FAMILY LAW ACT 1975
AMENDMENT OF THE FAMILY LAW RULES
STATUTORY ROLES 1990 NO. 74
EXPLANATORY STATEMENT
1. The main purpose of these amendments is to update the Rules relating to Appeals to the Full Court of the Family Court by amendments to Order 32 of the Family Law Rules. New Practice Directions relating to appeals came into force on 1 February 1990 which supercede all previous Practice Directions as to appeals. These amendments to the Rules are complementary to the New Practice Directions and work together with them to provide more complete procedural guidelines than have previously been available.
2. Paragraph 2 of the amendments provides for service on the separate representative for the child which had not previously been expressly provided for by the Rules.
3. Paragraph 3 of the amendments provides a more complete procedural guideline for applications to receive new evidence that was provided by the former Rule 16A which is repealed.
The main changes are:
- Form 42A is to be used for the application. No form was previously prescribed.
- The time for filing before hearing has been considerably shortened i.e. from 21 days to 4 days before the hearing, and the time for reply from 14 days before hearing to 24 hours before hearing.
- The application to receive fresh evidence and the reply should now be filed in the Appeal Registry i.e. the registry where the appeal is to be heard. This provision is one of convenience for ensuring that the material will reach the members of the Bench in time for the hearing.
4. Paragraph 4 of these amendments provide a procedure for discontinuance of an appeal where no formal procedure had been previously prescribed. In so doing the procedures are brought into line with the discontinuance procedures for other proceedings which are provided for in Order 11A of the Family Law Rules.
The new Rule 19A provides that Form 15A should be used for a discontinuance application and that a discontinuing appellant or cross appellant should pay the costs of the other party which may be taxed in accordance with Order 38.
5. Paragraph 5 amends Form 21 (Affidavit of Proof of Signature) to bring it into line with all other forms. This has been necessary because of an unintentional omission of Form 21 from previous amendments affecting all other forms.
Overview
The Family Law Amendment (Statutory Roles) Act 1990 was enacted to update the Family Law Rules, specifically addressing the procedural aspects of appeals to the Full Court of the Family Court. These amendments were introduced by the Australian Parliament to modernise and streamline the legal process for appeals within family law matters. The changes aim to complement the new Practice Directions that came into force on 1 February 1990, enhancing procedural clarity and efficiency. For instance, the amendments now explicitly require service on the separate representative for the child, a provision previously not expressly included in the Rules. Additionally, they provide a more comprehensive guideline for applications to receive new evidence, replacing the former Rule 16A. The changes also include the introduction of Form 42A for applications and the requirement to file applications and replies in the Appeal Registry to ensure timely receipt by the Bench. The amendments further address the discontinuance of appeals by providing a formal procedure aligned with other proceedings, and they rectify an omission in Form 21 to ensure consistency across all forms.
Scope and Application
The Family Law Act 1975 Amendment of the Family Law Rules Statutory Roles 1990 No. 74 pertains to the procedural aspects of appeals within the Family Law Act, specifically targeting the Family Law Rules and the accompanying statutory roles. These amendments are designed to update the procedural guidelines for appeals to the Full Court of the Family Court, particularly in relation to new Practice Directions that came into effect on 1 February 1990. These amendments apply to individuals and entities involved in family law proceedings, including those seeking to appeal decisions made in the Family Court. The scope of the Act is geographically and jurisdictionally confined to the Commonwealth of Australia, governing the procedural conduct of appeals within the Australian family law system. While the Act comprehensively updates the rules, it does not explicitly state exclusions or exemptions, implying that the provisions apply broadly to all relevant cases unless otherwise specified through subordinate instruments. The amendments extend their application through the use of specific forms and timelines, as well as the requirement to file applications and replies in the appropriate Appeal Registry.
Key Provisions
The primary amendments introduced by this legislation (paragraphs 2 to 5) focus on updating the Family Law Rules concerning appeals to the Full Court of the Family Court, particularly in Order 32. These amendments are designed to complement the new Practice Directions that came into effect on 1 February 1990. The most significant changes include the introduction of Form 42A for applications to receive fresh evidence, which replaces the former Rule 16A. Additionally, the amendments reduce the time frames for filing applications and replies, ensuring that these documents are submitted closer to the hearing date. For example, applications must now be filed four days before the hearing, down from the previous 21 days, and replies must be filed within 24 hours of the hearing, a reduction from the previous 14 days.
These amendments also impose specific obligations on parties involved in appeals. For instance, under the new Rule 19A, parties who wish to discontinue an appeal must use Form 15A and bear the costs of the other party, which can be taxed in accordance with Order 38. This requirement aligns the discontinuance procedure for appeals with the general discontinuance procedures provided in Order 11A of the Family Law Rules. Moreover, the obligation to serve separate representatives for children in appeals is now expressly provided for, ensuring that all relevant parties are notified and involved in the proceedings.
Failure to comply with the provisions of these amendments may lead to various consequences. Although specific penalties are not outlined in the explanatory statement, breaches of the Family Law Rules generally can result in both civil and criminal penalties. Civil penalties might include fines or orders to pay costs, while criminal penalties could involve imprisonment or fines, depending on the nature and severity of the breach. The exact penalties would be determined in accordance with the general provisions of the Family Law Act 1975 and other relevant legislation. It is essential for parties and their legal representatives to adhere to these procedural guidelines to avoid any potential legal repercussions.