Family Law Rules (Amendment) (Cth)

Statutory Rules 1989 No. 651

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 6 April 1989.

ALASTAIR NICHOLSON

ALAN J. BARBLETT

J. EDWARD ELLIS

W. S. SIMPSON

J. F. FOGARTY

K. A. MURRAY

T. E. LINDENMAYER

H. R. FREDERICO

E. R. BAKER

P. E. NYGH

I. W. P. McCALL

N. J. BUCKLEY

T. McGOVERN

W. G. DOVEY

GRAHAM R. BELL

JOSEPHINE M. MAXWELL

J. T. GUN

ADRIAN SMITHERS

R. J. BULLEY

W. B. TREYVAUD

G. E. LAMBERT

P. F. UNDERHILL

PETER B. HASE

RICHARD W. GEE

D. BULBECK

M. A. RENAUD

J. S. PURDY

RODNEY N. PURVIS

JOHN R. WILCZEK

H. J. BURTON

J. V. KAY

(S.R. 244/88)- Cat. No 4/10.4.1989

G. R. MULLANE

D. F. CONNOR

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

ALAN J. BARBLETT 

I. W. P. McCALL

D. F. CONNOR

D. R. ANDERSON

 

Judges of the Family

Court of Western

Australia

J. D. EDWARDS

Registrar,

Family Court of Western Australia

Filing of marriage certificate, birth certificate or other document with application

1. Rule 5 of Order 7 of the Family Law Rules is amended:

(a) by inserting after subrule (1a) the following subrule:

"(1b) Subject to subrules (3) and (4), where an application is filed seeking orders in relation to an ex-nuptial child, the applicant shall, unless unable to do so, file with the application the birth certificate of the child.";

(b) by omitting from subrule (2) "sub-rule (1)" and substituting "subrule (1) or (1b)";

(c) by omitting from subrule (3) "sub-rule (1)" and substituting "subrule (1) or (1b)";

(d) by omitting from subrule (4) "Sub-rule (1)" and substituting "Subrule (1) or (1b), as the case may be,";

(e) by omitting from subrule (5) "sub-rule (1)" and substituting "subrule (1) or (1b)";

(f) by omitting subrule (7) and substituting the following subrule:

"(7) In this rule:

'marriage certificate' means the original or a certified copy of a certificate, entry or record of a marriage;

'birth certificate' means the original or a certified copy of a certificate, entry or record of the birth of a child.".

Applications other than for principal relief

2. Rule 9 of Order 7 of the Family Law Rules is amended by omitting subrule (4) and substituting the following subrule:

"(4) Except:

(a) as the court or a Registrar otherwise orders; or

(b) where the applicant seeks only the making of orders the terms of which have been agreed upon by all the parties to the proceedings;

an application to which this rule applies shall not be filed unless there is filed with the application an affidavit in accordance with Order 16.".

Registration of agreement under section 66zc or 86 of the Act

3. Rule 1 of Order 26 of the Family Law Rules is amended:

(a) by omitting from subrule (2) "party filing the agreement" and substituting "Registrar";

(b) by omitting from subrule (2) "other party" and substituting "party".

Transcript

4. Rule 13 of Order 32 of the Family Law Rules is amended by omitting "appeal registrar" and substituting "appellant or, if so directed by the appeal registrar, the cross-appellant".

5. After rule 16 of Order 32 of the Family Law Rules the following rule is inserted:

Further evidence on appeal

"16a. (1) For the purposes of subsection 93A (2) of the Act, an application to the Family Court by a party to an appeal to receive further evidence on a question of fact shall, unless a Full Court or a Judge otherwise orders:

(a) be filed in the principal registry not later than 21 days before the day fixed for the hearing of the appeal;

(b) be accompanied by an affidavit setting out:

(i) the grounds for the application;

(ii) any evidence necessary to establish those grounds; and

(iii) a statement identifying the further evidence the party applies to have received.

"(2) The party who files an application to the court to receive further evidence shall, not later than the time referred to in paragraph (1) (a), send 3 copies of the application and of the accompanying affidavit to each other party to the appeal.

"(3) Unless a Full Court or a Judge otherwise orders, a party to an appeal on whom copies of an application and affidavit have been served in accordance with subrule (2) may, not later than 14 days before the day fixed for the hearing of the appeal, file in the principal registry an affidavit relating to any matter referred to in the application or in that first-mentioned affidavit.".

Delegation of powers to Registrars

6. Rule 2 of Order 36a of the Family Law Rules is amended by inserting in paragraph (1) (1) "66f or" after "under section".

Costs for work done

7. Rule 3 of Order 38 of the Family Law Rules is amended:

(a) by inserting "Part I in" after "costs in" in paragraph (2) (a);

(b) by omitting from paragraph (2) (b) "Schedule" and substituting "Part".

8. Rule 8 of Order 38 of the Family Law Rules is repealed and the following rules are substituted:

Solicitor and client agreement as to costs

"8. (1) A solicitor acting for a party to proceedings may enter into an agreement in relation to the costs of the proceedings with:

(a) a client of that solicitor who is such a party;

(b) any other client of that solicitor in relation to those costs; or

(c) any clients referred to in paragraphs (a) and (b).

"(2) The agreement shall be in writing and shall be signed by each person who agrees to be bound by the agreement.

"(3) Subject to rule 8a of this Order:

(a) the solicitor may charge in accordance with the agreement;

(b) the solicitor's bill of costs for the amount due under the agreement may be taxed in accordance with the agreement in any court of competent jurisdiction; and

(c) the agreement may be enforced or set aside in the same manner and on the same grounds as any other agreement.

"(4) Before entering into the agreement, the solicitor shall:

(a) provide the client with a copy of a pamphlet summarising the main effects of Order 38, prepared by the Principal Registrar; and

(b) advise the client of the availability of independent legal advice.

Solicitor and client agreement—validity and enforcement

"8a. (1) A solicitor or client who is a party to an agreement under rule 8 of this Order may apply to the Family Court for the making of an order under this rule.

"(2) On an application under this rule, a Judge may, by order:

(a) determine any question as to the validity or effect of the agreement;

(b) confirm, vary or set aside the agreement; and

(c) make any other order the Judge considers necessary or appropriate.

"(3) If the Judge makes an order confirming or varying the agreement, costs may be taxed in accordance with the agreement as so confirmed or varied, and payment of any amount found to be due on taxation may be enforced, in any court of competent jurisdiction.

"(4) If the Judge makes an order setting aside the agreement, the costs of the relevant proceedings shall be taxed in accordance with these Rules, and payment of any amount found to be due on taxation may be enforced, as if the agreement had never been made.".

Party and party costs—counsel's fees

9. Rule 13 of Order 38 of the Family Law Rules is amended:

(a) by omitting from paragraph (b) "fair and reasonable" and substituting "in accordance with these Rules";

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

"(2) On the taxation of costs in respect of proceedings, counsel's fees shall not include a reading fee except in relation to a case of great complexity or with very voluminous material.

"(3) Subject to subrule (4), there shall not be allowed in respect of counsel's fees on the taxation of costs in respect of proceedings an amount that exceeds the amount calculated in accordance with Schedule 2 or the amount in accordance with any relevant provision of this Order, as the case requires.

"(4) In respect of proceedings before a court of summary jurisdiction, counsel's fees shall not be allowed on the taxation of costs in respect of a matter referred to in Part II in Schedule 2, other than a matter referred to in item 13 or 14 in that Part.

"(5) Where, in respect of the appearance of counsel at the hearing of proceedings on a day, there is allowed on taxation a daily fee in accordance with Schedule 2, no additional amount shall be allowed by way of party and party costs in respect of work done by counsel in relation to those proceedings on that day.".

Taxation hearing

10. Rule 24 of Order 38 of the Family Law Rules is amended by omitting from subrule (1) "such costs be paid by a party" and substituting "costs be paid".

Daily fees

11. Rule 26 of Order 38 of the Family Law Rules is amended:

(a) by omitting from subrule (1) "refresher fees" and substituting "a fee in accordance with Schedule 2";

(b) by omitting from subrule (2) "refreshers" and substituting "fees in accordance with Schedule 2".

Absence of counsel

12. Rule 27 of Order 38 of the Family Law Rules is amended by omitting "on the brief".

Taxing officer's discretion

13. Rule 28 of Order 38 of the Family Law Rules is amended by inserting in paragraph (2) (e) "and counsel" after "the solicitor".

Schedule 1

14. Schedule 1 to the Family Law Rules is amended by omitting from each of Forms 36, 37 and 38:

"TO: (Full name)

of (address)"

and substituting:

"TO: (full name of witness/es)

of (address/es)".

Schedule 2

15. Schedule 2 to the Family Law Rules is repealed and the following Schedule substituted.

SCHEDULE 2 Order 38, rules 3 and 13

SCALE OF COSTS (INCLUDING COUNSEL'S FEES)

Item
No	Matter in respect of which charge is made	Charge
PART I COSTS FOR WORK DONE	$
1	Drawing documents
(a) court documents...................................................	21.90 per page
(b) other documents..................................................	7.60 per folio
2	Engrossing documents
(a) court documents...................................................	7.50 per page
(b) other documents..................................................	2.80 per folio
3	Drafting and typing
(a) short letter (up to one folio in length)....................	10.60
(b) circular letter (up to one folio in length)................	4.40
(c) and other letter.....................................................	8.90 per folio

SCHEDULE 2—continued

Item
No	Matter in respect of which charge is made	Charge
$
4	Telephone attendance
(a) continuing up to 5 minutes………………………………….	7.60
(b) continuing for more than 5 minutes………………………..	At the rate of $92.00 per hour
5	Perusal of documents
(a) for each page……………………………………………….	10.40
(b) fewer than 30 folios………………………………………	3.60 per folio
(c) 30 or more folios…………………………………………..	An amount at the discretion of the taxing officer
6	Scanning of documents (where perusal is not necessary)
(a) fewer than 10 pages………………………………………	4.20 per page
(b) 10 or more pages…………………………………………	An amount at the discretion of the taxing officer
7	Preparation of the appeal papers in a solicitors office…………..	An amountat the discretion of the taxing officer
8	Photographic reproduction, carbon or other copy of a document…	0.91 per page
9	Time reasonably spent by a solicitor on work requiring the skill of a solicitor, other than work referred to in item 1, 2, 3, 4, 5, 6, 7, 8 or 10…………………………………………………………...	At the rate of $92.00 per hour
10	Time reasonably spent by a solicitor or by a clerk of a solicitor on work other than work referred to in item 1, 2, 3, 4, 5, 6, 7, 8 or 9……………………………………………………………….	At the rate of $60.00 per hour
PART II—COUNSEL’S FEES
11	Chamber work including preparing or settling am necessary document, opinion, advice or evidence and any reading fee (if allowed)…………………………………………………………….	100-150 per hour or part of an hour
12	Conferences (including court appointed conferences), where necessary…………………………………………………………..	100-150 per hour or part of an hour
13	Short appearances (return day interlocutory application, etc.)……	250-450
14	Short defended list hearings (one day)……………………………	350-750
15	General defended list hearings……………………………………	750-1,100 per day
16	Reserved judgment……………………………………………….	100-150 per hour or part of an hour

Application

16. (1)The amendments of rule 13 of Order 38 of the Family Law Rules effected by rule 9 apply in relation to proceedings commenced on or after 17 April 1989 and, notwithstanding those amendments, the provisions of that rule of that Order as in force immediately before that day continue to apply in relation to proceedings commenced before that day.

(2) Part I in Schedule 2 to the Family Law Rules as substituted by rule 15 applies in relation to work done and services performed on or after 17 April 1989 and, notwithstanding the repeal of Schedule 2 by that rule, Schedule 2 as in force immediately before that repeal continues to apply in relation to work done and services performed on or after 3 April 1989 and before 17 April 1989.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 14 April 1989.

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.

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