Family Law Rules (Amendment) (Cth)
Statutory Rules 1988 No. 166 1
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 June 1988.
ALASTAIR NICHOLSON
ALAN J. BARBLETT
J. EDWARD ELLIS
W. S. SIMPSON
J. F. FOGARTY
T. E. LINDENMAYER
H. R. FREDERICO
E. R. BAKER
P. E. NYGH
I. W. P. McCALL
R. C. WOOD
T. McGOVERN
B. M. HOGAN
W. G. DOVEY
J. T. GUN
GEOFFREY I. WALSH
ADRIAN SMITHERS
ADRIAN COOK
G. YUILL
R. J. BULLEY
W. B. TREYVAUD
G. E. LAMBERT
EDWARD BUTLER
PETER B. HASE
JOHN ELLIOTT
RICHARD W. GEE
D. BULBECK
N. J. BUCKLEY
RODNEY N. PURVIS
W. ROURKE
(S.R. 157/88)—Cat. No. 14/24.6.1988
H. J. BURTON
J. V. KAY
G. R. MULLANE
D. F. CONNOR
G. E. FERRIER
D. R. ANDERSON
A. GRAHAM
ALWYNNE ROWLANDS
H. W. OLNEY
Judges of the Family
Court of Australia
W. JOHNSTON
Principal Registrar,
Family Court of Australia
ALAN J. BARBLETT
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
“ ‘assured service’ means service in accordance with paragraph 5 (1) (a) or (c) of Order 18;
‘Judicial Registrar’ means a Judicial Registrar appointed under section 26a of the Act;”.
“8. (1) This rule applies to any proceedings relating to a matrimonial cause other than proceedings:
(a) that are contested; and
(b) in which the order sought is a final order in relation to the matrimonial cause to which the proceedings relate.
“(2) A Judge or magistrate may exercise in chambers any jurisdiction conferred on him or her under the Act and any sitting held in chambers shall be as valid and effectual as if it were held in open court.
“(3) A Judge or magistrate may adjourn the hearing of proceedings from chambers to open court and from open court to chambers.
“9. The provisions of these Rules shall, in so far as appropriate, apply to proceedings heard in chambers in the same manner as to proceedings heard in open court and an order made in chambers shall have the same effect as an order made in open court.
“10. (1) There shall be kept by the Registrar a record containing the following particulars in relation to each hearing of proceedings in chambers:
(a) the name of the case;
(b) a description of the proceedings;
(c) the date of the hearing;
(d) a minute of decisions made.
“(2) The record kept by the Registrar for the purposes of subrule (1) shall be evidence of the questions or matters in issue and the decisions made at a hearing in chambers.”.
(a) by omitting “in a court of summary jurisdiction”;
(b) by omitting “to a marriage, or a child,” and substituting “or a child, or in respect of a contribution referred to in section 66x of the Act,”.
“1. (1) Subject to subrule (2), an applicant or cross-applicant who is a party to proceedings may:
(a) at any time before the day fixed for the final hearing of the application or cross-application—without the leave of the court; or
(b) at any later time—with the leave of the court;
discontinue the application or cross-application wholly or in part by filing a notice of discontinuance in accordance with Form 15a.
“(2) Where:
(a) proceedings have been instituted with respect to the property of the parties to a marriage or either of them; and
(b) one of those parties dies before the proceedings are determined;
the proceedings shall not be discontinued under this rule except with the leave of the court.
“(3) As soon as practicable after filing a notice of discontinuance, the party filing the notice shall serve a copy of the notice on each other party to the proceedings.
“(4) Discontinuance of an application or cross-application by a party to proceedings shall not be taken to preclude any other party to the proceedings from using the application or cross-application in cross-examination or in evidence.
“(5) An application or cross-application that is discontinued shall be marked by the Registrar accordingly and shall, unless the court otherwise orders, remain on the court file.
“2. Where a party to proceedings files a notice of discontinuance, the court may make an order for costs against that party in respect of costs incurred by any other party to the proceedings as the result of the discontinuance.
“3. Where:
(a) the court makes an order for costs under rule 2 against a party in respect of costs incurred by another party; and
(b) the party later institutes further proceedings against that other party relating to the same, or substantially the same, subject-matter before the costs are paid;
the court may stay the further proceedings until the costs are paid.”.
“(b) where the child is a child to whom subsection 60h (1) of the Act applies:
(i) to the person having the custody, guardianship or care and control or supervision of the child; and
(ii) to such other person as the court may direct.”.
(a) the person having the custody, guardianship or care and control or supervision of the child; and
(b) such other person as the court may direct.”.
“(5) Where a sealed copy of an application instituting proceedings for principal relief is served on a respondent in Australia, there shall be furnished to the respondent, with that copy, a copy of whichever of the documents setting out the matters required by section 17 of the Act is applicable in relation to the application.”.
“4a. (1) Where, in relation to proceedings, a Family Court makes an order under subsection 46 (3a) of the Act:
(a) the Registrar of that court shall transmit the order to the Registrar of the court of summary jurisdiction from which the proceedings are to be removed under the order; and
(b) the Registrar of the court of summary jurisdiction shall forward to the Registry of the Family Court specified in the order the court papers in the proceedings.
“(2) Upon the forwarding of the court papers, the Family Court shall proceed as if the proceedings had been instituted in that court and may have regard to any evidence given before the removal of the proceedings.”.
(a) by omitting from subrule (1) “In any proceedings” and substituting “Subject to subrule (1a), in any proceedings”;
(b) by inserting in subrule (1) “or persons” after “a person”;
(c) by inserting in subrule (1) “or persons” after “the person” (wherever occurring);
(d) by inserting after subrule (1) the following subrule:
“(1a) A subpoena for the purposes of paragraph (1) (b) or (c) shall not name 2 or more persons unless, in relation to all those persons, the same books, documents or things are specified.”.
“2. On the hearing of an application, evidence in chief shall be given by affidavit unless the court otherwise orders.”.
(a) by omitting from paragraph (3) (b) “the Family Court of Australia” and substituting “a Family Court”;
(b) by inserting after subrule (3) the following subrule:
“(3a) For the purposes of subrule (3), consents to the making of a particular order in proceedings shall be taken to be filed by each of the parties to the proceedings where a consent setting out the proposed order is filed by one of the parties to the proceedings and bears the signed endorsement of each of the other parties.”.
“1. In this Order:
‘Cross-vesting Act’ means the
‘cross-vesting law’ means any law of the Commonwealth or a State or Territory relating to the cross-vesting of jurisdiction, and includes the Cross-vesting Act;
‘special federal matter’ has the same meaning as in the Cross-vesting Act.
“2. The provisions of this Order prevail over any other provision of these Rules to the extent of any inconsistency.
“3. (1) Proceedings for the transfer of proceedings under the Cross-vesting Act shall be commenced by way of application.
“(2) The heading to an application shall refer to the Cross-vesting Act.
“(3) An application shall be heard and determined by a Judge.
“(4) If an application is made by the Attorney-General of the Commonwealth or of a State or Territory, the Attorney-General does not, by reason of the application, become a party to the proceedings in respect of which the application is made.
“4. (1) Where a party applies to a Family Court in reliance on a cross-vesting law:
(a) any affidavit accompanying the application or accompanying any subsequent pleading shall:
(i) specify any relevant provision of the cross-vesting law on which the party relies; and
(ii) include a statement of the claim in relation to which, and set out the grounds on which, the party relies on that law; and
(b) the party shall seek a determination and if necessary directions from the court as soon as practicable as to whether the proceedings should be transferred under the Cross-vesting Act.
“(2) A pleading that raises a question involving a special federal matter shall identify that matter as a special federal matter and state the grounds on which it is a special federal matter.
“5. (1) The Registrar shall send to the Registrar of a court to which proceedings are transferred under the Cross-vesting Act all documents filed and orders made in the proceedings before the transfer.
“(2) The Registrar shall file documents received in respect of proceedings transferred to a Family Court under a cross-vesting law so that the proceedings are identified by year of filing and number.
“(3) On the transfer of proceedings to a Family Court under a cross-vesting law, the applicant shall apply to the court for directions as soon as practicable.
“6. (1) If, in proceedings before a Family Court, the law of a State or Territory may be applied under paragraph 11 (1) (b) of the Cross-vesting Act in determining a right of action arising under a written law of that State or Territory, the pleading shall identify the right of action and the written law under which it arises.
“(2) If, in proceedings before a Family Court, a party seeks to have rules of evidence and procedure other than those of the relevant Family Court applied under paragraph 11 (1) (c) of the Cross-vesting Act in dealing with a matter for determination in the proceedings, the pleading shall specify the rules the party seeks to have applied.
“(3) If, in proceedings before a Family Court, a party intends to submit that the law of a State or Territory should be applied under paragraph 11 (1) (b) of the Cross-vesting Act, or that rules of evidence and procedure other than those of the relevant Family Court should be applied under paragraph 11 (1) (c) of the Cross-vesting Act:
(a) the party shall seek directions on the matter before the proceedings are set down for hearing;
(b) the court may at any time give directions in relation to the matter of its own motion; and
(c) the court may at any time vary or revoke a direction given by the court in relation to the matter.”.
(a) in the Family Court of Australia—by a Judge or a Judicial Registrar;
(b) in a Family Court, or in the Supreme Court, of a State or Territory—by a Judge;
(c) in a court of summary jurisdiction—by a Magistrate.”.
DELEGATION OF POWERS TO REGISTRARS AND JUDICIAL REGISTRARS
“1. In this Order, unless the contrary intention appears:
‘gross value’, in relation to property, means the value of the property disregarding any mortgage, lien, charge or other security over the property;
‘order’, in relation to an exercise of power by a Judicial Registrar or a Registrar, includes a decree;
‘Registrar’ means the Principal Registrar, a Registrar or a Deputy Registrar of the Family Court of Australia;
‘the Court’ means the Family Court of Australia.
“2. (1) The following powers of the Court are delegated to each Registrar:
(a) the power to dispense with the service of any process;
(b) the power to make orders in relation to service and substituted service;
(c) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings or of any other person;
(d) the power to direct a party to proceedings to answer particular questions;
(e) the power to direct the parties to proceedings under the Act to attend conferences conducted by court counsellors or welfare officers;
(f) the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders;
(g) the power to make orders in relation to the custody, guardianship or welfare of, or access to, a child in undefended proceedings;
(h) the power to make an order for the purposes of subsection 44 (1c) of the Act;
(i) the power to make a decree of dissolution of marriage in undefended proceedings;
(j) the power to make an order under subsection 55 (2) or section 55a of the Act in relation to a decree of dissolution of marriage;
(k) the power, in proceedings under the Act, to make:
(i) an order under section 66k, 66za, subsection 66zb (1) or section 77 of the Act;
(ii) an order for the payment of maintenance pending the disposal of the proceedings; or
(iii) an order to discharge, suspend, revive or vary an order for the payment of maintenance pending the disposal of the proceedings;
(l) the power to make an order in undefended proceedings under section 66n, subsection 66z (1) or section 74 or 83 of the Act;
(m) the power to make an order approving of a maintenance agreement under section 87 of the Act;
(n) the power to make an order the terms of which have been agreed upon by all the parties to proceedings;
(o) the power to make an order adjourning the hearing of proceedings;
(p) the power under section 117 of the Act to make an order as to costs;
(q) the power to make orders transferring proceedings or in respect of the removal of proceedings;
(r) the power to make an order exempting a party to proceedings under the Act from compliance with a provision of the Regulations or these Rules.
“(2) The powers of the Court under the following Orders and rules of these Rules are delegated to each Registrar:
(a) Order 3, subrule 1 (2);
(b) Order 4, rules 2 and 3;
(c) Order 8, rules 1 and 2;
(d) Order 11, subrules 1 (2) and 2 (2), paragraph 2 (3) (c) and subrule 2 (4);
(e) Order 11a, rules 1 and 2;
(f) Order 13, rule 1 and paragraphs (c), (d), (e), (g), (h) and (i) of rule 2;
(g) Order 14, rule 4, subparagraph 5 (b) (iv) and subrule 6 (1);
(h) Order 15, rules 8, 9, 10 and 11 and subrule 2 (4);
(i) Order 18, rules 1, 11, and 18 and subrule 3 (2);
(j) Order 19, rules 3, 6, and 7 and subrules 2 (1) and 5 (2);
(k) Order 22, subrules 1 (2), 2 (5), 2 (6) and 3 (1);
(l) Order 23, rules 3, 4, 8, 13, 14, 18 and 19 and subrules 5 (5), 5 (6) and 7 (1);
(m) Order 30, rules 1, 2, 3 and 5 and subrules 7 (1), 7 (2) and 7 (5);
(n) Order 38, rules 13, 14, 15, 16 and 20 and subrules 3 (1) and 29 (1);
(o) Order 40, rule 2.
“3. The following powers of the Court are delegated to each Judicial Registrar:
(a) the powers of the Court delegated to each Registrar in accordance with rule 2 of this. Order;
(b) the power to make an order until further order for the guardianship, custody or welfare of a child, or for access to a child;
(c) the power to make any order relating to maintenance;
(d) the power to make an order in any undefended proceedings;
(e) the power to grant leave under subsection 44 (3) of the Act in relation to the institution of proceedings;
(f) the power to issue a warrant under subsection 64 (9) or (10) of the Act or an order to furnish information under subsection 64 (11a) or (11b) of the Act;
(g) the power to make an order under section 66v or 66w of the Act;
(h) the power to make an order under subsection 66z (1) or 66ze (1) of the Act;
(i) the power to make an order or requirement under subsection 70 (6) or 114 (4) of the Act;
(j) the power to make an order or grant an injunction under subsection 70c (1) or 114 (1) of the Act or to grant an injunction under subsection 70c (2) or 114 (3) of the Act;
(k) the power to make an order under section 70d or 114aa of the Act;
(l) the power to make a declaration and orders under section 78 of the Act, or an order under section 79 of the Act:
(i) in a case where, in relation to the exercise of the power, the parties consent to the hearing and determination of the matter by a Judicial Registrar—irrespective of the gross value of the property; or
(ii) in any other case in relation to the exercise of the power—in respect of property having a gross value not exceeding $100,000;
(m) the power under subsection 79a (1) of the Act to vary or set aside an order, being an order made upon a contested hearing before a Judicial Registrar, and to make another order as referred to in that subsection under section 79 of the Act;
(n) the powers under section 84 of the Act;
(o) the power to make an order under section 85 of the Act;
(p) the power to set aside a maintenance agreement under subsection 86 (3) of the Act;
(q) the power to make an order revoking the approval of a maintenance agreement under subsection 87 (8) of the Act:
(i) in a case where, in relation to the exercise of the power, the parties consent to the hearing and determination of the matter by a Judicial Registrar—irrespective of the gross value of the property; or
(ii) in any other case in relation to the exercise of the power—in respect of property having a gross value not exceeding $100,000;
(r) the power to make an order under subsection 87 (11) of the Act;
(s) the power to make an order under subsection 92 (1) of the
Marriage Act 1961 ;(t) the power to make an order under subsection 44 (2) or (3) or section 92 of the
Child Support Act 1988 ;(u) the powers of the Court under regulations 4, 5 and 6, subregulations 28a (6), (7) and (8), regulation 29, subregulations 31 (1), 32 (1) and 34 (1), regulation 38, subregulations 39 (3) and 50 (4), regulation 51 and subregulation 52 (1) of the Family Law Regulations;
(v) the powers of the Court under regulations 15, 16 and 17 and subregulation 24 (6) of the Family Law (Child Abduction Convention) Regulations;
(w) the power under subrule 5 (2) of Order 25 of these Rules in relation to a report;
(x) any power under Order 33 of these Rules to make an order in relation to enforcement;
(y) the power to make an order referred to in rule 1 of Order 34 of these Rules in relation to a contempt in the face of the Court alleged, or appearing to a Judicial Registrar to have occurred, in proceedings before that Judicial Registrar.
“4. In the exercise of a power of the Court or in the conduct of a conference or inquiry under these Rules, a Judicial Registrar has the same protection and immunity as a Judge or Magistrate.
“5. (1) For the purposes of subsection 26c (1) of the Act, the following time is prescribed in relation to an application to the Court to review the exercise of a power by a Judicial Registrar, namely:
(a) in the case of a power referred to in paragraph (a) of rule 3 of this Order—a time 7 days after the day on which the Judicial Registrar exercises the power; or
(b) in the case of a power referred to in any of paragraphs (b) to (y) (inclusive) of rule 3 of this Order—a time one month after the day on which the Judicial Registrar exercises the power.
“(2) For the purposes of subsection 37a (9) of the Act, the following time is prescribed in relation to an application to the Court to review the exercise by a Registrar of any of the powers of the Court pursuant to a delegation under rule 2 of this Order, namely, a time 7 days after the day on which the Registrar exercises the power.
“6. (1) A time prescribed by rule 5 of this Order in relation to a Judicial Registrar may be extended in any proceedings:
(a) by the Court or a Judicial Registrar on such terms as the Court or Judicial Registrar thinks fit; or
(b) by the consent of all the parties to those proceedings;
whether or not that time has expired.
“(2) The time prescribed by rule 5 of this Order in relation to a Registrar may be extended in any proceedings:
(a) by the Court or a Registrar upon such terms as the Court or Registrar thinks fit; or
(b) by the consent of all the parties to those proceedings;
whether or not that time has expired.
“(3) Where a time prescribed by rule 5 of this Order is extended by the consent of all the parties to the relevant proceedings, the consent may be endorsed on the cover sheet of the application filed in those proceedings.”.
“7. (1) An application for a review of an exercise of power by a Judicial Registrar or a Registrar shall be in accordance with Form 44.
“(2) Not later than 7 days after the filing of an application, the applicant shall provide to each other party to the relevant proceedings, by assured service, a sealed copy of the application.
“(3) Subject to this rule, an application for a review of an exercise of power by a Judicial Registrar or a Registrar shall not operate as a stay of the order under review.
“(4) A court reviewing an
exercise of power by a Judicial Registrar or a Registrar shall proceed by a way
of a hearing
“(5) A review of an exercise of power referred to in subrule (3) shall be taken, for the purposes of section 55 of the Act, to be an appeal within the meaning of that section.
“(6) In this rule, a reference to an exercise of power by a Registrar includes a reference to a decision made in relation to an appeal by the appeal registrar within the meaning of Order 32.”.
(a) by omitting the heading to Form 12 and substituting the following heading:
“APPLICATION FOR ORDER RELATING TO
MAINTENANCE OR CONTRIBUTION
(SUMMARY PROCEDURE)”;
(b) by inserting after Form 15 the following form:
FORM 15a Order 11a, rule 1
NOTICE OF DISCONTINUANCE
(
(
2. The *application/ *cross application is discontinued *wholly/ *in part.
*3. The following part of the *application/*cross-application is discontinued:
(
...……………………………
Solicitor for party/party
(c) by omitting Form 44 and substituting the following form:
“FORM 44 Order 36a, rule 7
APPLICATION FOR
REVIEW OF EXERCISE OF POWER BY *JUDICIAL
REGISTRAR/ *REGISTRAR
(
DATE OF FILING: | . .19 | ] |
THIS REVIEW IS SOUGHT BY: | *husband | |
*wife | ||
*other person | ||
APPLICANT’S ADDRESS FOR SERVICE: | [ | ] |
[ | ] | |
[ | ] | |
postcode | [ | ] |
NOTICE OF HEARING
This application to review HAS BEEN SET DOWN FOR HEARING by the Court at on 19 at *am/*pm.
.........................
Registrar
APPLICATION
(
* a
Judicial Registar has exercised a power delegated under subsection 26b (1) of the
(
applies to the Court to review the exercise of the power.
* a
Registrar has exercised a power delegated under subsection 37a (1) of the
(
applies to the Court to review the exercise of the power.
The applicant seeks the following orders:
(1)
(2)
Dated 19 .
……………........................
Solicitor for the
applicant /applicant
“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 $57.00 per hour”.
SCHEDULE Rule 27
MINOR AMENDMENTS
1. The following provisions of the Family Law Rules are amended by omitting “Court” and substituting “court”:
Rules 1, 2 and 3 of Order 8.
2. The following provisions of the Family Law Rules are amended by omitting “or Magistrate” and substituting “, Judicial Registrar or Magistrate”:
Subrule 5 (1) of Order 23; subrule 5 (2) of Order 23; rule 8 of Order 28.
1. Notified in the
2. Statutory Rules 1984 No. 425 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1988 No. 9 andsee also Statutory Rules 1988 Nos. 9, 15, 16 and 46.
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