Family Law Amendment Rules 2011 (No. 1)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 15

FAMILY LAW AMENDMENT RULES 2011 (No.1)

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. The Judges of the Court made the Family Law Rules 2004, which commenced on 29 March 2004. These amending Rules, the Family Law Amendment Rules 2011 (No. 1), have now been made by the Judges to amend the Family Law Rules 2004.

Section 123(2) of the Act provides that the Legislative Instruments Act 2003 (apart from sections 5-7, 10, 11 and16) applies to Rules of Court. In this application, references to a legislative instrument in the Act are to be read as references to Rules and references to a Rule maker as references to the Chief Justice.

The Legislative Instruments Act provides for certain consultation obligations when Rules are made. The Chief Justice has authorised the Court’s Rules Committee to undertake consultation on Rules matters on her behalf.

In this case, the Court did not undertake consultation as these amendments are either of a technical or drafting nature.

The major changes introduced by the amendments to the Rules are set out below.

1. To provide information on matters that may be considered when a request is made for an order suppressing publication of a judgment.
2. To provide consistency in the process undertaken when a third party is joined by an incumbent party to proceedings or seeks to be joined to proceedings.
3. To provide clarity in the process to be undertaken when a person seeks permission to inspect and/or copy a court file. 
4. To make detailed and technical changes in the electronic filing of documents.
5. To achieve a measure of conformity as between superior courts nationally in relation to increasing scale costs.

DETAILS OF AMENDMENTS

Rule 1 Name of Rules

The name of the rules is the Family Law Amendment Rules 2011 (No. 1).

Rule 2 Commencement

The rules amendments commence on 1 March 2011.

Rule 3 Amendment of Family Law Rules 2004

Schedule 1 amends the Family Law Rules 2004.

Schedule 1 – Amendments

Do not delete: Schedule Part Placeholder

[1]                             Rule 6.03

This amendment gives consistency in the process to be undertaken by either a party seeking to join a third party to proceedings; or a third party seeking to intervene in proceedings.  It requires a party to file an affidavit and serve relevant documents on the new party.

[2]               Subrule 10.15 (1), note 1

[3]                             Subrule 10.15 (1), note 2

These amendments are consequential on the inclusion of paragraph 10.15 (2) (d)

[4]                             Paragraph 10.15 (2) (d)

This amendment clarifies how many copies of proposed consent orders should be lodged at the time of filing.

[5]                             Rule 13.24, note

[6]                             Paragraph 15.04 (a)

[7]                             Subrule 15.54 (3)

[8]               Subrule 15.54 (4)

These amendments are of a technical drafting nature.

[9]               Paragraph 17.01 (1) (b)

This amendment removes a limit on the physical locations where an order of the court may be made.

[10]                         After subrule 17.01 (4)

This amendment reflects the accepted practice for engrossing an order.

[11]                         Rule 24.05

[12]                         Subrule 24.07 (6), including the note

[13]                         Rule 24.09

These amendments are of a technical drafting nature and reflect the emerging practice of e-Filing court documents.  The requirement for a document to be accepted before it is treated as filed has been removed.  However, a new power to reject a document is proposed (see below).

[14]                         Rule 24.10, heading

[15]                         Subrule 24.10 (1)

[16]                         Paragraph 24.10 (1) (e)

[17]           Paragraph 24.10 (1) (f)

[18]           After paragraph 24.10 (1) (f)

[19]                         Subrule 24.10 (2)

A new power to reject a document, before or after it has been filed, is conferred.  This more effectively reflects the reality of registry processes than did the omitted requirement that a document be accepted before it was treated as filed.  The new power of rejection is based upon specific grounds set out in the amendments.  These amendments broadly align with the grounds upon which a document presented for filing might not have been accepted.  A new ground of rejection is that a person sending a document for filing through the Internet has not complied with the court’s electronic lodgment procedures.

[20]                         Subrule 24.13 (1)

[21]                         Paragraph 24.13 (1) (b)

These amendments are of a technical drafting nature.

[22]           Subrule 24.13 (2)

This amendment clarifies what parts of the court record can be searched, inspected and copied and the conditions that may be attached to such permission.

[23]           Subrule 24.13 (3)

[24]           Paragraph 24.13 (3) (d)

[25]           Rule 24.13, notes

These amendments are of a technical drafting nature.

[26]                         Amendments to Schedule 3

The amendment provides for a uniform increase of 3.1% to all items in the Itemised Scale of Costs in harmony with all superior courts.