Family Law Rules (Amendment) (Cth)

Statutory Rules 1989 No. 331 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 24 November 1989.

ALAN J. BARBLETT

W. S. SIMPSON

K. A. MURRAY

T. E. LINDENMAYER

S. STRAUSS

E. R. BAKER

I. W. P. MCCALL

R. C. WOOD

T. McGOVERN

GRAHAM R. BELL

B. ROSS-JONES

JOSEPHINE M. MAXWELL

J. T. GUN

G. YUILL

R. J. BULLEY

G. E. LAMBERT

EDWARD BUTLER

P. F. UNDERHILL

PETER B. HASE

RICHARD W. GEE

D. BULBECK

M. A. RENAUD

JAMES BARRY

J. S. PURDY

JOHN R. WILCZEK

W. ROURKE

J. V. KAY

G. R. MULLANE

MARY JANE M. LAWRIE

16200/89 (S,R. 375/89)—Cat. No. 89 5476 0

2	Family Law Rules	1989 No. 331
D. F. CONNOR G. E. FERRIER D. R. ANDERSON
ALWYNNE ROWLANDS JOHN COHEN Judges of the Family Court of Australia

C. R. SPINK

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

J. D. EDWARDS

Registrar

Family Court of Western Australia

Commencement

2. After Order 31A of the Family Law Rules the following Order is

1. These Rules commence on 1 December 1989.

inserted:

"ORDER 31B

CHILD SUPPORT JURISDICTION

Division 1—General

Interpretation

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

'Assessment Act' means the Child Support (Assessment) Act 1989;

'child support agreement' has the same meaning as in the Assessment

Act;

'Child Support Registrar' has the same meaning as in the Registration

Act;

'Registration Act' means the Child Support (Registration and Collection)

Act 1988.

Family Law Rules 1989 No. 3S1 3

Application of Order

"2. (1) This Order applies in relation to any application or appea

under, or for the purposes of, the Assessment Act or the Registration Act.

" (2) Subject to Order 9 rule 1, in relation to any application or appea to which this Order applies, the provisions of this Order prevail over an; other provision of these Rules to the extent of any inconsistency.

Division 2—Applications or appeals under the Assessment Act and the

Registration Act other than appeals from a court of summary jurisdiction

or to a Full Court

Interpretation

"3. In this Division:

(a)	'application' does not include an application for leave to appeal from an order of the Family Court; and
(b)	'appeal' does not include an appeal from a court of summary jurisdiction or to a Full Court.

Application forms

"4. (1) An application or appeal to which this Division applies shall be made by filing in duplicate the appropriate form as specified in subrule (2) or (3) in a court having jurisdiction under the Assessment Act or the Registration Act.

" (2) Subject to subrule (3), the application or appeal shall be in accordance with Form 63.

" (3) An appeal under subsection 110 (1) or section 132 of the Assessment

Act or section 88 of the Registration Act shall be in accordance with Form

64.

Hearing of application or appeal

"5. On the filing of the application or appeal, the Registrar of the filing registry shall set down the application or appeal for hearing as soon as practicable but not less than 28 days after the day of filing.

Service

"6. ( I ) As soon as practicable after the filing of the application or appeal, the applicant or appellant shall serve by assured service a copy of the application or appeal and any document filed with the application or appeal on the respondent to the application or appeal.

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

4 Family Law Rules 1989 Mo. 331

Proceedings in relation to an application or appeal

"7. On the return day of the application or appeal, the court shall if practicable hear and determine the application or appeal or may give directions.

Division 3—Special provisions relating to specific applications or appeals

Provisions of Division 2 still apply

"8. Where a rule in this Division specifies particular requirements in relation to an application or appeal the particular requirements are in addition to the general requirements relating to an application or appeal specified in Division 2.

Application under subsection 95 (6) of the Assessment Act

"9. Where an application is made in relation to a child support agreement under subsection 95 (6) of the Assessment Act a copy of the child support agreement to which the application relates shall be attached to each copy of the application.

Application for declaration under subsection 106 (1) or 107 (1) of the

Assessment Act

"10. (1) An application under subsection 106(1) or 107(1) of the Assessment Act shall be filed:

(a) not later than 28 days after the receipt by the applicant of the notice given under section 33 or 34, as the case may be. of that Act; or

(b) within such further time as the court allows.

"(2) Where an application is filed under subrule (1), a copy of the

relevant notice given under section 33 or 34, as the case may be, of the

Assessment Act shall be attached to each copy of the application.

Appeal against incorrect assessment—subsection 110(1) of the

Assessment Act

"11. (1) An appeal under subsection 110(1) of the Assessment Act shall be filed:

(a) not later than 28 days after the receipt by the appellant of the notice given under section 76 of that Act; or

(b) within such further time as the court allows.

" (2) Where an appeal is filed under subrule (1), a copy of the notice of assessment given under section 76 of the Assessment Act shall be attached to each copy of the appeal.

Application under section 117 of the Assessment Act

"12. Where an application is made under section 117 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.

Family Law Rules 1989 No. 331 5

Application under section 129 of the Assessment Act

" 13. Where an application is made under section 129 of the Assessment Act, 2 copies of the relevant order made under section 124 of that Act shall be filed with the application.

Appeal against decision of Child Support Registrar under section 132 of the Assessment Act

"14. (1) An appeal under section 132 of the Assessment Act shall be

filed:

(a) not later than 28 days after receipt by the appellant of the notice given under section 96 of that Act; or

(b) within such further time as the court allows.

" (2) Where an appeal is filed under section 132 of the Assessment Act, 2 copies of the notice given under section 96 of that Act shall be filed with the appeal.

Affidavit to be filed with application under section 140 of the Assessment

Act

"15. Where an application is made under section 140 of the Assessment Act, there shall be filed with the application an affidavit which specifies concisely:

(a) the nature of the case; and

(b) the relevant questions involved in the case; and

(c) the reasons why a stay should be granted.

Appeal under section 88 of the Registration Act

"16. Where an appeal under section 88 of the Registration Act is filed, the appellant shall file with the appeal 2 copies of:

(a)	the notice served under subsection 80(1) of the Registration Act: and
(b)	the relevant objection under section 82, 83 or 84 of that Act. as the case may be; and
(c)	any notice in opposition to or in support of the objection, as the case may be, lodged under subsection 86 (3) of that Act; and

(d) the notice served under subsection 87 (2) of that Act.

Time for filing an appeal under section 88 of the Registration Act

"17. An appeal under section 88 of the Registration Act shall be filed:

(a) not later than 28 days after the day of service by the Child Support Registrar of the notice under subsection 87 (2) of that Act; or

(b) within such further time as the court allows.

6 Family Law Rules 1989 No. 331

Division 4—Application for leave to appeal or review

Leave to appeal from decision of court of summary jurisdiction

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

" (2 ) The application shall be made:

(a) not later than 28 days after the day on which the decision appealed from was made; or

(b) within such further time as the court allows.

Hearing of application

"19. The Registrar of the filing registry shall set down the application for hearing as soon as practicable but not less than 28 days after the day of filing of the application.

Service

"20. (1) As soon as practicable after filing an application, the applicant shall serve by assured service on the respondent one copy of each of the application and the affidavit filed with the application.

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

Appeal from decision of Family Court

"21. (1) An application for leave to appeal under paragraph 102 (1) (b) of the Assessment Act or paragraph 107 (1) (b) of the Registration Act from a court (other than from a decision of a Full Court) shall be in accordance with Form 42A and is to be filed in the principal registry.

" (2 ) The application shall be made:

(a)	not later than 28 days after the day on which the decision appealed from was made; or
(b)	within such further time as a Judge of a court having jurisdiction under the Family Law Act directs.

" (3 ) On the filing of the application, the Principal Registrar shall not less than 28 days after the filing of the application set down the application for hearing.

Affidavit to be Filed with application

"22. In relation to an application under rule 18 or 21, there shall be filed with the application 2 copies of an affidavit which specifies concisely:

(a) the nature of the case; and

Family Law Rules 1989 No. 331 7

(b) the questions involved in the case; and

(c) the reasons why leave to appeal should be given.

Leave of Full Court

"23. Where an appeal is instituted by leave of the Full Court a copy of

the Order granting leave to appeal shall be served with the notice of appeal.

Hearing of application for leave

"24. On the hearing of an application for leave to appeal the court may. with the consent of the parties or of its own motion:

(a) hear and determine the application; or

(b) treat the application as an application for directions; or

(c) hear and determine the appeal.

Directions as to the further conduct of appeal

"25. Where the court grants leave to appeal the court may give such directions as it considers appropriate for the further conduct and hearing of the appeal

Review of decision of Judicial Registrar

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

(a) not later than 28 days after the day on which the decision was given; or

(b) within such further time as the court allows.

" (2 ) Rules 19 and 20 apply in relation to the application as if the

application was an appeal from a court of summary jurisdiction.

Papers relating to appeal or application for leave

"27. (1) On filing an application for leave to appeal or on filing an appeal from a court of summary jurisdiction, the applicant or appellant shall file with the application or appeal:

(a)	a copy of the reasons for judgment or summing up of the court of summary jurisdiction certified by the proper officer of that court; and
(b)	a copy of the transcript of the proceedings in the court of summary jurisdiction corrected in accordance with subrules (3) and (4).

" (2) Where evidence was given orally in the proceedings in the court of summary jurisdiction but no transcript of those proceedings is available, the applicant or appellant may file an affidavit sworn by a person who was present during the proceedings in the court of summary jurisdiction as a record of those proceedings.

" ( 3 ) Where the applicant or appellant obtains a copy of the transcript referred to in paragraph (1) (b), he or she shall:

(a) correct any errors that appear in the transcript; and

8 Family Law Rules 1989 No. 331

(b) submit a list of those corrections to the respondent; and

(c) afford the respondent a reasonable opportunity of examining the transcript and corrections.

" (4) If the parties disagree on the accuracy of any part of the transcript, or are unable to agree on a correction, the question shall be submitted to the proper officer of the court of summary jurisdiction for the directions of the court on the matter.

Transmission of papers

"28. (1) The Registrar of the filing registry in which an application for leave to appeal or an appeal is filed may request that the papers relating to the proceedings in the court of summary jurisdiction be forwarded to him or her by the Registrar of that court.

" (2) A Registrar to whom a request under subrule (1) is made shall comply with the request as soon as practicable.

Division 5—Miscellaneous

Copies of orders to Child Support Registrar

"29. Where a court makes an order under the Assessment Act or the Registration Act, the Registrar of the filing registry shall forward a copy of the order to the Deputy Child Support Registrar at the address prescribed under regulation 8 of the Child Support Regulations in relation to the State or Territory in which the filing registry is situated.

Service by Child Support Registrar

"30. (1) Where the Child Support Registrar serves a document on a person for the purposes of the Assessment Act or the Registration Act, the document is, subject to subrule (2), to be deemed to have been received by the person:

(a)	in the case of a document sent by post—on the day on which the document would have reached that person in the ordinary course of post; or
(b)	in any other case—on the day the document was delivered to the person or left at his or her last known place of residence.

" (2) Despite subrule (1), the court may determine the day on which service of a document is effected on a person as the court thinks fit.

Application for counselling

"31. An application under section 17 of the Assessment Act for the assistance of the counselling facilities of the Family Court or a Family Court - f a State is to be made in accordance with Form 32.

Family Law Rules 1989 No. 331 9

Intervention by Child Support Registrar

"32. (1) Where under section 145 of the Assessment Act the Child Support Registrar intervenes in a proceeding under that Act, the Child Support Registrar must file in the filing registry a notice in accordance with Form 65.

" (2) As soon as practicable after the notice of intervention is filed by

the Child Support Registrar, the Registrar shall serve on each party to the

application or appeal, by assured service, a copy of the notice of intervention.

Registration of child support agreements

"33. (1) A child support agreement to which subsection 95 (3) of the Assessment Act applies may be registered in a court having jurisdiction under that Act by filing a copy of the agreement together with the affidavit of a party to the agreement or of the solicitor for such a party verifying the copy as a true copy of the agreement.

" (2) Where a child support agreement has been registered in accordance with subrule the Registrar of the filing registry shall, as soon as practicable after the date of filing, give written notice to each party to the agreement that the agreement has been registered and specifying the court and date of registration.

" (3) Where under subsection 98 (1) or 136 (1) of the Assessment Act a court makes an order in relation to a child support agreement, the Registrar of the court in which the order was made shall, as soon as practicable after the date of the order, give written notice to each party to the agreement of the terms of the order and specifying the Court and the date on which the order was made.".

Delegation powers to Registrars

3. Rule 2 of Order 36A of the Family Law Rules is amended by adding at the end of subrule (1) the following paragraph:

"(s) the power to make an order for the payment of urgent maintenance under section 139 of the Child Support (Assessment) Act 7959.".

Delegation of powers to Judicial Registrars

4. Rule 3 of Order 36A of the Family Law Rules is amended by adding at the end the following paragraph:

"(z) the power to make an order on any application under or in relation to the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989 other than an appeal from a court of summary jurisdiction, State Family Court or the Supreme Court of the Northern Territory.".

Procedure on application for review

5. Rule 7 of Order 36A of the Family Law Rules is amended by omitting subrule (4) and substituting the following subrule:

" (4) A court reviewing an exercise of power by a Judicial Registrar:

10 Family Law Rules 1989 No. 331

(a) shall proceed by way of a hearing de novo; and

(b) may receive as evidence any affidavit or exhibit tendered before the Judicial Registrar; and

(c) may by leave receive further evidence; and

(d) may receive as evidence:

(i) the transcript (if any) of the proceedings before the Judicial Registrar; or

(ii) if a transcript is not available, an affidavit sworn by a person who was present at the hearing before the Judicial Registrar as a record of that hearing.".

Schedule 1

6. Schedule 1 to the Family Law Rules is amended:

(a) by omitting Form 42A and substituting the following form:

"FORM 42A

Order 3lB, Rules 21

and 23

Order 32. Rules 16A. 19 and 20

A P P L I C A T I O N T O F U L L C O U R T

D A T E O F FILING:

This application is made by	* appellant *respondent
* o t h e r person

A P P L I C A N T ' S A D D R E S S F O R S E R V I C E:

Regis try or place where	d e c r e e
appealed from was made:

T o the respondent: ( f u l l name and address)

T h e a t tached applicat ion has been set down for hearing before the Ful l C o u r t s i t t ing at

on 19

a t * a. m. / * p. m.

If you do not appear at the hear ing, the Ful l Cour t may proceed to m a k e t h e orders

sought, or similar orders, in your a b s e n c e.

D a t e d 19

Principal Registrar

Family Law Rules 1989 No. 331 11

A P P L I C A T I O N

( F u l l name of applicant) applies to the F u l l C o u r t o f t h e F a m i l y Cour t of Austral ia

for t h e	fo l lowing	orders:
(1) (2)

T h i s a p p l i c a t i o n was *prepared/*se t t led by (name of counsel, solicitor or applicant).

D a t e d 19

( S i g n a t u r e o f * so l i c i tor/*appl icant )

* Cross out if not applicable";

(b) by adding at the end the following forms:

"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 V) Children

D A T E O F F I L I N G:

This application is made by	* father * m o t h e r
* o t h e r person

* A P P L I C A N T ' S / * A P P E L L A N T ' S A D D R E S S F O R S E R V I C E:

T o the respondent: (full name and address)

* The attached application HAS BEEN S E T DOWN F O R H E A R I N G by the Court at

on 19

at *a.m./*p.m.

(a)	If you wish to defend this application but to raise no new issues (other than as to costs), you may at the earliest practicable date before the return day set out above file and serve an affidavit setting out briefly the matters on which you rely.
(b)	If you wish to defend this application and to seek some order other than the order sought in this application, you may at the earliest practicable date before the return day set out above file and serve a cross-application and an affidavit in support.

(c) If you do not appear at the hearing, the Court may proceed to make the order sought, or

similar orders, in your absence.

Dated 19

Registrar

12 Family Law Rules 1989 No. 331

APPLICATION

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

(1)

(2)

1. the d a t e ( s ) o f bir th o f t h e *chi ld/*chi ldren are:

2. the parents of the *child/*childrcn are:

father (fulI name)

m o t h e r (full name)

3. *The father and mother were married at

on 19

* T h e f a t h e r a n d m o t h e r w e r e never married.

4. The dates of the periods of cohabitation (if any) between the parents of the

*child/*children were:

5. Th is * a p p i i c a t i o n / * a p p e a l is brought under * p a r a g r a p h / * s u b s e c t i o n / * s e c t i o n 4 o f

the *Child Support (Assessment) Act l989/*Child Support (Registration and

Collection) Act 1988.

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

Dated 19

(S ignature o f * s o l i c i t o r / * a p p l i c a n t )

N O T I C E B Y R E S P O N D E N T

T o the R e g i s t r a r.

(name of court)

at

I, (full name of respondent), having received the a p p l i c a t i o n o f (full name of applicant) in proceedings to which I a m the respondent, give n o t i c e t h a t I intend to

defend those proce e d ings.

D a t e d 19

(S ignature o f r e s p o n d e n t )

* Cross out if not applicable.

Family Law Rules 1989 No. 331 13

"FORM 64

Order 31B. subrule 4(3)

"CHILD SUPPORT (ASSESSMENT! ACT 1989

*CHILD SUPPORT (REGISTRATION AND COLLECTION) ACT 1988

APPEAL FROM DECISION OF CHILD SUPPORT REGISTRAR

IN THE MATTER OF: (X and K), Children

D A T E O F F I L I N G:

This appeal is made by	* father * m o t h e r
* o t h e r person

A P P E L L A N T ' S A D D R E S S F O R S E R V I C E:

T o the respondent ( f u l l name and address)

T h e a t t a c h e d a p p e a l H A S B E E N S E T D O W N F O R H E A R I N G by the C o u r t

at	on	19
at	* a. m. / * p. m.

I f you do not a p p e a r at the hear ing the C o u r t m a y proceed t o h e a r a n d determine the

a p p e a l in your a b s e n c e.

D a t e d 19

Regis t rar

GROUNDS OF APPEAL

The appellant appeals against the decision of the Registrar made on 19

on the following grounds:

(1) (2)

ORDERS SOUGHT

The appellant seeks the following orders:

(1)

(2)

T h i s a p p e a l was * p r e p a r e d / * s e t t l e d by ( n a m e of counsel, solicitor or applicant).

D a t e d 19

( S ignatur e o f * s o l i c i t o r / * a p p e l l a n t )

* Cross	out if not	applicable.
14	Family Law Rules 1989 No. 331

"FORM 65

Order 3IB, rule 32

CHILD SUPPORT (ASSESSMENT) ACT 1989

NOTICE OF INTERVENTION BY CHILD SUPPORT REGISTRAR

IN THE MATTER OF: (A" and V), Children

D A T E O F F I L I N G:

To the *applicant/*appeliant:

And to the respondent:

The Child Support Registrar intervenes in these proceedings.

The address for service of the Child Support Registrar is

Dated 19

Child Support Registrar

* Cross out if not applicable."

NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 November 1989.

2. Statutory Rules 1989 No. 425 as amended to date. For previous amendments see Note 2 to Statutory Rules 1989 No. 49 and see also Statutory Rules 1989 Nos. 49, 65, 175, 201 and 266.