Family Law Amendment Rules 2004 (No. 1) 2004 No. 5
EXPLANATORY STATEMENT
STATUTORY RULES 2004 NO. 5
Issued by the authority of the
Judges of the Family Court of Australia
FAMILY LAW AMENDMENT RULES 2004 (NO. 1)
Section 123 of the Family Law Act 1975 (the 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 Act.
Subsection 123(2) of the 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 Family Law Rules 1984 (the Rules) came into operation on 2 January 1985. They have been regularly reviewed and amended since that date.
NOTES ON PROPOSED AMENDMENTS
The details of the proposed amendments are as follows:
These amendments are to ensure the Rules comply with the amendments of the Act arising from the passing of the Family Law Amendment Act 2003.
Rule 1 cites the Rules as the Family Law Amendments Rules 2004 (No. 1).
Rule 2 provides that the Amendment Rules commence on gazettal.
Rule 3 provides that Schedule 1 amends the Family Law Rules 1984.
Schedule 1, items (1) and (2) amends Order 25 Rule 1 to replace the reference to "Principal Director of Court Counselling of the Family Court of Australia" with "the Registry Manager of the court", and "the Director" with "the Registry Manager" in accordance with the amendments of the Act contained in Schedule 3 to the Family Law Amendment Act 2003 relating to management of the Court.
Schedule 1 item (3) amends Order 25 Rule 4A to replace the reference to "Director of Court Counselling" with "Manager Mediation" in accordance with the amendments of the Act relating to management of the Court contained in Schedule 3 to the Family Law Amendment Act 2003.
Schedule 1 item (4) amends Order 25A Rule 1 to substitute the definition of "Principal Director of Mediation" with a definition of "Principal Mediator" in accordance with the amendments of the Act relating to management of the Court contained in Schedule 3 of the Family Law Amendment Bill 2003.
Schedule 1 item (5) amends Order 25A, paragraph 10(1)(b) to replace a reference to "Principal Director of Mediation" with "Principal Mediator" in accordance with the amendments contained in Schedule 3 to the Family Law Amendment Act 2003.
Schedule 1 item (6) replaces Order 26A, Divisions 1 and 2 to reflect the removal of the requirement to register parenting plans contained in Schedule 1 to the Family Law Amendment Act 2003.
Division 1 of Order 26A sets out that the Order applies to an application under section 63E of the Act for registration of a revocation agreement of an existing registered parenting plan (revocation agreement) or applications under section 63H of the Act to set aside, discharge, suspend or review a registered parenting plan.
Division 2 of Order 26A sets out the requirements for the registration of a revocation agreement. Order 26A, rule 4 requires that the revocation agreement be in writing, in a single document and be signed by all parties to the registered parenting plan being revoked. Order 26A rule 5 requires the revocation agreement to be filed with an affidavit that must include the following information:
• the name, age and place of residence of each child;
• current and proposed arrangement for the child;
• the reasons for revoking the registered parenting plan;
• details of any current order under the Act;
• details of any current family violence orders;
• details of any State child orders;
• whether the person with whom the child is to reside or have contact with has been convicted of any child welfare or child criminal offences and the details of the conviction;
• details of any pending proceedings;
• a statement that the revocation agreement accompanying the application for registration is a true copy of the original agreement.
The effect of Order 26A, subrule 5 (3) is that sealed copies of all documents filed must be served on all parties to the revocation agreement.
The effect of Order 26A, rule 6 is that the Court may order a copy of the affidavit files under subrule 5 (1) to be served on a specified person and may require additional information in relation to the application for registration of a revocation agreement.
Order 26A, rule 7 provides that the application for revocation may be heard in chambers.
Order 26A, rule 8 provides that as soon as practicable after a decision is made on an application to register a revocation agreement the Registry Manager must give to each party to the revocation agreement details of the decision to register or not register that agreement.
Schedule 1 item (7) amends Order 30, subrule 2AAA(2) by inserting "appear" after the words to "seek leave to" as a consequence of the amendments of the Act in the Family Law Amendment Act 2003 in relation to the use of audio links or video links to give testimony, make appearances and give submissions.
Schedule 1 item (8) amends Order 30, subrule 2AAA(5)(c) by inserting "appear" after "the person to" as a consequence of the amendments to the Act made by the Family Law Amendment Act 2003 relating to the use of audio links or video links to give testimony, make appearances and give submissions.
Schedule 1 item (9) omits Order 32 Rule 17B because the provisions for hearing appeals by electronic means is now contained in the Act as a consequence of amendments of the Act made by Schedule 2 of the Family Law Amendment Act 2003.
Schedule 1 item (10) omits Order 34 Rule 5 (which specified, for the purposes of subsection 67W (1) of the Act, how long a recovery order remains in force) because amending item 16 of Schedule 7 to the Family Law Amendment Act 2003 replaces subsections 67W (1) and (2) with a new subsection (1) that now provides for how long a recovery order remains.
Schedule 1 item (11) omits Order 35 Rule 15 because the requirement that the notification to the provider of parenting programs of an order under paragraph 70G(1)(a) of the Act is now contained in the Act because of amendments made by item 14 of Schedule 4 to the Family Law Amendment Act 2003.
Schedule 1 item (12) amends Order 35, rule 17 to replace reference to paragraph 16(2) (a) with subrule 16 (2) so that the rule requires the relisting of a matter if the provider of a parenting program notifies the court that a person has failed to attend or is unsuitable for the program.
Schedule 1 item (13) amends Order 36A by inserting new paragraph 2(1A)(hb) after paragraph 2 (1A) (ha); the effect of the new paragraph is to delegate to a Registrar the power to make an order under subsection 65LA(1) of the Act ( a new provision inserted by item 1 of Schedule 4 to the Family Law Amendment Act 2003) that parties attend a post-separation parenting program.
Schedule 1 item (14) removes Forms 26A and 26B in accordance with the amendments to the Act removing the requirements to register parenting plans made by Schedule 1 to the Family Law Amendment Act 2003.
Schedule 1 item (15) amends Schedule 1, Forms 31 and 32 to replace references to "the Principal Director of Court Counselling of the Family Court of Australia" with "the Registry Manager of the Court at (name of Registry)" as a consequence of the amendments to the Act relating to the management of the Court made by Schedule 3 of the Family Law Amendment Act 2003.
Schedule 1 item (16) contains a number of amendments of Order 23A to replace references to "Registrar" with references to "Registry Manager" in accordance with the amendments to the Act relating to the management of the Court contained in Schedule 3 of the Family Law Amendment Act 2003.