Matrimonial Causes Rules (Amendment) (Cth)

STATUTORY RULES

 

1970 No. 3

  

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 fifteenth day of January, 1970.

Paul Hasluck

Governor-General.

By His Excellency’s Command,

Attorney-General.

_____________

 

Amendments of the Matrimonial Causes Rules

Commencement.

1. These Rules shall come into operation on the first day of February, 1970.

Service of petitions.

2. Rule 66of the Matrimonial Causes Rules is amended by omitting sub-rule (1a.) and inserting in its stead the following sub-rule:—

“ (1A,) Where proceedings for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 28 of the Act and on no other ground are instituted by a petition, the last preceding sub-rule does not require service of the petition to be effected on any person.”.

Appeal Books.

3. Rule 223 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rule (2.) and inserting in its stead the following sub-rule:—

“(2.) An appeal book shall be printed, or reproduced by a duplicating process, upon white paper of the size known as International A4, that is to say, paper measuring approximately 11¾ inches by 8¼ inches”; and

(b) by inserting in paragraph (b) of sub-rule (4.) after the word “every” the word “fifth”.

Service of orders.

4. Rule 254 of the Matrimonial Causes Rules is repealed and the following rules are inserted in its stead:—

“254.—(1.) Subject to the next succeeding sub-rule where a Supreme Court or a court of summary jurisdiction makes an attachment of earnings order, or an order varying or discharging an attachment of earnings order, the prescribed officer shall cause service of a sealed copy of the order to be effected on—

(a) the person entitled to receive payments under the maintenance order;

(b) the defendant; and

(c) the person to whom the attachment of earnings order is directed.

__________________________________________________________________________________

* Notified in the Commonwealth Gazette on 1970.

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

21229/69—Price 10c 10/6.1.1970

“(2.) The last preceding sub-rule does not require service of a copy of an order to be effected on the applicant for the order.

“(3.) Where a Supreme Court makes an order referred to in sub-rule (1.) of this rule, the applicant for the order shall deposit with the Registrar of the court a copy of the order for each person on whom service of a sealed copy of the order is required by this rule to be effected, being a copy that complies with the provisions of the next succeeding sub-rule.

“(4.) Where service of a sealed copy of an order is to be effected in accordance with sub-rule (1.) of this rule on the Commonwealth, the Administration of a Territory to which the Act applies or a body corporate (not being an incorporated company, society or association) incorporated for a public purpose by or under a law of the Commonwealth, of a State or of such a Territory, the copy of the order deposited for service accordingly shall have written on it the particulars required by sub-rule (2.) of the next succeeding rule to be written on an envelope containing a document that is to be served, in accordance with the provisions of sub-rule (I.) of that rule, on the Commonwealth, the Administration of the Territory or the body corporate, as the case may be.

“(5.) Where service of a sealed copy of an order is to be effected in accordance with sub-rule (1.) of this rule on a State, the copy of the order deposited for service on the State shall have written on it the particulars required by sub-rule (4.) of the next succeeding rule to be written on an envelope containing a document that is to be served, in accordance with the provisions of sub-rule (3.) of that rule, on the State.

“(6.) Subject to the last two preceding sub-rules, where service of a copy of an order is to be effected in accordance with sub-rule (1.) of this rule on a person, the copy of the order deposited for service on the person shall have written on it the name of the person and either the place of residence or the place of business of the person.

“(7.) In this rule, ‘the person entitled to receive payment under the maintenance order’, in relation to a maintenance order, means—

(a) if the maintenance order requires payments to be made into a court for payment out to a person—that person;

(b)if the maintenance order requires payments to be made to a person for transmission to another person—that first-mentioned person; or

(c) in any other case—the person to whom the payments are required to be made under the maintenance order.

Service on the Commonwealth. &c.

“254a.—(1.) Where a document, including a copy of an order, is required or permitted to be served under the Third Schedule of the Act on the Commonwealth, on the Administration of a Territory to which the Act applies or on a body corporate (not being an incorporated company, society or association) incorporated for a public purpose by or under a law of the Commonwealth, of a State or of such a Territory, service of the document may be effected on the Commonwealth, the Administration of the Territory or the body corporate—

(a)by handing a sealed envelope containing the document, being an envelope that is addressed in the manner specified in the next succeeding sub-rule, to a person who is apparently over the age of sixteen years and is apparently employed in the Department of the Commonwealth, by the branch of the Administration of the Territory or by the body corporate, as the case may be, specified on the envelope at the address of that Department, branch or body corporate specified on the envelope; or

(b) by posting such a sealed envelope, postage being prepaid, as a letter to the Department, branch or body corporate specified on the envelope at the address specified on the envelope.

“(2.) The manner in which an envelope containing a document is to be addressed for the purpose of the last preceding sub-rule is as follows:—

‘The Paying Officer,

(Here insert the name of the Department of the Commonwealth, branch of the Administration of the Territory, or of the body corporate in which the defendant is employed.).

(If the defendant is employed in a Department of the Commonwealth and the person effecting service knows the name of the branch of that Department in which the defendant is employed, here insert the name of that branch.).

(Here insert the address of that Department, Branch or body corporate.)’.

“(3.) Where a document, including the copy of an order, is required or permitted to be served under the Third Schedule to the Act on a State, service of the document may be effected on the State—

(a) by handing a sealed envelope containing the document, being an envelope that is addressed in the manner specified in the next succeeding sub-rule, to a person who is apparently over the age of sixteen years and is apparently employed in the Department or office of the State specified on the envelope at the address of that Department or office, or of the branch of that Department or office, specified on the envelope; or (b) by posting such a sealed envelope, postage being prepaid, as a letter to the person referred to on the envelope at the address specified on the envelope.

“(4.) The manner in which an envelope containing a document that is to be served on a State is to be addressed for the purpose of the last preceding sub-rule is as follows:—

‘The Secretary (or the Under-Secretary or as the case may be),

(Here insert the name of the Department or office of the State in which the defendant is employed.),

(If known to the person, effecting service, here insert the name of the branch of the Department or office of the State in which the defendant is employed.),

(Here insert the address of that Department, office or branch.)’.

“(5.) A reference in sub-rule (2.) or (4.) of this rule to the person effecting service shall, in a case where service of a sealed copy of an order is being effected by the prescribed officer of a court in accordance with sub-rule (1.) or (3.) of this rule, be read as a reference to the applicant for the order.

“(6.) Service of a document in accordance with paragraph (b)of sub-rule (1.), or paragraph (b)of sub-rule (3.) of this rule shall, unless the contrary is proved, be deemed to have been effected at the time when the envelope containing the document would be delivered in the ordinary course of post.

Certificate of posting to be evidence.

“254b.—(1.) In all courts, a certificate under the hand of the prescribed officer of a court stating that a sealed copy of an order a copy of which is attached to the certificate, being an order of a kind referred to in sub-rule (1.) of rule 254 of these Rules, was posted as a registered letter or as a letter, as the case may be (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 or addressed in a specified manner, being a manner specified in sub-rule (2.) or (4.), whichever is applicable, of the last preceding rule, is evidence of the facts stated in it.

 

“(2.) Where a certificate under the last preceding sub-rule relates to service of a sealed copy of an order on a person other than an incorporated company, society or association or on a body referred to in paragraph 39 of the Third Schedule to the Act, the certificate is also evidence that the address specified in the certificate is the usual place of residence or business of the person or is the last place of residence or business of the person known to the person on whose behalf the copy of the order was served.

“(3.) Where a certificate under sub-rule (1.) of this rule relates to the service of a sealed copy of an order on an incorporated company, society or association, the certificate is also evidence that the address specified in the certificate is the address of a place of business of the company, society or association or of the registered office of the company, society or association under the law of a State or Territory to which the Act applies.

“(4.) For the purpose of sub-rule (1.) of this rule, a document purporting to be a certificate referred to in that sub-rule shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.”.

Notice that attachment of earnings order has ceased to have effect.

5. Rule 255 of the Matrimonial Causes Rules is amended by omitting the figures “19” and inserting in their stead the figures “21”.

Notice not that defendant employed by person.

6. Rule 256 of the Matrimonial Causes Rules is amended—

(a) by omitting from sub-rules (1.) and (2.) the figures “24” and inserting in their stead the figures “28”; and

(b) by omitting from sub-rule (2.) the words “as a letter” and inserting in their stead the words “by registered post”.

Service of application under paragraph 27.

7.Rule 257 of the Matrimonial Causes Rules is amended by omitting the figures “27” and inserting in their stead the figures “31”.

Practice and procedures of courts of summary jurisdiction.

8. Rule 258 of tile Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the figures “27” and inserting in their stead the figures “31”.

Form 55.

9.Form 55 of the First Schedule to the Matrimonial Causes Rules is amended by omitting all words from and including the word “NOTE:—” to the end of the Form and inserting in their stead the following words:—

“NOTE:—Paragraphs 12 and 13 of the Third Schedule to the Matrimonial Causes Act 1959-1966 are as follows: —

‘12. An attachment of earnings order does not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.

‘13. An employer to whom an attachment of earnings order is directed, being an attachment of earnings order that is in force, shall. in respect of each pay-day, if the net earnings of the defendant exceed the sum of—

(a)the protected earnings of the defendant; and

(b)so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day.

pay, so far as that excess permits, to the officer specified for the purpose in the order—

(c)the normal deduction in relation to that pay-day; and

(d)so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous payday.’.”.

Form 56.

10. Form 56 of the First Schedule to the Matrimonial Causes Rules is amended by omitting all words from and including the word “NOTE:—” to the end of the Form and inserting in their stead the following words:—

“NOTE:—You are not required to make any further deductions under the attachment of earnings order but paragraph 22 of the Third Schedule to the Matrimonial Causes Act 1959-1966 is as follows:—

‘22. Where an attachment of earnings order ceases to have effect, the person to whom the attachment of earnings order is directed does not incur any liability in consequence of his treating the order as still in force at any time before the expiration of seven days after the date on which the notice required by the last preceding paragraph is served on him.’.”.

Form 57.

11. Form 57 of the First Schedule to the Matrimonial Causes Rules is repealed and the following form inserted in its stead:—

Form 57. R. 256.

NOTICE BY EMPLOYER THAT PERSON NOT IN HIS EMPLOY.

(Title.)

Whereas, by an attachment of earnings order made by the above named court on the day of , 19 , I was directed to make payments to

out of earnings of :

I hereby give notice, under paragraph 28 of the Third Schedule to the Matrimonial Causes Act 1959-1966, that I was not the defendant’s employer at the time when the copy of the order was served on me (or I was the defendant’s employer at the time when the copy of the order was served on me but ceased to be the defendant’s employer on the

day of , 19 ).

Dated this day of , 19 .

To the Registrar of the Supreme Court

of (or as the case may be).

Second Schedule.

12.—(1.) The Second Schedule to the Matrimonial Causes Rules is repealed and the following Schedule inserted in its stead:—

SECOND SCHEDULE   R.300.

COURT FEES

Item	Matter	Court fee
$
1	Filing an application under section 43 of the Act for leave to institute proceedings	10.00
2	Filing a petition or supplementary petition........................................................	15.00
3	Sealing a notice of petition or notice of proceedings in place of a lost notice.......	2.00
4	Sealing a concurrent notice of petition or notice of proceedings..........................	2.00
5	Extending the time for serving a notice of petition or notice of proceedings.........	2.00
6	Filing an answer or supplementary answer by which the respondent to a petition institutes proceedings of a kind referred to in paragraph (a) or (b)of the definition of “matrimonial cause”.....................	15.00
7	Filing any other answer or supplementary answer..............................................	10.00
8	Filing a reply by a party cited or by a person named in an answer.......................	10.00
9	Amending a pleading by virtue of paragraph (a) of sub-rule (1.) of rule 91 of these Rules	5.00
10	Filing a notice of address for service.................................................................	2.00
11	Filing a notice of change of address for service..................................................	2.00
12	Filing a request, under rule 171 of these Rules, to set an undefended suit down for trial	10.00
13	Filing a request, under rule 173 of these Rules, to set a defended suit down for trial	20.00
14	Issuing a certificate that a decree has become absolute.......................................	2.00
15	Filing an application under the Third Schedule to the Act...................................	5.00

Second Schedule—continued

Item	Matter	Court fee
$
16	Filing an application to the court, other than an application referred to in item 1 or 15	5.00
17	Filing an application for a certificate of means, not being an application filed as a result of a registrar being unable to make an assessment until the certificate has been issued.........................................	5.00
18	Filing any other application to a registrar..........................................................	5.00
19	Filing a request for assessment of maintenance pending suit...............................	5.00
20	Filing a request to refer proceedings for ancillary relief, other than proceedings instituted by the filing of an application, to the court under rule 202 or 214 of these Rules..............................................	5.00
21	Filing a request to refer maintenance proceedings to the court under rule 206 of these Rules	5.00
22	Stating, at the request of a party, a matter for the opinion of the court under rule 291 of these Rules	5.00
23	Filing a request for review of a registrar’s decision............................................	5.00
24	Filing a consent order, other than a consent order determining proceedings instituted by application to the court or determining an application made to a registrar..............................................	2.00
25	Giving a certificate of a decree or order for registration in another court..............	3.00
26	Registering a decree or order under section 103 of the Act.................................	3.00
27	For the execution of a deed or instrument by an officer of the court who has been appointed under section 88 of the Act to execute the deed or instrument.....................................................................	3.00
28	Filing a request, under rule 64 of these Rules, for service in a country that is a party 10 a Convention regarding Legal Proceedings in Civil and Commercial Matters	2.00
29	Filing notice of intervention by a person other than the Attorney-General or a delegate of the Attorney-General	5.00

(2.) The fees specified in the Second Schedule to the Matrimonial Causes Rules as amended by these Rules apply in respect of—

(a)a document filed or sealed, a pleading amended or a certificate issued or given on or after the first day of February, 1970;

(b) an order made on or after that dale extending the time for serving a notice of petition or notice of proceedings;

(c) a matter stated on or after that date for the opinion of the Court under rule 219 of the Matrimonial Causes Rules;

(d) a deed or instrument executed on or after that date by an officer of the court who has been appointed under section 88 of the Act to execute the deed or instrument; and

(e) a decree or order registered under section 103 of the Act on or after that date,

whether or not the proceeding to which it relates was commenced before, on or after that date.

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