Family Law Rules (Amendment) (Cth)
WE, Judges within the meaning of section
123 of the
Dated 7 January 1988.
J. EDWARD ELLIS
H. C. EMERY
R. C. WOOD
W. S. SIMPSON
ALAN J. BARBLETT
J. F. FOGARTY
K. A. MURRAY
T. McGOVERN
B. M. HOGAN
GRAHAM R. BELL
B. ROSS-JONES
T. RODERICK JOSKE
S. STRAUSS
J. GUN
H. R. FREDERICO
GEOFFREY I. WALSH
ADRIAN SMITHERS
ADRIAN COOK
G. J. F. YUILL
W. B. TREYVAUD
G. E. LAMBERT
E. R. BAKER
P. E. NYGH
JOHN ELLIOTT
D. BULBECK
N. J. BUCKLEY
J. S. PURDY
JOHN R. WILCZEK
W. ROURKE
H. J. BURTON
J. V. KAY
____________________________________________________________________________________________________________
(S.R. 283/87)—Cat. No. 6/21.1.1988
MARY JANE LAWRIE
I. W. P. McCALL
G. E. FERRIER
D. R. ANDERSON
A. GRAHAM
Judges of the Family
Court of Australia
W. JOHNSTON
Principal Registrar,
Family Court of Australia
ALAN J. BARBLETT
I. W. P. McCALL
G. E. FERRIER
D. R. ANDERSON
Judges of the Family
Court of Western
Australia
J. D. EDWARDS
Registrar,
Family Court of Western Australia
" 'principal registry' means the principal registry of the Family Court of Australia;".
"(a) if the only pending proceedings in the filing registry between the parties to the application are proceedings for principal relief—in accordance with Form 7; or".
"(5) A conference ordered under subrule (1) for the purposes of subsection 79 (9) of the Act shall be held with a Registrar or Deputy Registrar of the Family Court.".
"ORDER 32
APPEALS
"1. In this Order, unless the contrary intention appears:
'appeal' means an appeal to a Full Court of the Family Court of Australia under section 94 of the Act;
'appeal registrar', in relation to an appeal, means the Registrar at the appeal registry for that appeal;
'appeal registry', in relation to an appeal, means the registry determined under rule 8 to be the registry for that appeal;
'assured service' means service in accordance with paragraph 5 (1) (a) or (c) of Order 18.
"2. (1) An appeal shall be instituted:
(a) by filing in the principal registry an original and 2 copies of a notice of appeal in accordance with Form 42; or
(b) by providing to the principal registry, by means of a facsimile transmission service, a facsimile of a notice of appeal in accordance with Form 42.
"(2) An appeal shall be instituted:
(a) not later than one month after the day on which the decree appealed from was made; or
(b) within such further time as a Judge of a court having jurisdiction under the Act directs.
"(3) A notice of appeal shall:
(a) state whether the appeal is from the whole, or a part, of the decree;
(b) if the appeal is from a part of the decree—specify the part appealed from;
(c) set out briefly but specifically the grounds relied on in support of the appeal; and
(d) specify the decree sought in the appeal in place of the decree appealed from.
"3. (1) Not later than 14 days after instituting an appeal, the appellant shall provide a sealed copy of the notice of appeal by assured service to each other party to the appeal.
"(2) Where an appeal has been instituted:
(a) the Judge who made the decree appealed from; or
(b) if that Judge is not reasonably available—another Judge of the Court in which the decree was made;
may, on application by a party to the appeal, direct the appellant to serve a sealed copy of the notice of appeal on a person other than a party to the appeal.
"4. (1) Subject to subrule (2), an appeal does not operate as a stay of proceedings or invalidate any intermediate act or proceedings.
"(2) Where an appeal has been instituted:
(a) the Judge who made the decree appealed from; or
(b) if that Judge is not reasonably available—another Judge of the court in which the decree was made;
may make an order, on such terms as the Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided.
"(3) Where an order under subrule (2) has been made, a court having jurisdiction under the Act shall not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal is decided.
"5. Where an appeal has been instituted:
(a) the Judge who made the decree appealed from; or
(b) if that Judge is not reasonably available—another Judge of the court in which the decree was made;
may make an order, on such terms as the Judge thinks fit, for security for costs.
"6. (1) Subject to subrule (2), an appellant may amend a notice of appeal:
(a) by filing 3 copies of the notice in the principal registry, with the amendments clearly marked; or
(b) by providing to the principal registry, by means of a facsimile transmission service, a facsimile of the notice, with the amendments clearly marked.
"(2) An appellant shall not, except with the leave of a Full Court, amend a notice of appeal later than 7 days before the day listed for the hearing of the appeal.
"(3) As soon as practicable after making an amendment of a notice of appeal, the appellant shall provide by assured service a sealed copy of the amended notice, with the amendments clearly marked, to each other party to the appeal.
"7. (1) A party to an appeal may institute a cross appeal:
(a) by filing in the principal registry an original and 2 copies of a notice of appeal in accordance with Form 42 endorsed as a notice of cross appeal; or
(b) by providing to the principal registry, by means of a facsimile transmission service, a facsimile of a notice of appeal in accordance with Form 42, endorsed as a notice of cross appeal.
"(2) A cross appeal shall be instituted:
(a) not later than 21 days after the day on which a sealed copy of the notice instituting the appeal was served on the party instituting the cross appeal; or
(b) within such further time as a Judge of a court having jurisdiction under the Act directs.
"(3) Subrule 2 (3) and rule 3 apply in relation to a notice of cross appeal as if it were a notice of appeal.
"(4) Rules 4 to 6 (inclusive) and rules 16 to 19 (inclusive) apply in relation to a cross appeal as if it were an appeal.
"8. As soon as practicable after an appeal has been instituted, the Principal Registrar shall:
(a) determine which registry is to be the appeal registry; and
(b) send a copy of the notice of appeal to the appeal registrar.
"9. (1) As soon as practicable after an appeal has been instituted, the appeal registrar shall arrange to obtain:
(a) the exhibits in the proceedings in which the decree appealed from was made;
(b) all other documents that were before the court in those proceedings, together with a list of those documents; and
(c) a copy of the reasons (if any) for judgment in those proceedings.
"(2) For the purposes of subrule (1), where an exhibit referred to in paragraph (1) (a) is not immediately available, the appeal registrar shall find out where it is and arrange to obtain it as soon as practicable.
"(3) The appeal registrar shall retain the documents and exhibits obtained under subrule (1) until the appeal is decided and then return them to the officer or person from whom they were obtained.
"10. Where an appeal has been instituted, the appeal registrar shall fix a time and place to settle the index to the appeal papers and, in writing:
(a) request the parties to the appeal to attend a meeting to settle the index accordingly; and
(b) notify the parties which registry is the appeal registry.
"11. An appellant shall, not later than 7 days before the day fixed to settle the index to the appeal papers:
(a) file a draft index to the appeal papers in the appeal registry; and
(b) serve a sealed copy of the draft index on the respondent and each other party to the appeal.
"12. At a meeting to settle the index to the appeal papers, the appeal registrar shall:
(a) decide which parts of the transcript of the proceedings from which the appeal has arisen are relevant to the appeal;
(b) decide which documents and other material are to be included in the appeal papers, the order of inclusion and other details concerning the preparation of copies of the appeal papers, as the appeal registrar thinks fit;
(c) settle the index;
(d) decide how many copies of the appeal papers are required; and
(e) estimate how long the hearing is likely to take.
"13. As soon as practicable after the index to the appeal papers has been settled, the appeal registrar shall arrange to obtain the original or a copy of the relevant parts of the transcript of the proceedings from which the appeal has arisen.
"14. (1) Subject to any direction of:
(a) a Full Court;
(b) a Judge of the court in which the decree appealed from was made; or
(c) the appeal registrar in relation to the relevant appeal;
the appeal papers shall be prepared in accordance with this rule.
"(2) The appeal papers are to have a title page specifying:
(a) the title of the proceedings;
(b) the title of the court in which the decree appealed from was made; and
(c) the name and address for service of the solicitor for each party to the appeal proceedings.
"(3) An index to the documents comprising the appeal papers, specifying the date and page number of each of those documents, is to appear immediately after the title page.
"(4) The appeal papers are to comprise each of the following documents (originals or copies), arranged in the following order:
(a) the notice of appeal;
(b) the decree appealed from;
(c) any relevant subsequent decree;
(d) the reasons for judgment;
(e) each relevant pleading, affidavit and other document in order of filing;
(f) any report by a court counsellor or welfare officer that was received in evidence in the proceedings from which the appeal has arisen and that is relevant to the appeal;
(g) the relevant parts of the transcript of those proceedings;
(h) a list of the exhibits;
(i) each relevant exhibit or relevant part of an exhibit, where practicable.
"(5) Pages of the appeal papers are to be numbered consecutively, except for numbered pages of transcript, which are not to be renumbered when included in the appeal papers.
"(6) A pleading, an affidavit or any other document is not to be included in the appeal papers unless it was put in evidence, or tendered but not admitted as evidence, in the proceedings to which the appeal relates.
"(7) The appeal papers are to be securely fastened to form one or more than one volume but need not be bound or printed.
"(8) A volume of the appeal papers is not to be more than 25 millimetres in thickness.
"(9) Each page in a volume of the appeal papers must be clear and legible and must comply with the requirements referred to in paragraphs 2 (c) and (d) of Order 2.
"15. (1) The appellant is responsible for preparing the appeal papers except in a case where the appeal registrar in relation to the appeal is satisfied that it would impose hardship on the appellant to do so.
"(2) In a case referred to in subrule (1), the appeal registrar may prepare the appeal papers or any part of them or, if the matter is a cross appeal, may direct any cross appellant to do so.
"(3) Subject to subrule (4), a party who prepares the appeal papers shall, as soon as practicable:
(a) file the appeal papers in the appeal registry, together with:
(i) a certificate by that party, or the solicitor for that party, to the effect that the appeal papers have been examined and are correct; and
(ii) the number of copies of the appeal papers that the appeal registrar directs; and
(b) serve 2 sealed copies on each other party to the appeal.
"(4) Where the preparation of the appeal papers is undertaken wholly by the appeal registrar, or partly by the appeal registrar and partly by a party to the appeal, the appeal registrar may give reasonable directions in relation to the filing of the papers and service of copies on the parties.
"16. Where the appeal papers have been filed, the appeal registrar shall list the appeal for hearing at a sitting of a Full Court and, not later than 21 days before the day listed for the hearing, shall notify each party in writing of the date, time and place for the hearing.
"17. The court in which a decree appealed from was made, or a Judge of the Family Court, may at any time make any order that seems just for expediting the appeal.
"18. (1) Where an appellant has not met a requirement of these Rules or the Regulations or in some other way has not shown reasonable diligence in proceeding with the appeal, a Full Court may, subject to this rule:
(a) by order, dismiss the appeal;
(b) by order, fix a time at which, or within which, the requirement is to be met and at the same time make an order that the appeal will be dismissed if the requirement is not met at or within the time fixed; or
(c) make any other order the court thinks just.
"(2) Subject to subrule (3), an order may be made by the court at its discretion or on application by a respondent or any other party to the appeal.
"(3) The court shall not make an order under this rule (other than an order arising from an application) unless, not later than 21 days before the making of the order, the court has given notice to the appellant of the intention to make the order.
"(4) A Full Court may vary an order at any time before the dismissal of the appeal to which the order relates and, in special circumstances, may vary or revoke the order after that time.
"19. (1) If the respondent or another party applies for an order under subrule 18 (2), then, unless a Full Court or a Judge of a court having jurisdiction under the Act directs otherwise, four copies of each of:
(a) an application in accordance with Form 42a; and
(b) an affidavit setting out concisely the matters relied on in support of the application;
shall be filed in the appeal registry by or on behalf of the applicant not later than 28 days before the return day for the application.
"(2) As soon as practicable after the filing of the application, a sealed copy of the application and of the supporting affidavit shall be provided by or on behalf of the applicant to each other party to the appeal by assured service.
"20. (1) An application for a certificate referred to in paragraph 95 (b) of the Act shall, unless the court making the relevant decree orders otherwise, be filed in the principal registry:
(a) not later than 21 days after the day on which the decree was made; or
(b) within such further time as a Judge of a court having jurisdiction under the Act directs.
"(2) Not later than 7 days after filing the application, the applicant shall provide a sealed copy by assured service to each other party to the proceedings in which the relevant decree was made.
"21. (1) A party to proceedings referred to in section 94a of the Act who wishes to have a question of law arising in the proceedings determined under that section by a Full Court shall:
(a) confer with each other party to the proceedings to try to reach agreement as to the terms of a draft special case;
(b) prepare a draft special case;
(c) make an appointment to have the draft special case settled before the Judge hearing the proceedings; and
(d) serve a copy of the draft special case and notice of the appointment on each other party to the proceedings and on any other person as a Judge of the Family Court may direct.
"(2) A party to proceedings who has been served with a copy of a draft special case shall at once, in writing, notify the party who prepared it of any objection to its terms and shall serve on that party a draft of any amendments which the party who has been served with a copy will seek to have made when the draft special case is settled by the Judge hearing the proceedings.
"(3) The Judge hearing proceedings in which a question of law has arisen shall settle the draft special case.
"(4) A special case under section 94a of the Act shall state concisely the facts and the question of law that has arisen.
"(5) A party to proceedings who prepares a draft special case shall, not later than 3 days after it has been settled, lodge a copy of the special case, as settled, for signature by the Judge hearing the proceedings,
"(6) A party to proceedings who prepares a draft special case shall, not later than 7 days after a copy of the special case has been signed by the Judge hearing the proceedings:
(a) file 5 copies of the special case in the principal registry; and
(b) serve 2 copies on each other party to the proceedings and on any other person as the Judge may direct.
"(7) Where copies of a special case have been filed, the Principal Registrar shall, subject to any directions from the Chief Judge, fix a day and place for the hearing of the special case and shall notify the parties in writing accordingly.
"22. (1) An appeal under section 96 of the Act shall be instituted by filing in the court appealed to a notice of the appeal in accordance with Form 43.
"(2) The notice of the appeal shall be filed:
(a) not later than one month after the date on which the decree appealed from was made; or
(b) within such further time as a Judge of a court having jurisdiction under the Act directs.
"23. Not later than 14 days after filing a notice of an appeal under section 96 of the Act, the appellant shall:
(a) provide a sealed copy of the notice by assured service to each other party to the appeal; and
(b) file a sealed copy of the notice in the court appealed from.
"24. (1) Subject to subrule (2), an appeal under section 96 of the Act does not operate as a stay of proceedings or invalidate any intermediate act or proceedings.
"(2) Where an appeal under section 96 of the Act has been instituted:
(a) the Magistrate who made the decree appealed from; or
(b) if that Magistrate is not reasonably available—a Judge of the court in which the appeal is instituted;
may make an order staying wholly or in part the execution or operation of the decree, on such terms as the Judge or Magistrate thinks fit, until the appeal is decided.
"(3) Where an order under subrule (2) has been made, a court shall not enforce the decree or entertain proceedings for the enforcement of the decree, in so far as its execution or operation has been stayed, until the appeal has been decided.
"25. (1) The Registrar of the court in which an appeal under section 96 of the Act has been instituted may request that the papers relating to the proceedings in the court appealed from be forwarded to him or her by the Registrar of that court.
"(2) A Registrar to whom a request under subrule (1) is made shall comply with the request as soon as practicable.
"26. (1) A party to proceedings who seeks the review of a decision of a Registrar made pursuant to the Act, the Regulations or these Rules in those proceedings may:
(a) not later than 7 days after the decision is made; or
(b) within such further time as is allowed by that Registrar or a Judge of the court in which the proceedings were instituted;
file in the filing registry for those proceedings a request for a review of that decision.
"(2) A request for a review shall be in accordance with Form 44.
"(3) A party to proceedings who files a request for a review shall, not later than 7 days after the day on which the request is filed, provide a sealed copy of the request by assured service to each other party to the proceedings.
"(4) A request for a review of a decision of a Registrar shall not operate as a stay of the order under review unless that Registrar or a Judge of the court in which the order was made so orders.
"(5) A court reviewing a decision of a Registrar shall proceed by way of a rehearing and:
(a) shall have regard to the proceedings, including the evidence given, before the Registrar;
(b) may permit other evidence to be given;
(c) may affirm, reverse or vary the decision of the Registrar as it thinks fit; and
(d) may make further orders as it thinks fit.
"(6) A reference in this rule to a decision of a Registrar includes a reference to a decision made in relation to an appeal by the appeal registrar.
"27. Unless a Full Court orders otherwise, the briefing of counsel to appear, or of a solicitor to act as counsel, on the hearing of an appeal before that court shall be deemed to have been certified by the court as having been reasonably required in accordance with subparagraph 13 (a) (i) or 14 (a) (i) of Order 38, as the case requires.".
(a) by omitting from subrule (2) all the words after "shall not" and substituting:
"exceed:
(a) in the case of work done in relation to proceedings before a court of summary jurisdiction—the amount that is not greater than 80% of an amount calculated in accordance with the scale of costs in Schedule 2; or
(b) in any other case—the amount that is not greater than an amount calculated in accordance with that scale of costs in that Schedule.";
(b) by omitting from paragraph (3) (a) "or";
(c) by adding at the end of subrule (3) the following word and paragraph:
“; or (c) drawing or engrossing of documents unless undertaken specifically for the proceedings."; and
(d) by adding at the end the following subrule:
"(5) In calculating an amount payable under item 7 in Schedule 2 in relation to the preparation of the appeal papers in a solicitor's office, the taxing officer shall have regard to:
(a) the work and labour performed; and
(b) commercial rates for copying and binding;
but is not obliged, in relation to a matter comprised in the preparation, to apply costs allowable under any other item in that Schedule.".
"(b) work done for those proceedings by a clerk of that solicitor or of the partner of that solicitor, being work in respect of a matter specified in Column 2 of an item in Schedule 2 (other than item 2, 8, 9 or 10) shall be charged for at the rate of 65% of the charge applicable in relation to work in respect of that matter in accordance with Column 3 of that item in that Schedule.".
"(a) in the case of appeal proceedings in a Full Court—the briefing of counsel to appear in the proceedings had been requested in writing by that party; or
(b) in the case of proceedings other than those referred to in paragraph (a)—the briefing of counsel to appear in the proceedings;
(i) was certified by the court as having been reasonably required; or
(ii) had been requested in writing by that party;
and the fees are in any case fair and reasonable.".
"(a) in the case of appeal proceedings in a Full Court—the briefing of the solicitor to act in the proceedings had been requested in writing by that party; or
(b) in the case of proceedings other than those referred to in paragraph (a)—the briefing of the solicitor to act in the proceedings:
(i) was certified by the court as having been reasonably required; or
(ii) had been requested in writing by that party;
and the fees are in any case fair and reasonable.".
FORM 42a Order 32, rule 19
APPLICATION FOR DISMISSAL OF APPEAL
IN THE FAMILY COURT OF AUSTRALIA | Appeal No. of 19
From No. ( |
BETWEEN | |
Appellant ( | |
AND | |
Respondent ( |
APPLICANTS ADDRESS FOR SERVICE:
Registry or place where decree
appealed from was made:
To the respondent:
(
The attached application has been set down for hearing before the Full Court sitting
at on 198
at *a.m./*p.m.
If you do not appear at the hearing, the Full Court may proceed to make the orders sought, or similar orders, in your absence.
Dated 19 .
…………………………………………………..
Registrar
APPLICATION
(1)
(2)
This application was *prepared/*settled by (
Dated 19 .
………………………………………
(Solicitor for the applicant/applicant)
*
(a) by omitting from Form 43 "Order 32, rule 4" and substituting "Order 32, rule 22"; and
(b) by omitting from Form 44 "Order 32, rule 5" and substituting "Order 32, rule 26".
SCALE OF COSTS
Item No. | Matter in respect of which charge is made |
|
$ | ||
1 | Drawing documents | |
| 20.40 per page | |
| 7.00 per folio | |
2 | Engrossing documents | |
| 6.90 per page | |
| 2.50 per folio | |
3 | Drafting and typing | |
| 9.80 | |
| 4.10 | |
| 8.20 per folio | |
4 | Telephone attendance | |
| 7.00 | |
|
| |
5 | Perusal of documents | |
| 9.60 | |
| 3.30 per folio | |
|
| |
6 | Scanning of documents (where perusal is not necessary) | |
| 3.90 per page | |
|
| |
7 | Preparation of the appeal papers in a solicitor’s office………………… |
|
8 |
| 0.84 per page |
9 |
|
|
10 |
|
|
(a) an appeal, or a cross appeal, under section 94 of the Act, whether instituted before, on or after the commencement day;
(b) an application filed on or after the commencement day for a certificate of the kind referred to in paragraph 95 (b) of the Act;
(c) a special case prepared before, on or after the commencement day for the purposes of section 94a of the Act;
(d) an appeal under section 96 of the Act, whether instituted before, on or after the commencement day; and
(e) a request for the review of a decision of a Registrar, whether made under rule 5 of Order 32 of the former Rules or under rule 26 of Order 32 of the amended Rules.
(a) subrules 1 (7) and (8) of Order 32 of the former Rules continue to apply in relation to a notice of appeal filed before the commencement day; and
(b) subrule 1 (13) of Order 32 of the former Rules continues to apply in relation to a notice of cross appeal filed before the commencement day.
"amended Rules" means the Family Law Rules as amended by these Rules;
"commencement day" means the day on which these Rules come into operation;
"former Rules" means the Family Law Rules as in force immediately before the commencement day.
| |
1. Notified in the | |
| |
Printed by Authority by the Commonwealth Government Printer
0
0
0