Family Law Rules (Amendment) (Cth)
__________________
WE, Judges within
the meaning of the
Dated 14 June 1995.
J. EDWARD ELLIS
J. F. FOGARTY
K. A. MURRAY
H. R. FREDERICO
ALWYNNE ROWLANDS
T. E. LINDENMAYER
J. V. KAY
T. H. McGOVERN
GRAHAM R. BELL
RODERICK JOSKE
JOSEPHINE M. MAXWELL
J. T. GUN
GEOFFREY I. WALSH
R. J. BULLEY
EDWARD BUTLER
P. F. UNDERHILL
D. BULBECK
J. S. PURDY
RODNEY N. PURVIS
J. WILCZEK
H. J. BURTON
A. GRAHAM
N. MUSHIN
I. R. COLEMAN
B. J. WARNICK
RICHARD CHISHOLM
S. BROWN
B. JORDAN
J. FAULKS
Judges of the Family Court
of Australia
IAN J. LOUGHNAN
Principal Registrar
Family Court of Australia
I. W. P. McCALL
D. R. ANDERSON
N. TOLCON
MICHAEL H. HOLDEN
of Western Australia
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1.1 These Rules commence on 1 July 1995.
2.1 The Family Law Rules are amended as set out in these Rules.
3.1 After the heading, insert:
3.2 New Division 2:
After rule 10, insert:
This Division applies to a subpoena that is
issued in a proceeding in the Family Court to which Part 2 of the
Section 7 of
the
In this Division, unless the contrary intention appears:
(a)
‘court’ means the Family Court of Australia; and(b) any expression used that is also used in the
Evidence and Procedure (New Zealand) Act 1994 has the same meaning as it has in that Act.
A subpoena that is to be served in New
Zealand under section 8 of the
A person seeking leave to serve a subpoena in
New Zealand under section 8 of the
(a) an application in accordance with Form 8; and
(b) an affidavit in accordance with rule 15.
Subsection
10 (3) of the
An affidavit filed under rule 14 must have attached to it a copy of the subpoena and must set out, so far as the applicant can assert, the following information:
(a) the name, age, occupation and address of the person named in the subpoena;
(b) the nature and significance of the evidence required from the person, or of the document or thing required to be produced by the person;
(c) any available evidence relating to whether the evidence, document or thing could be obtained by other means without significantly greater expense;
(d) the steps taken to ascertain whether the evidence, document or thing could be obtained without significantly greater expense;
(e) details of any inconvenience and hardship that may be caused to the person as a result of complying with the subpoena;
(f) the steps taken to ascertain whether any inconvenience or hardship would be caused to the person as a result of complying with the subpoena;
(g) the date by which it is intended to serve the subpoena on the person;
(h) the amount to be paid or tendered to the person for allowances and travelling expenses sufficient to meet the person’s reasonable expenses of complying with the subpoena;
(i) whether the amount referred to in paragraph (h) is to be paid or tendered partly or wholly by vouchers;
(j) if the subpoena requires the person to attend the court to give evidence—the estimated time that attendance will be required;
(k) if the applicant is aware of any facts or matters that may be grounds on which the subpoena might be set aside under subsection 14 (2) or (3) of the
Evidence and Procedure (New Zealand) Act 1994 —those facts or matters.
“16.Unless the court otherwise orders, a
person who files an application for leave to serve a subpoena in New Zealand
under section 8 of the
“17.Unless the court otherwise orders or the
applicant objects, the court may determine an application for leave to serve a
subpoena in New Zealand under section 8 of the
“18.The conditions referred to in paragraph
9 (4) (b) of the
A person seeking leave to set aside a
subpoena that has been served in New Zealand under section 8 of the
(a) an application in accordance with Form 8; and
(b) an affidavit setting out the facts in support of the application.
(1) This rule applies to a subpoena that:
(a) only requires production of a document or thing; and
(b) is served in New Zealand under section 8 of the
Evidence and Procedure (New Zealand) Act 1994 .
If:
(a) in accordance with a subpoena, a document or thing is produced, by a person, at a registry of the High Court of New Zealand; and
(b) the person obtains a receipt from the registry that identifies the document or thing and acknowledges its receipt and the receipt of the money or vouchers for the transportation of the document or thing; and
(c) the person transmits, by fax, a copy of the receipt and a copy of the subpoena to the registry of the court that issued the subpoena;
the fax referred to in paragraph (c) is evidence of compliance with the subpoena.
Despite compliance with subsection
11 (1) of the
(a) an amount of money or vouchers sufficient to meet the cost of transporting a document or thing from New Zealand to the place in Australia specified in a subpoena is not paid or tendered to the registry of the High Court of New Zealand by or on behalf of the person named in the subpoena; and
(b) the document or thing is so transported;
the cost must be paid by the person who obtained leave to serve the subpoena.
If a document or thing is received at a place in Australia in accordance with a subpoena, the Registrar of the court that issued the subpoena must:
(a) list the matter for a directions hearing; and
(b) notify each party to the proceeding of the receipt of the document or thing and the date of the directions hearing.
(1) A
certificate issued under section 16 of the
An application for a certificate referred to in subrule (1) is not required to be in writing but must be accompanied by a draft certificate in accordance with Form 38A.”.
4.1 Omit the rule, substitute:
(1) The court may make an order allowing or directing evidence to be taken or submissions to be made by video link or telephone from any place inside or outside Australia.
In relation to evidence taken or submissions
made by video link or telephone from New Zealand on or after the commencement
of Part 4 of the
The court must not make an order unless it is satisfied that:
(a) the courtroom or other place where the court is sitting, and the place where the evidence or submission is to be given or made, are equipped with facilities that:
(i) enable persons who are in the place where the court is sitting to see and hear the person giving the evidence or making the submission; and
(ii) enable persons who are in the place where the evidence or submission is given or made to see and hear the persons in the place where the court is sitting; and
(b) the evidence or submission can more conveniently be given or made from the place where the evidence or submission is to be given or made.
If the court makes an order under subrule (1), the court may also make orders:
(a) for the payment of expenses incurred in connection with taking the evidence or making the submission in that way; and
(b) requiring a Registrar or other person to arrange for evidence to be given or submissions to be made; and
(c) requiring or requesting an officer of the court, or of another court, or another person, to assist in taking the evidence or making the submissions and, in particular, to:
(i) introduce witnesses and legal representatives; and
(ii) administer oaths or arrange for the administration of oaths; and
(iii) assist in implementing directions or requests of the judge who is hearing the evidence or submissions.”.
5.1 Omit the rule, substitute:
(1) If,
under the
(a) 2 copies of a form of the appropriate letter of request; and
(b) 2 copies of the specified questions (if any) to accompany the request; and
(c) if the English language is not an official language of the country to whose judicial authorities the letter of request is to be sent—2 copies of a translation of each of the documents mentioned in paragraphs (a) and (b) in a language appropriate to the place where the evidence is to be taken; and
(d) unless the court otherwise directs—an undertaking by the party obtaining the order:
(i) to be responsible for all expenses incurred by the court, or by the person at the request of the court, in respect of the letter of request; and
(ii) on being given notice of the amount of any such expenses, to pay the amount to the Registrar of the filing registry.
A translation filed under paragraph (1) (c) must be accompanied by an affidavit of the person making it:
(a) verifying that it is a correct translation; and
(b) setting out the translator’s full name, address and qualifications for making the translation.
On receipt of the documents referred to in subrules (1) and (2) (if applicable), the Registrar must, if satisfied that the documents are appropriate to the purposes of this Order, seal the documents with the seal of the court and transmit them to the Secretary for transmission to the judicial authorities of the other country.
If, under Part 6 of the
(a) of good and durable quality; and
(b) capable of receiving ink writing; and
(c) the size known as International A4.”.
6.1 Omit the rule, substitute:
(1)If a party seeks to cross-examine a court expert, the party:
(a) must arrange for the attendance of the court expert for cross-examination; and
(b) may issue a subpoena commanding the attendance before the court of the court expert.
Unless the court otherwise orders, if a party arranges for the attendance of a court expert for cross-examination, the party must pay the reasonable remuneration and expenses of the court expert for the attendance.”.
7.1 Subrules 6 (1) and (2):
Omit the subrules, substitute:
If a dispute arises between the parties in respect of the remuneration and expenses payable to a court expert for:
(a) preparing a report; or
(b) attending at court;
the court must determine the amount to be paid to the court expert.
Unless the court otherwise orders, the parties are jointly liable to pay a court expert for the reasonable remuneration and expenses incurred in preparing a report.”.
8.1 Subrule 2 (1):
Omit the subrule, substitute:
This rule applies to:
(a) the recovery of a debt due to the Commonwealth under section 30 or 67 of the
Child Support (Registration and Collection) Act 1988 ; and(b) an order that a party pay maintenance or other money for the benefit of the other party, or of a child, made under:
(i) the Act; or
(ii) the
Child Support (Registration and Collection) Act 1988 ; and(c) a maintenance agreement registered under subsection 86 (1) of the Act that has not been set aside or has not otherwise ceased to have effect; and
(d) 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; and
(e) an overseas maintenance order or agreement that, under the Regulations, is enforceable in Australia; and
(f) an order under the Act or the repealed Act for the payment of costs; and
(g) an order made in the exercise of jurisdiction conferred by the Act, the Regulations or these Rules that a person pay a fine or forfeit a recognisance; and
(h) an order under subsection 82 (7) of the Act for the recovery of moneys; and
(i) an order under section 117A of the Act for the payment of reparations; and
(j) a liability to pay child support under an assessment or order made under the
Child Support (Assessment) Act 1989 ;
and this rule (except subrule (4)) applies in relation to an agreement referred to in paragraph (c), (d) or (e) as if it were an order of the court in which it is registered or taken to be registered.”.
8.2 Subrule 2 (1A):
Omit “paragraph (1) (ba)”, substitute “paragraph (1) (d)”.
8.3 Subrule 2 (2):
Omit “paragraph (1) (e)”, substitute “paragraph (1) (g)”.
9.1 Paragraph 3 (3) (a):
Omit “paragraph 2 (1) (a), (b), (ba) or (c),”, substitute “paragraph 2 (1) (b), (c), (d) or (e),”.
9.2 Paragraph 3 (3) (b):
Omit “paragraph 2 (1) (d), (e), (f) or (g)”, substitute “paragraph 2 (1) (f), (g), (h) or (i)”.
9.3 Subrule 3 (4):
Omit “paragraph 2 (1) (e)”, substitute “paragraph 2 (1) (g)”.
10.1 After paragraph 3 (rb), insert:
“(rc) the power to make a declaration under section 113 of the Act;
(rd) the power to make a direction to publish a notice or report under paragraph 121 (9) (d) of the Act;”.
11.1 Form 36:
Omit “Order 28, rule 1”, substitute “Order 28, rules 1 and 13”.
11.2 Form 37:
Omit “Order 28, rule 1”, substitute “Order 28, rules 1 and 13”.
11.3 Form 38:
Omit “Order 28, rule 1”, substitute “Order 28, rules 1 and 13”.
11.4 Form 38:
Omit “You may, if you so desire, produce the books, documents and things referred to herein to an officer of the Court at the place specified not later than the day before the day specified above for their production and, if you do so you need not appear on the day specified.”, substitute:
“You may, instead of so attending, produce the books, documents or things referred to above:
(a) to an officer of the Court at the place specified not later than the day before the day specified above for their production; or
(b) if you are in New Zealand—at any registry of the High Court of New Zealand not later than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the court by which the subpoena was issued;
and, if you do so, you need not appear on the day specified.”.
11.5 New Form 38A
After Form 38, insert:
“FORM 38A Order 28, rule 21
FAMILY COURT OF AUSTRALIA
CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA
TO: The High Court of New Zealand
THE FAMILY COURT OF AUSTRALIA DECLARES AND CERTIFIES THAT:
1. A subpoena, returnable on (
insert date ), was issued by the court addressed to (insert full name ) (‘the witness’) of (insert address ).
2. The subpoena required the witness:
*(a) to attend to give evidence.
*(b) to produce a document or thing.
3. The court granted leave to serve the subpoena in New Zealand.
4. The subpoena was properly served on the witness.
5. The witness did not comply with the subpoena.
6. *An application to set aside the subpoena was filed on (
insert date ) and (set out details of decision ).
The seal of the Family Court of
Australia was affixed on (
......................................
Registrar
*
__________
1. Notified in the
Commonwealth of Australia Gazette on 21 June 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 and 144.
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