Matrimonial Causes Rules (Amendment) (Cth)

Statutory Rules

1973 No. 8

RULES UNDER THE MATRIMONIAL CAUSES ACT 1959-1966.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Rules under the Matrimonial Causes Act 1959-1966.

Dated this eighteenth day of January, 1973.

PAUL HASLUCK

Governor-General.

By His Excellency’s Command,

LIONEL MURPHY

Attorney-General.

 

Amendments of The Matrimonial Causes Rules 

Commencement.

1. These Rules shall come into operation on the first day of February, 1973.

Parts.

2. Rule 3 of the Matrimonial Causes Rules is amended—

(a) by omitting the words—

“Division 5—Discretion Statements (Rules 161-164).”

and inserting in their stead the words—

“Division 5—Confessions (Rules 161-164)”; and

(b) by omitting the words—

“Part XX—Fees (Rules 300-304).”

and inserting in their stead the words—

“Part XX—Costs (Rules 300-304).”.

Interpretation.

3. Rule 4 of the Matrimonial Causes Rules is amended—

(a) by omitting from the definition of “party cited” in sub-rule (1) the word “person” and inserting in its stead the words “party to proceedings who is”;

(b) by inserting in the definition of “party named” in sub-rule (1) after the word “Act” in paragraphs (a) and (b) the words “or sub-rule (5) of rule 17 of these Rules”; and

(c) by inserting in the definition of “person named” in sub-rule (1) after the word “committed” in paragraphs (a) and (b) the word “adultery”.

Chambers.

4. Rule 9 of the Matrimonial Causes Rules is amended—

(a) by inserting in sub-rule (1) after the word “proceedings” the words “for a decree of dissolution of marriage in which the right to that relief is not denied by an answer duly filed by the party to the marriage against whom the decree is sought and proceedings”; and

 

* Notified in the Commonwealth Gazette on 22 January 1973; disallowed by the Senate on 25 March 1973.

  Statutory Rules 1960, No. 97, as amended by Statutory Rules 1963, No. 1; 1965, No. 29: 1966, No. 18; 1967, No. 120; 1970, No. 3; and 1972, No. 195.

(b) by omitting sub-rule (4) and inserting in its stead the following sub-rule:—

“(4) Where—

(a) a party is represented by a legal representative, unless the court otherwise orders, that party need not attend a hearing in chambers and the legal representative shall attend and appear at the hearing;

(b) a party seeking relief is not represented by a legal representative, that party shall, unless the court otherwise orders, attend and appear at a hearing in chambers.”.

Directions as to practice and procedure and notice to Attorney-General of cases of difficulty or doubt.

5. Rule 10 of the Matrimonial Causes Rules is amended—

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

“(1a) Any person intending to institute proceedings for—

(a) damages for adultery;

(b) dissolution of marriage on the ground of rape or sodomy; or

(c) judicial separation,

shall apply to the court for an order for such directions with respect to the practice and procedure to be followed in the case as the court thinks necessary to do justice.”;

(b) by omitting from sub-rule (2) the words “the last preceding sub-rule” and inserting in their stead the words “this rule”;

(c) by omitting from sub-rule (3) the words “sub-rule (1)” and inserting in their stead the words “this rule”; and

(d) by inserting after sub-rule (3) the following sub-rule:—

“(4) The registrar shall forthwith bring to the attention of the Attorney-General any case in which any difficulty arises or doubt exists.”.

Institution of proceedings.

6. Rule 16 of the Matrimonial Causes Rules is amended—

(a) by adding at the end of sub-rule (1) the words “and proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” that are in relation to proceedings instituted by the petition may be instituted by filing an application to the court at any time after the petition is filed and within twelve months after the proceedings instituted by the petition have been heard and determined.”; and

(b) by inserting in sub-rule (5) after the word “where” the words “related proceedings referred to in sub-rule (1) and”.

How proceedings instituted.

7. Rule 17 of the Matrimonial Causes Rules is amended by omitting sub-rule (5) and inserting the following sub-rule:—

“(5) Where in a petition for a decree of dissolution of marriage or judicial separation or in an answer to such a petition, a party to the marriage is alleged to have committed adultery with a specified person, that person shall be served with notice of that allegation and that person shall be entitled to intervene and that person shall not become a party to the proceedings otherwise than by intervention unless the court shall, if it is of opinion that there are special circumstances which justify it so doing, order that that person be made a party to the proceedings.”.

 

Contents of petition.

8. Rule 28 of the Matrimonial Causes Rules is amended by omitting paragraphs (b), (d), (f), (g), (h) and (i).

Particulars of birth of parties.

9. Rule 30 of the Matrimonial Causes Rules is repealed.

Particulars of cohabitation.

10. Rule 32 of the Matrimonial Causes Rules is repealed.

Particulars of previous proceedings.

11. Rule 34 of the Matrimonial Causes Rules is repealed.

Condonation, connivance and collusion.

12. Rule 35 of the Matrimonial Causes Rules is repealed.

Statement in petition when petitioner has committed adultery.

13. Rule 40a of the Matrimonial Causes Rules is repealed.

Arrangements for welfare of children.

14. Rule 41 of the Matrimonial Causes Rules is amended—

(a) by omitting from sub-rule (1) the word “shall” and inserting in its stead the word “ may”; and

(b) by omitting paragraph (b) of sub-rule (1).

Application of certain rules to petition for judicial separation.

15. Rule 51 of the Matrimonial Causes Rules is amended by omitting the figures “40a”.

Petition for restitution of conjugal rights.

16. Rule 53 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1) all words after the word “petition” (secondly appearing).

Service of petitions.

17. Rule 66 of the Matrimonial Causes Rules is amended—

(a) by omitting paragraph (b) of sub-rule (1); and

(b) by inserting after sub-rule (1a) the following sub-rule:—

“(1b) Subject to these Rules, a petitioner shall cause service of a notice of proceedings to be effected, in a manner referred to in paragraph (a) or (b) of rule 60, on a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.”.

Service of answer.

18. Rule 67 of the Matrimonial Causes Rules is amended—

(a) by omitting paragraph (b) of sub-rule (1); and

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

“(1a) Subject to these Rules, a person on whose behalf an answer to a petition is filed shall cause service of a notice of proceedings to be effected, in a manner referred to in paragraph (a) or (b) of rule 60, on any person specified by the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.”.

Answer.

19. Rule 76 of the Matrimonial Causes Rules is amended by inserting in sub-rule (1) before the word “Part” the words “sub-rule (5) of rule 17 or”.

Answer and cross-petition.

20. Rule 77 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rules (3), (4) and (5); and

(b) by omitting from sub-rules (6) and (8) the figures “40a”.

Reply.

21. Rule 79 of the Matrimonial Causes Rules is amended by inserting in sub-rule (2) before the word “Part” the words “sub-rule (5) of rule 17 of these Rules or”.

Verification of amendment.

22. Rule 92 of the Matrimonial Causes Rules is amended by omitting sub-rule (2).

Amendment.

23. Rule 95 of the Matrimonial Causes Rules is amended—

(a) by omitting from sub-rule (3) the words “sealed copy of the amended petition or amended answer” and inserting in their stead the words “notice of proceedings”; and

(b) by omitting sub-rule (4).

Contents of supplementary petition.

24. Rule 99 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1) the words “the facts, but not the evidence by which the facts are to be proved” and inserting in their stead the words “the ground or grounds”.

Contents of supplementary answer.

25. Rule 100 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1) the words “the facts, but not the evidence by which the facts are to be proved” and inserting in their stead the words “the ground or grounds”.

Condonation, connivance and collusion.

26. Rule 101 of the Matrimonial Causes Rules is repealed.

Service of supplementary petitions and supplementary answers.

27. Rule 103 of the Matrimonial Causes Rules is amended—

(a) by omitting paragraph (b) of sub-rule (1); and

(b) by inserting after sub-rule (1) the following sub-rule;—

“(1a) Service of a notice of proceedings shall be effected, in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules, on each person (if any) specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.”.

How certain parsons named become parties.

28. Rule 107 of the Matrimonial Causes Rules is amended by inserting after the words “Act” the words “or sub-rule (5) of rule 17 of these Rules”.

Amendment when name of adulterer, etc., becomes known.

29. Rule 109 of the Matrimonial Causes Rules is amended—

(a) by inserting in paragraph (a) of sub-rules (2) and (4) after the word “and” (first appearing) the words “service of a notice of proceedings shall be effected”; and

(b) by omitting paragraph (b) of sub-rules (2) and (4).

Time when pleadings complete.

30. Rule 136 of the Matrimonial Causes Rules is amended—

(a) by inserting in sub-rule (5) after the word “person” the words “with or”; and

(b) by inserting in sub-rule (5) after the word “committed” the word “adultery”.

Particulars.

31. Rule 137 of the Matrimonial Causes Rules is amended—

(a) by inserting in sub-rule (1) before the word “who” (secondly appearing) the words “a person named in a pleading”; and

 

(b) by omitting from sub-rule (1) the words “rule 111 or 112” and inserting in their stead the words “sub-rule (5) of rule 17 or Part IX”.

Discretion statements.

32. Division 5 of Part XI of the Matrimonial Causes Rules is repealed and the following Division inserted in its stead:—

“Division 5—Confessions.

“161. No party to a matrimonial cause being a matrimonial cause within the meaning of the definition of “matrimonial cause” shall be required as part of that party’s case for any relief to confess or deny any matter relating to an absolute or discretionary bar to that relief.

“162. No party to a matrimonial cause being a matrimonial cause within the meaning of the definition of “matrimonial cause” shall be required to ask the court not to refuse to grant any relief sought by that party.

“163. No discretion statement shall be deposited with or filed in any court in connexion with proceedings under the Act.

“164. Every discretion statement deposited with or filed in any court before or after the commencement of this rule shall forthwith be destroyed by the registrar of the court.”

Setting undefended suit down for trial.

33. Rule 171 of the Matrimonial Causes Rules is amended—

(a) by inserting in paragraph (a) of sub-rule (3) after the word “and” the words “of a notice of proceedings”:

(b) by inserting in paragraph (b) of sub-rule (3) after the word “petition” the words “or a notice of proceedings”; and

(c) by inserting in sub-rule (4) after the word “petition” (first appearing) the words “or a notice of proceedings”.

Adultery of party who has established ground for dissolution or judicial separation.

34. Rule 187 of the Matrimonial Causes Rules is amended—

(a) by omitting the words “state accordingly in its decree and shall also”; and

(b) by omitting from paragraph (d) the words “notwithstanding that last-mentioned ground”.

Certain proceedings may be instituted without the leave of the court.

35. Rule 197 of the Matrimonial Causes Rules is amended by inserting in sub-rule (1) after the word “petition” (secondly appearing) the words “or by filing an application at any time after the petition is filed and within twelve months after the proceedings for principal relief have been heard and determined”.

Forms of application for ancillary relief.

36. Rule 201 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rule (2);

(b) by omitting from paragraph (b) of sub-rule (3) the word “completed ” (first appearing); and

(c) by omitting from sub-rule (3) the word “shall” and inserting in its stead the word “may”.

Adultery of party claiming custody.

37. Rule 217a of the Matrimonial Causes Rules is repealed.

 

Application for custody by a person other than a parent.

38. Rule 218 of the Matrimonial Causes Rules is amended by omitting sub-rule (4).

Affidavit evidence on trial of proceedings.

39. Rule 227 of the Matrimonial Causes Rules is amended by inserting in sub-rule (1) after the words “matrimonial cause” the words “(other than proceedings for a decree of dissolution of marriage in which the right to that relief is not denied by an answer duly filed by the party to the marriage against whom the decree is sought)”.

Affidavit evidence on the hearing of other proceedings.

40. Rule 228 of the Matrimonial Causes Rules is amended by inserting in sub-rule (1) before the word “proceedings” (first appearing) the words “proceedings for a decree of dissolution of marriage in which the right to that relief is not denied by an answer duly filed by the party to the marriage against whom the decree is sought and”.

Affirmations.

41. Rule 243 of the Matrimonial Causes Rules is amended—

(a) by omitting the words “Where the” and inserting in their stead the word “The”;

(b) by omitting the words “objects to swearing on oath to the truth of the statements contained in the affidavit, he”; and

(c) by omitting the words “that he objects to swearing an oath and”.

Cost of proceedings to register decree.

42. Rule 268 of the Matrimonial Causes Rules is repealed.

Power to examine on oath or affirmation.

43. Rule 287 of the Matrimonial Causes Rules is amended—

(a) by omitting from sub-rule (2) the words “Where a” and inserting in their stead the word “A”;

(b) by omitting the words “conscientiously objects to take an oath, he”; and

(c) by omitting the words “that he conscientiously objects to take an oath and”.

Costs.

44. Part XX and the Second Schedule of the Matrimonial Causes Rules are repealed and the following Part inserted instead of Part XX:—

“Part XX—Costs

“300. (1) No court fees shall be payable in any proceedings under the Act in any court.

“(2) No legal costs shall be payable in any proceedings under the Act otherwise than in accordance with this Part and the registrar shall forthwith bring to the attention of the Attorney-General any case coming to the attention of the registrar in which hardship to any person in relation to any proceedings arises out of the operation of this Part.

“301. No party to any undefended matrimonial cause, being a matrimonial cause within the meaning of the definition of ‘matrimonial cause’, shall be ordered to pay the costs of any other party to the cause.

“302. (1) The maximum amount payable for any party’s legal costs of any defended proceedings for a decree of dissolution of marriage shall be five hundred dollars unless the court in a particular case, if it is of opinion that there are special circumstances which justify it so doing, shall assess another amount specified by the court in its determination of the proceedings.

 

“(2) The maximum amount payable for any party’s legal costs of any undefended proceedings for a decree of dissolution of marriage shall be one hundred and fifty dollars unless the court in a particular case, if it is of opinion that there are special circumstances which justify it so doing, shall assess another amount specified by the court in its determination of the proceedings.

“303. (1) The maximum amount payable for any party’s legal costs of any defended proceedings for a decree of judicial separation shall be one hundred and fifty dollars unless the court in a particular case, if it is of opinion that there are special circumstances which justify it so doing, shall assess another amount specified by the court in its determination of the proceedings.

“(2) The maximum amount payable for any party’s legal costs of any undefended proceedings for a decree of judicial separation shall be seventy-five dollars unless the court in a particular case, if it is of opinion that there are special circumstances which justify it so doing, shall assess another amount specified by the court in its determination of the proceedings.

“304. Any amount payable by a party for legal costs of any proceedings under the Act other than those proceedings mentioned in rules 302 and 303 of these Rules shall be assessed by the court in its determination of the proceedings in such amount as the court shall stipulate as reasonable in the circumstances of the particular case.”.

Copies of certain decrees and orders to be sent to courts of summary jurisdiction.

45. Rule 328a of the Matrimonial Causes Rules is amended by omitting from sub-rule (2) the words “included in the petition in accordance with rule 34 of” and inserting in their stead the words “stated in pursuance of”.

Form 6.

46. Form 6 in the First Schedule to the Matrimonial Causes Rules is amended by omitting paragraphs 4, 5, 7, 8, 10, 11, 12, 13 and 16.

Form 7.

47. Form 7 in the First Schedule to the Matrimonial Causes Rules is amended by omitting paragraphs 4, 5, 7, 10 and 11.

Form 8.

48. Form 8 in the First Schedule to the Matrimonial Causes Rules is amended—

(a) by omitting from paragraph 7 the word “should” and inserting in its stead the word “may”; and

(b) by omitting from paragraph 7 all words after the word “petition” and inserting in their stead the words “or an application”.

Form 9.

49. Form 9 in the First Schedule of the Matrimonial Causes Rules is amended by omitting paragraph 2 and inserting in its stead the following paragraph:—

“2. You are entitled to particulars of the allegation of adultery (or rape or sodomy).”.

Form 15a.

50. Form 15a in the First Schedule of the Matrimonial Causes Rules is amended by omitting paragraphs 5, 6 and 9.

Form 20.

51. Form 20 in the First Schedule of the Matrimonial Causes Rules is amended by omitting from paragraph 1 the words “the facts relied on as constituting that ground and”.

Form 30.

52. Form 30 in the First Schedule of the Matrimonial Causes Rules is repealed.

Form 35.

53. Form 35 in the First Schedule of the Matrimonial Causes Rules is amended by omitting the third paragraph, relating to the exercise of the court’s discretion.

 

Form 38.

54. Form 38 in the First Schedule of the Matrimonial Causes Rules is amended by omitting the third paragraph, relating to the exercise of the court’s discretion.

Form 44.

55. Form 44 in the First Schedule of the Matrimonial Causes Rules