EXPLANATORY STATEMENT
FAMILY LAW AMENDMENT RULES 2007 (No. 3)
Select Legislative Instrument 2007 No. 366
Issued by the authority of the Judges of the Family Court of Australia
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. Pursuant to the Legislative Instruments Act there has been broad consultation with the Federal Magistrates Court, 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.
The major changes introduced by the amendments to the rules are:
1. To clarify that a certificate provided by a Family Dispute Resolution Practitioner is not required to be filed with an Application for Final Orders which seeks an order under Part VII of the Act, or an Application for Contravention, which seeks an order under Part VII of the Act, if either of the parties to the proceedings has applied before 1 July 2007, for a Part VII order in relation to the child.
2. To increase the interest rate under Rule 17.03 from 10.75% to 11.75%.
3. To delegate additional powers to SES Band 2 Registrars, namely to make a recovery order in relation to a child and to make orders for security for costs associated with applications that are within the power of a Registrar to hear and determine.
4. To amend the note to Rule 11.16 (3) to include a reference to s 126E of the Evidence Act 1995.
DETAILS OF AMENDMENTS
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2007 (No. 3).
Rule 2 Commencement
The rules amendments commence on the day after they are registered.
Rule 3 Amendment of Family Law Rules 2004
Schedule 1 amends the Family Law Rules 2004.
Schedule 1
Schedule 1, Item 1, Table 2.2 Item 2A, paragraph (b)
This amendment clarifies that a certificate provided by a Family Dispute Resolution Practitioner pursuant to s 60I(8), is not required to be filed with an Application for Final Orders which seeks an order under Part VII of the Act, if s 60I(5) applies, namely that either of the parties to the proceedings has applied before 1 July 2007 for a Part VII order in relation to the child.
The requirement to file an affidavit in a form approved by the Principal Registrar, unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed applies in such cases.
Schedule 1, Item 2, Table 2.2 Item 10A, paragraph (b)
This amendment clarifies firstly, that a certificate provided by a Family Dispute Resolution Practitioner pursuant to s 60I(8), is not required to be filed with an Application – Contravention which seeks an order under Part VII of the Act, if s 60I(5) applies, namely that either of the parties to the proceedings has applied before 1 July 2007, for a Part VII order in relation to the child.
The requirement to file an affidavit in a form approved by the Principal Registrar, unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed applies in such cases.
Schedule 1, Item 3, Subrule 11.16 (3), note 2
This amendment incorporates in the note to Rule 11.16(3), a reference to s 126E of the Evidence Act 1995.
This is in response to the Evidence Amendment (Journalist’s Privilege) Act 2007.
Schedule 1, Item 4, Rule 17.03
This amendment increases the interest rate from 10.75% to 11.75%.
Schedule 1, Item 5, Table 18.2, after item 11
This amendment delegates to SES Band 2 Registrars power pursuant to s 67U of the Family Law Act 1975, namely to make a recovery order in relation to a child.
Schedule 1, Item 6, Table 18.2, after item 21
This amendment delegates to SES Band 2 Registrars power pursuant to s 117(2) of the Family Law Act 1975, namely to make orders for security for costs associated with applications that are within the power of a Registrar to hear and determine.