Family Law Rules (Amendment) (Cth)

 

Statutory Rules 1990 No. 474 1

Family Law Rules2 (Amendment)

WE, Judges within the meaning of section 123 of the Family Law Act 1975, hereby make the following Rules of Court under that Act.

Dated 18 December 1990.

ALASTAIR NICHOLSON

ALAN J. BARBLETT

W. S. SIMPSON

K. A. MURRAY

S. STRAUSS

H. R. FREDERICO

E. R. BAKER

P. E. NYGH

N. J. BUCKLEY

ALWYNNE ROWLANDS

T. McGOVERN

GRAHAM R. BELL

B. ROSS-JONES

RODERICK JOSKE

JOSEPHINE M. MAXWELL

ADRIAN SMITHERS

R. J. BULLEY

W. B. TREYVAUD

P. F. UNDERHILL

JOHN ELLIOTT

RICHARD W. GEE

D. BULBECK

W. ROURKE

H. J. BURTON

J. V. KAY

I. W. P. McCALL

D. F. CONNOR

G. E. FERRIER

D. R. ANDERSON

A. GRAHAM

JOHN COHEN

Judges of the Family Court

of Australia

(S.R. 404/90)—Cat. No. 4/19.12.1990

 

IAN J. LOUGHNAN

Acting Principal Registrar

Family Court of Australia

I. W. P. McCALL

ALAN J. BARBLETT

D. F. CONNOR

G. E. FERRIER

D. R. ANDERSON

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 14 January 1991.

2. Amendment

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

3. Order I, rule 4 (Interpretation)

3.1 Subrule 4 (1):

Insert the following definition:

‘cause of action’ means a claim in any proceedings other than proceedings for principal relief and does not include an application for interim or interlocutory relief:”.

4. Order 2, rule 2 (Requirements with respect to documents)

4.1 Paragraph 2 (f):

Omit the paragraph, substitute the following paragraph:

“(f) subject to subrule (2)—have a cover sheet in accordance with Form 1”.

4.2 Add at the end:

“(2) The full address of the parties need not be shown on the Form 1 cover sheet except:

(a) when filing the initial documents: or

(b) in any other case—where the address of a party has changed since the previous documents were filed the address of that party shall be shown.”

5. Order 4, rule 8 (Proceedings in chambers)

5.1 Subrule 8 (1):

Omit the subrule, substitute:

“(1) This rule applies to proceedings relating to a matrimonial cause other than the final hearing in contested proceedings.”.

6. Order 7, rule 9 (Applications other than for principal relief)

6.1 Subrule 9 (2):

Omit “An application”, substitute “Subject to subrule (2a), an application”.

6.2 After subrule 9 (2) insert:

“(2a) Where:

(a) orders for urgent relief are sought; and

(b) the application is one to which, but for this subrule, paragraph 9 (2) (a) would apply;

the application may be in accordance with Form 8.

“(2b) Where a court makes an order in respect of an application made under subrule (2a), the order shall:

(a) fix a hearing date which shall be not more than 21 days after the date of the order; and

(b) provide for the filing of an application in accordance with Form 7 before the hearing date fixed under paragraph (a).”.

7. Order 11, rule 4 (Form of pleading)

7.1 Rule 4:

After paragraph (b). insert:

“(ba) bear the date on which the previous pleading in the proceeding (if any) was filed and served;”.

8. Order 11, rule 5 (Contents of pleadings)

8.1 Omit the rule, substitute:

Contents of pleadings

“5. (1) A pleading shall:

(a) be as brief as practicable; and

(b) subject to rule 6 of this Order:

(i) contain a statement in summary form of the material facts on which a party relies; and

(ii) not include the evidence by which the facts are to be proved: and

(c) contain the necessary particulars of any material fact pleaded; and

(d) state specifically the orders sought; and

(e) where a claim for relief arises under any enactment other than the Act—specify any relevant provision of that enactment.

“(2) Without limiting the generality of subrule (1), particulars shall be included if they are necessary’ to:

(a) enable another party to plead: or

(b) define the questions for trial: or

(c) avoid taking a party by surprise at the trial.

“(3) Without limiting the generality of subrule (1), where a party intends to prove a different version of the facts from that pleaded by an opposing party, the first-named party shall plead the material facts on which he or she relies.

“(4) Where a pleading refers to documents or spoken words, it is sufficient to state their effect.

Order for particulars

“5a. (1) A court may:

(a) on the application of a party; or

(b) on its own motion;

order a party to file and serve on any other party within 21 days or such other time as the court directs:

(c) particulars or further particulars of any matter stated in a pleading or in an affidavit ordered to stand as a pleading; or

(d) a statement of the nature of the case on which the party relies.

“(2) A court shall not make an order under this rule:

(a) before pleadings have closed unless, in the opinion of the court, the order is necessary or desirable:

(i) to enable another party to plead: or

(ii) for some other sufficient reason: or

(b) on the application of a party, unless that party has previously requested the particulars or further particulars using Form 27a.”.

9. Order 11, rule 8 (Time limits)

9.1 Omit the rule, substitute:

Time limits

“8. (1) An answer or answer and cross application to an application in proceedings shall be filed and served not later than 21 days after the day of service of the application on the respondent in those proceedings.

“(2) A reply in proceedings or a reply and answer to a cross application shall be filed and served on the respondent in those proceedings not later than 21 days after the day of service of the relevant answer.”.

10. Order 11, rule 11 (Striking out pleading)

10.1 Paragraph 11 (b):

Omit the paragraph, substitute:

“(b) is scandalous, frivolous, vexatious, irrelevant or prolix;”.

11. Order 11, rule 12 (Effect of failure to file pleading or particulars)

11.1 Subrule 12(1):

Omit the subrule, substitute:

“12. (1) Where a party to proceedings fails:

(a) to file and serve a pleading as required by this Order: or

(b) to file and serve particulars as ordered by a court: any other party may apply for an order:

(c) that the proceedings be stayed or dismissed: or

(d) that the court make orders as specified in the application without receiving evidence: or

(e) that:

(i) a pleading be filed and served: or

(ii) particulars be filed and served:

by the first-mentioned party within a time specified in the order: and the court may make the order accordingly.”.

12. Order 11, rule 15 (Answer and cross application)

12.1 Omit the rule, substitute:

Answer and cross application

“15. Where the respondent to an application in proceedings seeks orders relating to a cause of action other than the cause or causes of action contained in the application, the respondent shall file an answer responding to the application and a cross application pleading the new cause of action in accordance with Form 7a.”.

13. Order 11, rule 16 (Reply)

13.1 Omit subrule 16 (1), substitute:

“(1) An applicant in proceedings may reply to:

(a) an answer and cross application by filing a reply and answer to the cross application in accordance with Form 7b: or

(b) an answer by filing a reply in accordance with Form 7c.”.

14. New Order 11, rule 17a

14.1 After Order 11, rule 17, insert:

New cause of action

“17a. In proceedings, other than proceedings for principal relief, where:

(a) an applicant: or

(b) a respondent who has filed a cross application:

seeks an order relating to a cause of action other than the cause or causes of action contained in the application or cross application then the order shall be sought by way of amendment to the application or cross application, as the case may be. in accordance with Division 4 of this Order.”.

15. Order 15, rule 17 (Affidavits not to contain any matter previously on affidavit)

15.1 Omit the rule.

16. Order 18, rule 10 (Dispensing with service whether or not on conditions)

16.1 Subrule 10 (1):

After “made ex parte”,insert “in accordance with Form 8”.

17. Order 19 (PARTICULARS AND ANSWERS TO SPECIFIC QUESTIONS)

17.1 Omit the heading to the Order, substitute:

“ORDER 19—ANSWERS TO SPECIFIC QUESTIONS”.

17.2 Order 19, rules 1 and 2:

Omit the rules, substitute:

Request for answers to questions

“1. (1) A party to proceedings may ask another party to the proceedings for answers to specific questions relevant to a matter before the court in the proceedings.

“(2) A request under subrule (1) must:

(a) be in writing: and

(b) be served on that other party.

Giving of answers

“2. (1) A party to proceedings to whom a request under rule 1 is directed may. within 21 days after the service of the request on that party or within such further time as the requesting party or the court allows:

(a) give the answers requested: or

(b) where:

(i) objection is made to giving all or any of the answers— state the ground on which the party objects: or

(ii) the party is unable to give all or any of the answers— give reasons for the inability to give the answers.

“(2) Answers given under this Order shall be verified by the affidavit of the person giving them.”.

17.3 Order 19, rules 4, 5 and 6:

Omit the rules, substitute:

Service of answers

“4. A party who directs a request under rule 1 or gives answers under rule 2 or 3 shall, as soon as practicable after doing so. file and serve a copy of the request or a copy of the answers together with the affidavit verifying them, as the case requires, on each other party to the proceedings.

Filing of request and answers

“5. (1) A party to proceedings who has filed and served on each other party to the proceedings a document:

(a) setting out a request for answers, or any part of such a request: and

(b) setting out:

(i) the answers: or

(ii) the grounds of objection: or

(iii) the reasons for the inability to give answers:

given in response to the request or part of the request:

may use the whole or any part of the matter set out in the document in the proceedings, whether in evidence or otherwise.

“(2) Where an answer or ground of objection or inability or part of that ground is used under subrule (1), the court may look at the whole of the answers or grounds and. if the court is of the opinion that the answer or ground ought not to be used without any other answer or ground, the court may direct that the other answer or ground be used in the proceedings.

Failure to comply with request

“6. Where a party fails to give answers in accordance with rule 3. the court may, subject to rule 6a. on the application of the party requiring the answers, make such orders as it thinks fit:

(a) requiring the giving of the answers; or

(b) as to:

(i) the continuance of the proceedings: or

(ii) the right of a party to continue the proceedings.”.

18. Order 24, rule 1 (Conference between parties)

18.1 Subrule 1 (4):

Omit the subrule, substitute:

“(4) Where the court, a Judicial Registrar or a Registrar of a Family Court so orders, a conference under paragraph 1 (1) (a) shall be held in

the presence of a Judicial Registrar, a Registrar or an officer of the court specified in the order.”.

18.2 Subrule 1 (5):

Omit “with a Registrar”, substitute “with a Judicial Registrar, a Registrar”.

19. Order 31, rule 6 (Errors in record of decrees)

19.1 Subrule 6 (3):

Omit “refer it to the Judge. Magistrate or Registrar who made the decree.”. substitute:

“refer it:

(a) to the court; or

(b) to the Magistrate or Registrar who made the decree.”.

19.2 Subrule 6(4):

Omit “Judge”, substitute “court”.

20. Order 3lb, rule 5 (Hearing of application or appeal)

20.1 Omit “28”, substitute “21”.

21. Order 31b, rule 6 (Service)

21.1 Subrule 6 (1):

Omit the subrule, substitute:

“(1) As soon as practicable after the filing of an application or appeal, the applicant or appellant shall:

(a) if the application or appeal is under the Assessment Act—serve by assured service a sealed copy of the application or appeal on the respondent to the application or appeal: or

(b) if the application or appeal is under the Registration Act— serve by assured service a sealed copy of the application or appeal and of any documents filed with the application or appeal on any parent or custodian of the child who is not an applicant or appellant.”.

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

22.1 Omit the rule, substitute:

Application under section 117 of the Assessment Act

“12. Where an application is made under section 117 of the Assessment Act. 2 copies of:

(a) the administrative assessment referred to in subsection 116 (2) of that Act: and

(b) a statement of financial circumstances in accordance with Form 17:

shall be filed with the application.”.

23. New Order 3lb, rule 12a

23.1 After Order 31b, rule 12, insert:

Application under section 123 of the Assessment Act

“12a. Where an application is made under section 123 of the Assessment Act. 2 copies of the administrative assessment referred to in subsection 116 (2) of that Act shall be filed with the application.”.

24. Order 31b, rule 19 (Hearing of application)

24.1 Omit “28”, substitute “21”.

25. Order 34, rule 6 (Other offences and breaches)

25.1 Subrule 6(1):

After paragraph 6 (1) (a), insert:

“(aa) an order made under section 112ad of the Act has not been complied with; or”.

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

26.1 Subrule 2 (1):

After paragraph 2 (1) (c). insert:

“(ca) the power to set aside, in whole or in part, a subpoena:”.

26.2 Subrule 2 (1):

After paragraph 2 (1) (j). insert:

“(ja) the power to make an order under section 65 of the Act:”.

26.3 Subrule 2 (2):

After paragraph 2 (2) (m). insert:

“(ma) Order 33;”.

27. Order 36a, rule 3 (Delegation of powers to Judicial Registrars)

27.1 After paragraph 3 (d). insert:

“(da) the power to make an order in defended proceedings for dissolution of a marriage;

(db) the power to make an order in relation to an application for a decree of nullity of marriage;”.

27.2 After paragraph 3 (e). insert:

“(ea) the power to vary or suspend an order until further order under subsection 64 (7) of the Act:”.

27.3 Omit paragraph 3 (i). substitute:

“(i) the power to make an order under section 112ad of the Act:”.

27.4 Paragraph 3 (m):

Omit ‘“being an order made upon a contested hearing before a Judicial Registrar”, substitute “being an order that could have been made under paragraph (1)”.

27.5 Omit paragraph 3 (x).

28. Order 36a, rule 7 (Procedure on application for review)

28.1 After subrule 7 (3), insert:

“(3a) Where an application for review has been instituted:

(a) the Judicial Registrar or the Registrar whose exercise of power is the subject of the application: or

(b) if the power was exercised by a Registrar and that Registrar is not reasonably available—another Registrar, a Judicial Registrar or a Judge; or

(c) if the power was exercised by a Judicial Registrar and that Judicial Registrar is not reasonably available—another Judicial Registrar or a Judge:

may make an order, on such terms as the Registrar. Judicial Registrar or Judge, as the case may be, thinks fit, staying the exercise of power wholly or in part until the application for review has been decided.”.

29. Order 38, rule 3 (Proper costs)

29.1 Subrule 3(2):

Omit “the provision of Part V of the Regulations or any other provision”, substitute “any provision”.

30. Order 38, rule 38 (Accounts and taxation)

30.1 Subrule 38 (2):

Omit the subrule, substitute:

“(2) In this rule, a reference to a notice of rights in relation to accounts is a reference to a notice of rights relating to accounts for the costs of proceedings that:

(a) is in a form approved by the Principal Registrar: and

(b) contains a statement to the effect that a person may, in accordance with this rule:

(i) if an account is not a detailed account—request a detailed account: and

(ii) whether the account is detailed or otherwise—dispute the account or any part of the account.”.

30.2 Subrule 38 (4):

Omit “the solicitor who rendered the account serves on the person making the request a notice of rights in relation to the account.”: substitute:

“the solicitor:

(a) renders the account: or

(b) serves on the person making the request a notice of rights in relation to accounts:

whichever is the later.”.

30.3 Subrule 38 (6):

Omit “the solicitor who rendered the account serves on that person a notice of rights in relation to the account.”. substitute:

“the solicitor:

(a) renders the account: or

(b) serves, on the person filing that notice, a notice of rights in relation to accounts;

whichever is the later.”.

30.4 Subrule 38 (9):

Omit all words after “those costs: and”, substitute:

“(b) a notice of rights in relation to accounts: and not less than 28 days have elapsed after the day on which the account or the notice, as the case may be. was served on the person. whichever is the later.”.

30.5 Subrule 38 (10):

Omit all words after “in those proceedings: and”, substitute:

“(b) a notice of rights in relation to accounts; and not less than 28 days have elapsed after the day on which the detailed account or the notice, as the case may be, was served on the person, whichever is the later.”.

31. Order 39, rule 4 (Lists of applications for principal relief)

31.1 Omit the rule.

32. Order 40, rule 1 (Rates of interest)

32.1 Omit “15%”, substitute “18%”.

33. Schedule 1 (Forms)

33.1 Form 1:

Add at the end:

“NOTE:

Paragraph 2 ( 1 ) (f)

 of Order 2 of the Family Law Rules is subject to subrule 2 (2) of that Order. Subrule 2 (2) provides that the full address of the parties need only appear on the Form 1 filed with the initial documents unless the address of party has changed since the previous filing. In that case the new address of that party shall be shown.”.

33.2 Forms 7, 7a and 7b:

Omit the Forms, substitute:

“FORM 7 Order 7, rule 9

APPLICATION INITIATING PROCEEDINGS

DATE OF FILING:	[	19	]
APPLICANTS ADDRESS FOR SERVICE:	[
[
[
[
postcode	[

To the respondent:

(full name)

The attached application has been set down for hearing, that is:

* a directions hearing

* the hearing of an interim or interlocutory application

* a hearing to determine the matter (court of summary jurisdiction) by the court at

on 19  , at *a.m./*p.m.

If you wish to defend this application or to seek some other order you must:

(a) if the matter has been set down for a directions hearing—file an answer or an answer and cross application in accordance with Division 2 of Order 11 of the Family Law Rules not later than 28 days after service of this application on you: or

(b) if the matter has been set down for the hearing of an interim or interlocutory application—file a cross application and affidavit in support in accordance with Order 15 of the Family Law Rules at the earliest practicable date before the return day set out above.

If you do not appear at any hearing set down as abovementioned. the court may proceed to made the orders sought in the application, or similar orders, in your absence.

Dated 19 .

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

Registrar

INITIATING APPLICATION

1. ORDERS SOUGHT

(State briefly and clearly the orders the applicant seeks)

Final orders:

(1)

(2)

(3)

*Interim/* and/* interlocutory orders:

(4)

(5)

(6)

2. OCCUPATIONS OF PARTIES
2.1 Applicant’s occupation	[	]
2.2 Respondent’s occupation	[	]
3. MARRIAGE (if applicable)
3.1 Place of marriage (town or city)	[	]
(State. Territory or country)	[	]
3.2 Date of marriage	[	19	]
3.3 Date of separation	[	19	]
*3.4 The marriage was dissolved by the  Court at on	[	19	]
*3.5 The marriage siili subsists.

 

4. DATE AND PLACE OF BIRTH OF PARTIES
4.1 Date of birth of *husband/*father	[	19	]
Place of birth (town or city)	[	]
(Slate or Territory or country)	[	]
4.2 Date of birth of *wife/*mother	[	19	]
Place of birth (town or city)	[	]
(State or Territory or country)	[	]

5. JURISDICTION

The facts upon which the applicant relies to found the jurisdiction of the court are as follows:

(State concisely the facts relied upon under s.39 of the Family Law Act 1975)

6. CHILDREN

6.1 The full name, date of birth and relationship to the applicant of each child the subject of these proceedings is as follows:

Full nameDate of BirthRelationship

(1)

(2)

(3)

6.2 The full name, date of birth and relationship to the applicant of each other child relevant to these proceedings is as follows:

Full nameDale of BirthRelationship

(4)

(5)

(6)

7. OTHER PROCEEDINGS

7.1 The following are particulars of orders still operative, and of pending proceedings, in family law or child welfare proceedings concerning the parties *and/*a child/*children and of any relevant child agreement or maintenance agreement:

(a) operative orders:

(b) pending proceedings:

(c) child agreements:

(d) maintenance agreements:

*7.2 There are no operative orders, pending proceedings or relevant agreements of the kind abovementioned concerning the parties.

8. GUARDIANSHIP. CUSTODY AND ACCESS

8.1 the present arrangements for the *child/*children are:

(a) housing:

(b) other occupants of house and relationship (if any)to *child/*children or parents:

(c) supervision:

(d) education:

(c) health of *child/*children and parents or applicant:

(f) access:

(g) maintenance and other financial support for children:

(h) other relevant facts:

8.2 The changes (if any) to the above arrangements proposed by the applicants are as follows:(1)

8.3 The parties have had counselling as follows:

(Set out name of each counselling organisation and date/s of counselling consultation)

8.4 Other facts relied on by the applicant as to guardianship, custody and access are as follows:(1)

9. PROPERTY

9.1 the husband and wife cohabited during the following periods:

(1)

(2)

9.2 All of the property of each party at the time of the filing of this application is identified and described to the best of the applicant’s knowledge and ability in the Statement of Financial Circumstances, or affidavit in lieu of that statement, filed with this application.

9.3 The facts relied on by the applicant in seeking an order under section 78 of the Act are as follows:(1)

9.4 The initial financial contribution of each party at the time of the commencement of cohabitation was as follows:

(a) As the applicant *husband/*wife:

(b) As to the respondent *husband/*wife:

9.5 The facts relied upon pursuant to paragraphs 79 (4) (a) to (d) of the Family Law Act are as follows:(1)

9.6 The facts relied upon pursuant to paragraph 79 (4) (c) of the Family Law Act are as follows:(1)

9.7 Other relevant facts relied upon by the applicant arc as follows:(1)

10. MAINTENANCE

The facts relied upon by the applicant as to the maintenance orders sought are as follows:(1)

11. INJUNCTIONS AND OTHER RELIEF

Further facts relied upon by the applicant in seeking the *interim/*interlocutory orders referred to in paragraph 1 are as follows:(1)

12. CROSS-VESTING LAW

12.1 This application is made in reliance on a cross-vesting law as follows:

(Set out any relevant provision of the crass-vesting law and include a statement of the claim and the grounds on which the applicant relies)

12.2 This is an application transferred to a Family Court under a cross-vesting law as follows:

(Set out a statement of the claim and the grounds on which the applicant relies including a reference to and any relevant provision of the cross-vesting law on which the applicant relics)

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

Dated 19 .

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

Solicitor for the *applicant/*applicant

*Omit if not applicable.

(1) Set out concisely in separate paragraphs the facts and matters relied on in accordance with Order 11, rules 5 to 7 (inclusive/ of the Family Law Rules.

DIRECTION

You should provide the information sought under each heading in the above form of application that is relevant to your case. You are not required to complete any parts of the form that are not relevant.

AFFIDAVIT OF APPLICANT

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

1. I am the applicant and have read this application.

2. The facts stated in the application that arc within my personal knowledge are true. All other facts stated in the application are true to the best of my knowledge, information and belief.

*SWORN/*AFFIRMED by the applicant

at

on 19 .

…………………………………………

(Signature of applicant)

Before me:

…………………………………..

(Signature and title of person

before whom affidavit sworn)

“Omit if not applicable.

DECLARATION BY SOLICITOR

I. (full name)

state:

1. I am the solicitor for the applicant.

2. In compliance with rule 3 of Order 25 of the Family Law Rules. I have furnished to the applicant a document setting out the legal and possible social effects of the proceedings and the counselling and welfare facilities available.

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

(Signature of solicitor)

FORM 7a Order 11, rules 14 and 15

ANSWER/ØAND CROSS APPLICATION

In answer to the *application/*cross application/*third party notice filed

On 19 and served on 19 , the respondent

*husband/wife states:

PART I—ANSWER

(set out matters to be pleaded)(1)

(1)

(2)

*PART II—CROSS APPLICATION

(set out matters to be pleaded)(1)

(3)

(4)

*PART III—ORDERS SOUGHT

A. The *respondent/*cross applicant claims:

(State briefly and clearly the orders the applicant seeks)

Final orders:

(1)

(2)

(3)

*Interim/*and/*interlocutory orders:

(4)

(5)

(6)

B. The following particulars are relevant to the orders sought:

(Paragraphs 8. 9. 10. 11 in Form 7 in Schedule 1 to the Family Law Rules deal with Guardianship, custody and access. Property. Maintenance and Injunctions and other relief respectively. You should set out the particulars in accordance with whichever of those paragraphs is or are relevant.)

This *answer/*answer and cross application was *prepared/*settled by (name of *counsel/*solicitor/*applicant).

Dated 19 .

……………………………………..

*Respondent/*third party/*solicitor

* Omit if not applicable.

Ø Omit if no new cause of action is to be raised by the respondent.

(1) Set out concisely in separate paragraphs the facts and matters relied on in accordance with Order 11, rules 5 to 7 (inclusives of the Family Law Rules.

AFFIDAVIT

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

1. I am the *respondent/*cross applicant.

2. The facts stated in this Form 7a that are within my personal knowledge are true. All other facts are true to the best of my knowledge, information and belief.

*SWORN/*AFFIRMED by (2)

at

on 19 .

……………………………………………….

(Signature of Respondent /*cross applicant)

Before me:

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

(Signature and title of person

before whom affidavit sworn)

*Omit if not applicable.

(2) Insert full name of *respondent/*cross applicant

FORM 7B Order 11,paragraph 16 (1) (a)

REPLY TO ANSWER AND ANSWER TO CROSS APPLICATION

In answer to the *answer/*answer to cross application filed on 19 and served

on 19 , the applicant *husband/wife states:

PART I—REPLY

(set out matters to be pleaded)(1)
(1)
(2)	*PART II—ANSWER TO CROSS APPLICATION
(set out matters to be pleaded)(1)
(3)
(4)

*PART III—ORDERS SOUGHT

A. The applicant claims:

(State briefly and clearly the orders the applicant seeks)

Final orders:

(1)

(2)

(3)

*Interim/*and/*interlocutory orders:

(4)

(5)

(6)

Β. The following particulars arc relevant to the orders sought:

(Paragraphs 8. 9, 10. 11 in Form 7 in Schedule 1 to the Family Law Rules deal with Guardianship, custody and access. Properly. Maintenance and Injunctions and other relief respectively. You should set out the particulars in accordance with whichever of those paragraphs is or are relevant.)

This *reply/*answer to cross application was *prepared/*settled by (name of *counsel/*solicitor/*applicant).

Dated 19 .

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

*Applicant/*solicitor

*Omit if not applicable.

(1)Set out concisely in separate paragraphs the facts and matters relied on in accordance with Order 11, rules 5 to 7 (inclusive) of the Family Law Rules.

AFFIDAVIT

I,  (full name, address and occupation), *make oath and

say/*affirm:

1. I am the applicant.

2. The facts stated in this Form 7b that arc within my personal knowledge are true. All other facts are true to the best of my knowledge, information and belief.

*SWORN/*AFFIRMED by(2)

at

on 19 .

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

(Signature of applicant)

Before me:

………………………………………………………………

(Signature and title of person before whom affìdavit sworn)

*Omit if not applicable.

(2)Insert full name of respondent

FORM 7C Order 11, paragraph 16 (1) (b)

REPLY

In reply to the *answer/*answer to cross application filed on 19 and served

on 19 , the *applicant/*cross applicant states:

(set out matters to be pleaded)(1)

This reply was *prepared/*settled by (name of*counsel/*solicitor/*applicant/*cross applicant).

Dated 19 .

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

*Applicant/*cross applicant/*solicitor

*Omit if not applicable.

(1)Set out concisely in separate paragraphs the facts and matters relied on in accordance with Order 11, rules 5 to 7 (inclusive) of the Family Law Rules.

AFFIDAVIT

I. (fullname, address and occupation)  .*make oath and say/*affirm:

1. I am the *applicant/*cross applicant and have read this reply.

2. The facts stated in the reply that are within my personal knowledge arc true. All other facts stated in the reply arc true to the best of my knowledge, information and belief.

*SWORN/*AFFIRMED by(2)

at

on 19 .

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

(Signanire of *applicant/*cross applicant)

Before me:

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

(Signature and title of person before whom affidavit sworn)

*Omitif not applicable

(2)Insert full name οf *applicant/*cross applicant.

33.3 Form 13:

Omit the heading, substitute:

“ANSWER—PRINCIPAL RELIEF”.

33.4 New Form 27a:

After Form 27 insert:

“FORM 27A Order 11, subrule 5a (2)

REQUEST FOR *PARTICULARS/*FURTHER AND BETTER PARTICULARS

To: (full name)

TAKE NOTICE that (insert full name) requests that you provide

*particulars/*further and better particulars of the matters pleaded in the following paragraphs of (describe document)filed on (insert date).

1. As to paragraph {insert paragraph number):

(set out each request clearly)

(a)

(b)

2. As to paragraph {insert paragraph number):

(set out each request clearly)

(a)

(b)

You are requested to supply the above *particulars /*further and better particulars within (insert time)days of the service on you of this notice.

Dated 19 .

……………………………...

Solicitor for

*Omit if not applicable”.

33.5 Form 46:

Omit the Form, substitute:

“FORM 46Order 33, rule 3

ENFORCEMENT SUMMONS

TO: (Full name and address)

An order was made (or a maintenance agreement was registered) on (date) requiring that you pay (amount and period/ for the benefit of (name).

Payments under the order or agreement are in default or in arrears in the amount of $  at this date.

You are hereby summoned to attend at this court at 

on 19 at *a.m./*p.m. and to attend from day to day. unless you are excused or released from attendance, to be orally examined on all matters relating to your refusal or failure to comply with the order or agreement and to produce the document(s) or thing(s) in your possession, custody or control described in the Schedule to this summons.

The court may, on the hearing of this summons and upon being satisfied that you have refused to fail to comply with the order or agreement, make such of the following orders as it thinks fit:

(a) an order for the payment of the arrears and any other unpaid portion of the moneys payable under the first-mentioned order or agreement;

(b) a garnishment order in respect of moneys owing to you, including any wages or salary:

(c) an order for seizure and sale of personal property belonging to you:

(d) an order that your estate be sequestrated:

(e) an order for seizure and sale of any interest in land belonging to you:

(f) such other orders as the court thinks necessary to enable enforcement of its orders or the agreement or to prevent the dissipation of property or the wasting of assets.

Dated 19 .

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

Registrar

NOTE:

The Rules provide that a person, who without reasonable cause or excuse, fails to attend before the court as required by a summons commits an offence punishable by a fine not exceeding $500.

The Rules further provide that, where a person fails to attend before a court as required by a summons, the court may issue a warrant directing that the person be taken into custody and brought before the court.

Section 108 of the Family Law Act 1975 gives a court power to punish persons for wilful disobedience of any decree made by the court. Punishment may be by imprisonment or fine, or both.

SCHEDULE

*Omit if not applicable”.

33.6 Form 63:

Omit the Form, substitute:

“FORM 63 Order 31b, subrules 4 (2)

and 18 (1)

*CHILD SUPPORT (ASSESSMENT) ACT 1989

*CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988

*APPLICATION/*APPEAL

IN THE MATTER OF: (X and Y) Children

DATE OF FILING:

This application is made by	* father
* mother
* other person

*APPLICANTS/*APPELLANTS ADDRESS FOR SERVICE:

To the respondent: (full name and address)

*The attached application HAS BEEN SET DOWN FOR HEARING by the Court at on 19 .

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

Registrar

APPLICATION

(Full name of applicant) applies for the following orders:

(1)

(2)

1. The date(s) of birth of the *child/*children are:

2. The parents of the *child/*children are:

father (full name)

mother (full name)

3. *The father and mother were married at

on 19 .

*The father and mother were never married.

4. The dates of the periods of cohabitation (if any) between the parents of the *child/*children were:

5. The date of separation (if applicable):

6. This *application/*appeal is brought under *paragraph/*subsection/ *section of the *Child Support (Assessment) Act l989/*Child Support (Registration and Collection) Act 1988.

GROUNDS OF *APPLICATION *APPEAL

The *application/*appeal is made on the following grounds:

(1)

(2)

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

Dated 19 .

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

Signature of *solicitor/*applicant

…………………………………………………………………………………………………………………….

NOTICE BY RESPONDENT

To the Registrar.

(name of court)

at

 

I, (full name of respondent), having received the application of (full name of applicant)in proceedings to which 1 am the respondent, give notice that I intend to defend those proceedings.

Dated 19 .

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

(Signature of respondent)

*Cross out if not applicable.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 9 January 1991.

2. Statutory Rules 1984 No. 425 as amended to date. For previous amendments see Note 2 to Statutory Rules 1990 No. 20 and see also Statutory Rules 1990 Nos. 20, 74 and 348.

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