Matrimonial Causes Rules (Amendment) (Cth)

STATUTORY RULES

1972 No.

 

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 seventeenth day of November, 1972.

Paul Hasluck

Governor-General.

By His Excellency’s Command

Attorney-General.

 

Amendments of the Matrimonial Causes Rules

Parts.

1. Rule 3 of the Matrimonial Causes Rules is amended by inserting after the words—

“ Division 3.—Certificates of Means (Rules 211-213),”

the words—

“ Division 3a.— References to Registrars (Rules 213a-213j).”.

Interpretation.

2. Rule 4 of the Matrimonial Causes Rules is amended by inserting in the definition of “ court town ”, after the word “ judges ”, the words “ , or by another authority, ”.

Exercise of powers and functions of registrar.

3. Rule 5 of the Matrimonial Causes Rules is amended by inserting in sub rule (1.), after the word “ judges ”, the words “ , or another authority,”.

Forms of application for ancillary relief.

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

(a) by omitting from sub-rule (2.) the word “ two ” and inserting in its stead the word “three”.

(b) by omitting sub-rule (3.) and inserting in its stead the following sub-rule:—

“ (3.) Art application to the court for the purpose of instituting proceedings for ancillary relief pending the disposal of proceedings (other than proceedings for maintenance) shall be in accordance with Form 5; and

(c) by inserting after sub-rule (4.) the following sub-rule:—

“ (4a.) An application, to a court for the purpose of instituting proceedings for ancillary relief, being proceedings for relief in relation to completed proceedings for principal relief, including proceedings for principal relief completed before the commencement of the Matrimonial Causes Act 1959, shall be in accordance with—

(a) if the application is for an order of a kind referred to in paragraph (j) of sub-section (1.) of section 87 of the Act in relation to an order in respect of a matter referred to in section 84 of the Act—Form 45a; or

(b) in any other case—Form 5.”.

* Notified in the Commonwealth Gazette on 1972.

  Statutory Rules 1960, No. 97, as amended by Statutory Ruled 1963, No. 1; 1965, No. 29; 1906, No. 18; 1967, No. 320; and 1970, No. 3.

16786/72—Price 15c 10/3.11.1972

Order for maintenance pending suit where summary order in force.

5. Rule 202 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rules (4.) and (5.) and inserting in their stead the following sub-rules:—

“ (4.) In a case to which this rule applies, the claimant may, at any time after a defence to the proceedings has been filed or, if such a defence has not been filed, after the time for filing such a defence has expired, request the registrar to set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.

“ (5.) Where a claimant files a request in accordance with the last preceding sub-rule in relation to proceedings for ancillary relief—

(a) the registrar shall, unless the court has referred a claim, within the meaning of Division 3a. of this Part, in the proceedings to the registrar under that Division, fix a date, time and place for the hearing of the proceedings by the court and notify the claimant of the date, time and place so fixed; and

(b) if the spouse of the claimant has filed a defence to the proceedings—the claimant shall cause seen-ice of a notice, in accordance with Form 47, to be effected on the spouse on the day on which the registrar notifies him of the date, time and place so fixed or on the next following day.”; and

(b) by adding at the end thereof the following sub-rule:—

“ (8.) Nothing in this rule shall be taken to prevent a claimant from requesting the court to hear the proceedings for ancillary relief to which this rule applies under rule 210a of these Rules before a defence to the proceedings has been filed or the time for filing such a defence has expired.”,

Proceedings for maintenance pending suit— hearing without assessment by the registrar.

6. After rule 208 of the Matrimonial Causes Rules the following rule is inserted:—

 “ 208a.—(1.) Where—

(a) proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of the proceedings, of the claimant, of a child of the marriage or of the claimant and a child of the marriage;

(b) rules 202 and 203 do not apply in relation to the proceedings; and

(c) the claimant in the proceedings has not requested the registrar to make an assessment under rule 204 of these Rules,

the claimant may, at any time after a defence to the proceedings has been filed or, if such a defence has not been filed, after the time for filing such a defence has expired, request the registrar to set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.

“ (2.) Where a claimant files a request in accordance with the last preceding sub-rule in relation to proceedings for ancillary’ relief, the registrar shall, unless the court has referred a claim, within the meaning of Division 3a of this Pan, in the proceedings to the registrar under that Division, fix a date for the hearing of the proceedings by the court and notify the claimant of the date so fixed.

“ (3.) Where the spouse of the claimant has filed a defence to the proceedings, the claimant, shall cause service of a notice, in accordance with Form 47, to be effected on the spouse on the day on which the registrar notifies the claimant of the elate fixed under the last preceding sub-rule or on the next following day.

“ (4.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.

“ (5.) Where, in a case to which this rule applies, the proceedings for ancillary relief were instituted by a petition or an answer to a petition and the respondent had not filed an answer to the petition, or the petitioner had not filed a reply to the answer, before a notice under sub-rule (3.) of this rule was served on him, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purposes of the proceedings—

(a) admit or deny an allegation in the petition or answer that relates to those proceedings; and

(b) state any facts relevant to those proceedings that the respondent or petitioner wishes to be considered by the court upon the determination of those proceedings.

“ (6.) Nothing in this rule shall be taken to prevent a claimant from requesting the court to hear proceedings for ancillary relief to which this rule applies under rule 210a of these Rules before a defence to the proceedings has been filed or the time for filing such a defence has expired.”.

7. After rule 213 of the Matrimonial Causes Rules the following Division is inserted:—

“ Division 3a.—References to Registrars.

Application.

“ 213a. In this Division—

‘ claim ’ in relation to prescribed proceedings, means a claim or application for or relating to maintenance, or any other matter before the court, in the proceedings.

‘ prescribed proceedings ’ means proceedings for ancillary relief—

(a) seeking an order with respect to—

(i) the maintenance, whether pending the disposal of proceedings or otherwise, of the claimant, of a child of the marriage or of the claimant and a child of the marriage; or

(ii) a settlement of property to which the parties to the marriage are, or either of them is, entitled; or

(b) seeking an order of a kind referred to in paragraph (j) of sub-section (1.) of section 87 of the Act in relation to an order made in respect of a matter referred to in section 84 of the Act,

and includes proceedings seeking an interlocutory order that a party pay, or secure the payment of, a sum of money on account of, or to cover, another party’s costs of and incidental to any proceedings.

Reference to the Registrar.

“ 213b-—(1.) Where prescribed proceedings have been instituted in a court, the court may, as provided in the next succeeding sub-rule, upon application by a party to the proceedings or of its own motion, refer to the registrar a claim in the proceedings for investigation, report arid recommendation,

“ (2.) A court may exercise its powers under the last preceding sub-rule in relation to prescribed proceedings—

(a) upon a request being made for the proceedings to be set down for hearing; or

(b) when the proceedings are before the court for hearing or otherwise.

“ (3.) Where the court exercises its powers under sub-rule (1.) of this rule in relation to prescribed proceedings upon a request being made for the proceedings to be set down for hearing—

(a) the registrar shall fix the date on which, and the time and place at which, a registrar will investigate the claim referred to him and notify the claimant of the date, time and place so fixed; and

(b) if the spouse of the claimant has filed a defence to the proceedings— the claimant shall cause a notice, in accordance with Form 53a, to be served on the spouse on the day on which the registrar notifies him of the date, time and place so fixed or the next following day.

“ (4.) Where the court exercises its powers under sub-rule (1.) of this rule in relation to prescribed proceedings when the proceedings are before the court for hearing or otherwise—

(a) the court may direct that notice of the date on which, and the time and place at which, a registrar will investigate the claim referred to him shall be served on the spouse of the claimant;

(b) the court may give such other directions in relation to the investigation of the claim by the registrar as it thinks fit; and

(c) the claimant shall comply with any directions given by the court in pursuance of this sub-rule.

Procedure in making investigational

“ 213C.— (1.) Subject to this rule, the provisions of Division I of Part XIX. of these Rules, other than the provisions of rule 287a of these Rules, apply to and in relation to the making of an investigation into a claim referred to the registrar under the last preceding rule as if—

(a) a reference in those provisions to an application to a registrar were read as a reference to the claim;

(b) a reference to a party to an application were read as a reference to a party to the prescribed proceedings in relation to which the claim has been referred to a Registrar.

(c) the reference in sub-rule (2.) of rule 289 to rule 287a of these Rules were read as a reference to the next succeeding sub-rule; and

(d) the reference in rule 291 of these Rules to the decision of a registrar on an application were read as a reference to the making of a report end recommendation in respect of the claim referred to the registrar.

“ (2.) Notwithstanding that a party to prescribed proceedings in connexion with which a claim has been referred to a registrar under the last preceding rule, not being the claimant in the proceedings, has an address for service for Lire purpose of the proceedings, the party is not entitled, without the leave of the registrar, to examine or cross-examine witnesses in the course of the investigation by the registrar unless—

(a) if the proceedings were instituted by a petition or an answer to a petition—he has filed a pleading in answer to the pleading by which the proceedings were instituted; or

(b) in any other case—he has filed an affidavit in reply to the affidavit filed by the claimant in support of the application.

Report and recommendation of a Registrar.

“ 213d.—(1.) Where a claim in prescribed proceedings is referred to a registrar under rule 213b of these Rules, the registrar shall, in making a report and recommendations in respect of the claim, have regard to the powers conferred on the court by Part VIII. of the Act in relation to the prescribed proceedings.

“ (2.) Where the registrar recommends that maintenance should be payable for the claimant, for a child of the marriage or for the claimant and a child of the marriage, the registrar shall, in his recommendations, specify—

(a) the rate per week at which he considers maintenance should be so payable;

(b) the date, not being a date earlier than the date on which the petition, answer or application to the court for ancillary relief was filed, as from and including which maintenance at that rate should be payable;

(c) the amount of maintenance, if any, that ought to be payable for the claimant, the child or the claimant and the child in respect of any period prior to the date specified in the recommendations in accordance with the last preceding paragraph, and the manner in which that amount should be payable; and

(d) whether the maintenance should be paid to the claimant, into court or to a person or public authority on behalf of the claimant or the child, as the case may be.

“ (3.) A report and recommendations of the registrar in respect of a claim shall be in accordance with Form 53b and shall be filed in the office of the court.

Service of report and recommendations.

“ 213e.—(1.) The registrar shall, upon filing a report and recommendations in respect of a claim in prescribed proceedings—

(a) cause a copy of the report and recommendations to be prepared for each person on whom service of a copy of the report and recommendations is required to be effected; and

(b) cause the copy of the report and recommendations prepared for a person to be served on that person by—

(i) sealing the copy of the report and recommendations in an envelope having the name and address of the person or his solicitor written on it and having a notation written on it in the following form, that is to say, ‘ If not delivered within seven days return to the Registrar at (address of the registrar) ’; and

(ii) posting the envelope to that person or his solicitor as a letter, postage being prepaid,

or, if that person is represented by a solicitor in the proceedings, by delivering the copy of the report and recommendations to that Solicitor or to the city’ agent of that solicitor.

“ (2.) For the purpose of the last preceding sub-rule, copies of a report and recommendations in respect of a claim in prescribed proceedings shall, subject to the next succeeding sub-rule, be served on the claimant and the spouse of the claimant.

“ (3.) The last preceding sub-rule does not require service of a copy of a report and recommendations in respect of a claim in prescribed proceedings to be served on the spouse of the claimant if service of the application for ancillary relief in the proceedings on the spouse—

(a) was dispensed with; or

(b) was effected by publishing notice of the application in a newspaper, but in no other manner,

unless the spouse has filed a defence to the proceedings or the court, as a condition of dispensing with service of the application for ancillary relief on the spouse, required a copy of the application to be sent to, or served on, some other person.

“ (4.) For the purpose of sub-rule (1.) of this rule, the address of a person or his solicitor that is to be written on an envelope is—

(a) if the person is the claimant—the address for service of the claimant; or

(b) if the person is the spouse of the claimant—the address for service of the spouse or, if the spouse has not filed an address for service, the address of the spouse at which the application for ancillary relief in the prescribed proceedings was served on the spouse or the address of the person lo or on whom a copy of that application was sent or served as a condition of dispensing with service of the application for ancillary relief on the spouse.

“ (5.) Service of a copy of a registrar’s report and recommendations on a person shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the copy would, in the ordinary course of post, be delivered at the address to which it is posted.

“ (6.) In any proceedings, a certificate, under the hand of a registrar and written on a copy of a report and recommendations of a registrar, stating that a copy of the report and recommendations was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address is evidence of the facts stated in the certificate.

Objection to recommendations.

“ 213f.— (1.) Where a registrar has made a report and recommendations in respect of a claim in prescribed proceedings, the claimant or his spouse may, not later than ten days after service of a copy of the report and recommendations has been effected on him—

(a) object to the making of an order in accordance with the recommendations; and

(b) request that the proceedings be heard by the court, by filing a notice in accordance with Form 53C.

“ (2.) Where a notice is filed under the last preceding sub-rule in relation to prescribed proceedings, the registrar shall—

(a) fix a dale, time and place for the hearing of the proceedings by the court; and

(b) notify the person who filed the notice of the date, time and place so fixed.

Making of order.

“ 213g,—(1.) Where—

(a) a registrar has made a report and recommendations in respect of a claim in prescribed proceedings;

(b) the provisions of sub-rule (1.) of rule 213e of these Rules have been complied with in relation to the report and recommendations;

(c) a notice in relation to the proceedings has not been filed under the last preceding rule; and

(d) the time within which the claimant may, or the claimant and his spouse may each, file such a notice has expired, the registrar shall report accordingly to the court and the court, if it thinks fit, may then, without any application being made to ii and without a hearing, make an order in accordance with the recommendations of the registrar.

“ (2.) Where a court does not think fit to make an order under the last preceding sub-rule in prescribed proceedings, the registrar of the court shall fix a date, time and place for the hearing of the proceedings by the court and notify the claimant in the proceedings of the date, time and place so fixed.

“ (3.) Where a person who has filed a notice under rule 213f of these Rules in relation to prescribed proceedings informs the registrar, in writing, that he withdraws his objection to the making of an order in accordance with the recommendations of the registrar in the proceedings, sub-rule (1.) of this rule applies as if he had not filed that notice.

Service of notices.

 “ 213h.—(1.) Subject to the succeeding sub-rules of this rule, where the registrar notifies a party to prescribed proceedings in accordance with rule 21 3f or 21 3g of these Rules, the party shall cause a notice, in accordance with Form 53d, to be served on his spouse—

(a) if his spouse has an address for service for the purpose of the proceedings—on the day on which he is so notified by the registrar or the next following day; or

(b) in any other case—by posting, on the day on which he is so notified by the registrar or the next following day, a copy of the notice to the spouse, postage being prepaid, at the address at which the application for ancillary relief was served on the spouse or at the address of the person to or on whom a copy of that application was sent to or served as a condition of dispensing with service of the application on the spouse,

“ (2.) Where the registrar notifies a party to prescribed proceedings in accordance with rule 213f of these Rules, the last preceding sub-rule does not require service of the notice to be effected on the spouse of the party if service of a copy of the registrar’s report and recommendations in the proceedings was not required to be effected on the spouse,

“ (3.) Where the registrar notifies a party to prescribed proceedings in accordance with rule 213c« of these Rules, sub-rule (1.) of this rule does not require service of the notice to be effected on the spouse of the party if service of the application for ancillary relief instituting the proceedings on the spouse—

(a) was dispensed with; or

(b) was effected by publishing notice of the application in a newspaper,

and the spouse has not filed a defence in the proceedings and the court did not, as a condition of dispensing with service of the application, require a copy of the application to be sent to or served on another person.

Registrar’s report to be evidence.

 “ 213j. The report of a registrar in respect of a claim in prescribed proceedings is evidence of the matters specified in the report as facts found by the registrar in the course of his investigation of the claim,”.

Application in respect of a child by a person other than a parent of the child.

8. Rule 218 of the Matrimonial Causes Rules is amended by inserting in sub-rule (1.), after the words “ Division 3 ” the words “ , Division 3a ”.

Variation of orders.

9. Rule 219 of the Matrimonial Causes Rules is amended by omitting sub-rule (3.) and inserting in its stead the following sub-rules:—

“ (1.) Where application is made to a court seeking a decree of a kind referred to in. paragraph (j) of sub-section (1.) of section 87 of the Act in relation to an order made in respect of a matter referred to in section 84 of the Act, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 22 of those Rules —

(a) the changed circumstances relied on by the applicant;

(b) the material facts that are alleged by the applicant to have been withheld from a court; or

(c) the material evidence previously given before a court that is alleged by the applicant to have been false,

as the case may be.

 

“ (1a.) Where a party has filed an application referred to in sub-rule (1.) of this rule, the registrar shall, unless the court has referred a claim, within the meaning of Division 3a of this Part, in the proceedings instituted by the application to the registrar under that Division, fix a date, time and place for the heating of the application by the court and notify the claimant of the date, time and place so fixed.

“ (1b.) Where the party filing an application referred to in sub-rule (1.) of this rule is notified by the registrar as provided in the last preceding sub-rule, the party shall cause notice, in accordance with Form 47, to be served on any other party to the proceedings on whom service of the application is required to be effected.

“ (1c.) Unless a judge otherwise directs, there shall be at least fourteen clear days between sendee of the notice referred to in the last preceding sub-rule and the day named in the notice as the day on which the application will be heard by the court.”.

Form 45a.

10. After Form 45 in the First Schedule to the Matrimonial Causes Rules the following form is inserted:—

Form 45a. R. 201 (4a,).

APPLICATION TO VARY MAINTENANCE ORDER

(Title)

Application is made to the court on behalf of the

for (here set out the order sought)

The registrar of the court is hereby requested to set these proceedings down for hearing.

Dated this day of , 19 .

Solicitor for the .

This application is filed by on behalf

of the whose address for service is.

It is intended to effect service of this application on and

Form 47.

11. Form 47 in the First Schedule to the Matrimonial Causes Rules is repealed and the following form inserted in its stead:—

Form 47. Rr. 202 (5.); 214 (2.) and 20Sa (3.).

NOTICE OF HEARING

(Title)

Take notice that the proceedings for an order for instituted

in this suit have been set down for hearing at on the

day of , 19 , at o’clock in the noon,

or so soon thereafter as the course of business will permit.

Dated this day of , 19 .

Solicitor for the

To

Forms 53a to 53d.

12. After Form 53 in the First Schedule to the Matrimonial Causes Rules the following forms are inserted:—

Form 53a. R. 213b (3.).

NOTICE OF INVESTIGATION BY REGISTRAR

(Title)

Take notice that the proceedings for an order for (or as

the case may be) have been referred by the court to the registrar for investigation, report and recommendations and that the investigation will be commenced by a registrar at on the day of , 19 , at the

hour of o’clock in the noon, or so soon thereafter as the course

of business will permit

Dated this day of , 19 .

To

Solicitor for the

Form 53b. R. 213d (3.).

–––

REPORT AND RECOMMENDATIONS OF REGISTRAR

(Title)

The application dated the day of , 19 , of the

petitioner (or respondent) for

was investigated by me on the day of , 19 ,

Mr. appearing for the petitioner and Mr. appearing

for the respondent (or as the case may be).

I report to the court as follows:—

(a)

(b)

(c)

I recommend as follows:—

(a)

(b)

(c)

Dated this day of , 19 .

Registrar.

To: (full names of the petitioner and respondent)

TAKE NOTICE that—

(1) Rule 213f of the Matrimonial Causes Rules provides that the claimant or his spouse may, not later than ten days after service on him of a copy of the report and recommendations of the registrar, object to the making of an order by the court in accordance with the recommendations and request that the proceedings be heard by the court by filing in the office of the court a notice in accordance with Form 53e in the First Schedule to the Matrimonial Causes Rules.

(2) Rule 213f also provides that, if either the claimant or his spouse files such a notice, the registrar shall fix a date, time and place for the hearing of the proceedings by the court.

(3) Rule 213G of the Matrimonial Causes Rules provides that, if neither the claimant nor his spouse files the notice referred to in paragraph (1) above within the time referred to in that paragraph, the court may, without any application being made to it and without a hearing, make an order in accordance with the recommendations of the registrar.

Form 53C. R. 213f(1.).

NOTICE OF OBJECTION AND REQUEST THAT PROCEEDINGS BE HEARD BY COURT

(Title)

To the Registrar.

In pursuance of sub-rule (1.) of rule 213f of the Matrimonial Causes Rules, the objects to an order being made in accordance with the recommendations of the registrar dated , 19 , and requests that the proceedings

be set down for hearing by the court.

Dated this day of , 19 .

Solicitor for the

Form 53d. R. 213h (1.).

NOTICE OF HEARING OF ANCILLARY PROCEEDINGS

(Title)

Take notice that the has objected to an order being made (or that

the court did not think fit to make an order) in accordance with the recommendations of the registrar dated  , 19 , and that the proceedings for an order

for have therefore been set down for hearing at

on the day of , 19 , at the hour

of o’clock in the noon or so soon thereafter as the course

of business will permit.

Dated this day of , 19 .

Solicitor for the

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