EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 292
Issued by the authority of the Judges of the Family Court of Australia
FAMILY LAW AMENDMENT RULES 2005 (No. 3)
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.
As a result of various legislative and rules changes over the past twelve months it is now necessary to amend some of the forms prescribed in the Family Law Rules.
The major changes introduced by the amendments are as follows:
- To cater for the commencement of the Family Law Amendment (Annuities) Act 2004 insofar as it provides for eligible annuities to be split in the same way as other superannuation.
- To cater for the commencement of the Bankruptcy and Family Law Legislation Amendment Act 2005 insofar as it firstly provides for creditors and any other person whose interests may be affected by the making of an order to become a party to proceedings, and secondly provides for a trustee of a personal insolvency agreement to be joined as a party to proceedings.
- To cater for the commencement of Family Law Amendment Act 2005 insofar as it provides for the enforcement of obligations under a bond.
- To cater for the changes to the Family Law Rules in relation to the notice required to be given to a superannuation trustee.
The balance of the amendments correct an error and improve drafting.
DETAILS OF AMENDMENTS
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2005 (No. 3)
Rule 2 Commencement
The rules amendments commence:
a) on 1 December 2005 – Rules 1 to 3 and Schedule 1;
b) on 1 February 2006 - Schedule 2;
Rule 3 Amendment of Family Law Rules 2004
Schedules 1 & 2 amend the Family Law Rules 2004.
Schedule 1, item 1. Form 11 Application for Consent Orders
This form is amended as follows:
- By expanding item 20 to apply to a debtor subject to a personal insolvency agreement.
- By introducing item 22 requiring the person(s) completing the form to indicate if there is a person who may be entitled to become a party under sub-section 79(10) of the Family Law Act, and if so, whether written notice has been given to that person.
- By making consequential amendments to the item numbers in items 49 and 54.
- By expanding item 52 to include an “eligible annuity” as an option.
- By amending Parts I and K to bring the references to the notice that must be given to a trustee of a superannuation plan in line with the recent amendments to Rules 10.16 and 14.06 of the Family Law Rules.
Schedule 2, item 1.
Form 1 Application for Final Orders
This form is amended as follows:
- By providing for items 20, 21 and 22 to be completed when an application is made for spouse maintenance.
- By expanding item 22 to apply to a debtor subject to a personal insolvency agreement.
Form 1A Response to an Application for Final Orders
This form is amended as follows:
- By providing for Part G to apply to an application for spouse maintenance.
- By expanding item 18 to apply to a debtor subject to a personal insolvency agreement.
Form 1B Reply
This form is amended as follows:
- By providing for Part C to apply to an application for spouse maintenance.
- By expanding item 5 to apply to a debtor subject to a personal insolvency agreement.
- By ensuring that the heading to Part D covers separate applications for property settlement and spouse maintenance.
Form 2 Application in a Case
This form is amended to correct an inconsistency with the Family Law Rules in the “Important Notices to the Respondent” on page 4. Under the heading “For all other applications” the notice will indicate that a copy of the documents filed must be served on each other party not less than two days rather than seven days before the court date.
Schedule 2, item 2. Form 13 Financial Statement
This form is amended by expanding item 45 to include an “eligible annuity” as an option.
Schedule 2, item 3. Form 18 Application - Contravention
This form is amended to provide for its use when it is alleged that a bond has been contravened.
Overview
The Family Law Amendment Rules 2005 (No. 3), issued under the authority of the Judges of the Family Court of Australia, were enacted to address the necessity for updated procedural forms within the Family Law Rules, reflecting recent legislative amendments. These amendments cater to various new legislative provisions, such as the Family Law Amendment (Annuities) Act 2004, the Bankruptcy and Family Law Legislation Amendment Act 2005, and the Family Law Amendment Act 2005, which introduced significant changes to the handling of superannuation annuities, the inclusion of creditors and trustees in family law proceedings, and the enforcement of bonds. The Rules also correct previous errors and improve the drafting of certain forms. These amendments aim to ensure that the Family Law Rules remain current and effective in the context of evolving family law legislation and practice.
Scope and Application
The Family Law Amendment Rules 2005 (No. 3) applies to the practice and procedure of the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act 1975. These rules cater to various legislative and rules changes that have been enacted to ensure the alignment of the Family Law Rules with new acts and amendments. This includes the Family Law Amendment (Annuities) Act 2004, the Bankruptcy and Family Law Legislation Amendment Act 2005, and the Family Law Amendment Act 2005. The rules also address the enforcement of obligations under a bond and the notice required to be given to a superannuation trustee. The amendments correct an error and improve drafting in various forms prescribed in the Family Law Rules, such as Form 11 Application for Consent Orders, Form 1 Application for Final Orders, and Form 13 Financial Statement. The rules extend to the Commonwealth of Australia and are applicable to all persons and entities involved in proceedings before the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act 1975. The amendments to the rules cater to the changes introduced by the legislative acts and ensure that the prescribed forms are updated accordingly. The Family Law Amendment Rules 2005 (No. 3) extend their application through subordinate instruments, which are the schedules attached to the rules that detail the specific amendments to the various forms.
Key Provisions
The Family Law Amendment Rules 2005 (No. 3) introduce significant changes to the Family Law Rules 2004 to accommodate recent legislative amendments and improve the drafting of forms used in the Family Court of Australia. Rule 2 (2) specifies that these rules amendments will commence on 1 December 2005 for Rules 1 to 3 and Schedule 1, and on 1 February 2006 for Schedule 2. Schedule 1 and Schedule 2 amend various forms, primarily focusing on updating and clarifying the information required in applications and responses to ensure they align with recent legislative changes.
These rules impose specific obligations on parties involved in family law proceedings. For instance, Schedule 1, item 1 amends Form 11 Application for Consent Orders to require more detailed information about debtors subject to a personal insolvency agreement (section 20). It also mandates that parties indicate whether there is a person who may be entitled to become a party under sub-section 79(10) of the Family Law Act and whether written notice has been given to that person (section 22). These obligations ensure that all relevant parties are identified and informed, facilitating a more transparent and inclusive legal process.
The amendments also introduce potential civil consequences for non-compliance with the updated forms and requirements. For example, failure to provide accurate and complete information as required by the amended forms could result in delays in proceedings or even the dismissal of an application if the court determines that the information provided is insufficient. Additionally, inaccurate financial statements or failure to disclose relevant assets, such as eligible annuities, could lead to further scrutiny or penalties for providing misleading information.
Furthermore, the rules impose specific obligations on trustees of superannuation plans and personal insolvency agreements. Trustees must be notified and may become parties to proceedings, as outlined in the Bankruptcy and Family Law Legislation Amendment Act 2005. Failure to comply with these obligations could result in civil consequences, such as being held liable for any financial losses resulting from non-compliance. Additionally, the amendments to Form 13 Financial Statement ensure that eligible annuities are included in financial disclosures, highlighting the importance of accurate financial reporting in family law proceedings.
In summary, the Family Law Amendment Rules 2005 (No. 3) introduce significant changes to the forms used in family law proceedings to align with recent legislative amendments and improve the clarity and accuracy of the information provided. These changes impose specific obligations on parties involved in family law proceedings, with potential civil consequences for non-compliance. Accurate and complete information is essential to ensure the smooth operation of the legal process and to protect the interests of all parties involved.