Matrimonial Causes Rules (Amendment) (Cth)

STATUTORY RULES

1967 No. 120.

 

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 thirty-first day of August, 1967.

CASEY

Governor-General.

By His Excellency’s Command,

Sgd. NIGEL BOWEN

Attorney-General.

 

Amendments of the Matrimonial Causes Rules

Commencement.

1. These Rules shall come into operation on the first day of October, 1967.

Parts.

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

(a)by omitting the words and figures—

“Division 2.—Maintenance pending Suit (Rules 202-210).”

and inserting in their stead the words—

“Division 2.—Maintenance pending Suit (Rules 202-210a).”; and

(b) by omitting the words and figures—

“Part XXIII.—Miscellaneous (Rules 316-328).”

and inserting in their stead the words and figures—

“Part XXIII.—Miscellaneous (Rules 316-328d).”.

Interpretation.

3. Rule 4 of the Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the words “In these Rules, references” and inserting in their stead the words “Subject to rule 195 of these Rules, references in these Rules”.

 

* Notified in the Commonwealth Gazette on 1967.

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

5671/66—Price 25c 10/18.8.1967

 

4. Rule 32 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Particulars of cohabitation.

“32.—(1.) For the purpose of paragraph (d)of rule 28 of these Rules, the particulars of the cohabitation of the parties that are required to be included in a petition are, subject to the succeeding sub-rules of this rule, particulars, to the best of the recollection of the petitioner—

(a) of the places of residence at which the parties to the marriage have cohabited for periods that, having regard to all the circumstances, were substantial;

(b) of the periods during which the parties cohabited at those places; and

(c) of the date on which, and circumstances in which, cohabitation between the parties ceased or last ceased, as the case may be.

“(2.) Where the parties to the marriage have never cohabited, the petition shall include a statement to that effect.

“(3.) Where the parties to the marriage have never cohabited at a place of residence, or have never cohabited at a place of residence for aperiod that, having regard to all the circumstances, was substantial, the petition shall include a statement to that effect and a statement of the circumstances in which they cohabited during the marriage.”.

5. Rule 36 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Particulars of other orders sought.

“36—(1.) Where a petitioner institutes, by his petition, proceedings with respect to the maintenance of the petitioner, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, the petition shall contain particulars of the orders sought by him, and the facts relating to the proceedings, required by rule 199 of these Rules.

“(2.) Where a petitioner is seeking an order as to the costs of any proceedings instituted by his petition, the petition shall set out particulars of the order sought as to costs.”.

Marriage certificate to be filed with petition.

6. Rule 54 of the Matrimonial Causes Rules is amended—

(a)by omitting from sub-rule (2.) the word “If” and inserting in its stead the words “Subject to sub-rule (3a.) of this rule, if”; and

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

“(3a.) Where—

(a) a petitioner and respondent were married in a country the public records of which are not kept in the English language; and

(b)the marriage certificate relating to the marriage that is filed in accordance with sub-rule (1.) of this rule was issued in that country in two or more languages, including the English language,

notwithstanding the last two preceding sub-rules, it is not necessary to file a translation in the English language of the marriage certificate or an affidavit verifying the version in the English language of the marriage certificate so filed.”.

 

Notice of petition or of proceedings.

7. Rule 55 of the Matrimonial Causes Rules is amended by omitting sub-rule (1.) and inserting in its stead the following sub-rule:—

“(1.) A notice of petition or notice of proceedings which, under these Rules, a petitioner or respondent is required to serve on another person shall be a notice signed by the registrar of the court and sealed with the seal of the court and shall be—

(a)in the case of a notice to be served on a person in a State, the Australian Capital Territory, the Northern Territory of Australia, Norfolk Island, the Territory of Papua or the Territory of New Guinea—in accordance with Form 8, Form 9 or Form 10 (whichever is appropriate); or

(b) in any other case—in accordance with Form 8a.”.

Notice of petition or of proceedings in force for twelve months.

8. Rule 57 of the Matrimonial Causes Rules is amended by omitting sub-rule (2.) and inserting in its stead the following sub-rule:—

“(2.) The registrar of the court, upon being satisfied that it is reasonable so to do, may grant an extension of the time within which the notice may be served until a date twelve months after the day on which he grants the extension or such earlier date as he thinks fit.”.

Proof of service of document by post.

9. Rule 72 of the Matrimonial Causes Rules is amended by adding at the end thereof the following sub-rule:—

“(4.) Where service of a document instituting proceedings is to be deemed to have been duly effected on a person by virtue of sub-rule (3.) of rule 62 of these Rules, nothing in this rule shall be taken to require proof, by affidavit, of the date on which the person received the document to comply with the provisions of this rule.”.

10. Rule 74 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Proof of service of document by advertisement.

“74.—(1.) Where, in pursuance of an order of the court or of a registrar under these Rules, an advertisement is published in the Gazette, in the government gazette of a State or Territory or in a newspaper, the person who obtained the order may—

(a) deposit, in the proper office of the court, a copy of the page of the Gazette, government gazette or newspaper containing the advertisement; or

(b) file a memorandum, in accordance with Form 13a, having the advertisement annexed to it.

“(2.) Where the page of a copy of the Gazette, government gazette or newspaper containing the advertisement is deposited under the last preceding sub-rule, the registrar of the court shall cause the advertisement to be cut out of the page and annexed to a memorandum, in accordance with Form 14, referring to, and giving the date of publication of, the advertisement and shall file the memorandum.

“(3.) A memorandum referred to in either of the last two preceding sub-rules is evidence that the advertisement a copy of which is annexed to the memorandum was published in the Gazette, government gazette or newspaper specified in the memorandum on the date specified in the memorandum.”.

 

11. Rule 84 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

When allegations in pleadings deemed to be admitted.

“84. Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings files a pleading in answer to that pleading and does not, in the pleading so filed—

(i) deny the fact, either expressly or by necessary implication;

(ii) state that he does not know and cannot admit the truth of the fact; or

(iii) admit the truth of the fact,

the person shall be deemed to have admitted the truth of the fact for the purposes of the proceedings.”.

Amendment after service.

12. Rule 91 of the Matrimonial Causes Rules is amended—

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

“(3.) The court may give leave in circumstances referred to in the last preceding sub-rule subject to such terms and conditions (if any) as the court thinks fit.

“(3a.) Where a pleading has been amended without the leave of the court or a registrar, the court or registrar may, on application by the party by whom the pleading was so amended, by order—

(a) dispense with service of the amended pleading on a person, whether or not the person is a party to the proceedings;

(b)specify the manner in which service of the amended pleading may be effected on a person; and

(c) specify the time, after service of the amended pleading on a person, within which the person may, if he so desires—

(i) amend a pleading already filed by him in reply to the pleading; or

(ii) file a pleading in reply to the amended pleading,

as the case requires.

“(3b.) Where a court or registrar gives leave to amend a pleading, the court or registrar may also make any order that it or he could have made upon application under the last preceding sub-rule if the pleading had been amended without leave.”.

(b) by omitting from sub-rule (4.) the word “seven” and inserting in its stead the word “fourteen”; and

(c) by omitting sub-rule (5.) and inserting in its stead the following sub-rule:—

“(5.) An application to a court or registrar under sub-rule (3a.) of this rule may be made ex parte.”.

 

13. Rule 92 of the Matrimonial Causes Rules is amended—

(a)by omitting from sub-rule (1.) the words “An amendment” and inserting in their stead the words “Subject to sub-rule (4.) of this rule, an amendment”; and

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

“(4.) Where the court grants leave under the last preceding rule to amend a pleading, the court may also dispense with the need for compliance with sub-rule (1.) of this rule.”.

Method of amending pleading.

14. Rule 94 of the Matrimonial Causes Rules is amended by omitting from sub-rule (4.) the words “either of the last two preceding sub-rules” and inserting in their stead the words “the last preceding sub-rule”.

Amendment not effective until served.

15. Rule 95 of the Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the word “sub-rule (3.)” and inserting in its stead the words “sub-rules (3a.) and (3b.)”.

Consequential amendment of subsequent pleading.

16. Rule 97 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1.) the words “sub-rule (3.)” and inserting in their stead the words “sub-rules (3a.) and (3b.)”.

Allegation of adultery or sodomy with person unknown.

17. Rule 108 of the Matrimonial Causes Rules is amended by inserting after sub-rule (6.) the following sub-rule:—

“(7.) Where the respondent has alleged in his answer to a petition that the petitioner has commited adultery or sodomy with or on a person whose name was unknown to the respondent at the time of filing the answer, the court may, on the application of the petitioner, and upon being satisfied that it is proper so to do, approve the suit being set down for trial notwithstanding that the preceding sub-rules of this rule have not been complied with.”.

18. After rule 115 of the Matrimonial Causes Rules the following rule is inserted:—

Separate representation of child.

“115a.—(1.) Where, upon the trial of a suit, it appears to the court that a child of the marriage in relation to whom section 71 of the Act applies or a child alleged by one of the parties to the suit to be such a child of the marriage ought to be separately represented, the court may adjourn the trial of the suit in order that a guardian ad litem of the child may be appointed for the purpose of the child being so represented.

“(2.) Where the trial of a suit has been adjourned under the last preceding sub-rule, a guardian ad litem of the child may be appointed under rule 126 of these Rules whether or not the child desires to intervene in the proceedings.

“(3.) Subject to the next succeeding sub-rule, a person who becomes the guardian ad litem of a child for the purposes of this rule shall serve notice of the fact on each party to the suit who has an address for service for the purposes of the suit.

“(4.) Where an order appointing a person to be the guardian ad litem of a child for the purposes of this rule is made upon the application of a party to the suit, it is not necessary for the notice required by the last preceding sub-rule to be served on that party.

 

“(5.) A notice under sub-rule (3.) of this rule shall—

(a) set out the address for service of the child for the purposes of the suit; and

(b) shall be served on each party on whom it is required to be served on the day on which the person becomes the guardian ad litem or on the next following day.

“(6.) Where a child for whom a guardian ad litem has been appointed for the purposes of this rule does not desire to intervene in the suit or is refused leave to intervene in the suit, the child is nevertheless entitled to be represented at the further hearing of the suit by counsel or solicitor who may cross-examine witnesses and address the court but is not entitled to adduce evidence.

“(7.) The court may, upon or at any time after adjourning the trial of a suit under sub-rule (1.) of this rule, give directions concerning the continuation of the trial of the suit, including directions concerning the giving of notice to the guardian ad litem of the child of the date on which and place at which the trial of the suit will be continued, and the trial of the suit shall not be continued except in accordance with directions so given.

“(8.) Rule 130 of these Rules applies in relation to a solicitor who is a guardian ad litem of a child for the purposes of this rule as if the child were a party to the suit.

“(9.) In this rule, ‘suit’ has the same meaning as in Part XI. of these Rules.”.

19. Rule 131 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Effect of failure to file pleading within due time.

“131.—(1.) Where a pleading is filed on behalf of a party to proceedings after the time limited for the filing of the pleading has expired, any other party to the proceedings may, subject to these Rules, continue the proceedings as if the pleading had not been filed unless—

(a) the party filing the pleading in answer to which the first-mentioned pleading was filed consented to, or waived objection to, the late filing of the pleading; or

(b) a court or registrar otherwise orders.

“(2.) Consent to the filing of a pleading after the expiration of the time limited for the filing of the pleading shall be given in writing and signed—

(a) if the party giving the consent is represented by a solicitor—by that solicitor; or

(b) if the party is not so represented—by the party.

“(3.) Where an answer to a petition is filed, with the consent of the petitioner or in pursuance of an order of the court or a registrar, after the proceedings instituted by the petition have been set down for trial, unless the court orders otherwise—

(a) the setting down of the proceedings is void and of no effect; and

(b)the proceedings may be continued as though they had not been set down for trial.”.

 

Default of pleading by infant or person of unsound mind.

20. Rule 132 of the Matrimonial Causes Rules is amended—

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

“(3a.) Where the person so specified in a petition or an answer is an infant (not being a person of unsound mind), the court may grant leave to the petitioner or respondent, as the case may be, to continue the proceedings and, where leave is so granted, the petitioner or respondent, as the case may be, may continue the proceedings notwithstanding the provisions of the last two preceding sub-rules.”; and

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

“(4.) A petitioner or respondent shall not be deemed to continue proceedings for the purpose of any of the preceding sub-rules of this rule by reason of his—

(a) making application for the appointment of a person to be the guardian ad litem of the infant or person of unsound mind for the purpose of those proceedings; or

(b) amending or making application for leave to amend the petition or answer by omitting the allegations contained in the petition or answer relating to the infant or person of unsound mind; or

(c) making application for leave, under the last preceding sub-rule, to continue the proceedings notwithstanding the provisions of sub-rules (2.) and (3.) of this rule.”.

Discovery.

21. Rule 138 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rule (1.) and inserting in its stead the following sub-rule:—

“(1.) A party to proceedings who has filed a pleading for the purposes of the proceedings may—

(a)after the pleadings in the proceedings have been completed and before the proceedings have been set down for trial; or

(b) by leave of the court or a registrar, after the proceedings have been set down for trial,

serve on another party to the proceedings a request to make discovery on oath of the documents that are, or have been, in his possession, custody or power relating to any matter in question in the proceedings.”; and

(b)by omitting sub-rule (5.) and inserting in its stead the following sub-rule:—

“(5.) Where the court, upon application made by a party to proceedings, is satisfied that—

(a)the party has duly served, or is entitled to serve, a request under this rule; or

(b) the application was made in a case of urgency and in such circumstances that the party would require leave to serve a request under this rule but had not applied for such leave,

 

the court may make such order for the filing of an affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceedings.”.

Non-compliance with order for discovery, &c.

22. Rule 147 of the Matrimonial Causes Rules is amended by omitting paragraph (b) and inserting in its stead the following paragraph:—

“(b) if the party is the respondent—

(i) any proceedings instituted by him by an answer to the petition, and any other proceedings instituted by him in relation to proceedings instituted by the petition, be stayed or dismissed for want of prosecution; and

(ii) any proceedings instituted by the petition may be continued by the petitioner as if the answer had not been fried; or”.

23. Rule 158 of the Matrimonial Causes Rules is amended—

Medical inspector’s oath and identification of person to be examined.

(a) by omitting from sub-rule (1.) the words “the person, or each” and inserting in their stead the word “any”; and

(b) by omitting from sub-rule (1.) the words “or of each such examination”.

Notice oftrial.

24. Rule 178 of the Matrimonial Causes Rules is amended by adding at the end thereof the following sub-rule:—

“(8.) Where a party to proceedings is represented by a solicitor—

(a) a copy of a form of notice deposited for that party that has endorsed on it the name and address of that solicitor together with the name and address of the city agent (if any) of that solicitor shall be deemed to comply with paragraphs (b) and (c) of sub-rule (3.) of this rule; and

(b) the delivery by the Registrar to—

(i) the solicitor whose name and address is so endorsed on the copy; or

(ii) if the names and addresses of a solicitor and his city agent are so endorsed on the copy—the city agent,

of the copy shall be deemed to be compliance with paragraph (b) of sub-rule (5.) of this rule in respect of that party.”.

Definitions.

25. Rule 195 of the Matrimonial Causes Rules is amended by adding at the end thereof the following definition:—

“‘spouse’, in relation to a claimant in proceedings for ancillary relief, means—

(a) if the marriage of the claimant has been dissolved or annulled in the proceedings for principal relief to which those proceedings for ancillary relief relate—the person whose marriage to the claimant was so dissolved or annulled; or

(b)in any other case—the husband or wife or purported husband or wife, as the case may be, of the claimant.”.

 

Particulars to be included in application for ancillary relief.

26. Rule 199 of the Matrimonial Causes Rules is amended—

(a) by omitting sub-rule (1.) and inserting in its stead the following sub-rules:—

“(1.) A claimant shall, in his application for ancillary relief, state—

(a) particulars of the order sought by him; and

(b) the facts upon which the court will be asked to make that order.

“(1a.) Where a claimant is, by his application for ancillary relief, seeking an order with respect to the maintenance of the claimant or of children of the marriage, the application shall specify—

(a) the persons in respect of whom maintenance is sought;

(b)whether the order sought in respect of each of those persons is a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order; and

(c) the amount of the lump sum or the weekly, monthly, yearly or other periodic sum, as the case may be, sought in respect of each of those persons.

“(1b.) Where a claimant is, by his application for ancillary relief, seeking an award of damages under section 44 of the Act, the application shall specify the amount of damages sought.”; and

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

“(3a.) A claimant to whom either of the last two preceding sub-rules applies shall not be taken to have complied with those sub-rules unless he states in his application for ancillary relief—

(a)that he has no property other than the property particulars of which are stated in the application or that he has no property, as the case may be; and

(b) that he has no income other than the income particulars of which are stated in the application or that he has no income, as the case may be.”.

Defence to proceedings for ancillary relief.

27. Rule 200 of the Matrimonial Causes Rules is amended by inserting after sub-rule (3.) the following sub-rule:—

“(3a.) A spouse to whom either of the last two preceding sub-rules applies shall not be taken to have complied with those sub-rules unless he states in his defence to the proceedings for ancillary relief—

(a) that he has no property other than the property particulars of which are stated in the defence to the proceedings or that he has no property, as the case may be; and

 

(b) that he has no income other than the income particulars of which are stated in the defence to the proceedings or that he has no income, as the case may be.”.

Assessment by the registrar.

28. Rule 204 of the Matrimonial Causes Rules is amended by omitting paragraph (d)of sub-rule (5.) and inserting in its stead the following paragraph:—

“(d)the manner in which the registrar considers that the spouse of the claimant should pay maintenance for the claimant or the child in respect of the period commencing on the date specified in pursuance of paragraph (b)of this sub-rule and ending on the date of the assessment, less any amount paid as maintenance for the claimant or the child, as the case may be, in respect of that period.”.

Service of assessment.

29. Rule 205 of the Matrimonial Causes Rules is amended—

(a) by inserting in paragraph (b) of sub-rule (3.), after the word “person” (first occurring), the words “or his solicitor”; and

(b) by inserting in paragraph (b) of sub-rule (3.), after the word “person” (second occurring), the words, “or his solicitor, as the case may be,”.

30. Rule 206 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Reference of claim to the court.

“206.—(1.) When, in a case to which rule 204 of these Rules applies, the registrar has made an assessment for the purpose of that rule, the petitioner or respondent may, not later than ten days after service of a copy of the assessment on him, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court, and the registrar shall refer the proceedings accordingly and notify the person filing the request of the date on which the proceedings have been set down for hearing by the court.

“(2.) Where a person on whom a copy of an assessment has been served—

(a) does not duly file a request under the last preceding sub-rule;

(b) having duly filed a request under that sub-rule, gives notice in writing to the registrar that he desires to withdraw the request; or

(c) having duly filed a request under that sub-rule and being required by rule 208 of these Rules to serve a notice of hearing on his spouse, being a person who has an address for service for the purpose of the proceedings, does not duly serve such a notice on his spouse,

the person shall be taken to have consented to the court making, in the proceedings in relation to which the assessment was made, an order in accordance with the terms of the assessment, but that consent shall not be taken to prejudice the person in any other proceedings.”.

Default in payment of amount assessed.

31. Rule 207 of the Matrimonial Causes Rules is amended by inserting in sub-rule (4.), after the word “determination”, the words “and notify the claimant of the date on which the proceedings have been set down for hearing by the court”.

 

Notice of hearing.

32. Rule 208 of the Matrimonial Causes Rules is amended by adding at the end thereof the following sub-rule:—

“(3.) A notice referred to in sub-rule (1.) of this rule shall be served—

(a) if the spouse has an address for service for the purpose of the proceedings—on the day on which the claimant or the party at whose request the proceedings are referred to the court is notified by the registrar of the date on which the proceedings have been set down for hearing by the court or the next following day; or

(b) in any other case—as soon as is reasonably practicable after the claimant or party is notified by the registrar of the date on which the proceedings have been set down for hearing by the court.”.

Determination of claim for maintenance by the court.

33. Rule 210 of the Matrimonial Causes Rules is amended by adding at the end of sub-rule (2.), the following words “or is to be deemed to have been admitted for the purpose of the proceedings for principal relief”.

34. After Rule 210 of the Matrimonial Causes Rules the following rule is inserted in Division 2 of Part XIV:—

Ex parte application for maintenance pending suit.

“210a.—(1.) Where proceedings for ancillary relief have been instituted seeking an order with respect to the maintenance, pending the disposal of proceedings, of the claimant or a child of the marriage, the court may, in a case of urgency, hear the proceedings and make an order in the proceedings, ex parte.

“(2.) The court, in proceedings heard in pursuance of the last preceding sub-rule, shall not make an order for the maintenance of the claimant or a child of the marriage other than an order having effect until further order.

“(3.) Where a court makes an order of a kind referred to in sub-rule (1.) of this rule upon an application that was heard ex parte, the court may give directions with respect to—

(a) the service of the order and such other documents as it thinks fit on the spouse of the claimant; and

(b) the further hearing of the proceedings.”.

35. Rule 217aof the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

Party who claims custody to disclose any adultery.

“217a.—(1.) This rule applies in relation to a party to proceedings for principal relief—

(a)who institutes proceedings for ancillary relief with respect to the custody of a child of the marriage before the determination of the proceedings for principal relief to which those first-mentioned proceedings relate;

(b)who has committed adultery since cohabitation between the parties to the marriage ceased or last ceased, as the case may be, but before the hearing of the proceedings with respect to the custody of the child; and

 

(c) who is not required by these Rules to file a discretion statement in relation to the adultery in connexion with the proceedings for principal relief or any other proceedings related to those proceedings and is not excused by sub-rule (3.) of rule 162 of these Rules from filing such a discretion statement.

“(2.) A party to whom this rule applies shall file a statement concerning the adultery—

(a) if the adultery was committed before the application for ancillary relief is filed—at the time the application is filed; or

(b) in any other case—as soon as practicable after committing the adultery.

“(3.) A statement referred to in sub-rule (2.) shall state particulars of the acts of adultery committed by the party since cohabitation between the parties to the marriage ceased or last ceased, as the case may be (other than acts stated in any other statement filed by him for the purposes of the proceedings in accordance with the last preceding sub-rule), and the circumstances giving rise to the commission of the acts of adultery.

“(4.) Where, in a statement filed by a party in accordance with sub-rule (1.) of this rule, the party states that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further statement under that sub-rule to be filed setting forth particulars of any further acts of adultery committed by him with that person.

“(5.) A statement under sub-rule (1.) of this rule shall not be filed by or on behalf of a party to proceedings unless—

(a) it is signed by the party;

(b) the matters set forth in it have been verified by the affidavit of the party written on it; and

(c) it is enclosed in a sealed envelope having written on it the words ‘Statement under rule 217a’, the number of the proceedings and a certificate—

(i) if the party is represented by a solicitor—signed by the solicitor; or

(ii) if the party is not represented by a solicitor—signed by the party,

certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

“(6.) Rules 163 and 164 of these Rules apply in relation to statements filed in accordance with sub-rule (1.) of this rule as if references to a discretion statement were references to a statement so filed.

“(7.) Where a party to whom this rule applies files a statement under sub-rule (1.) of this rule, the solicitor for the party or, if the party is not represented by a solicitor, the party—

(a)shall write on the application for ancillary relief, in red ink, a notation in accordance with the following form, and sign his name immediately under that notation:—

‘Statement under rule 217a of the Matrimonial Causes Rules filed the day of , 19 .’; and

 

(b) shall give notice of the filing of the statement to the other party to the proceedings for principal relief as soon as practicable after the filing of the statement.

“(8.) Where a notation in accordance with the last preceding sub-rule has been written on an application for ancillary relief before service of the application is effected on the other party to the proceedings for principal relief, notice of the filing of the statement under sub-rule (1.) of this rule shall be deemed to have been given to that party if the copy of the application served on him has a copy of that notation written on it.”.

Evidence to be given orally.

36. Rule 224 of the Matrimonial Causes Rules is amended by omitting sub-rule (2.) and inserting in its stead the following sub-rules:—

“(2.) Nothing in this Division shall be taken to prevent the proof of facts, in accordance with the practice of the court and the relevant law of evidence, by the production of documents other than affidavits.

“(3.) In the last preceding sub-rule, ‘the relevant law of evidence’ means the law of evidence applying to civil proceedings in the court (other than proceedings under the Act) so far as it is not inconsistent with the Act or these Rules.”.

Enforcement of decrees.

37. Rule 246 of the Matrimonial Causes Rules is amended—

(a) by inserting in paragraph (c) of sub-rule (1.), after the word and figure “sub-rule (3.)”, the words and figure “or sub-rule (3a.), as the case requires,”;

(b) by omitting from sub-rule (2.) the words “Paragraph (b)of the last preceding sub-rule does” and inserting in their stead the words “Paragraphs (b), (c) and (d) of the last preceding sub-rule do”;

(c) by omitting from sub-rule (3.) the words “The form” and inserting in their stead the words “Subject to the next succeeding sub-rule, the form”;

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

“(3a.) In the case of a decree for restitution of conjugal rights, the form of notice referred to in paragraph (c) of sub-rule (1.) of this rule is as follows:—

‘To

Take notice that if you fail to carry out the acts required of you by the orders set out in the paragraphs numbered in the within decree within the time specified in the decree for carrying out those acts, further legal proceedings may be taken against you for the purpose of compelling you to carry out those acts.’.”;

and

(e) by adding at the end thereof the following sub-rules:—

“(5.) In relation to the enforcement of a decree that has been varied, the preceding provisions of this rule apply as if a reference to a decree were a reference to a decree and any order, or each order, by which that decree was varied.

 

“(6.) Nothing in this rule requires the service on a person against whom a decree is sought to be enforced of an order made under section 87 of the Act whereby the decree is varied or its effect modified if the order was made on the application of that person.”.

38. After rule 266 of the Matrimonial Causes Rules the following rule is inserted:—

Certificate as to payments under maintenance order.

“266a.—(1.) Where the registrar or clerk of a court or a public authority is specified in an order of the court as the person to whom maintenance payable under the order is to be paid, he shall, at the request of the person who obtained the order, give to that person a certificate, in accordance with Form 59a, stating—

(a)the amount that, according to his or its records, has been paid under the order on or before a date specified in the certificate by the person liable to make payments under the order, including any amount paid on or before that date to the clerk or other proper officer of a court of summary jurisdiction in which the order has, at any time, been registered under section 105 of the Act; and

(b) the amount that, according to his or its records, was due under the order but unpaid on that date.

“(2.) A certificate duly given in accordance with the last preceding sub-rule is evidence—

(a)of the amount paid under the order on or before the date specified in the certificate by the person liable to make payments under the order; and

(b) of the amount due under the order but unpaid on that date.

“(3.) For the purposes of the last preceding sub-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 have been duly given.

“(4.) A reference in sub-rule (1.) of this rule to an order of a court includes a reference to an order included in a decree made in a matrimonial cause before the commencement of the Act by a court in Australia.”.

Registration of maintenance orders in courts of summary jurisdiction.

39. Rule 271 of the Matrimonial Causes Rules is amended by omitting sub-rule (2.) and inserting in its stead the following sub-rules:—

“(2.) Subject to the next succeeding sub-rule, particulars of an order for the payment of maintenance shall not be entered in the register by the clerk or other proper officer of a court of summary jurisdiction unless—

(a) either—

(i) a certificate, obtained under rule 266 of these Rules, of the order; or

(ii) if the order is included in a decree nisi—a copy of the decree nisi,

has been filed in the proper office of the court;

 

(b) the clerk or other proper officer is satisfied, by affidavit filed in the proper office of the court—

(i) that, in relation to the order, rule 246 of these Rules has been complied with;

(ii) that the order is not registered in any other court of summary jurisdiction; and

(iii) that no proceedings are pending in any court for the enforcement of the order and no writ, warrant or other process issued by a court for the enforcement of the order is in force; and

(c) if a public authority or the registrar or clerk of a court is specified in the order as the person to whom maintenance payable under the order is to be paid, there has been filed in the proper office of the court a certificate given by that public authority, registrar or clerk in accordance with rule 266a of these Rules specifying a date not more than ten days before the date on which the certificate is received by the first-mentioned clerk or that proper officer.

“(3.) Where, under a law of a State or Territory that relates to the enforcement in that State or Territory of summary orders for the maintenance of a wife or child made in another State or Territory, proceedings are taken for or in relation to the enforcement in that first-mentioned State or Territory of an order for the payment of maintenance made under the Act that has been registered in a court of summary jurisdiction in another State or Territory, the last preceding sub-rule does not apply to or in relation to the registration, in connexion with those proceedings, of that maintenance order in a court of summary jurisdiction in that first-mentioned State or Territory.”.

40. After rule 287 of the Matrimonial Causes Rules the following rule is inserted:—

Party to application not entitled to call evidence, &c., unless pleading filed.

“287a. Notwithstanding that a party to an application to a registrar, not being the applicant, has an address for service for the purpose of proceedings, the party is not entitled, without the leave of the registrar, to examine or cross-examine witnesses at the hearing of the application unless—

(a) he has filed an affidavit in reply to an affidavit filed by the applicant in support of the application; or

(b)if no affidavit is filed in support of the application—he has filed a pleading in answer to a pleading filed by the applicant in connexion with the proceedings to which the application relates.”.

Representation by counsel, &c.

41. Rule 289 of the Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the words “A barrister” and inserting in their stead the words “Subject to rule 287a of these Rules, a barrister”.

Sealing of documents and issue of office copies.

42. Rule 294 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

“294.—(1.) Where a person requires a sealed document or a sealed or office copy of a document for the purpose of proceedings (whether or not those proceedings constitute a matrimonial cause) the person may prepare the document or a copy of the document and present it to the registrar of the court in which the proceedings are pending or, if the proceedings are completed, by which the proceedings were determined.

 

“(2.) If it appears that the document is in proper form, or that the copy is a true copy of the document, as the case may be, and that the person presenting it does require the document or copy to be sealed, or the copy to be issued as an office copy, for the purpose of proceedings, the registrar shall cause it to be sealed with the seal of the court or issued as an office copy, as the case may be.”.

Fees required to be paid.

43. Rule 301 of the Matrimonial Causes Rules is amended by adding at the end thereof the following sub-rule:—

“(3.) Nothing in these Rules shall be taken to require the payment of a court fee by the Commonwealth or a State.”.

Court or registrar may relieve from consequences of non-compliance.

44. Rule 307 of the Matrimonial Causes Rules is amended—

(a) by omitting from paragraph (a) the word “and” (last occurring); and

(b) by omitting paragraph (b) and inserting in its stead the following paragraphs:—

“(b) a court may, upon such terms as the court thinks fit, dispense with the need for compliance by a party with any provision of these Rules; and

(c) a registrar may, at any time, upon such terms as he thinks fit, relieve a party to an application to a registrar from the consequences of non-compliance with these Rules in relation to the application, with a rule of practice and procedure of the court applicable to the application or with an order made by a registrar in relation to the application.”.

45. After rule 319 of the Matrimonial Causes Rules the following rule is inserted:—

Court or registrar may abridge times.

“319a. Upon application made by a party to proceedings or by a person entitled to intervene in proceedings under sub-section (2.) of section 45 of the Act or under these Rules, the court or a registrar may abridge the time fixed by these Rules as the time at the expiration of which that party or person may do an act or take a step in the proceedings.”.

Documents to be in writing.

46. Rule 320 of the Matrimonial Causes Rules is amended by omitting paragraph (c) of sub-rule (1.) and inserting in its stead the following paragraph:—

“(c) be upon white paper of good and durable quality and capable of receiving ink writing, being folio foolscap paper or paper of the size known as International A4, that is to say, paper measuring approximately 11¾ inches by 8¼ inches;”.

47. After rule 323 of the Matrimonial Causes Rules the following rules are inserted in Part XXIII.

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

“328a.—(1.) In this rule, ‘a summary order’ means an order of the kind specified in paragraph (a)of sub-section (3.) of section 8 of the Act made by a court of summary jurisdiction.

 

“(2.) Where a decree of dissolution of a marriage or nullity of a voidable marriage made under this Act becomes absolute or a decree of nullity of a void marriage is made under this Act, the registrar of the court by which the decree was made shall forthwith send to the clerk or other proper officer of the court by which any summary order, particulars of which were included in the petition in accordance with rule 34 of these Rules, was made a copy of, in the case of a decree of dissolution of a marriage or nullity of a voidable marriage, the decree nisi having endorsed on it a memorandum signed by the registrar and stating the date on which the decree became absolute or, in any other case, the decree.

“(3.) Where a Court makes an order under sub-section (5.) of section 8 of the Act in respect of a summary order, the registrar of the court shall forthwith send to the clerk or other proper officer of the court by which the summary order was made a copy of the first-mentioned order.

“(4.) Without limiting the application of sub-rule (2.) or sub-rule (3.) of this rule, whichever is applicable in relation to a decree or order, where the registrar of a court is unable to comply with the sub-rule within seven days after the making of the decree or order, the registrar shall, within that period, forward a notice of the making of the decree or order to the clerk or other proper officer of the court of summary jurisdiction.

Copy or certificate of decree to be sent to trustee, public authority or person to whom maintenance to be paid.

“328b. Where the court makes an order for the payment of maintenance in respect of a party to a marriage or of a child of a marriage and orders that payments under the order be made to a trustee, a public authority or a person other than the person in respect of whom the maintenance is to be paid, the registrar shall, as soon as is reasonably practicable after the order is made, send to that trustee, public authority or person a copy of the order or a certificate of the order in accordance with Form 59.

Maintenance paid to public authority or person other than a party to be paid to person enlisted.

“328c. Where, in proceedings for ancillary relief, the court makes an order for the payment of maintenance to a person or public authority for the benefit of another person, that person or public authority shall, unless the order provides otherwise, pay all moneys received under the order by him or it to the person for whose benefit the moneys were paid.

Arrest of witness failing to attend before, or produce documents to, the court.

“328d.—(1.) If a court is satisfied that—

(a)a subpoena requiring a person to attend before the court, or to attend before the court and produce books or documents to the court, has been served on that person;

(b)the person has failed to attend before the court in accordance with the subpoena or has otherwise failed to comply with the subpoena; and

(c) a reasonable amount has been paid or tendered to that person for his expenses of attending before the court in accordance with the subpoena,

the court may, if it thinks fit, issue a warrant for the apprehension of the person.

“(2.) If the court is satisfied that reasonable efforts have been made to effect service of a subpoena on the person to whom it is directed but that service of the subpoena on the person has not been effected because he has avoided service, the court may issue a warrant for the apprehension of the person.

 

“(3.) A warrant issued in pursuance of the last preceding sub-rule authorizes the apprehension of the person named in the warrant and his being brought before the court and his detention in custody for that purpose until he is released by order of the court.

“(4.) A warrant issued in pursuance of sub-rule (1.) of this rule may be executed by a member of the police force of the Commonwealth or a State or Territory, by the Sheriff or any officer of the Sheriff of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel for the purpose of executing the warrant.

“(5.) The apprehension of a person under this rule does not relieve him from any liability incurred by him by reason of his failure to attend before the court.”.

Form 5.

48. Form 5 in the First Schedule to the Matrimonial Causes Rules is amended by inserting, after the words “the court” (third occurring), the words “(if appropriate, sitting in chambers)”.

Form 8a.

49. After Form 8 in the First Schedule to the Matrimonial Causes Rules the following Form is inserted:—

Form 8a. R. 55.

NOTICE OF PETITION.

(Title)

To (full name of respondent).

Take notice that a petition has been presented to the abovenamed court by (full name and address of the petitioner) instituting proceedings for a decree of and also seeking orders with respect to

2. A sealed copy of the petition is delivered to you with this notice.

3. The form of Acknowledgement of Service delivered to you with this notice should be completed and signed by you and returned to the petitioner’s solicitor immediately. An addressed envelope is delivered to you for that purpose.

(Leave out this paragraph if service not to be effected by post.)

4.If you desire to defend the proceedings or to commence proceedings against the petitioner in relation to your marriage to the petitioner, you must file in the court an answer that states the matters required by the Matrimonial Causes Rules and serve a copy on the petitioner. It may also be necessary for you to file other documents and to give evidence yourself at the hearing and arrange for other persons to give evidence to prove the matters relied on by you. Any answer filed by you must be filed within days after you receive this notice or within such extended period as the petitioner or the registrar allows.

5. If you fail to take any steps in relation to the proceedings brought against you by the petitioner, the proceedings will be heard, and an order may be made against you, in your absence.

6. If you wish to defend the proceedings brought against you, you may apply to the petitioner’s solicitors for some provision towards your costs of defending the proceedings, including, if necessary, the cost of travel to Australia. If adequate provision is not made, you may apply to the court which may, if it is satisfied that the circumstances warrant its taking such a course, order the petitioner to make such provision as it thinks necessary.

(Leave out this paragraph if notice not directed to a wife.)

Dated this day of , 19 .

For the Registrar,

Clerk of the Supreme Court.

 

Note.—If you wish to obtain legal advice in connexion with the proceedings, you are advised to contact a solicitor in (here specify the State or Territory in which the petition is issued),either directly or through a legal practitioner in the country in which you are now resident. If you consult a solicitor, you should send to him all the documents delivered to you.

 

Form 13a.

50. After Form 13 in the First Schedule to the Matrimonial Causes Rules the following Form is inserted:—

Form 13a. R. 74.

MEMORANDUM OF PUBLICATION OF ADVERTISEMENT.

(Title)

Full name, address and occupation of person by whom annexed advertisement cut from gazette or newspaper:

Nature of document to which advertisement relates:

Gazette or newspaper in which advertisement published:

Date on which published:

Dated this day of , 19 .

(Signature of person who cut the annexed advertisement from gazette or newspaper)

Form 41.

51. Form 41 in the First Schedule to the Matrimonial Causes Rules is omitted and the following Form inserted in its stead:—

Form 41. R. 189 (2.).

CERTIFICATE OF DECREE NISI HAVING BECOME ABSOLUTE.

(Title)

*If not applicable, state not applicable’.

1. Date of decree nisi:

*2. Date of order under section 71:

*3. Date of determination or discontinuance of appeal:

*4. Date of order under sub-section (3.) of section 72:

*5. Date on which intervention determined:

I certify that the decree nisi of dissolution of the marriage between the petitioner and the respondent solemnized (or of nullity of the marriage between the petitioner and the respondent in fact solemnized) on the day of , 19 , became absolute on the day of , 19 .

Dated this day of , 19 .

Registrar.

Form 49.

52. Form 49 in the First Schedule to the Matrimonial Causes Rules is amended by omitting paragraph (c) and inserting in its stead the following paragraph:—

“(c) (Here specify the matter required by rule 204 (5.) (d).)”.

Form 59a

53. After Form 59 in the First Schedule to the Matrimonial Causes Rules the following Form is inserted:—

Form 59a. R. 266a.

CERTIFICATE OF AMOUNTS PAID UNDER ORDER FOR MAINTENANCE.

(Title)

Nature of order:

Date of order:

Person liable to make payments under order:

I, (full name of person giving certificate or, where certificate to be given on behalf of a public authority, full name and capacity of person giving certificate), certify that it appears from my records (or, in the case of a public authority, the records of (name of public authority)) that an amount of (or, no amount) was paid

 

*Omit if no amount paid.

under the abovementioned order by the abovementioned (name of person liable to make payments under the order) on or before , 19 , and that, on that date, the amount of was due under the order and unpaid. *The first-mentioned amount includes amounts that, according to my records, were paid, on or before that date, to the clerk or other proper officer of the (name of court) at in the State (or Territory) of , a court of summary jurisdiction in which the order was registered under section 105 of the Matrimonial Causes Act 1959-1966.

Dated this day of , 19

(Signature of person giving certificate)

Application.

54.—(1.) The amendments of the Matrimonial Causes Rules effected by rules 4, 5, 7, 26, 27, 35 and 49 of these Rules do not apply to—

(a)a petition, answer, application or notice filed or given before the first day of October, 1967; or

(b) any proceedings instituted by such a petition, answer or application,

and the Matrimonial Causes Rules, as in force immediately before the first day of October, 1967, continue to apply to and in relation to such a petition, answer, application or notice and to such a proceeding.

(2.) Except as provided by the last preceding sub-rule, the amendments of the Matrimonial Causes Rules effected by these Rules apply, after the first day of October, 1967, to and in relation to proceedings instituted before, on or after that date.

 

By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra