EXPLANATORY STATEMENT
Issued by the authority of the Judges of the Family Court of Australia
Select Legislative Instrument 2005 No. 148
Family Law Amendment Rules 2005 (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.
Section 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 present Family Law Rules came into operation on 29 March 2004 and were amended on 17 December 2004.
Pursuant to the Legislative Instruments Act there has been broad consultation with the Family Law Section of the Law Council of Australia and the Attorney General’s Department in the preparation of the following amendments to the Family Law Rules.
These amendments to the Rules are to address issues arising from the commencement, on the 15 April 2005, of Schedule 5 of the Bankruptcy and Family Law Legislation Amendment Act 2005.
The matters that have been addressed arise from the following amendments to the Family Law Act:
- Section 79 is amended by inserting subsection (10), the effect of which is to provide that the following are entitled to become a party to proceedings under Section 79 :
a) a creditor of a party to a proceeding, if the creditor may not be able to recover his or her debt if an order were made,
b) any other person whose interests would be directly affected by the making of an order.
- A new Section 79F is inserted allowing applicable rules of court to specify circumstances in which a person who applies for an order under Part VIII, or is a party to proceedings under that Part, is to give notice to a person who is not a party to the proceedings.
DETAILS OF AMENDMENTS
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2005 (No. 1).
Rule 2 Commencement
The rules amendments commence the day after they are registered pursuant to the provisions of the Legislative Instruments Act.
Rule 3 Amendment of Family Law Rules 2004
Schedule 1 amends the Family Law Rules 2004.
Schedule 1, item 1. Subrule 6.06(2), note
This amendment is to substitute a new note at the conclusion of subrule 6.06(2). The new note includes a reference to subsection 79 (10) as an example of when a person is entitled to intervene in a case without the Court’s permission.
Schedule 1, item 2. Subrule 12.04(1), note 2
This amendment is to substitute a new note 2 at the conclusion of subrule 12.04(1). This note identifies an order that a party serve notice on a person whose interests may be affected as an order that may be made at a procedural hearing.
Schedule 1, item 3. Paragraphs 12.04(2) (b) and (c)
This amendment is to substitute a new subparagraph (c). This new subparagraph will clarify, that at a procedural hearing, the issue of who may be entitled to become a party should be addressed.
Schedule 1, item 4. After rule 14.06
This amendment is to insert a new Rule 14.07 headed “Notice about intervention under Part VIII of Act”. This new rule provides for service of a written notice on a person who may be entitled to become a party to the case, attaching a copy of the application and advising of the date of the next court hearing.
Overview
The Family Law Amendment Rules 2005 (No. 1) were introduced to address issues arising from the implementation of changes to the Family Law Act 1975, specifically following the commencement of Schedule 5 of the Bankruptcy and Family Law Legislation Amendment Act 2005. These amendments were enacted to enhance the clarity and effectiveness of family law proceedings, particularly in relation to the rights of creditors and other interested parties to become involved in proceedings. The Judges of the Family Court of Australia, exercising their authority under Section 123 of the Family Law Act 1975, made these rules to ensure the updated legislative framework is properly implemented. The rules aim to streamline the process for interested parties to participate in family law matters, thereby providing a more comprehensive and equitable approach to family law adjudication.
These amendments were prepared after extensive consultation with relevant stakeholders, including the Family Law Section of the Law Council of Australia and the Attorney General’s Department, in line with the Legislative Instruments Act. The changes to the Family Law Rules 2004, as outlined in the explanatory statement, include updates to subrule 6.06(2) to reflect the new criteria for intervention under Section 79(10) of the Act, and the addition of Rule 14.07 to mandate the service of written notices to potential new parties. This ensures all relevant parties are informed and can participate in proceedings, thereby upholding the integrity and fairness of the family law process.
Scope and Application
The Family Law Amendment Rules 2005 (No. 1) are rules of court made under the authority of the Judges of the Family Court of Australia, designed to address specific issues arising from amendments to the Family Law Act 1975. These rules apply to parties involved in proceedings under Part VIII of the Family Law Act, particularly concerning financial arrangements and disputes following the breakdown of a relationship. The rules extend to any creditor of a party or any other person whose interests would be directly affected by the court's orders. The rules are applicable nationally, given that the Family Court of Australia has jurisdiction over family law matters across Australia. The Family Law Amendment Rules 2005 (No. 1) are not subject to exclusions or thresholds as specified in the explanatory statement, and their application can be further refined or extended through subordinate instruments as needed. The commencement of these rules follows their registration under the Legislative Instruments Act, reflecting a collaborative process involving consultation with relevant legal bodies to ensure their effectiveness and alignment with legislative intent.
Key Provisions
The Family Law Amendment Rules 2005 (No. 1) (the Rules) provide specific amendments to the Family Law Rules 2004, primarily addressing the introduction of new provisions under Section 79 of the Family Law Act 1975 (the Act). These Rules come into effect the day after they are registered under the Legislative Instruments Act. The amendments clarify the circumstances under which certain parties can become involved in proceedings without the need for explicit court permission, particularly focusing on creditors and other interested parties whose rights may be affected by the court's orders.
The Rules impose several obligations on the parties involved in family law proceedings. For example, Rule 14.07 mandates that a party must serve a written notice on any person who may be entitled to intervene in the proceedings, attaching a copy of the application and informing them of the date of the next court hearing. This requirement ensures that all relevant stakeholders are informed and can potentially participate in the proceedings. Additionally, Rule 6.06(2) and Rule 12.04(1) notes now include references to Section 79(10), guiding the court on when and how it may permit intervention by non-parties.
Breaching the obligations set out in the Rules can have significant legal consequences. While the Rules themselves do not explicitly detail penalties for non-compliance, any failure to adhere to these procedural requirements can lead to challenges in the court. Parties may face difficulties in having their interests properly considered if they do not comply with the notice provisions. Furthermore, the court may deem such non-compliance as a procedural error, potentially leading to the dismissal of applications or other adverse rulings. The underlying Act, however, outlines various penalties and consequences for non-compliance with court orders and procedural requirements, which can include fines or other sanctions.