Family Law Amendment Rules 2002 (No. 1) 2002 No. 23
EXPLANATORY STATEMENT
STATUTORY RULES 2002 No. 23
Issued by the authority of the Judges of the Family Court of Australia
FAMILY LAW AMENDMENT RULES 2002 (No. 1)
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 AMENDMENTS
Order 31B rule 33
This amendment is to make it clear that a party to a child support agreement is able to register the agreement in the court (even if it is not registered in the Child Support Agency) where registration of the agreement is required by the Assessment Act.
Order 32 rule 18
In the decision of Maragopoulos & Syrios EA 77/2000 the Full Court on 21st September 2001 said " there may however be some question as to whether O32r18 applies to non-compliance with an order or direction made by a Registrar or a court fixing the date for filing and service of appeal books (as opposed to non compliance with a provision of the rules)."
The rule is amended to make it clear that dismissal for want of prosecution does apply to non compliance with an order or direction made by a registrar.
Order 33
The amendments to Order 33 are as a result of the decisions in Hendy v CSA (2001) Fam CA 632 and Kneipp v CSA 2186/2000 (Monteith J. 19 November 2001), which it was considered raised 2 issues to be addressed:
1. The need to amend O33 r 3 to ensure that the rules clearly make the enforcement summons procedure available to enforce a debt due to the Child Support Agency pursuant to a registered liability under the Child Support (Assessment)Act.
Order 33 is amended to make it clear that it is "an obligation to pay money" which can be enforced by way of enforcement summons and the definition of "obligation" recites all of the debts intended to be enforced under the procedure prescribed, including a registered child support liability.
2. To confirm that the Order 33 processes are available for use by the Child Support Agency and a payee who opts to collect their own child support (ie where the liability has been administratively assessed but not registered for collection by the agency) by providing that on a summons or other application under O33, the court can first give judgment for the debt before making an order to enforce the debt .
Order 34 rule 3
This amendment refers to s. 67U instead of s. 67Q as it is the former section which provides the court with the legislative power to make a recovery order.
O36Ar 2(2) (t)
This amendment is to delegate to SES Registrars the power to set aside a subpoena and issue a warrant for non -appearance on a subpoena in a matter before them.
Schedule
Form 45B
Form 46
These forms are amended to ensure they are consistent with the provisions of O33 as amended . Those amendments are explained above.
Overview
The Family Law Amendment Rules 2002 (No. 1), enacted in 2002, were introduced to address specific procedural and enforcement issues within the Family Law Act 1975, particularly relating to child support agreements and the enforcement of child support liabilities. These rules were made under the authority of the Judges of the Family Court of Australia, aiming to provide clarity and streamline the processes associated with child support enforcement and compliance with court orders. The amendments seek to resolve ambiguities and ensure that the rules clearly outline the procedures for enforcing child support obligations and handling non-compliance with court orders, ultimately facilitating more efficient and effective adjudication within family law matters.
Scope and Application
The Family Law Amendment Rules 2002 (No. 1) apply to parties involved in family law matters, particularly those relating to child support agreements, as well as the Child Support Agency and the Family Court of Australia. These rules aim to clarify and amend existing procedures concerning child support agreements, enforcement of child support debts, and compliance with court orders and directions. The amendments extend to the enforcement summons procedure for debts owed to the Child Support Agency, and the processes available for the agency and private parties collecting child support. The amendments also address the delegation of powers to SES Registrars regarding subpoenas and warrants. The rules have a national reach, as they pertain to the Family Court of Australia and matters governed by the Family Law Act. Exclusions or exemptions are not explicitly stated in the explanatory statement, but it is implied that the rules apply broadly to the specified areas of family law. The application of these rules can be extended or restricted through subordinate instruments, as indicated by the need to ensure consistency with other provisions and the delegation of certain powers to SES Registrars.
Key Provisions
The Family Law Amendment Rules 2002 (No. 1) (2002 No. 23) outline several key amendments to the existing Family Law Rules, aimed at clarifying and updating certain provisions to better align with recent court decisions and statutory requirements. These amendments include clarifications regarding the registration of child support agreements (Order 31B rule 33), the enforcement of non-compliance orders (Order 32 rule 18), and the enforcement summons procedure for debts to the Child Support Agency (Order 33). Additionally, there are amendments to the legislative references and procedural forms to ensure they are consistent with the updated rules.
Under these amendments, parties to a child support agreement now have the explicit ability to register the agreement with the court if it is required by the Assessment Act, even if it is not registered with the Child Support Agency (Order 31B rule 33). This aims to provide clarity and ensure that agreements can be legally enforced where necessary. Furthermore, Order 32 rule 18 is clarified to explicitly state that dismissal for want of prosecution applies to non-compliance with orders or directions made by a Registrar or court, particularly concerning the filing and service of appeal books.
These amendments impose obligations on parties involved in family law proceedings to ensure they comply with the specific procedural requirements outlined in the amended rules. For instance, parties must adhere to the new provisions regarding the registration of child support agreements and the enforcement of non-compliance orders. The amendments also ensure that the Child Support Agency and payees who opt to collect their own child support can use the enforcement summons procedure effectively.
Breaches of these new provisions may result in various legal consequences, although the specific penalties are not detailed in the Explanatory Statement. Generally, non-compliance with court orders and directions can lead to dismissal of proceedings for want of prosecution, while failure to register child support agreements where required may result in the inability to enforce the agreement. The effectiveness of these amendments relies on the parties' adherence to the updated rules and the courts' enforcement of these provisions.
The Family Law Amendment Rules 2002 (No. 1) also include technical amendments to the forms used in family law proceedings (Schedule: Form 45B, Form 46), ensuring they reflect the changes in Orders 31B, 32, and 33. These changes are intended to maintain consistency and clarity in the procedural documents used by the courts, thereby facilitating smoother legal processes for all involved parties.