Family Law Rules (Amendment) 1995 No. 144
EXPLANATORY STATEMENT
STATUTORY RULES 1995 No. 144
Issued by the authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Low Act 1975 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 Family Low Act.
Section 123(2) of the Family Low Act provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections to regulations were references to Rules of Court.
The present Family Low Rules came into operation on 2 January 1985. They have been regularly, reviewed and amended since that date.
DETAILS OF THE PROVISIONS OF THE AMENDMENTS
Rule 1 - provides the commencement date.
Rule 2 - is a machinery provision.
General - the amendments ore designed to define procedures for proceedings under the Corporations Low in the Family Court of Australia. To date the rules have mode no specific provision. The proposed Rules adopt the relevant rules of the Federal Court with appropriate modifications.
Rule 3 - amends the service rules to permit service by the modes of "personal service" (on individuals and corporations) permitted by the Federal Court Rules. This is additional to the modes of service permitted by the Family Low Rules. In particular, Order 7 Rule 2 of the Federal Court Rules provides modes of service on a liquidator or official manager of a corporation.
Rule 4 - amends the definition of "cross-vesting law" in Order 31 A to exclude Part 9 of the Corporations Act 1989 as the jurisdiction given to the Family Court under that Act is for civil proceedings only and the jurisdiction in Part 9 is for other proceedings.
Rule 5 - inserts a new Corporations order in the Family law Rules adopting Order 71 of the Federal Court Rules, the parts of the first schedule of those rules relevant to Order 71 (ie Forms), and the parties of the third schedule of those rules relevant to Order 71 (ie powers and functions that may be exercised by a Registrar) subject to the modifications in the proposed Rule 4 designed to enable the use of the rules in the Family Court. They include changes to references to other rules, changes to titles, changes to definitions and deletion of provisions not needed or inappropriate in the Family Low Rules.
Rule 5.1 - Proposed Rules 5 & 6 of Order 41
This prescribes the form of applications to be used and in Rule 6 prescribes the form of cover sheet (Form 1B) as per the amendment to the First Schedule of the Family Low Rules.
Rule 5.2 - Proposed Rules 7 to 13
These provisions are provisions for transfer of Corporations Law proceedings to, another court exercising such jurisdiction or transfer of such proceedings to a Family Court from another court which has such jurisdiction.
Rule 6 - Schedule 1 (Forms)
Creates a cover sheet for use in the Family Court of Australia in proceedings under the Corporations Act.
Overview
The Family Law Rules (Amendment) 1995 No. 144 was enacted to address the procedural gap in the Family Law Rules 1985 concerning the handling of proceedings under the Corporations Law within the Family Court of Australia. Authorised by the Judges of the Family Court of Australia, these amendments were made under the authority granted by section 123 of the Family Law Act 1975, which allows for the creation of rules to govern practice and procedure in the Family Court. The objective of these amendments is to integrate the Corporations Law proceedings into the Family Law Rules, ensuring they align with the procedural standards and requirements of the Federal Court, while making necessary modifications to suit the specific context of the Family Court. The amendments aim to streamline the service rules and clarify the definition of "cross-vesting law" to ensure that the Family Court's jurisdiction under the Corporations Act is correctly interpreted and applied.
Scope and Application
The Family Law Rules (Amendment) 1995 No. 144 applies to individuals and corporations participating in proceedings under the Corporations Act within the Family Court of Australia. It is designed to ensure that the practice and procedure of these proceedings align with those of the Federal Court. The amendments extend to the definitions, forms, and processes for service of documents, as well as the transfer of proceedings between the Family Court and other courts with jurisdiction. These rules are applicable across the Commonwealth of Australia, reflecting the national scope of family law matters and the harmonisation of procedural rules across federal courts. The amendments do not apply to proceedings not involving the Corporations Act or those outside the jurisdiction of the Family Court. The application of these rules may be further refined or extended through subordinate instruments issued by the Judges of the Family Court of Australia.
Key Provisions
The Family Law Rules (Amendment) 1995 No. 144 provides specific amendments to the Family Law Rules, mainly designed to incorporate procedures for proceedings under the Corporations Law within the Family Court of Australia. Rule 1 sets the commencement date for these amendments, and Rule 2 outlines the machinery provision for the amendments' implementation. The core changes revolve around the incorporation of Federal Court Rules to accommodate Corporations Law proceedings in the Family Court, with modifications to ensure their applicability within the Family Law framework.
These amendments impose specific obligations on the parties involved in proceedings under the Corporations Law within the Family Court. Rule 3 allows for service by modes permitted under the Federal Court Rules, in addition to the existing modes under the Family Law Rules. Rule 4 modifies the definition of "cross-vesting law" to exclude Part 9 of the Corporations Act 1989, aligning the Family Court's jurisdiction with civil proceedings only. Rule 5 introduces a new Corporations order, adopting Order 71 of the Federal Court Rules with relevant modifications to ensure the rules' suitability for the Family Court. The additional rules from 5.1 to 6 further detail the forms and procedures for applications and cover sheets, as well as the transfer of proceedings between courts.
Failure to comply with these amendments can lead to legal consequences. While the explanatory statement does not detail specific offences or penalties, non-compliance with the prescribed forms and procedures could result in procedural errors, delays, or the dismissal of proceedings. Given that these rules govern the practice and procedure in the Family Court, adherence to these amendments is crucial to ensure the proper administration of justice in Corporations Law matters within the Family Court framework. The penalties for non-compliance would typically be determined by the court's inherent jurisdiction, which may include fines, orders to comply, or other sanctions as deemed appropriate by the court.