Family Law Rules (Amendment) (Cth)

Statutory Rules 1989 No. 2011

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 20 July 1989.

ALASTAIR NICHOLSON

J. F. FOGARTY

K. A. MURRAY

T. E. LINDENMAYER

S. STRAUSS

E. R. BAKER

I. W. P. McCALL

N. J. BUCKLEY

T. McGOVERN

GRAHAM R. BELL

B. ROSS-JONES

RODERICK JOSKE

J. T. GUN

ADRIAN SMITHERS

ADRIAN COOK

R. J. BULLEY

G. E. LAMBERT

P. F. UNDERHILL

PETER B. HASE

D. BULBECK

M. A. RENAUD

JAMES BARRY

JOHN R. WILCZEK

H. J. BURTON

MARY JANE M. LAWRIE

D. F. CONNOR

G. E. FERRIER

 

(S.R. 93/89)—Cat. No. 8/21.7.1989

 

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

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

1. These Rules commence on 1 August 1989,

2. Order 9 of the Family Law Rules is amended by adding at the end the following rules:

Provision of information

“3. (1) An officer of the Court shall make available to an applicant who, otherwise than by a solicitor, institutes proceedings referred to in rule 1:

(a) a pamphlet prepared by the Principal Registrar that specifies:

(i) the requirements for completing Form 12;

(ii) the method of service and of proof of service prescribed for Form 12;

(iii) the procedure followed in a summary maintenance hearing; and

 

(iv) the documents the applicant should bring to the hearing; and

(b) if the applicant seeks maintenance in respect of a child—an estimate of the costs of maintaining children, being an estimate in accordance with current findings of the Australian Institute of Family Studies.

“(2) A sealed copy of an application in proceedings referred to in rule 1 that is served on a respondent shall be served together with:

(a) a pamphlet prepared by the Principal Registrar specifying:

(i) the procedure followed in a summary maintenance hearing;

(ii) the documents the respondent should bring to the hearing;

(iii) the legal consequences of failure to attend at the time and place fixed for the hearing; and

(iv) the method to be followed in defending the application; and

(b) if the applicant seeks maintenance in respect of a child—an estimate of the costs of maintaining children, being an estimate in accordance with current findings of the Australian Institute of Family Studies.

Notice by respondent

“4. In relation to an application in proceedings referred to in rule 1, a respondent who intends to seek an order other than an order sought by the applicant shall:

(a) complete the notice by respondent included with that application; and

(b) return the notice to the Registrar to reach the Registrar before the day fixed for the hearing.”.

3. After Order 30 of the Family Law Rules the following Order is inserted:

“ORDER 30A

EXPERT EVIDENCE

Division 1—General

Interpretation

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

‘court expert’ means an expert appointed by the court under rule 3 of this Order;

‘expert’ means a person who has such knowledge or experience of, or in connection with, a question arising in proceedings that his or her opinion on the question would be admissible as evidence, but does not include a court counsellor or a welfare officer;

‘party’ includes a separate representative of a child.

 

Division 2—Evidence of experts

Exchange of expert reports

“2. (1) Unless the court otherwise orders, a party who seeks to adduce the evidence of an expert (other than a court expert) at a hearing in proceedings shall, not later than 14 days before the day fixed for the hearing, serve on each other party to the proceedings one copy of a written report containing the substance of that evidence.

“(2) Subrule (1) does not apply where the evidence of an expert is given by affidavit filed in proceedings as part of the evidence in chief.

“(3) Except with the leave of the Court, a party who fails to comply with subrule (1) shall not be permitted to adduce the relevant evidence at a hearing.

Division 3—Court experts

Appointment of court expert

“3. (1) The court may, at any stage of proceedings, on application by a party or of its own motion:

(a) appoint an expert as court expert to inquire into and report on any issue of fact or opinion, other than an issue involving questions of law or construction, arising in the proceedings; and

(b) give directions to extend or supplement, or otherwise in relation to, any such inquiry or report.

“(2) A court expert shall be a person agreed upon between the parties or, if agreement is not possible, a person nominated by the court.

“(3) A direction under paragraph (1) (b) may authorise, and make provision for the conduct of, an experiment or a testing procedure (other than a testing procedure for the purposes of section 66w of the Act) for the purposes of an inquiry or report.

Report

“4. (1) A court expert shall send the report, together with as many copies of the report as the Registrar directs, to the Registrar at the filing registry for the proceedings.

“(2) Where the report has been received by the Registrar:

(a) the Registrar shall send 2 copies of the report to each of the parties to the proceedings; and

(b) the court may:

(i) receive the report in evidence;

(ii) permit oral examination of the court expert who made the report; and

(iii) give such directions as to the future disposition of the report (including any copies of the report) as the court thinks fit.

 

Cross-examination

“5. (1) Not later than 14 days after receiving a copy of a court experts report, a party may apply to the court for leave to cross-examine the expert on the report.

“(2) On an application under subrule (1), the court may make an order requiring the attendance of the court expert at the hearing of the relevant proceedings and permitting cross-examination of the court expert by all the parties either at the hearing or as otherwise specified in the order.

Remuneration

“6. (1) The court shall determine the remuneration of a court expert, which shall include a fee for the report.

“(2) Unless the court otherwise orders, the parties shall be jointly and severally liable to a court expert to pay the amount of remuneration determined by the court.

“(3) On application by a party or by a court expert, the court may make an order in the proceedings for payment in or towards discharge of the liability of any party under subrule (2).

“(4) Subrules (2) and (3) shall not be taken to affect the court’s powers as to costs.

Response to evidence of court expert

“7. Where a court expert has made a report on an issue, any party to the proceedings may, subject to this Order, adduce the evidence of one other expert on that issue but shall not adduce the evidence of 2 or more other experts except in accordance with Division 4 of this Order.

Division 4—Limitation of expert evidence

Intention to call 2 or more experts—direction by court

“8. (1) A party intending to adduce the evidence of 2 or more experts in relation to the same issue at a hearing in proceedings shall apply to the court for directions.

“(2) On the application for directions, the court may, subject to subrule (3), give a direction specifying the number of experts who may be called in relation to the same issue by a party to the proceedings.

“(3) The court shall not give a direction specifying that 2 or more experts may be called by a party in relation to the same issue unless the court is satisfied that there are special circumstances.

Division 5—Conference of experts

Conference of experts

“9. (1) Where the evidence of 2 or more experts is, or is to be, adduced in proceedings, the court may, on the application of a party or its own

 

motion, by order, require the experts named in the order to confer at a time, or not later than a time, specified in the order for the purpose of identifying those parts of their evidence that are in issue in the proceedings.

“(2) At the conference, the experts may prepare a joint statement setting out those parts of their evidence on which they agree, and those parts on which they disagree.

“(3) A conference under this rule shall be without prejudice to the rights of any party in relation to adducing expert evidence.”.

Schedule 1

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

(a) by omitting from Form 12 all words from and including “If you fail” to and including “your absence” and substituting:

“If you wish to defend this application, you should complete the notice by respondent sec out at the end of the application, detach the notice and deliver or send it to the Registrar at the address set out in the notice to reach the Registrar before the day stated above as the day fixed tor the hearing.

If you fail to appear to answer this application an order may be made in your absence.”;

(b) by omitting from Form 12 “*Omit if not applicable” and substituting:

“*Omit if not applicable.

AFFIDAVIT

1. (full name, address and occupation)* make oath and say/* affirm;

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

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

* SWORN/*AFFIRMED by the applicant

at )

on 19 ) …………………………………….

Before me;(Signature of applicant)

……………………………………

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

* Omit if not applicable.

……………………………………………………………………………………………………………

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 I am the respondent, give notice that 1 intend to defend those proceedings.

Dated 19 .

……………………………………….

(Signature of respondent)”.

 

NOTES

1. Notified in the Commonwealth of Australia Gazette on 31 July 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 Statutory Rules 1989 Nos. 49, 65 and 175.

Printed by Authority by the Commonwealth Government Printer