Family Law Rules (Amendment) (Cth)

  

Statutory Rules 1991 No. 4751

Family Law Rules2 (Amendment)

WE, Judges within the meaning of section 123 of the Family Law Act 1975, make the following Rules of Court under that Act.

Dated 13 December 1991.

ALASTAIR NICHOLSON

ALAN J.BARBLETT

J. EDWARD ELLIS

J. F. FOGARTY

K.A. MURRAY

STEVEN STRAUSS

H. R. FREDERICO

P.E.NYGH

B. ROSS-JONES

RODERICK JOSKE

JOSEPHINE M. MAXWELL

J. T. GUN

W. B. TREYVAUD

EDWARD BUTLER

J. S. PURDY

W. ROURKE

H. J. BURTON

J. V. KAY

G. R. MULLANE

MARY JANE M. LAWRIE

A GRAHAM

P. J. MOSS

JOHN COHEN

 

MARY FINN

N.MUSHIN

C. A. MOORE

I. R. COLEMAN

M. A. HANNON

Judges of the Family Court

of Australia

IAN J. LOUGHNAN

Principal Registrar

Family Court of Australia

I. W. P. McCALL

ALAN J. BARBLETT

G. E. FERRIER

MICHAEL H. HOLDEN

Judges of the Family Court

of Western Australia

C. E. MARTIN

Registrar

Family Court of Western Australia

1. Commencement

1.1 These Rules commence on 1 January 1992.

2. Amendment

2.1 The Family Law Rules are amended as set out in these Rules.

3. New Order 25a

3.1 After Order 25, insert:

“ORDER 25A—MEDIATION

“Division 1—Preliminary

Interpretation

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

‘dispute’ has the same meaning as in section 19a of the Act;

‘pending proceedings’ does not include prescribed proceedings;

‘Principal Director of Mediation’ includes the appropriate officer of a State Family Court.

[NOTE: Paragraph 19a (2) (b) of the Family Law Act 1975 provides, among other things, that arrangements for mediation are to be made only if a mediation service is available at the Registry of the court in which the notice is filed.]

Division 2—Voluntary Mediation

Form of notice for the help of a mediator

“2. A notice filed under subsection 19a (1) of the Act may be in accordance with Form 68.

Direction to parties to attend information session

“3. After a notice is filed under subsection 19a (1) of the Act, the Principal Director of Mediation may, in writing, direct the parties to attend an information session.

Interview by an approved mediator

“4. The parties must:

(a) after the parties have attended an information session; or

(b) if directed by the Principal Director of Mediation;

be interviewed as soon as practicable by an approved mediator to determine if the dispute is one which may be mediated.

Matters the approved mediator must take into account

“5. In determining if the dispute may be mediated, the approved mediator must take into account:

(a) the degree of equality (or otherwise) in bargaining power of the parties; and

(b) the risk of child abuse (if any); and

(c) the risk of family violence (if any); and

(d) the emotional and psychological state of the parties; and

(e) whether one of the parties may be using the mediation option to gain delay or some other advantage; and

(f) any other matter relevant to the proposed mediation.

Ifdispute may not be mediated

“6. (1) If the approved mediator decides that the dispute is not one that may be mediated, the approved mediator must:

(a) immediately advise the Principal Director of Mediation of his or her decision; and

(b) as soon as practicable advise the parties in writing of:

(i) his or her decision; and

(ii) the other alternative dispute resolution procedures available.

“(2) The Principal Director of Mediation may of his or her own motion review a decision by an approved mediator under subrule (1).

“(3) The Principal Director of Mediation must review a decision made by an approved mediator under subrule (1) if one of the parties requests, either orally or in writing, that the decision be reviewed.

If dispute may be mediated

“7. (1) If the approved mediator decides that the dispute is one that may be mediated, the approved mediator must advise the Principal Director of Mediation of his or her decision.

“(2) After being advised of the approved mediator’s decision, the Principal Director of Mediation must, as soon as practicable:

(a) appoint an approved mediator or approved mediators to mediate the dispute; and

(b) fix the date and time for the first conference.

“Division 3—Mediation ordered by the court

Application for an order under section 19b of the Act

“8. If there are pending proceedings, an application for an order under section 19b of the Act referring any or all of the matters in dispute for mediation may be made:

(a) in accordance with Form 8; or

(b) orally on the return day of any other application.

Iforder under section 19b of the Act is made

“9. Subject to any direction given by the court, if the court makes an order under section 19b of the Act:

(a) rule 7 applies as if the dispute is one that may be mediated; and

(b) the proceedings must be adjourned to a date which must be:

(i) not more than 3 months after the date of the order; or

(ii) another date fixed by the court.

Division 4—General

Conduct of mediation conferences

“10. (1) A mediation conference must be conducted:

(a) as a decision making process in which the approved mediator assists the parties by facilitating discussion between them so that they may:

(i) communicate with each other regarding the matters in dispute; and

(ii) find satisfactory solutions which are fair to each of the parties and (if relevant) the children; and

(iii) reach agreement on matters in dispute; and

(b) in accordance with any general directions given by the Principal Director of Mediation.

“(2) An approved mediator may at any time in the course of the mediation direct any of the parties to prepare or produce any documents that the mediator considers necessary or appropriate.

Parties may be attended by legal representatives

“11. A party who attends a mediation conference may be accompanied by 1 or more legal representatives.

Mediator to advise parties to seek legal advice

“12. At:

(a) the commencement of mediation; and

(b) if the mediator considers it appropriate—any other time during the mediation; and

(b) the conclusion of mediation and before any agreement becomes legally binding;

the mediator must advise the parties that they should seek legal advice as to their rights, duties and obligations in respect of the dispute and the mediation.

If a party does not attend a mediation conference

“13. If a party does not attend a mediation conference, the approved mediator, after considering any reasons for non-attendance given by or on behalf of the non-attending party, must either:

(a) appoint a date and time for a further conference; or

(b) terminate the mediation and as soon as practicable notify the parties in writing of the other alternative dispute resolution procedures available.

If the mediator considers that mediation should not proceed

“14. If the approved mediator considers that a mediation should not proceed, the mediator may, subject to any order of the court under subsection 19b (2):

(a) adjourn the mediation; or

(b) refer the parties, or any one or more of them, for counselling under subsection 62 (1) of the Act; or

(c) give directions to the parties that may assist in a later continuation of the mediation; or

(d) terminate the mediation.

Completion of mediation

“15. If:

(a) the approved mediator considers that the mediation is complete; or

(b) one of the parties:

(i) does not wish to continue the mediation; or

(ii) files a notice in the court that the mediation of the matter has ended;

the approved mediator must immediately report the fact to the Principal Director of Mediation.

Action after completion of mediation

“16. (1) If:

(a) the mediation was under section 19a of the Act; and

(b) a report is made under rule 15; and

(c) all of the matters in dispute have been resolved;

the Principal Director of Mediation must advise the Registrar of the filing registry in writing that the matters in dispute have been resolved.

“(2) If:

(a) the mediation was under section 19a of the Act; and

(b) a report is made under rule 15; and

(c) all of the matters in dispute have not been resolved; the Principal Director of Mediation must:

(d) advise the parties in writing of other alternative dispute resolution procedures available to the parties; and

(e) advise the Registrar of the filing registry in writing that some or all of the matters in dispute have not been resolved.

“(3) If:

(a) the mediation was commenced under an order made under section 19b of the Act; and

(b) a report is made under rule 15; and

(c) all of the matters in dispute have been resolved;

the Principal Director of Mediation must advise the Registrar of the filing registry in writing that all of the matters in dispute have been resolved.

“(4) If:

(a) the mediation was commenced under an order made under section 19b of the Act; and

(b) a report is made under rule 15; and

(c) all matters in dispute have not been resolved;

the Principal Director of Mediation:

(d) must advise the Registrar of the filing registry in writing:

(i) of the matters in dispute that have been resolved; and

(ii) of the matters in dispute that have not been resolved; and

(e) may make a recommendation to the Registrar of the filing registry if counselling under subsection 62 (1) of the Act or a conference under Order 24 is desirable.

“(5) The Principal Director of Mediation must send a copy of the advice forwarded to the Registrar of the filing registry under subrule (1), (2), (3) or (4) to each of the parties.

Registrar to arrange directions hearing

“17. On receipt of advice under subrule 16 (3) or (4), the Registrar must as soon as practicable fix a date and time for a directions hearing.

Court may take mediation into account

“18. For the purposes of determining if there are special circumstances under paragraph 79 (9) (b) of the Act, the court may take into account:

(a) whether the dispute has been submitted to mediation under section 19a or 19b of the Act; and

(b) a recommendation (if any) made by the Principal Director of Mediation under paragraph 16 (4) (e).

Party may request Order 24 conference

“19. Despite rule 18, a party to proceedings may apply to the court for an order for a conference under Order 24.

If matters are resolved at mediation

“20. If any or all matters in dispute are resolved at mediation, the approved mediator, in the presence of the parties, must set out the terms of agreement in writing and deliver a copy of the terms to each of the parties.

Advice as to effect of proceedings

“21. (1) The Chief Justice may give directions in relation to documents of the kind referred to in subsection 19j (2) of the Act.

“(2) Before filing an application instituting proceedings (except prescribed proceedings), a solicitor must give the applicant a copy of the document referred to in subsection 19j (2) of the Act.

“(3) In the case of an applicant who personally, and not by a solicitor, files an application instituting proceedings (except prescribed proceedings), an officer of the court must give the applicant a copy of the document referred to in subsection19j (2) of the Act.

“(4) If a sealed copy of an application instituting proceedings (except prescribed proceedings) is served on a respondent in Australia, the respondent must be given with the sealed copy a copy of the document referred to in subsection 19j (2) of the Act.

“(5) A solicitor who gives an applicant a document in accordance with subrule (2) must certify as required in Form 7 or 12, as the case may be, that the document was given to the applicant.

“(6) A person who serves an application on a respondent under subrule (4) must depose to compliance with the subrule in the affidavit evidencing service.”.

4. Schedule 1 (Forms)

4.1 Form 7:

Omit the Declaration by Solicitor, substitute:

“DECLARATION BY SOLICITOR

I, (full name)

state:

1. I am the solicitor for the applicant.

2. In compliance with Order 25, rule 3 and Order 25a, rule 21 of the Family Law Rules, I have given to the applicant documents setting out the legal and possible social effects of the proceedings and the counselling, welfare and mediation facilities available.

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

(Signatare of solicitor)”.

4.2 Form 12:

After the Affidavit, insert:

“DECLARATION BY SOLICITOR

I, (full name)

state:

1. I am the solicitor for the applicant.

2. In compliance with Order 25, rule 3 and Order 25a, rule 21 of the Family Law Rules, I have given to the applicant documents setting out the legal and possible social effects of the proceedings and the counselling, welfare and mediation facilities available.

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

(Signature of solicitor)”.

4.3 Add at the end:

“FORM 68 Order 25A, rule 2

Family Law Act 1975

NOTICE SEEKING MEDIATION

*To the Principal Director of Mediation of the Family Court of Australia,

or

*To the appropriate officer of the Family Court of (name of State) at

*I/*We (Set out, in the format shown below,

the following particulars of each person giving notice)

Surname	[	]
Given names	[	]
Address	[	]
[	]
[	]
postcode	[	]
Telephone number	[	]
Occupation	[	]

give notice that *I/*we seek the assistance of the mediation facilities of the *Family Court of Australia/*Family Court of (name of State). Please invite (set out, in the format shown below, the following particulars of each person to be invited)

Surname	[	]
Given names	[	]
Address	[	]
[	]
[	]
postcode	[	]
Telephone number	[	]
Occupation	[	]

to attend for the mediation.

Dated 19 .

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

(Signature(s))

*Omit if not applicable.

NOTE: Set out the required information within the square brackets, commencing as near as practicable to the left hand bracket.”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 23 December 1991.

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; 1989 Nos. 49, 65, 175, 201, 266 and 331; 1990 Nos. 20, 74, 348 and 474; 1991 Nos. 122 and 414.