom the affidavit is sworn or affirmed)

[NOTE:Under Order 9a, subrule 4(2), the Court may require additional information about the assets and liabilities of each party.]

*Omit if not applicable.

PART C

RESPONDENT'S AFFIDAVIT

RESPONDENT’S ADDRESS FOR

SERVICE:  [ ]

 [ ]

 [ ]

 postcode [ ]

RESPONDENT’S AFFIDAVIT

I, ......................................................................(respondent’s full name address and occupation) *make oath and say/*affirm:

1. I am *the respondent/*one of the respondents in this application.

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

3. The orders have been agreed upon by all parties.

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

5. 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.

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

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

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

9. 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 10 if item 7 of Part B is not required to be filled in.

*10. 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 the application.

*SWORN/*AFFIRMED by the respondent

at.........................................................

on ............................................., 19 ....

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

 (Respondent’s signature)

Before me:

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

(Signature and title of person before whom the affidavit is sworn or affirmed)

[NOTE:Under Order 9a, subrule 4(2), the Court may require additional information about the assets and liabilities of each party.]

*Omit if not applicable.

23.   Schedule 1, Form 39 (Decree nisi of dissolution of marriage)

23.1   Add the following note at the end:

“5.

Dissolution of marriage may revoke, or otherwise affect  the operation of, the Will of a party. Parties should seek  legal advice about their position under the law of the State   or Territory concerned.”.

24.  Schedule 1

24.1  After Form 41, insert:

 “Form 41a Order 31, subrule 10 (2)

UNDERTAKING

On (insert date), (insert full name of person giving undertaking) appeared *in person/*by *his/*her *solicitor/*counsel, and gave the following undertaking to the Court.

I, (insert full name of person giving undertaking), undertake to the Court:

(insert text of undertaking, using an annexure if there is not enough space here)

*I/*He/*She *accept/*accepts that *I/*he/*she will be bound by the undertaking until (insert date, if applicable) *or excused by an order of the Court.

(If signed by the person giving the undertaking)

*I acknowledge that:

• (a)

  the nature and terms of the undertaking have been explained to me; and

• (b)

  in giving the undertaking I promise to the Court that I will comply with the terms of the undertaking; and

• (c)

  the undertaking has the same effect as an order of the Court; and

• (d)

  if I breach the undertaking I may be guilty of contempt of the Court and may be punished by a fine or imprisonment.

(If signed by the solicitor or counsel for the person giving the undertaking)

*I certify that I have explained to the person giving the undertaking:

• (a)

  the nature and terms of the undertaking; and

• (b)

  that in giving the undertaking he or she promises to the Court that he or she will comply with the terms of the undertaking; and

• (c)

  that the undertaking has the same effect as an order of the Court; and

• (d)

  that a breach of the undertaking may be a contempt of the Court punishable by a fine or imprisonment.

   (Insert signature of person giving the undertaking or the solicitor or counsel of the person giving the undertaking)

*Omit if not applicable.”.

25.   Schedule 2 — Scale of Costs (Including Counsel's Fees)

25.1   Add at the end:

PART 3—BASIC COMPOSITE AMOUNT

UNDEFENDED DISSOLUTION PROCEEDINGS

Item

No. Matter for which charge is made  Basic

  Composite

  Amount

 $

17 If the solicitor employed another solicitor

 as agent to instruct counsel or to appear

 personally for the applicant and there is

 a child of the marriage who had not attained

 the age of 18 years...................................................473

 

18 If the solicitor employed another solicitor

 as agent to instruct counsel or to appear

 personally for the applicant and item 17

 does not apply..........................................................334

 

19 If the solicitor did not employ another

 solicitor as agent to instruct counsel

 or to appear personally for the applicant

 and there is a child of the marriage who

 had not attained the age of 18 years...........................581

 

20 If the solicitor did not employed another

 solicitor as agent to instruct counsel or to

 appear personally for the applicant and

 item 19 does not apply ..............................................448”

 

NOTES

1. Notified in the Commonwealth of Australia Gazette on 29 June 1993.

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 No. 51.