Family Law Rules (Amendment) (Cth)

Statutory Rules 1989 No. 2661

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 25 September 1989.

ALASTAIR NICHOLSON

ALAN J. BARBLETT

J. EDWARD ELLIS

W. S. SIMPSON

J. F. FOGARTY

T. E. LINDENMAYER

STEVEN STRAUSS

H. R. FREDERICO

E. R. BAKER

P. E. NYGH

I. W. P. McCALL

N. J. BUCKLEY

R. C. WOOD

T. H. MCGOVERN

GRAHAM R. BELL

B. ROSS-JONES

RODERICK JOSKE

JOSEPHINE M. MAXWELL

GEOFFREY I. WALSH

G. J. F. YUILL

ROBERT J. BULLEY

W. B. TREYVAUD

EDWARD BUTLER

P. F. UNDERHILL

JOHN ELLIOTT

D. BULBECK

 

JOHN R. WILCZEK

W. ROURKE

H. J. BURTON

MARY JANE M. LAWRIE

D. R. ANDERSON

A. GRAHAM

ALWYNNE ROWLANDS

P. J. MOSS

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. R. ANDERSON

Judges of the Family Court

of Western Australia

C. J. JUDGES

Acting Registrar

Family Court of Western Australia

Commencement

1. These Rules commence on 2 October 1989.

Interpretation

2.Rule 4 of Order 1 of the Family Law Rules is amended:

(a) by omitting the definition of “assured service” and substituting the following definition:

“ ‘assured service’ means service in accordance with subparagraph 5 (1) (a) (i) or (iii), or 5 (1) (b) (i) or (ii), of Order 18;”;

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

“(2) For the purposes of these Rules, personal service shall be taken to be:

(a) in the case of a natural person—service in accordance with subparagraph 5 (1) (a) (i) of Order 18; and

(b) in the case of a person other than a natural person—service in accordance with subparagraph 5 (1) (b) (i) of Order 18.”.

Requirements with respect to documents

3.Rule 2 of Order 2 of the Family Law Rules is amended by omitting from paragraph (f) “Form 1b” and substituting “Form 1”.

Repeal

4.Rule 3 of Order 2 of the Family Law Rules is repealed.

Extension or abridgement of time

5.Rule 3 of Order 3 of the Family Law Rules is amended by inserting “or by any decree” after “these Rules”.

6. Rule 3 of Order 7 of the Family Law Rules is repealed and the following rule substituted:

Title of documents

“3. (1) A document, other than a document in accordance with Form 31, 32, 34, 35, 42 or 42a, to be filed in, or issued out of, a registry of a court is to be entitled in accordance with Form 1.

“(2) Where the filing registry of proceedings is changed, the title of the documents filed subsequently is to be varied accordingly.”.

Certain documents not required

7.Rule 2 of Order 9 of the Family Law Rules is amended by omitting all words after “otherwise orders,” and substituting “required to file:

(a) a statement of financial circumstances in accordance with Form 17; or

(b) an affidavit.”.

Third party

8. Rule 5 of Order 14 of the Family Law Rules is amended:

(a) by omitting from subrule (3) “claim against a third party” and substituting “third party claim and notice”;

(b) by omitting subrule (5) and substituting the following subrule:

“(5) On the filing of a third party claim and notice:

(a) the person named in the claim as a third party shall become a party to the proceedings; and

(b) the respondent shall, not later than 14 days after the filing, serve a copy of the third party claim and notice on the third party.”;

(c) by omitting subrule (6) and substituting the following subrule:

“(6) There shall be served together with the third party claim and notice:

(a) any order of the court giving leave to file the claim; and

(b) one copy of each of the following:

(i) the application initiating the relevant proceedings; and

(ii) any other pleading or relevant affidavit filed and served in the proceedings.”.

9. Rule 2 of Order 18 of the Family Law Rules is repealed and the following rule substituted:

Address for service and change of address

“2. (1) A person may give an address for service in proceedings by filing a notice of address for service in accordance with Form 18 and serving a copy of the notice on each other party to the proceedings who has an address for service.

“(2) Where a person who is a party to proceedings in which a document is to be served:

(a) does not, except for this provision, have an address for service in respect of those proceedings;

(b) has an address for service in respect of other proceedings between the same parties, not being proceedings for principal relief; and

(c) has, in those other proceedings, taken a step not more than 6 months before the day of service of the document;

the address for service of the person in respect of the first-mentioned proceedings shall be the person’s address for service in those other proceedings.

“(3) A person may change his or her address for service by filing a notice in accordance with Form 19 and serving a copy of the notice on each other party to the proceedings who has an address for service.”.

Repeal

10.Rule 4 of Order 18 of the Family Law Rules is repealed.

Mode of service

11.Rule 5 of Order 18 of the Family Law Rules is amended:

(a) by omitting from subrule (1) all words after “the Regulations,” and substituting “outside Australia:

(a) in the case of a natural person:

(i) by delivering the document to the person personally;

(ii) if the person does not have an address for service:

(a) by posting the document to the person at his or her last known address in accordance with rule 7; or

(b) by leaving the document, in an envelope addressed to the person, at the address of the person last known to the person on whose behalf the document is being served; or

(iii)  if the person has an address for service—by delivering or posting the document to that address in an envelope

addressed to the person or by transmitting it by facsimile transmission service to the person at that address; or

(b) in the case of a body corporate:

(i) by leaving the document at, or sending it by post to, the registered office of the body corporate or, if there is no registered office in the State or Territory in which the relevant filing registry is situated, at the principal place of business or principal office of the body corporate in that State or Territory; or

(ii) if the body corporate has an address for service other than that of an office or place of business referred to in subparagraph (i):

(a) by leaving the document at, or sending it by post to, that address in an envelope addressed to the body corporate; or

(b) by transmitting it by facsimile transmission service to the body corporate at that address; or

(iii) by delivering a copy of the document personally to each of 2 directors of the company who reside in the State or Territory; or

(iv) if a liquidator, or an official manager, of the body corporate has been appointed—by leaving a copy of the document at, or by sending it by post to, or by transmitting it by facsimile transmission service to, the office of the liquidator or official manager, as the case requires.”;

(b) by inserting after subrule (1) the following subrules:

“(1a) In the case of an application referred to in rule 1 of Order 9, service shall be effected either by personal service or by certified mail.

“(1b) Any other document to be served concurrently with a document to be served in an envelope shall be served in the same envelope.

“(1c) Personal service of a document shall not be effected by the person on whose behalf the document is served but may be effected in his or her presence.

“(1d) Where a person refuses to accept service of a document, personal service shall be taken to be effected if the document is put down in the person’s presence and he or she is told what the document is.

“(1e) Nothing in subrules (1) to (1d) inclusive shall be taken to affect the power of a court exercising jurisdiction under the Act to

authorise service of a document in a manner not provided for by those subrules.”;

(c) by omitting from subrule (2) “sub-paragraph (1) (c) of this rule” and substituting “subparagraph (1) (a) (iii) or (1) (b) (ii) or (iv)”.

Repeal

12. Rules 7, 8 and 9 of Order 18 of the Family Law Rules are repealed and the following rule is substituted:

Requirements for service by post

“7. (1) A person serving a document otherwise then personally shall serve with the document a form of acknowledgment in accordance with Form 18 and, in the case of service within Australia, a stamped addressed envelope to enable the form to be returned to the address for service of the person on whose behalf the document is served.

“(2) Service by post outside Australia shall be effected by airmail postage.”.

Service of application for principal relief

13.Rule 12 of Order 18 of the Family Law Rules is amended by omitting “paragraph 5 (1) (a) or (b)” and substituting “subparagraph 5 (1) (a) (i) or sub-subparagraph 5 (1) (a) (ii) (a)”.

Service of application for other relief

14.Rule 13 of Order 18 of the Family Law Rules is amended:

(a) by omitting “Service” and substituting “Subject to these Rules, service”;

(b) by omitting “paragraph 5 (1) (a), (b) or (c) with —” and substituting “paragraph 5 (1) (a) or (b) with:”.

15. Rules 14, 15, 16, 17, 18, 19 and 20 of Order 18 of the Family Law Rules are repealed and the following rules substituted:

Acknowledgment and proof of service

“15. (1) A person served with a document in accordance with subparagraph 5 (1) (a) (i) or (ii) or 5 (1) (b) (i) must acknowledge service by delivering or posting to the address for service of the person on whose behalf the document was served a signed acknowledgment of service in accordance with Form 18.

“(2) Subject to this rule, service of a document shall be taken to be effected:

(a) if service is in accordance with subparagraph 5 (1) (a) (i) or (ii) or 5 (1) (b) (i)—on the day of signature of the acknowledgment in accordance with Form 18; or

(b) if service is in accordance with subparagraph 5 (1) (a) (iii) or 5 (1) (b) (ii):

(i) in the case of service within Australia—on the day on which the document would be delivered in the ordinary course of post or ordinarily received by facsimile transmission service, as the case may be; or

(ii) in the case of service outside Australia—on the twenty-eighth day after the day of posting.

“(3) A party to proceedings is entitled to adduce proof by oral evidence or on affidavit of any of the following:

(a) that a document was served or not served;

(b) that a document was served or not served on a particular day;

(c) that a document was served on a day other than the day taken to be the day of service under subrule (2).

“(4) Where the court is satisfied as to a matter referred to in paragraph (3) (a), (b) or (c), whether by proof in accordance with subrule (3) or otherwise, the court may make any order in relation to the matter that the court considers appropriate.

Matters of proof

“16. (1) An affidavit made by a person in respect of service of a document by the person shall be in accordance with Form 22.

“(2) The identity of the signature of the person on an acknowledgment of service in accordance with Form 18 may be proved by oral evidence or by affidavit in accordance with Form 21 or 22.”.

Delegation of powers to Registrars

16.Rule 2 of Order 36a of the Family Law Rules is amended by inserting after paragraph (2) (1) the following paragraph:

“(1a) Order 27;”.

Delegation of powers to Judicial Registrars

17.Rule 3 of Order 36a of the Family Law Rules is amended:

(a) by omitting from subparagraph (1) (ii) “$100,000” and substituting “$300,000”;

(b) by omitting from subparagraph (q) (ii) “$100,000” and substituting “$300,000”.

18. After rule 3 of Order 36a of the Family Law Rules the following rule is inserted:

Property value exceeding limit—power to determine proceedings

“3a. Where in proceedings:

(a) a Judicial Registrar proposes to exercise a power of the Court referred to in paragraph (3) (l) or (q); and

(b) it becomes apparent:

(i) that the gross value of the property to be dealt with in the proceedings exceeds $300,000; and

(ii) that it is not possible to make any relevant declaration or orders (or both) by consent;

the Judicial Registrar may continue to hear and may determine the proceedings and may make a declaration or orders (or both) accordingly.”.

Schedule 1

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

(a) by omitting Forms 1, 1a, 1b, 1c and 1d and substituting the following form:

“FORM 1 Order 7, rule 3

COVER SHEET

FORM NO.	[	]
PROCEEDINGS UNDER:	[	]
(set out short title of relevant Act)
IN THE
AT
No.		of 19 .
BETWEEN
surname	[	]
given names	[	]
street name and number	[	]
*city/*suburb/*town	[	]
State or Territory	[	]
post code	[	]
*husband/*father
AND
surname	[	]
given names	[	]
street name and number	[	]
*city/*suburb/*town	[	]
State or Territory	[	]
post code	[	]
*wife/*mother
AND
surname	[	]
given names	[	]
street name and number	[	]
*city/*suburb/*town	[	]
State or Territory	[	]
post code	[	]
*intervener/*other /*party/*person
PROCEEDINGS FOR:	[	]
(Indicate nature of proceedings e.g. dissolution, custody, property, spouse or child maintenance)

 

DOCUMENT:	[	]
(Indicate type of document e.g. application, affidavit)
If document is an affidavit:
deponent’s full name:	[	]
*sworn/*affirmed on	[ .	.19	.]
*Return date/*next hearing date	[ .	.19	.]
Filed *by/*on behalf of	[	]
(specify e.g. husband, father, wife, mother, intervener, other person)
Address for service
street name and number	[	]
*city/*suburb/*town	[	]
State or Territory	[	]
postcode	[	]
telephone	[	]
document exchange	[ DX	]
facsimile	[	]
solicitor’s code	[	]

*Cross out if not applicable.”;

(b) by omitting from Form 7 Clauses 2, 3 and 4 in the form of initiating application and substituting the following clauses:

“2. OCCUPATIONS OF PARTIES

Applicant’s occupation	[	]
Respondent’s occupation	[	]
3. MARRIAGE (if applicable)
Place of marriage (town or city)	[	]
(State, Territory or country)	[	]
Date of marriage	[	19	.]
*Date of separation	[	19	.]
*The marriage was dissolved by	[	19	.]
the court at on
The marriage still subsists.
4. DATE AND PLACE OF BIRTH OF PARTIES
Date of birth of *husband/*father	[	19	.]
Place of birth (town or city)	[	]
(State or Territory or country)	[	]”;

(c) by omitting from Form 7 Clause 7 in the form of initiating application and substituting the following clause:

“7. OTHER PROCEEDINGS

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:

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

(d) by omitting from each of the following forms “(Title)”:

Forms 2, 3, 4, 5, 6, 7, 12, 39, 40, 45, 46, 47, 48, 48a, 49, 50, 51, 52, 53;

(e) by omitting from each of the following forms “(Short title)”:

Forms 7a, 7b, 8, 9, 10, 11, 13, 14, 15, 15a, 15b, 15c, 16, 17, 24, 25, 26, 27, 28, 29, 30, 36, 37, 38, 41, 43, 44, 46a, 54, 55, 56, 57, 58, 59, 60, 61, 62;

(f) by omitting Forms 18, 19, 20, 22, 23 and 23a and substituting the following forms:

“FORM 18 Order 18, rule 2

NOTICE OF *ADDRESS FOR SERVICE/*AND OF/*ACKNOWLEDGMENT OF SERVICE

*1. Notice is given that the address for service of (full name) is 1..........................................

*2. I, (full name, address and occupation)acknowledge that the following documents were served on *me/*(full name)/on  19  :

*(a) copy of application for filed on  19  ;

*(b) copy of affidavit of (full name of deponent) sworn on  19  ;

*(c) document under Order 25, rule 3 of the Family Law Rules;

*(d) (specify any other document served).

*3. I, (full name),acknowledge that I am the person referred to in the abovementioned application as the respondent.

Dated  19  .

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

* Respondent / * solicitor

* Cross out if not applicable.

1 Insert relevant address.

DIRECTION

Where service of documents is acknowledged, paragraph 1 should not be completed if an address for service in the same proceedings has already been given.

“FORM 19 Order 18, rule 2

NOTICE OF CHANGE OF ADDRESS FOR SERVICE

* Notice is given that on 19 the address for service of (full name) was changed to1.....................................................................................................................................................................

Dated 19 .

*Applicant/*respondent/*solicitor

* Cross out if not applicable.

1 Insert relevant address.

“FORM 22 Order 18, rule 16

AFFIDAVIT OF SERVICE

*AND PROOF OF SIGNATURE

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

1. On 19 , I served (full name)with a sealed copy of * the following document/* each of the following documents/ in the abovementioned proceedings:

(Specify each document served other than a document

referred to in paragraph 3)

2. The document/*s *was/*were/ served 1

*by personal service as follows:

(state mode of personal service).

*by posting the document/*s in one envelope addressed to (full name) at (address).

*by *delivering/*leaving/ the document/*s in one envelope addressed to (full name) at (address).

*by facsimile transmission service to (full name) at (address and facsimile transmission number).

3. With the document/*s I *delivered/* enclosed/ a form of acknowledgment of service and a document under Order 25, rule 3 of the Family Law Rules.

*4. The completed form of acknowledgment of service, as received by me (state how received, e.g. personally, by post)is annexed to this affidavit and marked “A”.

*5. I established as follows that the person to whom the document/*s *was/*were delivered was the person on whom service of the document/*s was to be effected:

(State means by which the deponent identified the person served)

*6. I am able to identify the signature on the form of acknowledgment as the signature of (full name) because (set out manner of identification).

* SWORN/* AFFIRMED/ by the deponent

at

on 19 .

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

(Signature of deponent)

Before me:

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

(Signature and title of person before whom affidavit is

sworn or affirmed)

* Cross out if not applicable”.

Minor Amendments

20. The Family Law Rules are amended as set out in the Schedule to these Rules.

SCHEDULE Rule 20

MINOR AMENDMENTS

1. The following provisions of the Family Law Rules are amended by omitting “paragraph 5 (1) (a), (b) or (c)” and substituting “paragraph 5 (1) (a) or (b)”:

Order 14, subrule 2 (2); Order 15, rule 18; Order 18, subrule 5 (3); Order 19, rule 9; Order 20, rule 21: Order 23, subrule 7 (1); Order 33, subrules 3 (5) and 4 (10).

2. The Family Law Rules are amended as set out in the following table;

Provision:	Omit:	Substitute;
Order 28, subrule 1 (2)	paragraph 5 (1) (a)	paragraph 5 (1) (a) (i) or (b) (i)
commended	commanded
Order 33, subrule 2 (4)	paragraph 5 (1) (a), (b), (c) or (d)	paragraph 5 (1) (a) or (b)
Order 34, subrule 2 (4)	paragraph 5 (1) (a)	paragraph 5 (1) (a) (i) or (b) (i)
paragraph 9 (3) (a)	paragraph 5 (1) (a) or (c)	paragraphs (1) (a) (i) or (iii) or (b) (i) or (ii)
Order 38, subrule 24 (3)	paragraph 5 (1) (a), (b), (c) or (d)	paragraph 5 (1) (a) or (b)

NOTES

1. Notified in the Commonwealth of Australia Gazette on 29 September 1989.

2. Statutory Rules 1984 No. 425 as amended to date. For previous amendments see Note 2 to Statutory Rules 1989 No. 49 and see also