EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 331
FAMILY LAW AMENDMENT RULES 2012 (No. 2)
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 2012 (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 Advisory 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 amendments arising out of the commencement of the Access to Justice (Federal Jurisdiction) Act 2012. Only minimal consultation took place in connection with proposed amendments arising out of the commencement of the Family Law Amendment (Family Violence and Other Measures) Act 2011.
Section 9 of the Legislative Instruments Act 2003 provides that Rules of Court made for the Family Court of Australia are not legislative instruments for the purposes of that Act. As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in this Explanatory Statement.
The major changes introduced by the amendments to the Rules are set out below.
- To make rules necessary or convenient to implement amendments made by the Access to Justice (Federal Jurisdiction) Act 2012.
- To make further rules implementing the Family Law Amendment (Family Violence and Other Measures) Act 2011 by empowering Registrars to make decisions and orders in relation to appeals with respect to specified procedural applications.
- To make rules setting out the procedure for costs applications in relation to appeal cases.
- To increase the scale costs by 2.7% in conformity with the increase approved nationally by all superior courts.
DETAILS OF AMENDMENTS
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2012 (No. 2).
Rule 2 Commencement
(a) Rules 1 – 3 and Schedule 1 commence on 1 January 2013;
(b) Rule 4 and Schedule 2 commence on the date of commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012.
Rule 3 Amendment of Family Law Rules 2004
Schedule 1 amends the Family Law Rules 2004.
Rule 4 Amendment of Family Law Rules 2004
Schedule 2 amends the Family Law Rules 2004.
Schedule 1 – Amendments commencing on 1 January 2013
[1] Rule 2.02, Table 2.2, item 9, column 3, paragraph (b)
This amendment provides consistency as to the documents to be filed when an application for consent orders is filed and the orders sought relate to either parenting and/or a superannuation interest.
[2] Rule 5.19, heading
[3] Paragraph 5.19 (e)
These amendments reflect the commencement of the Access to Justice (Federal Jurisdiction) Act 2012 and require additional evidence to be included in an affidavit when making an application for a suppression or non-publication order.
[4] Paragraph 15.17 (5) (b)
This amendment clarifies that one subpoena can be issued to two or more persons either to give evidence only and/or to require them to produce the same document rather than “class of documents”.
[5] Subrule 18.05 (1), Table 18.2, after item 18B
These amendments empower registrars to hear and determine certain procedural applications for leave to amend the grounds of appeal, adjourn the hearing of an appeal, vacate the hearing of an appeal or expedite the hearing of an appeal.
[6] Subrule 18.06 (2), Table 18.5, item 29A
This amendment is of a technical nature. The omission reflects that rule 15.33 has now been omitted.
[7] Subrule 19.08 (3), after Note 3
This amendment is of a technical nature. It cross-references the new Part 22.10 pertaining to costs orders in appeal cases.
[8] Subrule 21.02 (1), Table 21.1, item 2
This amendment is of a technical nature. The omission reflects the repeal of s70NB of the Act with the relevant definition now confined within s4 of the Act.
[9] After Part 22.9
This amendment deals with costs orders in appeal cases. It sets out when an application can be made and requires the person making the application to inform the court if a costs agreement exists in relation to those costs and if so, the terms of that agreement. In addition it also empowers the court to set a time for payment of the costs that may be before the appeal is finished.
[10] Schedule 3, Part 1, table
[11] Schedule 3, Part 2, table
[12] Schedule 3, Part 3, table
[13] Schedule 3, Part 4, table
The amendment provides for a uniform increase of 2.7% to all items in the Itemised Scale of Costs.
Schedule 2 – Amendments commencing on the commencement of Schedule 3 of the Access to Justice (Federal Jurisdiction) Act 2012
[1] Rule 11.04
[2] Rule 11.05
[3] After Chapter 26
[4] After Schedule 6
These amendments are consequential upon the commencement of the Access to Justice (Federal Jurisdiction) Act 2012 in relation to the court’s power to make vexatious proceedings orders. The amendments set out the procedure to be adopted when applications are made by a person affected by an order made under subsection 102QB (2) of the Act or in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2013.
In addition, the amendments also set out the transitional provisions existing before the commencement of the Access to Justice (Federal Jurisdiction) Act 2012.