Family Law Rules (Amendment) (Cth)

Statutory Rules 1986

No. 1931

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 23 July 1986.

ELIZABETH EVATT

J. EDWARD ELLIS

H. C. EMERY

R. C. WOOD

W. S. SIMPSON

ALAN J. BARBLETT

J. F. FOGARTY

K. A. MURRAY

B. M. HOGAN

GRAHAM R. BELL

T. E. LINDENMAYER

T. H. McGOVERN

B. ROSS-JONES

T. R. JOSKE

JOSEPHINE M. MAXWELL

GEOFFREY I. WALSH

ADRIAN SMITHERS

ADRIAN COOK

R. J. BULLEY

D. TONGE

W. B. TREYVAUD

G. E. LAMBERT

EDWARD BUTLER

P. F. UNDERHILL

E. R. BAKER

PETER B. HASE

JOHN ELLIOTT

RICHARD W. GEE

D. BULBECK

_________________________________________________________________________________________________________________________

(S.R. 221/85) Cat No.  2/25.7.1986

N. J. BUCKLEY

J. S. PURDY

RODNEY N. PURVIS

W. ROURKE

H. J. BURTON

J. V. KAY

Judges of the

Family Court of

Australia

W. P. JOHNSTON

Acting Principal Registrar,

Family Court of Australia

ALAN J. BARBLETT

I. P. W. McCALL

D. F. CONNOR

G. E. FERRIER

Judges of the

Family Court of

Western Australia

J. D. EDWARDS

Registrar,

Family Court of Western Australia

Commencement

1. These Rules shall come into operation on 1 August 1986.

Title to documents

2. Rule 3 of Order 7 of the Family Law Rules is amended—

(a) by omitting from sub-rule (1) "headed" and substituting "entitled"; and

(b) by omitting from sub-rule (2) "heading of documents" and substituting "title to each document".

Documents to be annexed or exhibited

3. Rule 4 of Order 15 of the Family Law Rules is amended by inserting after sub-rule (1) the following sub-rule:

"(1a) An annexure to an affidavit shall bear an endorsement, signed by the person before whom the affidavit is sworn, that identifies the annexure as the particular annexure referred to in the affidavit.".

Settling or preparation of affidavits

4. Rule 6 of Order 15 of the Family Law Rules is amended by omitting from sub-rules (1) and (2) "An affidavit" and substituting "Subject to these Rules, an affidavit".

Contents of affidavit

5. Rule 6 of Order 16 of the Family Law Rules is amended by omitting from paragraph (h) "dependents" and substituting "dependants".

Statement or affidavit of financial circumstances

6. Rule 2 of Order 17 of the Family Law Rules is amended—

(a) by omitting all the words to and including "file —" and substituting

"A person who—

(a) files an application instituting proceedings to which this Order applies; or

(b) being a respondent to proceedings to which this Order applies, files a cross-application in those proceedings or an affidavit in answer to the application instituting those proceedings,

shall file with the application, cross-application or affidavit in answer, as the case may be —"; and

(b) by omitting from paragraphs (a) and (b) "(a)" and "(b)" respectively and substituting "(c)" and "(d)" respectively.

Interpretation

7. Rule 9 of Order 18 of the Family Law Rules is amended by omitting from paragraph (1) (b) "less" and substituting "more".

Acknowledgement of service by post

8. Rule 17 of Order 18 of the Family Law Rules is amended by omitting from sub-rule (2) "An affidavit" and substituting "Subject to rule 20, an affidavit".

Form of affidavit of service

9. Rule 19 of Order 18 of the Family Law Rules is amended by omitting "An affidavit" and substituting "Subject to rule 20, an affidavit".

10. After rule 19 of Order 18 of the Family Law Rules the following rule is inserted in Order 18:

Affidavit of service by post and proof of signature

"20. A person may make an affidavit in respect of—

(a) the service of a document by post; and

(b) the identity of a respondent's signature on an acknowledgement of service of that document,

in accordance with Form 23a.".

Advice as to effect of proceedings

11. Rule 3 of Order 25 of the Family Law Rules is amended—

(a) by omitting from sub-rule (5) "for dissolution of marriage is served on a respondent in Australia" and substituting "instituting proceedings for principal relief is served on a respondent";

(b) by omitting from sub-rule (6) "for dissolution of marriage" and substituting "instituting proceedings for principal relief"; and

(c) by omitting from sub-rule (8) "for dissolution of marriage on a respondent in Australia" and substituting "instituting proceedings for principal relief on a respondent".

12. Rule 1 of Order 29 of the Family Law Rules is repealed and the following rule substituted:

Filing of copy of offer, acceptance or withdrawal of offer

"1. Where—

(a) a copy of an offer of settlement in accordance with Form 60;

(b) a notice of withdrawal of an offer of settlement in accordance with Form 61; or

(c) a copy of an acceptance of an offer of settlement in accordance with Form 62,

is filed, the copy or notice, as the case may be, shall not be placed on the court file in relation to the proceedings but shall be placed in a separate file.".

13. After rule 3 of Order 32 of the Family Law Rules the following rule is inserted:

Application for certificate to appeal to High Court

"3a. An application for a certificate of the kind referred to in paragraph 95 (b) of the Act shall be filed—

(a) within one month after the day on which the decree, in relation to which the certificate is sought, is pronounced; or

(b) within such further time as a Judge of any court having jurisdiction under the Act directs.".

Enforcement of certain orders and agreements

14. Rule 2 of Order 33 of the Family Law Rules is amended—

(a) by omitting paragraph (1) (b) and substituting the following paragraphs:

"(b) a maintenance agreement registered under sub-section 86 (1) of the Act that has not been set aside or has not otherwise ceased to have effect;

(ba) a maintenance agreement approved under section 87 of the Act in respect of which there is in force an order under paragraph 87 (11) (c) of the Act;";

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

(c) by inserting after sub-rule (1) the following sub-rule:

"(1a) A reference in paragraph (1) (ba) to a maintenance agreement shall, where an order under paragraph 87 (11) (c) of the Act is in force in respect of a part of the agreement, be read as a reference to that part of the agreement.".

Summary procedures on refusal or failure to comply with certain orders

15. Rule 3 of Order 33 of the Family Law Rules is amended by omitting from paragraph (3) (a) "(b) or (c)" and substituting "(b), (ba) or (c)".

Contempt other than in the face of the Court

16. Rule 2 of Order 34 of the Family Law Rules is amended by omitting from sub-rule (4) "5 (a)" and substituting "5 (1) (a)".

Procedures on hearing

17. Rule 5 of Order 34 of the Family Law Rules is amended by omitting from paragraph (b) "as the court shall require" and substituting "as the applicant may adduce".

18. After rule 8 of Order 34 of the Family Law Rules the following rule is inserted in Order 34:

Urgent application to deal with alleged contravention of sub-section 70 (3) of the Act

"9. (1) Notwithstanding rule 6, an application to a court for a person to be dealt with for an alleged contravention of sub-section 70 (3) of the Act may, where the applicant alleges that it is necessary for the welfare of a child in respect of whom the contravention is alleged to have occurred that the court hear the application urgently, be in accordance with Form 48a.

"(2) Notwithstanding any other provision of these Rules, a party to proceedings instituted by the filing of an application in accordance with Form 48a is not required to file an affidavit in respect of those proceedings, unless the court exercising jurisdiction in those proceedings otherwise orders.

"(3) An applicant who files an application in accordance with Form 48a shall—

(a) in the manner specified in paragraph 5 (1) (a) or (c) of Order 18; and

(b) not later than 2 days before the return day of the application, serve a sealed copy of the application on the respondent to the proceedings.

"(4) Where a sealed copy of an application in accordance with Form 48a has been served on a person in accordance with sub-rule (3) and the person fails, without reasonable excuse, to appear at a court as required by the application, the court may issue a warrant for the arrest of that person.".

Change of solicitor

19. Rule 1 of Order 37 of the Family Law Rules is amended by omitting from sub-rule (5) "may file" and substituting "shall file".

Schedule 1

20. Schedule 1 to the Family Law Rules is amended as set out in the Schedule.

SCHEDULE Rule 20

AMENDMENTS OF SCHEDULE 1

Form 4

(a) Omit "DATE OF FILING", substitute "DATE OF FILING;

APPLICANT'S NAME:".

(b) Insert in paragraph 8 "; at the date of separation the husband and wife were living at (address)" after "application".

After Form 23

Insert the following form:

FORM 23a Order 18, rule 20

AFFIDAVIT OF SERVICE BY POST AND PROOF OF SIGNATURE

(Title)

I, (full name, address and occupation) make oath and say/affirm:

1. On the day of 19 , I duly posted to (full name)

a sealed copy of *the following document/ *each of the following documents in the abovementioned proceedings:

(specify each document served)

by posting them at (place of posting) in one envelope addressed to the said

(full name) at (address).

2. In the same envelope I duly posted a form of acknowledgement of service and a document under Order 25, rule 3 of the Family Law Rules.

3. Annexed hereto and marked "A" is the form of acknowledgement of service received by me by (state how received)  on the  day of  19

4. The signature on that form of acknowledgement of service is the signature of (full name).

5. I am able to identify the signature because (set out the manner of identification).

SWORN (or AFFIRMED) by the
deponent at
on the day of	………………………………………………
19 .	(Signature of deponent)
Before me:

………………………………………………………………

(Signature and title of person before whom affidavit sworn)

*Cross out whichever is not applicable.

Form 39

Insert in paragraph 4 "at (place of solemnization)" after "solemnized".

Form 48

(a) Omit "that you be dealt with", substitute "for you to be dealt with".

(b) Omit "that the respondent (full name)be dealt with", substitute "for the respondent (full name)to be dealt with".

SCHEDULE—continued

After Form 48

Insert the following form:

FORM 48a Order 34, rule 9

APPLICATION TO DEAL WITH ALLEGED CONTRAVENTION OF SUB-SECTION 70 (3)

(Title)

FULL NAME OF APPLICANT:

APPLICANT'S ADDRESS FOR SERVICE:

TO: The Respondent (full name)

of (address)

TAKE NOTICE that the attached application for you to be dealt with by the Court for a contravention of sub-section 70 (3) of the Act HAS BEEN SET DOWN FOR HEARING by the Court at on the day of 19 , at

o'clock.

AND FURTHER TAKE NOTICE that if you do not appear personally before the Court at the time and place set out above to answer the application and to be further dealt with according to law, A WARRANT MAY BE ISSUED for your arrest and you may be brought before the Court in custody.

AND FURTHER TAKE NOTICE that the Court may—

(a) if it is satisfied that you have knowingly and without reasonable cause contravened subsection 70 (3) of the Act—

(i) order you to pay a fine not exceeding $1,000;

(ii) require you to enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks fit, that you will comply with the order specified in the application, or order you to be imprisoned until you enter into such a recognizance or until the expiration of 3 months, whichever first occurs;

(iii) order you to deliver up to the Court your passport and such other documents as the Court thinks fit; and

(iv) make such other orders as the court considers necessary to enforce compliance with sub-section 70 (3);

(b) for the purpose of giving effect to the order specified in the application—issue a warrant pursuant to sub-section 64 (10) of the Act;

(c) at any stage of the proceedings order the parties to the proceedings to attend a conference with a court counsellor or welfare officer; and

(d) make such orders as to the costs of the proceedings as the Court thinks fit.

Dated the day of 19 .

……………………………………………

Registrar

APPLICATION

The applicant (insert full name)APPLIES TO THE COURT for the respondent (insert full name)to be dealt with by the Court for a contravention of sub-section 70 (3) of the Act.

The applicant ALLEGES that the respondent knowingly and without reasonable cause contravened sub-section 70 (3) of the Act in that the respondent, without just cause or excuse, hindered or prevented the applicant from obtaining access, or interfered with access by the applicant, being access to (insert full name of each child)to whom the applicant has a right of access in accordance with the order made by the (insert name of court)sitting at on the day of 19 .

Particulars of order

(Set out particulars of that part of the order which it is alleged the respondent has failed, or refused, to comply with)

SCHEDULE—continued

Particulars of contravention of sub-section 70 (3)

(Set out particulars, including dates, of each act or omission by which the respondent is alleged to have hindered or prevented, or interfered with, access to a child in accordance with the order)

Dated the day of 19 .

……………………..…………………………………

(Signature of applicant)

AFFIDAVIT

I, (full name, address and occupation) make oath and say as follows—

1. I am the abovenamed applicant.

2. The particulars set out in the application are true to the best of my knowledge information and belief.

3. It is necessary for the welfare of the child that the application be heard urgently.

SWORN (or AFFIRMED) by the
deponent at
on the day of	…………………………………………………..
19 .	(Signature of deponent)
Before me:

………………………………………………………………………………

(Signature and title of person before whom affidavit sworn)

THIS APPLICATION was prepared/settled by

(name of counsel, solicitor or party filing)

* Cross out whichever is not applicable

Form 49

(a) Omit "that you be dealt with", substitute "for you to be dealt with".

(b) Omit "that the respondent (full name)be dealt with", substitute "for the respondent (full name)to be dealt with".

Form 50

(a) Omit "Note: (a)", substitute "Notes: 1.",

(b) Omit Note (b), substitute the following note:

"2. This warrant shall not be executed more than 12 months after the date of issue unless the court otherwise orders.".

Form 51

Omit Note 2, substitute the following note:

"2. This warrant shall not be executed more than 12 months after the date of issue unless the court otherwise orders.".

 

SCHEDULE—continued

Forms 60 and 61

Omit the forms, substitute the following forms:

FORM 60 Order 29, rule 1

OFFER OF SETTLEMENT

(Title)

DATE OF FILING:

To: (Full name)

and the Solicitors for

TAKE NOTICE that makes the offer of settlement in these proceedings set out below in respect of the whole/specified parts of the proceedings

 

Part of Proceedings Terms of offer

     

Dated this day of 19 .

 

………………………………………………………..

Solicitor for

FORM 61 Order 29, rule 1

WITHDRAWAL OF OFFER OF SETTLEMENT

(Title)

DATE OF FILING:

To: (Full name)

and the Solicitors for

TAKE NOTICE that HEREBY WITHDRAWS the offer of settlement made

herein dated the day of 19 and filed the day of

19 

DATED this day of 19 .

 

………………………………………………………..

Solicitor for

FORM 62 Order 29, rule 1

ACCEPTANCE OF OFFER OF SETTLEMENT

(Title)

DATE OF FILING:

To: (Full name)

and the Solicitors for

TAKE NOTICE that HEREBY ACCEPTS the offer of settlement dated the

day of 19 and filed the day of 19 .

DATED this day of 19

………………………………………………………..

Solicitor for

 

NOTES

1. Notified in the Commonwealth of Australia Gazette on 31 July 1986.

2. Statutory Rules 1984 No. 425 as amended by 1985 No. 341; 1986 No. 6.

Printed by Authority by the Commonwealth Government Printer