Untitled document

Magistrates' Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011

S.R. No. 95/2011

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5Introductory note inserted

6Definitions

7Application

8Amendment of heading to Order 3

9Application for a family violence intervention order

10Application for associated final order

11Application for variation, revocation or extension of family violence intervention order

12Form of consent

13Rule 5.06 revoked

14Rule 5.07 revoked

15Amendment to heading of Order 7

16Attendance by subpoena

17Address of subpoena

18Service

19Conduct money

20Setting aside

21Production before date of attendance

22Irregularity

23Form of application

24Rule 14.01 substituted

14.01Form of notice of appeal

25Stay of relevant decision

26Rule 15.02 revoked

27New Forms 1 to 3 inserted

Form 1—Subpoena

Form 2—Application for Rehearing

Form 3—Notice of appeal

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ENDNOTES

STATUTORY RULES 2011

S.R. No. 95/2011

Family Violence Protection Act 2008

Magistrates' Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011

The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:

1Object

The object of these Rules is to amend the Magistrates' Court (Family Violence Protection) Rules 2008—

(a)to remove requirements for applications made by police officers—

(i)to specify whether an affected family member consents to the application; and

(ii)to include an affected family member's written consent; and

(b)to amend the definition of proceeding and the application of the Magistrates' Court (Family Violence Protection) Rules 2008 as a consequence of amendments made to the Family Violence Protection Act 2008; and

(c)to prescribe forms for applications for rehearing and notices of appeal; and

(d)to revoke Rules relating to service interstate and in New Zealand; and

(e)to substitute "subpoena" for "witness summons" and prescribe a form for a subpoena; and

(f)to make other miscellaneous amendments.

2Authorising provisions

These Rules are made under section 209 of the Family Violence Protection Act 2008 and under section 16(1D) and (1E) of the Magistrates' Court Act 1989 and all other enabling powers.

3Commencement

These Rules come into operation on 5 September 2011.

4Principal Rules

In these Rules, the Magistrates' Court (Family Violence Protection) Rules 2008[1] are called the Principal Rules.

5Introductory note inserted

After the heading to Order 1 of the Principal Rules insert—

"Introductory Note

These Rules are Rules of the Magistrates' Court as to proceedings under the Family Violence Protection Act 2008.

Related Rules

These Rules are in many respects uniform with the Magistrates' Court (Personal Safety Intervention Orders) Rules 2011 (the Personal Safety Intervention Orders Rules). Many of the Orders and Rules are drafted in the same terms as the Personal Safety Intervention Orders Rules, except so far as minor variations are required to accord with the Family Violence Protection Act 2008.

If the Personal Safety Intervention Orders Rules include an Order or a Rule that is not included in these Rules there is a gap in the numbering of these Rules in order to maintain consistent numbering for the other Orders and Rules.".

6Definitions

In Rule 1.05 of the Principal Rules, for the definition of proceeding substitute—

"proceeding, unless the contrary intention appears, means—

(a)any matter in the Court commenced by application under the Family Violence Protection Act 2008; or

(b)any matter in the Court—

(i)that was commenced by application under the Personal Safety Intervention Orders Act 2010; and

(ii)in respect of which a Court has made a determination under section 176E(2)(b) of the Family Violence Protection Act 2008;".

7Application

For Rule 1.07(1) of the Principal Rules substitute—

"(1)These Rules apply to—

(a)every proceeding commenced under the Act in the Court on or after the commencement date, other than a proceeding in respect of which a determination has been made under section 136(2)(b) of the Personal Safety Intervention Orders Act 2010; and

(b)every proceeding commenced under the Personal Safety Intervention Orders Act 2010 in respect of which a determination has been made under section 176E(2)(b) of the Act.".

8Amendment of heading to Order 3

In the heading to Order 3 of the Principal Rules omit ", SITTINGS, COURT OFFICE".

9Application for a family violence intervention order

In Rule 4.03(1)(d) of the Principal Rules, after "affected family member" (where first occurring) insert "or a police officer".

10Application for associated final order

(1)In Rule 4.04(2)(c) of the Principal Rules, after "protected person" (where first occurring) insert "or a police officer".

(2)In Rule 4.04(3)(c) of the Principal Rules, after "additional applicant" (where first occurring) insert "or a police officer".

11Application for variation, revocation or extension of family violence intervention order

In Rule 4.05(1)(d) of the Principal Rules, for "protected person is not the applicant" substitute "applicant is not the protected person or a police officer".

12Form of consent

(1)For Rule 4.06(1) of the Principal Rules substitute—

"(1)This Rule applies if a person—

(a)is required under section 45 or 76 of the Act to give written consent to the making of an application for a family violence intervention order; or

(b)is required under section 108 of the Act to give written consent to the making of an application to vary, revoke or extend a family violence intervention order.".

(2)Rule 4.06(2)(b) of the Principal Rules is revoked.

13Rule 5.06 revoked

Rule 5.06 of the Principal Rules is revoked.

14Rule 5.07 revoked

Rule 5.07 of the Principal Rules is revoked.

15Amendment to heading of Order 7

In the heading to Order 7 of the Principal Rules, for "WITNESS SUMMONSES" substitute "SUBPOENAS".

16Attendance by subpoena

(1)In the heading to Rule 7.01 of the Principal Rules, for "summons" substitute "subpoena".

(2)In Rule 7.01(1) of the Principal Rules, for "witness summons" substitute "subpoena".

(3)For Rule 7.01(2) of the Principal Rules substitute—

"(2)A subpoena must be in accordance with Form 1.".

(4)Rule 7.01(3) of the Principal Rules is revoked.

(5)In Rule 7.01(4) and (5) of the Principal Rules, for "witness summons" (wherever occurring) substitute "subpoena".

17Address of subpoena

(1)In the heading to Rule 7.02 of the Principal Rules, for "summons" substitute "subpoena".

(2)In Rule 7.02(1) and (2) of the Principal Rules, for "witness summons" (wherever occurring) substitute "subpoena".

18Service

(1)In Rule 7.03(1) of the Principal Rules, for "witness summons" substitute "subpoena".

(2)In Rule 7.03(2) of the Principal Rules—

(a)for "witness summons" substitute "subpoena";

(b)for "summons" substitute "subpoena".

19Conduct money

In Rule 7.04 of the Principal Rules—

(a)for "witness summons" (wherever occurring) substitute "subpoena";

(b)for "summons" (wherever occurring) substitute "subpoena".

20Setting aside

In Rule 7.05 of the Principal Rules, for "witness summons" substitute "subpoena".

21Production before date of attendance

(1)In Rule 7.06(1) of the Principal Rules—

(a)for "witness summons" substitute "subpoena";

(b)for "summons" substitute "subpoena".

(2)In Rule 7.06(2) of the Principal Rules, for "witness summons" substitute "subpoena".

(3)In Rule 7.06(3) of the Principal Rules, for "witness summons" substitute "subpoena".

22Irregularity

In Rule 8.07 of the Principal Rules, for "Notwithstanding" substitute "Despite".

23Form of application

In Rule 13.02 of the Principal Rules, for "supported by an affidavit" substitute "in accordance with Form 2".

24Rule 14.01 substituted

For Rule 14.01 of the Principal Rules substitute—

"14.01   Form of notice of appeal

For the purposes of section 116 of the Act, a notice of appeal must be in accordance with Form 3.".

25Stay of relevant decision

For Rule 14.02(1) of the Principal Rules substitute—

"(1)An application under section 117 of the Act to stay the operation of a relevant decision must be filed.

(1A)The registrar may serve an application under section 117 of the Act to stay the operation of a relevant decision on the following persons—

(a)the other parties to the proceeding in which the relevant decision was made;

(b)if the appeal relates to a family violence intervention order for a protected person who is a child—

(i)if the application for the order was made with the consent of a parent, that parent;

(ii)if a parent of the child did not consent to the order, a parent of the child (other than the respondent) with whom the child normally or regularly resides;

(c)if the appeal relates to a family violence intervention order for a protected person who has a guardian, the guardian.".

26Rule 15.02 revoked

Rule 15.02 of the Principal Rules is revoked.

27New Forms 1 to 3 inserted

At the end of the Principal Rules insert—

"__________________

FORMS

FORM 1

Rule 7.01

SUBPOENA

In the Magistrates' Court at: [specify venue]        Case No:

Applicant:

Affected family member or protected person:

Respondent:

Nature of proceeding:

To: [name of person to whom subpoena is addressed]

Of: [address]

You are required to: [tick one box only]

£    attend court and give evidence in the proceeding OR

£attend court and give evidence in the proceeding and produce the following documents or things: [specify documents or things that person must produce] OR

£produce at the hearing the following documents or things: [specify documents or things that person must produce]

If you are required to attend court and give evidence you must attend the hearing.

If you fail to attend the hearing or fail to produce the documents or things required by this subpoena, a warrant for your arrest may be issued.

Production of documents and things before the hearing

If you are required to produce documents or things, you may provide them to the registrar of the Magistrates' Court at [specify venue] by hand or by post.

The registrar must receive the documents or things no later than 2 business days before the date of the hearing.

Details of hearing

This case will be heard at the Magistrates' Court at [specify venue].

Court address:   Phone:

Date and time of hearing:

Details of issue

This subpoena was issued at [specify court venue] by [Registrar/Magistrate].

Date issued:

Subpoena filed by: [name of party or party's legal representative]

__________________

FORM 2

Rule 13.02

APPLICATION FOR REHEARING

In the Magistrates' Court at: [specify venue]        Case No:

Applicant: [full name of applicant for rehearing]

Applicant's address:

Respondent: [full name of respondent to this application]

Respondent's address:

Protected person or person protected by the order:

Address:

Details of the application you would like reheard

I (the applicant) am the Respondent to an application:

£    for a final family violence intervention order

£    for an order declaring me to be a vexatious litigant

The application was made at [specify court location] on [date].

Have you previously applied for a rehearing of this application? Yes/No*

Note:  If you were granted a rehearing, and that application was struck out by the Court, you will require leave of the Court to make another application.

Reasons for applying for rehearing

My reason for seeking a rehearing of the application is:

£    I was not personally served with the application

£the application was not brought to my attention by an order for substituted service

£there are exceptional circumstances and a rehearing is fair and just

These circumstances are: [briefly state the reasons why you did not attend the hearing of the application]

Affidavit

I [full name] make oath/affirm and say that the contents of my application are true and correct to the best of my knowledge.

Note: Under section 141 of the Evidence (Miscellaneous Provisions) Act 1958 a person who makes an affidavit knowing the contents of the affidavit to be false may be punished for the offence of perjury.

SWORN/AFFIRMED at: [place]

ON: [date]

.........................................................

[signature of person making the affidavit]

BEFORE ME:......................................

Name:

Title:

Address:

A person authorised under section 123C(1) of the Evidence (Miscellaneous Provisions) Act 1958 to take an affidavit.

__________________

FORM 3

Rule 14.01

NOTICE OF APPEAL

In the Magistrates' Court at: [specify venue]      Appeal No: Case No:

Appellant's name:

Appellant's address for service:

Name and address of appellant's solicitor:

Respondent's name:

Respondent's address:

TO

The Registrar of the Magistrates' Court at:

The Registrar of the County Court at:

The abovenamed respondent:

Details of the proceeding appealed

Venue of the Magistrates' Court from which proceeding is appealed:

Date order made:

Nature of proceeding:

[Please attach copy of order to this Form]

Grounds of appeal

[Briefly state the grounds for the appeal]

The Appellant requests the Registrar of the County Court to list the appeal

Details of the appeal:

The appeal is to be heard by the County Court sitting at:

Date of appeal:

Notice of appeal filed at:               Date:

Signature of Appellant:                 Signature of Registrar:".

Dated:    2 September 2011

IAN L. GRAY,

Chief Magistrate

DANIEL J. MULING,

Deputy Chief Magistrate

PETER LAURITSEN,

Deputy Chief Magistrate

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ENDNOTES

[1] Rule 4: S.R. No. 157/2008.