Family Law Amendment Rules 1998 (No. 2) 1998 No. 299
EXPLANATORY STATEMENT
STATUTORY RULES 1998 No. 299
Issued by the authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law Act 1975 provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.
Section 123(2) of the Family Law Act provides that Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if reference in those sections to regulations were references to Rules of Court.
The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.
DETAILS OF THE PROVISIONS OF THE AMENDMENT
The purpose of this rule is to provide a time frame in which a person liable to pay the costs ("the costs payee") is to request from the person entitled to receive payment ("the costs receiver") a bill of costs following the service of an account or a notice of rights
The effect of the amendment is that the request must be made within 28 clays of the later of the day on which the account was served and the day on which the notice of rights was served, providing uniformity between the situation where there is no costs agreement and where there is a costs agreement.
The consequence of the amendment s that Order 38 rule 40 will conform with the time frame provided by Order 38 rule 41(4)(b).
Overview
The Family Law Amendment Rules 1998 (No. 2) were enacted to address the need for a uniform time frame for requesting a bill of costs in family law matters. These rules were issued under the authority of the Judges of the Family Court of Australia, pursuant to Section 123 of the Family Law Act 1975. The legislative intent behind these amendments is to ensure consistency in the procedural timelines for requesting costs following the service of an account or a notice of rights, thereby aligning the processes where there is a costs agreement with those where there is no such agreement. By setting a clear 28-day period for making such requests, the amendment aims to streamline the procedural aspects of family law proceedings, enhancing predictability and fairness for all parties involved.
Scope and Application
The Family Law Amendment Rules 1998 (No. 2) pertain specifically to the Family Law Rules, which govern the practice and procedure in the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act 1975. These rules apply to all persons and entities involved in family law proceedings, including individuals, legal representatives, and the courts themselves. The amendment focuses on establishing a uniform timeframe for the costs payee to request a bill of costs from the costs receiver following the service of an account or a notice of rights. This amendment ensures consistency in the procedural timelines, specifically aligning the timeframes under Order 38 rule 40 with those in Order 38 rule 41(4)(b). These rules apply nationally across Australia, given their foundation under the Commonwealth legislation, the Family Law Act 1975. The rules do not explicitly mention exclusions or exemptions, but they are subject to the general provisions of the Family Law Act and the Acts Interpretation Act 1901. The rules may also be subject to further interpretation and modification through subordinate instruments issued by the Family Court of Australia.
Key Provisions
The Family Law Amendment Rules 1998 (No. 2) primarily focus on amending the Family Law Rules to establish a clear timeframe for requesting a bill of costs following the service of an account or a notice of rights (Rule 40). According to section 123(2) of the Family Law Act 1975, the Judges of the Family Court of Australia have the authority to make Rules of Court governing practice and procedure. The amendment ensures that the costs payee must request a bill of costs within 28 days of the later date between the service of the account and the service of the notice of rights. This change aims to create uniformity in the process, regardless of whether a costs agreement is in place or not.
These amendments impose specific obligations on the parties involved in family law proceedings. The costs payee is required to request a bill of costs within the stipulated 28-day period, ensuring that both parties are aware of the financial obligations and can proceed with the necessary payments. This timeframe is consistent with the provisions outlined in Order 38 rule 41(4)(b), which already applies when a costs agreement is present. By aligning these timeframes, the amendment simplifies the process and reduces potential disputes over the timing of cost requests.
In cases where the requirements of the Family Law Amendment Rules 1998 (No. 2) are not adhered to, there may be legal consequences. While the Explanatory Statement does not detail specific offences or penalties, it is reasonable to infer that failure to comply with the mandated timeframes could lead to procedural issues in court. These issues might include delays in proceedings or additional costs for the non-compliant party. Additionally, the court may impose sanctions to ensure compliance with the rules, although the exact nature of these sanctions is not specified in the text.