Matrimonial Causes Rules (Amendment) (Cth)

STATUTORY RULES.

1963. No. 1.

 

RULES UNDER THE MATRIMONIAL CAUSES ACT 1959.*

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.

Dated this Fifteenth day of January, 1963.

DE L’ISLE

Governor-General.

By His Excellency’s Command,

(sgd.) G. E. BARWICK

Attorney-General.

 

Amendments of the Matrimonial Causes Rules,

Parts.

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

“Division 4.—Custody (Rules 214-217).”

and inserting in their stead the words—

“Division 4.—Custody (Rules 214-217a).”.

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

Statement in petition when petitioner has committed adultery.

“40a. Where a petitioner for a decree of dissolution of marriage on a ground specified in any of paragraphs (a) to (m), inclusive, of section 28 of the Act has committed adultery since the marriage but before the filing of his petition, his petition shall state that the court will be asked to make the decree notwithstanding the facts and circumstances set out in his discretion statement.”.

Application of certain rules to petition for judicial separation.

3. Rule 51 of the Matrimonial Causes Rules is amended by omitting the words “Rules 40 and 44 of these Rules” and inserting in their stead the words “The provisions of rules 40, 40a and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case,”.

Answer seeking dissolution, &c., of marriage.

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

(a) by omitting from sub-rule (6.) the words “The provision of rules 36, 40” and inserting in their stead the words “The provisions of rules 36, 40, 40a”; and

(b) by inserting in sub-rule (8.), after the figures “40”, the figures “,40a”.

 

* Notified in the Commonwealth Gazette on , 1963.

  Statutory Rules 1960, No. 97.

902262.—Price 5d.  10/19.12.1962.

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 of the Matrimonial Causes Rules is repealed and the following Division inserted in its stead:—

“Division 5.—Discretion Statements.

Discretion statements to be filed.

“161.—(1.) A petitioner or respondent in proceedings—

(a) who is seeking a decree of dissolution of marriage on a ground specified in any of paragraphs (a) to (m), inclusive, of section 28 of the Act or a decree of judicial separation on a ground specified in any of paragraphs (a) to (l), inclusive, of that section; and

(b) who has committed adultery since the marriage,

shall file a discretion statement—

(c) if the adultery was committed before the filing of the petition or answer, as the case may be, by which the proceedings for the decree are instituted—at the time when the petition or answer is filed; or

(d) if the adultery was committed after the filing of that petition or answer but before the trial of the proceedings—as soon as practicable after committing the adultery.

Form, and contents of discretion statements.

“162.—(1.) A discretion statement, which shall be in accordance with Form 30, shall state particulars of the acts of adultery committed by the petitioner or respondent, as the case may be, since the marriage (other than acts stated in any other discretion statement filed by him for the purposes of the proceedings), the circumstances giving rise to the commission of the acts of adultery and the grounds upon which the court will be asked to make a decree of dissolution of marriage or judicial separation notwithstanding the adultery.

“(2.) Where a petitioner or respondent alleges that an act of adultery set forth in his discretion statement has been condoned, he shall state in the discretion statement particulars of the facts that are alleged to constitute condonation of the adultery.

“(3.) Where, in a discretion statement filed by a petitioner or respondent, the petitioner or respondent states that he has committed adultery and 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 discretion statement to be filed setting forth particulars of any further acts of adultery committed by him with that person.

“(4.) A discretion statement of a party to proceedings shall not be filed 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 ‘Discretion Statement’, 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 so represented—signed by the party, certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

Service of notice of allegation on spouse.

“163.—(1.) Where a discretion statement of a party to proceedings contains an allegation that the party’s spouse has committed adultery or another matrimonial offence, not being adultery or an offence particulars of which have been included in a pleading filed on behalf of the party for the purposes of the proceedings, the party shall cause service of notice of the allegation to be effected on his spouse before the proceedings are set down for trial.

“(2.) The court may, on the hearing of proceedings, excuse a party who has failed to serve notice of an allegation on his spouse in accordance with the last preceding sub-rule if it is satisfied that the failure has not prejudiced the spouse in connexion with the proceedings.

Service of notice on spouse.

“163a.—(1.) Where a petitioner whose petition does not contain the statement referred to in rule 40a of these Rules files a discretion statement after the filing of his petition—

(a) service of notice of his intention to ask the court to make the decree notwithstanding the facts and circumstances set out in the discretion statement shall be effected—

(i) if the respondent has an address for service for the purpose of the proceedings or if the petitioner is claiming custody of a child of the marriage—on the respondent; and

(ii) if a party to the proceedings, other than the petitioner or respondent, has an address for service for the purposes of the proceedings—on that party; and

(b) the solicitor for the petitioner, or, if the petitioner is not represented by a solicitor, the petitioner shall write on the petition, in red ink, immediately after the signature to the petition, a notation in accordance with the following form, and sign his name immediately under that notation:—

‘Discretion statement filed the  day

of , 19 .’.

“(2.) Where a petitioner is claiming custody of a child of the marriage and the respondent does not have an address for service, the last preceding sub-rule does not require the service of the notice on a respondent—

(a) if the court dispensed with service of the petition on the respondent; or

(b) if service of the petition was effected on the respondent by advertising notice of the petition, but in no other manner,

unless the petitioner is aware of the address of the respondent.

“(3.) Where service of a notice under sub-rule (1.) of this rule is required to be effected on a respondent who does not have an address for service and the petition was served on the respondent in accordance with an order under rule 65 of these Rules, service of the notice may be effected in the same manner as service of the petition was effected, and service in that manner shall be deemed to be due service of the notice on the respondent.

“(4.) Where—

(a) service of a notice under sub-rule (1.) of this rule would be required to be effected on a respondent but for the fact that the court dispensed with service of the petition on the respondent; and

(b) the court, as a condition of dispensing with service of the petition on the respondent, required a copy of the petition to be sent to or served on some other person,

the notice referred to in that sub-rule shall be sent to or served on that person.

“(5.) Sub-rule (1.) of this rule applies to and in relation to a respondent who files a discretion statement after the filing of his answer as if—

(a) references to a petitioner were references to a respondent;

(b) references to a petition were references to an answer; and

(c) references to a respondent were references to a petitioner.

Disclosing discretion statement.

“164.—(1.) The court may, if it considers it proper so to do in the circumstances of the particular case, require a discretion statement filed by a party to a suit to be tendered in evidence, read out in open court or produced for inspection by another party to the suit—

(a) at any stage of the trial of the suit; or

(b) at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.

“(2.) Except as provided in the last preceding sub-rule, a discretion statement is not open to inspection by a person other than the Attorney-General, or a person authorized in writing by the Attorney-General to inspect the discretion statement, without the leave of the Court.

“(3.) An authorization by the Attorney-General under the last preceding sub-rule may be either general or in relation to a particular suit or class of suits.

“(4.) In the last two preceding sub-rules, references to the Attorney-General shall be read as including references to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under Part VII. of the Act.”.

6. After rule 217 of the Matrimonial Causes Rules the following rule is inserted in Division 4 of Part XIV.:—

Respondent who claims custody to disclose any adultery.

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

(a) who, before the determination of those proceedings, institutes or has instituted proceedings for ancillary relief with respect to the custody of a child of the marriage;

(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 those proceedings for ancillary relief; and

(c) who has not filed, and is not required by these Rules to file, a discretion statement with respect to that adultery.

“(2) A respondent 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.) of this rule shall state particulars of the acts of adultery committed by the respondent 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 respondent in accordance with sub-rule (2.) of this rule, the respondent 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 (2.) of this rule shall not be filed by or on behalf of a respondent to proceedings unless—

(a) it is signed by the respondent;

(b) the matters set forth in it have been verified by the affidavit of the respondent 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 respondent is represented by a solicitor—signed by the solicitor; or

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

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 (2.) of this rule as if references to a discretion statement were references to a statement so filed.

“(7.) Where a respondent to whom this rule applies files a statement under sub-rule (2.) of this rule, the solicitor for the respondent or, if the respondent is not represented by a solicitor, the respondent— ,

(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 petitioner 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 petitioner, notice of the filing of the statement under sub-rule (2.) of this rule shall be deemed to have been given to the petitioner if the copy of the application served on him has a copy of that notation written on it.

“(9) Where a respondent has filed a discretion statement stating that he has committed adultery and that he and the person with whom he has committed adultery are living together as if they were husband and wife, nothing in this rule shall be taken to require the respondent to file a statement concerning any further acts of adultery committed by the respondent with that person.”.

The First Schedule.

7. Form 6 in the First Schedule to the Matrimonial Causes Rules is amended by omitting the words “rule 41, 42 or 48 of the Matrimonial Causes Rules” and inserting in their stead the words “rule 40a, 41, 42 or 48 of the Matrimonial Causes Rules”.

Commencement and application.

8.—(1.) These Rules shall come into operation on the first day of March, 1963.

(2.) The Matrimonial Causes Rules, as amended by these Rules, apply to and in relation to—

(a) a petition, answer or application for ancillary relief filed on or after the first day of March, 1963; and

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

(3.) Subject to the next succeeding sub-rule, the Matrimonial Causes Rules, as in force immediately before the first day of March, 1963, continue to apply, notwithstanding the amendments effected by these Rules, to and in relation to—

(a) a petition, answer or application for ancillary relief filed before that date; and

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

(4.) Rule 164 of the Matrimonial Causes Rules, as amended by these Rules, applies, on and after the first day of March, 1963, to and in relation to a discretion statement deposited with the registrar of a court before that date as if it had been filed by the party by whom it was deposited.

(5.) In the application of the Matrimonial Causes Rules as amended by these Rules to and in relation to any proceedings to or in relation to which those rules as so amended apply, any discretion statement deposited with the registrar of a court—

(a) before the first day of March, 1963, under the Matrimonial Causes Rules as in force immediately before that date; or

(b) on or after that date, under those last-mentioned rules as continued in force by sub-rule (3.) of this rule,

shall be taken to have been filed by the party by whom it was so deposited on the day on which it was so deposited.

 

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