FAMILY LAW RULES (AMENDMENT)
Explanatory Statement
1989 No. 65
Clause 1 | amends Order 7 Rule 5 to require that a birth certificate be filed with an application instituting proceedings in relation to an ex-nuptial child. |
Clause 2 | amends Order 7 Rule 9 to allow an application seeking orders by consent to be filed without an affidavit in support. |
Clause 3 | amends order 26 Rule 1 to make the Registrar with whom an agreement under Section 66ZC or 86 has been registered, responsible for notifying the parties of registration. |
Clause 4 | amends Order 32 Rule 13 to make the appellant responsible for obtaining a copy of a transcript for the purposes of an appeal rather than the appeal registrar. |
Clause 5 | inserts a new provision after Rule 16 in Order 32 which prescribes a procedure for applying to have fresh evidence received in an appeal. |
Clause 6 | amends Order 36A Rule 2(1)(1) to extend the powers delegated to Registrars pursuant to S37A to the making of orders for Child Maintenance in undefended proceedings. |
Clause 7 | amends Order 38 Rule 3 as a consequence of the amendment effected by Clause 9 of these Rules. |
Clause 8 | amends Order 38 to substitute a new Rule 8 in respect of solicitor and client costs agreements. The provision now prescribes who may enter into the agreement, the requirements of a valid agreement, and the Courts power in respect of the validity and enforcement of an agreement. |
Clause 9 | amends Order 38 Rule 13 to insert a provision whereby counsels fees allowed as between party and party must be in accordance with schedule 2. |
Clause 10 | amends Order 38 Rule 24 to contemplate a taxation of costs which involves costs payable by someone other than a party to proceedings. |
Clause 11 | amends Order 38 Rule 26 as a consequence of the amendment effected by Clause 9 of these Rules. |
Clause 12 | amends Order 38 Rule 27 as a consequence of the amendment effected by Clause 9 of these Rules. |
Clause 13 | amends Order 38 Rule 28 to contemplate the special skill, knowledge ... etc of counsel. |
Clause 14 | amends the forms of subpoena In Schedule 1 to contemplate multiple addressees. |
Clause 15 | amends schedule 2 by inserting a part II which deals with counsels fees as between party and party. |
Clause 16 | is a transitional provision. |
Overview
The Family Law Rules (Amendment) Rules 1989 (C2004L02227) were enacted by the Parliament of Australia to address various gaps and inefficiencies in the administration of family law matters. The objective of these amendments was to streamline the process of handling family law cases, making it more efficient and responsive to the needs of the parties involved. Among the key changes introduced by this legislation are the requirement to file a birth certificate with applications concerning ex-nuptial children, the allowance for applications seeking orders by consent to be filed without an affidavit, and modifications to the responsibilities of the Registrar and appellant in the appeals process. Additionally, the amendments extend the powers of Registrars in making child maintenance orders in undefended proceedings, and they introduce a new procedure for applying to have fresh evidence received in an appeal. Overall, these amendments aim to enhance the effectiveness and fairness of the family law system.
Scope and Application
The Family Law Rules (Amendment) 1989 No. 65 introduces amendments to the Family Law Rules of 1984, affecting various aspects of family law proceedings within Australia. The amendments primarily target the procedural requirements in family law cases, including the submission of birth certificates for ex-nuptial child proceedings, the allowance of applications by consent without an affidavit, and the responsibilities of Registrars in notifying parties of registered agreements and handling appeals. Additionally, the amendments extend the powers of Registrars to include the making of child maintenance orders in undefended proceedings and revise the rules regarding solicitor and client costs agreements, the taxation of costs, and the regulation of counsels fees. These amendments apply across Australia, given the nationwide jurisdiction of the Family Court and the Federal Circuit Court. The amendments do not explicitly state exclusions or thresholds but are designed to streamline and clarify family law procedures, enhancing the efficiency and fairness of family law proceedings. Subordinate instruments may further define or extend the application of these amendments.
Key Provisions
The Family Law Rules (Amendment) legislation, as outlined in the explanatory statement, introduces several key amendments to the Family Law Rules. Clause 1 requires that a birth certificate be filed with any application that pertains to an ex-nuptial child. This amendment ensures that all necessary documentation is presented when initiating proceedings regarding children born outside of marriage, thus maintaining the integrity and completeness of the case file (Order 7 Rule 5). Clause 2 allows for an application seeking orders by consent to be filed without an accompanying affidavit, streamlining the process for cases where parties have already reached an agreement (Order 7 Rule 9).
These amendments impose specific obligations on the parties involved in family law proceedings. For instance, Clause 1 requires the filing of a birth certificate for ex-nuptial children, ensuring that all relevant documentation is provided at the onset of the case (Order 7 Rule 5). Clause 3 assigns the responsibility of notifying parties of the registration of an agreement under Section 66ZC or 86 to the Registrar with whom the agreement has been registered, thereby clarifying the chain of communication and responsibility (Order 26 Rule 1). Furthermore, Clause 4 shifts the responsibility of obtaining a copy of a transcript for appeal purposes from the appeal registrar to the appellant, ensuring that the appellant takes an active role in preparing their case (Order 32 Rule 13).
The legislation also delineates consequences for non-compliance with its provisions. While the explanatory statement does not explicitly detail criminal or civil penalties, the seriousness of the amendments suggests that failure to comply with these procedural requirements could result in delays, dismissals, or other judicial consequences. For example, not filing the required birth certificate or failing to obtain a transcript as mandated could potentially lead to case delays or other procedural sanctions. Additionally, the amendments to solicitor and client costs agreements in Clause 8 establish clear guidelines and court powers regarding the validity and enforcement of such agreements, thereby providing a framework within which these agreements must operate.