Family Law Amendment Rules 1999 (No. 3) 1999 No. 279
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 279
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 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 AMENDMENTS
Order 36A Rule 2 (1A) (k)
This has been amended to delegate to the SES Band 2 Registrars the general power to make an order pursuant to section 84 "Registrars Clause".
Order 36A Rule 2 (1A) (o)
This amendment is to correct the reference to S. 114 (3) from s. 114 (1) of the Act.
Order 36A Rule 3 (h)
This amendment returns the power to Judicial Registrars to make an order or grant an injunction under s. 68B.
Order 36A Rule 3 (n)
This provision is unnecessary as this power is now delegated to Registrars (O36AR2(1A)(k)) and hence Order 36A Rule 3 (a) applies.
Order 38 Division 1A Notification of costs
This amendment requires lawyers to advise their clients about costs at various stages of the proceedings. A copy of this costs advice is also to be provided to the Court and to the other party/ies to the proceedings. The Rule also requires that the source of the funds to pay the costs be disclosed unless the source is a third party then the Court or Registrar has a discretion to waive this latter requirement.
Order 40 Rule (6) and (7)
Rule 6 has been amended to enable an application (for a person to be prevented from bringing further specified proceedings without leave of the court), to be made by a party or by the court of its own motion. Rule 7 has been amended to ensure the process is clear.
Forms 45B and 46
Paragraph 1 in the notings at the foot of these forms is to correct the amount of the maximum fine to $5000.
Schedule Scale of Costs
The Scale of Costs has been increased by 4% as recommended by Federal Costs Advisory Board. The only exception is photocopying which has been reduced to bring it more in line with commercial rates.
Overview
The Family Law Amendment Rules 1999 (No. 3), enacted in 1999, address gaps and refine existing provisions within the Family Law Rules that govern practice and procedure in the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act. This statutory rule, issued by the authority of the Judges of the Family Court of Australia, aims to enhance the efficiency and fairness of proceedings by updating and clarifying certain procedural aspects. One of the primary policy objectives of these amendments is to ensure that legal practitioners provide clear and timely advice to their clients regarding costs, thereby promoting transparency and enabling informed decision-making throughout the litigation process. Additionally, the amendments aim to streamline certain procedural applications and ensure that the Scale of Costs reflects current economic conditions, as recommended by the Federal Costs Advisory Board.
Scope and Application
The Family Law Amendment Rules 1999 (No. 3) apply to practitioners, parties, and Registrars in the Family Court of Australia, as well as those subject to the Family Law Act. These Rules amend the Family Law Rules of Court, establishing practice and procedure requirements for the Family Court and other courts exercising jurisdiction under the Family Law Act. The jurisdiction of these Rules is confined to the Commonwealth of Australia, and they operate within the legislative framework set by the Family Law Act and the Acts Interpretation Act 1901. The Rules do not specify any exclusions or exemptions, but their application can be extended or restricted through subordinate instruments, as indicated in the explanatory statement. The amendments include delegating specific powers to SES Band 2 Registrars, correcting references within the Rules, and requiring lawyers to provide clients with costs advice and disclose the source of funds for those costs. Additionally, the Rules facilitate the prevention of specified proceedings without court leave and adjust the Scale of Costs, with photocopying costs being reduced to align with commercial rates.
Key Provisions
The Family Law Amendment Rules 1999 (No. 3) include several key amendments to the Family Law Rules, particularly affecting the delegation of powers, the notification of costs, and procedural updates. Order 36A Rule 2(1A)(k) now allows SES Band 2 Registrars to make an order under section 84, while Order 36A Rule 2(1A)(o) corrects a reference error from section 114(1) to section 114(3) of the Family Law Act. Order 36A Rule 3(h) reinstates the power to Judicial Registrars to make orders or grant injunctions under section 68B, whereas Order 36A Rule 3(n) has been rendered unnecessary as the power is already delegated under Order 36A Rule 2(1A)(k).
These amendments introduce several obligations for the parties involved in family law proceedings. Under Order 38 Division 1A, lawyers are required to advise their clients about costs at various stages of the proceedings, with a copy of this advice to be provided to both the Court and the other party. The source of funds to pay these costs must also be disclosed, unless the funds come from a third party, in which case the Court or Registrar has discretion to waive this requirement. Additionally, Rule 6 of Order 40 now allows an application to be made by either a party or the Court itself, without the need for leave, to prevent a person from bringing further specified proceedings. Rule 7 of Order 40 has been clarified to ensure the process is straightforward.
Failure to comply with the new requirements may result in legal consequences. For example, Forms 45B and 46 now have an updated maximum fine of $5000, as per the amendments in the notings at the foot of these forms. Additionally, the Scale of Costs has been increased by 4%, except for photocopying, which has been reduced to align more closely with commercial rates. Any breach of these provisions could potentially lead to financial penalties or other legal repercussions as outlined in the Family Law Act and related rules.