Family Law Amendment Rules 2011 (No. 2)

FAMILY LAW AMENDMENT RULES 2011 (No. 2)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 286

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. 2), 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 undertook consultation with the Family Law Section of the Law Council of Australia, and with other constituent bodies, in relation to the proposed amendment to the time limit for filing an application for a declaration as to who is a parent of a child pursuant to the Child Support (Assessment) Act 1989.  Only minimal consultation took place in connection with the amendments required as a result of the legislation dealing with Trans-Tasman proceedings, the Commonwealth criminal proceedings, bankruptcy proceedings and de facto financial proceedings.  This was because the amendments are necessary to give effect to that legislation.

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

1. To prohibit the recording of court events (including at locations other than the court) and to impose a penalty for a breach of the prohibition.
2. To harmonise the Rules with the Federal Magistrate Court Rules 2001 with respect to the time limit for an application to be filed seeking a declaration as to who is a parent pursuant to the Child Support (Assessment) Act 1989.
3. To set out what evidence must be in an affidavit filed in support of an application for the suppression of a judgment (or part thereof).
4. To ensure that an affidavit is filed when either seeking to join a third party or a third party seeks to intervene in a case.
5. To ensure that all orders or decisions made under the Rules by a Registrar or Deputy Registrar may be the subject of judicial review.
6. To increase the scale costs by 3.7% in conformity with the increase approved nationally by all superior courts.
7. To make rules for implementing the Trans-Tasman Proceedings Act 2010, including empowering Registrars to make decisions and orders with respect to Trans-Tasman subpoenas.
8. To make rules to implement the Crimes Legislation Amendment Act (No. 2) 2011 insofar as the Rules may do so.
9. To make provision to implement amendments to the Bankruptcy Act 1966 as effected by the impending commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
10. To achieve conformity with the Federal Court Rules 2011 regarding bankruptcy proceedings

DETAILS OF AMENDMENTS

Rule 1 Name of Rules

The name of the rules is the Family Law Amendment Rules 2011 (No. 2)

Rule 2 Commencement

(a)                Rules 1 – 3 and Schedule 1 commence on 1 January 2012;

(b)               Schedule 2 commences on the date of commencement of section 3 of the Trans-Tasman Proceedings Act 2010;

(c)                Schedule 3 commences on the date of commencement of item 155 of Schedule 2 to the Crimes Legislation Amendment Act (No. 2) 2011;

(d)               Schedule 4 commences on the date of commencement of item 1 of Schedule 2 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.

Rule 3 Amendment of Family Law Rules 2004

Schedules 1 to 4 amend the Family Law Rules 2004.

Schedule 1 – Amendments commencing on 1 January 2012

Do not delete: Schedule Part Placeholder

[1]                             Rule 1.19

This amendment prohibits the recording of a court event conducted within a court building or externally.  This is intended to address issues arising in a small number of cases where it has been difficult to pursue those who have recorded proceedings.  A penalty is imposed.

[2]               Rule 4.02

This amendment removes specific references to a chapter or rule, and substitutes a more generic description of the Rules in dealing with when a party may file an affidavit with an Initiating Application (Family Law).

[3]               Rule 4.20

This amendment harmonises (with the Federal Magistrates Court Rules 2001) the time limit for filing an application seeking a declaration as to who is a parent pursuant to the Child Support (Assessment) Act 1989.

[4]               After 5.18

This amendment deals with applications for suppression orders.  It sets out the evidence to be included in an affidavit filed in support of an application for suppression (or partial suppression) of a judgment having regard to the Court’s normal arrangements for publishing its judgments.

[5] Rule 6.01, note

[6] Rule 6.01, at the foot

[7] Subrule 6.02 (3), note

[8] Subrule 6.02 (3), at the foot

These amendments reflect the requirement that all prospective parties must comply with Pre-action procedures under rule 1.05.

[9] Subrule 6.03 (1)

[10] Subrule 6.03 (3)

[11] Paragraph 6.03 (3) (a)

These amendments further clarify that a party does not need to apply for the joinder of a third party to the proceedings and must file an affidavit in support of the addition of the third party (including when the addition is made at the time of filing the Initiating Application).

[12] Subrule 6.03 (3), at the foot

This amendment reflects the requirement that all prospective parties must comply with Pre-action procedures under rule 1.05.

[13] Rule 10.16A

The amendment reflects subsections 90AE (3) and (4) and subsections 90AF (3) and (4) of Family Law Act 1975 which require a party to file an affidavit when seeking an order or an injunction binding on a third party.  The omitted Rule duplicates these provisions.

[14] Paragraph 10.18 (a)

This amendment is of a technical nature.  An application for consent orders is no longer a sworn document but is rather confirmed by way of a statement of truth.

[15] Rule 15.43

This amendment is of a technical nature.  It defines an expert’s report as one produced by an expert witness, including a change of opinion by the expert.

[16] Table 18.2, item 3

[17] Table 18.5, item 37

These amendments are of a technical nature clarifying the powers delegated to Registrars.

[18] Rule 18.08, heading

[19] Rule 18.08

[20] Rule 18.08, first note

These amendments are of a technical nature and consequential upon the insertion of subrule 18.08 (2).

[21] Rule 18.08, note to table 18.6

This amendment ensures that any order or decision made under the Rules by a Registrar or Deputy Registrar is the subject of judicial review. 

[22] Paragraph 20.02 (b)

[23] Rule 20.15

This amendment is of a technical nature.

[24] Amendment of Schedule 3, tables

The amendment provides for a uniform increase of 3.7% to all items in the Itemised Scale of Costs.

[25] Dictionary, definition of court event, paragraphs (c) and (d)

This amendment is consequential upon the inclusion of rule 1.19.  It is intended to make more clear the nature of a Court event, the recording of which is to be prohibited.

[26] Dictionary, after definition of enforcement order

This amendment is consequential upon the amendment to Table 18.2, item 3.

[27] Dictionary, after definition of expense

[28] Dictionary, after definition of sign

These amendments are consequential upon the inclusion of rule 1.19.

Schedule 2 – Amendments commencing on commencement of section 3 to the Trans-Tasman Proceedings Act 2010

Do not delete: Schedule Part Placeholder

[1] Division 15.3.4

This amendment is consequential upon the inclusion of a new Chapter 27, Cases to which the Trans-Tasman Proceedings Act 2010 applies.

[2] Table 18.5, after item 43

This amendment delegates to Deputy Registrars all powers identified in the new Chapter 27, Cases to which the Trans-Tasman Proceedings Act 2010 applies.             

[3] After Chapter 26

This amendment creates a new chapter setting out the rules about a case to which the Trans-Tasman Proceedings Act 2010 applies, particularly with respect to subpoenas.  It applies as far as possible, and with necessary amendments, the relevant Federal Court Rules.

Schedule 3 – Amendments commencing on commencement of item 155 of Schedule 2 to the Crimes Legislation Amendment Act (No. 2) 2011

Do not delete: Schedule Part Placeholder

[1] Paragraphs 2.06 (a) and (b)

[2] Subrule 2.07 (1)

[3] Subrule 2.07 (1)

[4] Paragraph 2.07 (2) (b)

These amendments are of a technical nature and consequential upon the commencement of the Crimes Legislation Amendment Act (No. 2) 2011.

Schedule 4 – Amendments commencing on commencement of item 1 of Schedule 2 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011

Do not delete: Schedule Part Placeholder

[1] Subrule 19.01 (3)

[2] Chapter 26, summary

[3] Subrule 26.01, note

These amendments are of a technical nature and consequential upon the commencement of item 1 of Schedule 2 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.

[4] Paragraph 26.04 (1) (a)

[5] Subrule 26.04 (3)

[6] Subrule 26.05 (6)

These amendments are of a technical nature.

[7] Rule 26.30

[8] Rule 26.31, heading

[9] Subrule 26.31 (1)

These amendments are of a technical nature and consequential upon the commencement of the Federal Court Rules 2011.

[10] Paragraph 26.31 (1) (b)

[11] Paragraph 26.31 (1) (c)

[12] Dictionary, definition of bankruptcy case

These amendments are of a technical nature and consequential upon the commencement of provisions in relation to the Court’s bankruptcy jurisdiction set out in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.