Family Law Rules (Amendment) (Cth)
__________________
WE, Judges within
the meaning of the
Dated 18 October 1995.
ALAN J. BARBLETT
J. EDWARD ELLIS
J. F. FOGARTY
K. A. MURRAY
H. R. FREDERICO
E. R. BAKER
N. J. BUCKLEY
ALWYNNE ROWLANDS
T. E. LINDENMAYER
J. V. KAY
RODERICK JOSKE
JOSEPHINE M. MAXWELL
J. T. GUN
ADRIAN SMITHERS
EDWARD BUTLER
P. F. UNDERHILL
PETER B. HASE
D. BULBECK
JAMES BARRY
J. S. PURDY
J. WILCZEK
W. ROURKE
H. J. BURTON
G. R. MULLANE
A. GRAHAM
P. J. MOSS
JOHN COHEN
N. MUSHIN
I. R. COLEMAN
M. A. HANNON
B. J. WARNICK
SALLY BROWN
B. JORDAN
S. R. O’RYAN
LINDA DESSAU
SUSAN MORGAN
MICHELLE MAY
Judges of the Family Court
of Australia
IAN J. LOUGHNAN
Principal Registrar
Family Court of Australia
I. W. P. McCALL
ALAN J. BARBLETT
D. R. ANDERSON
N. TOLCON
MICHAEL H. HOLDEN
C. E. MARTIN (Acting Judge)
Judges of the Family Court
of Western Australia
R. G. FLEMING
Registrar
Family Court of Western Australia
____________
1.1 These Rules commence on 1 November 1995.
2.1 The Family Law Rules are amended as set out in these Rules.
3.1 After subrule 5 (1), insert:
Strict compliance with the forms in Schedule 1 is not required and substantial compliance is sufficient.”.
4.1 [NOTE: The heading to Order 11, rule 19 is taken to be altered to read “Response objecting to jurisdiction”.]
5.1 After subrule 5 (1), insert:
For the purposes of paragraph 64 (1D) (b) of the Act, a report prepared by a court counsellor or welfare officer about the proposed guardianship or custody arrangements of a child must contain, where practicable, details of any:
(a) offences under the Act; and
(b) offences under a law relating to child welfare; and
(c) other criminal offences;
of which a proposed custodian or guardian, who is not a parent of the child, has been convicted.”.
6.1 Add at the end:
Following compliance with a subpoena:
(a) in accordance with subrule (1); or
(b) later;
the court, or a Registrar, may make an order permitting the parties and the child’s representative (if any) to inspect or copy the book, document or thing produced.
Before making an order under subrule (2), the court, or the Registrar, must be satisfied that each party:
(a) who has an address for service in the proceedings; and
(b) who does not consent to the order; and
(c) who is not present, and whose legal practitioner is not present, in the court;
has been given reasonable notice of:
(d) the name and address of the person to whom the subpoena is addressed; and
(e) the book, document or thing required to be produced by the subpoena; and
(f) the fact that the subpoena has been served; and
(g) the date on which the subpoena is listed.”.
7.1 Omit “oaths, and the forms of oath in the Family Court of Australia shall be the same, as nearly as may be, as those used in the Supreme Court of the State or Territory in which the oath is administered.”, substitute “oaths.”.
8.1 After rule 2AB, insert:
(1) In
this rule, ‘
A notice of previous representation:
(a) must be in accordance with Form 38B; and
(b) may have attached to it an affidavit that sets out evidence of the previous representation.
Subsection
67 (1) of the
Subsection
67 (2) of the
In addition, subsection 67 (3) of
the
(a) the particular provisions of Division 2 of Part 3.2 of the
Evidence Act 1995 on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if subsection 64 (2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.]”.
9.1 Subrule 6 (2):
Omit “Deputy Child Support Registrar at the address prescribed under regulation 8 of the Child Support Regulations in relation to the State or Territory in which the filing registry is situated.”, substitute “appropriate Deputy Child Support Registrar.”.
10.1 Subrule 22 (2):
Omit “Deputy Child Support Registrar at the address prescribed under regulation 8 of the Child Support Regulations in relation to the State or Territory in which the filing registry is situated.”, substitute “appropriate Deputy Child Support Registrar.”.
11.1 Omit “Deputy Child Support Registrar at the address prescribed under regulation 8 of the Child Support Regulations in relation to the State or Territory in which the filing registry is situated.”, substitute “appropriate Deputy Child Support Registrar.”.
12.1 Subrules 33 (1) and (2):
Omit the subrules, substitute:
Provisions of a child support agreement that, under section 95 of the Assessment Act, have effect, for the purposes of Part 5 of that Act, as if they were a court order of a particular kind, or the agreement containing those provisions, may be registered in a court having jurisdiction under the Act by filing:
(a) a copy of the provisions, or the agreement; and
(b) the affidavit of a party to the agreement, or the solicitor for that party, verifying the copy as a true copy of the provisions, or the agreement.
If provisions of a child support agreement, or the agreement containing those provisions, is registered under subrule (1), the Registrar of the filing registry must, as soon as practicable after the date of filing, give written notice to each party to the agreement that the provisions of the agreement, or the agreement, has been registered.
The notice must specify:
(a) the court in which the provisions, or the agreement containing those provisions, is registered; and
(b) the date on which registration took place.”.
13.1 Omit the rule, substitute:
(1) At the time and place fixed by the appeal registrar to settle the index to the appeal papers, the appeal registrar must:
(a) decide which parts of the transcript of the proceedings from which the appeal has arisen are relevant to the appeal; and
(b) decide which documents and other material are to be included in the appeal papers; and
(c) settle any other matters as determined by the appeal registrar; and
(d) settle the index in accordance with the order of arrangement specified in subrule 14 (4); and
(e) decide how many copies of the appeal papers are required and how the copies are to be prepared; and
(f) estimate how long the hearing is likely to take; and
(g) make an order, in accordance with subrule 15 (1), deciding who is to be responsible for preparing the appeal papers; and
(h) fix a date by which the appeal papers must be filed and served.
In settling the index to the appeal papers, the appeal registrar and the parties must endeavour to:
(a) exclude from the appeal papers parts of the transcript, or other documents, that are irrelevant or unnecessary; and
(b) reduce, as far as practicable, the number and the length of documents to be included in the appeal papers, taking care to avoid:
(i) unnecessary inclusion of merely formal parts of documents; and
(ii) unnecessary duplication of material.
If a party does not agree with a decision of the appeal registrar made under subrule 12 (1), the party may apply to a Judge of the Appeal Division, in accordance with the Rules, for a review of the appeal registrar’s decision.”.
14.1 Subrules 15 (1), (2) and (3):
Omit the subrules, substitute:
Subject to rule 13 and subrule (2), the appeal registrar must direct, under paragraph 12 (1) (g), the appellant to be responsible for preparing the appeal papers.
If the appeal registrar is satisfied that it would impose hardship on the appellant for the appellant to be responsible for preparing the appeal papers, the appeal registrar may:
(a) prepare the appeal papers; or
(b) if there is a cross-appellant—order the cross-appellant to do so.
Subject to subrule (4), and by the date fixed under paragraph 12 (1) (h), or by a later date fixed by an appeal registrar or a Judge of the Appeal Division, the party who is responsible for preparing the appeal papers, or any part of them, must:
(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 have been prepared in accordance with the index to the appeal papers as settled by the appeal registrar; 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.”.
14.2 Add at the end:
If an appellant or cross-appellant who is responsible for filing and serving the appeal papers does not file and serve the appeal papers by the date fixed under paragraph 12 (1) (h), or by a later date fixed under subrule (3), the appeal or cross-appeal is taken to be abandoned at the end of 28 days after the date by which the appeal papers should have been filed and served.
Unless the court otherwise orders, if an appeal or cross-appeal is abandoned under subrule (5), the appellant or cross-appellant must pay the costs of the other parties to the appeal or cross-appeal.”.
15.1 After rule 16A, insert:
A summary of the arguments to be presented and a list of the authorities to be relied on by a party at the hearing of an appeal must be filed and served:
(a) by the appellant—no later than 5 clear working days before the date fixed for the hearing; and
(b) by the cross-appellant (if any)—no later than 5 clear working days before the date fixed for the hearing; and
(c) by the respondent to the appeal, or cross-appeal—no later than 2 clear working days before the date fixed for the hearing.”.
16.1 Add at the end:
As soon as practicable after an application
under section 102 of the
17.1 After rule 5, insert:
(1) If an application has been instituted under rule 2:
(a) the Judge who made the prescribed decree; or
(b) if that Judge is not reasonably available—another Judge of the court in which the prescribed decree was made;
may make an order, on such terms as the Judge thinks fit, staying the execution or operation of the prescribed decree wholly, or in part, until the application is determined.
If an order under subrule (1) has been made, a court having jurisdiction under the Act must not enforce the prescribed decree, or entertain proceedings for its enforcement, in so far as its execution or operation has been stayed, until the application is determined.”.
18.1 Omit the rule, substitute:
(1) Before the hearing of an application, the application must be listed for directions before a Judge of the Appeal Division.
A Judge of the Appeal Division may make directions in relation to the conduct of an application, including a direction that an application be dealt with by the Full Court without an oral hearing.”.
19.1 Subrule 7 (1):
Omit “If a direction is given under rule 6,”, insert “If an applicant is directed, under rule 6, to prepare a supporting submission,”.
20.1 Omit “for leave”.
20.2 Paragraph 8 (b):
Omit the paragraph.
21.1 Form 16:
After:
“(
Insert:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(
21.2 New Form 38B:
After Form 38A, insert:
“
FAMILY COURT OF AUSTRALIA
NOTICE OF PREVIOUS REPRESENTATION
File Number:
TO: (
1. I, (
full name of party giving notice ), give notice, under section 67 of theEvidence Act 1995 , that I intend to adduce evidence of a previous representation under the exception to the hearsay rule specified in:
*(a) subsection 63 (2);
*(b) subsection 64 (2);
of that Act.
2. (
(a)
the substance of:
(i)
evidence of the previous representation that is to be adduced; and (ii)
any other relevant representation, so far as it is known; and (b)
so far as it is known:
(i)
the date, time, place and circumstances at or in which each representation mentioned in subparagraph (a) (i) or (ii) was made; and (ii)
the name and address of each person by whom, and each person to whom, the representation was made.
This requirement may be satisfied by referring to the relevant paragraph numbers of an affidavit, a copy of which must be attached. )3. (
If you are relying on paragraph 63 (2) (a) or (b) of the Evidence Act 1995, specify the facts on the basis of which it is alleged that the person who made a representation referred to in subparagraph 2 (a) (i) or (ii) is not available to testify concerning the fact to be proved by adducing evidence of that representation. )4. (
If you are relying on paragraph 64 (2) (a) or (b) of the Evidence Act 1995, specify the facts on which you are relying to establish the grounds specified in subsection 64 (2) of the Act. )
The grounds
specified in subsection 64 (2) of the
. . . . . . . . . . . . . . . . . . . . . . . . . .
*
__________
____________________________________________________________
1. Notified in the
Commonwealth of Australia Gazette on 30 October 1995.2. 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, 414, 475 and 476; 1992 Nos. 8, 45, 161 and 304; 1993 Nos. 51 and 160; 1994 Nos. 25, 58, 59, 60, 61, 62, 152 and 401; 1995 Nos. 2, 144, 145 and 146.
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