EXPLANATORY STATEMENT
Family Law Act
Family Law Rules (Amendment)
Statutory Rules 1986 No. 193
Section 123 of the Family Law Act 1975 empowers the Judges, or a majority of them, of the Family Court of Australia and the Family Court of Western Australia, to make Rules of Court on a number of matters relating to the practice and procedure of courts exercising jurisdiction under the Act.
A majority of these Judges have, made Statutory Rules No. 193 of 1986 to effect some changes to the existing Family Law Rules. Many of the changes are formal or drafting changes. Several are substantive changes. These Rules will operate from 1 August 1986.
Changes brought about by the Statutory Rules 1986 No. 193
Sub-rule (1A) of Order 15 Rule 4 provides that an annexure to an affidavit shall be endorsed by the deponent to identify it as the particular annexure referred to in the affidavit.
Order 17 Rule 2 has been amended to make it clear that in financial proceedings an applicant, a respondent who is a cross-applicant or a respondent who files an affidavit in answer to an application, shall file a statement of financial circumstances verified by affidavit, or an affidavit of financial circumstances.
Form 23A provides for the first time a form of affidavit of service by post and proof of signature.
Order 25 Rule 3 is amended to require respondents to applications for dissolution of marriage or nullity of marriage or for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage, to be served with documents explaining the effect of such proceedings.
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Order 29 Rule 1 is amended to require that not only an offer of settlement and a notice of withdrawal of an offer of settlement are to be placed in a file separate from the court file, but this procedure is to extend also to an acceptance of an offer of settlement.
Order 32 Rule 3A provides time limits within which a certificate of a Full Court of the Family Court enabling an appeal to the High Court on an important question of law or of public interest, must be filed. The time limits are:-
- within one month after the day on which the decree in relation to which the certificate is sought, is pronounced; or
- within such further time as a Judge of any court having jurisdiction under the Act directs.
Order 34 Rule 9 introduces a summary procedure for the urgent dealing with an alleged contravention of an order for access. The party instituting the proceedings is not required to file an affidavit unless the Court otherwise orders. That party is, however, required to serve a sealed copy of the application on the respondent not later than two days before the return day of the application. Where a respondent who has been properly served fails, without reasonable excuse, to appear at a court as required by the application, the Court may issue a warrant for the arrest of that person. This would only be done in a serious situation. The Rules provide a specific form for instituting this summary enforcement procedure.
Order 37 Rule 1(5) makes it mandatory in certain circumstances for a solicitor to file a notice that the solicitor has ceased to represent a party.
The Amending Rules also make a number of drafting changes to several of the Forms contained in Schedule 1 of the Rules.
Overview
The Family Law Act 1975, enacted by the Parliament of Australia, was introduced to provide a framework for the resolution of family law matters, including divorce, child custody, and financial agreements. The Act aimed to address the legal complexities arising from family disputes and to ensure a fair and consistent approach to these matters across Australia. In line with its objectives, the Family Law Rules (Amendment) Statutory Rules 1986 No. 193 were introduced to refine the practice and procedure of courts exercising jurisdiction under the Act. These amendments, made by a majority of the Judges of the Family Court of Australia and the Family Court of Western Australia, included both formal and substantive changes to enhance the efficiency and clarity of family law proceedings. The policy objective of these amendments was to streamline processes, improve the accessibility of legal procedures, and ensure that the administration of family law is conducted in a manner that is just and expedient for all parties involved.
Scope and Application
The Family Law Rules (Amendment) Statutory Rules 1986 No. 193 apply to all individuals and entities involved in proceedings under the Family Law Act 1975, encompassing various aspects of family law such as dissolution of marriage, nullity of marriage, and financial disputes. These Rules are jurisdictional, applying within the Family Court of Australia and the Family Court of Western Australia. They establish specific procedural requirements and introduce new forms and time limits for certain family law matters, while also making formal and drafting amendments to existing forms. Notably, the Rules mandate the filing of annexures to affidavits, require statements of financial circumstances, and introduce a summary procedure for urgent enforcement of access orders. The Rules came into effect on 1 August 1986 and their scope and application can be further defined and extended through subordinate instruments made under the authority of the Family Law Act.
Key Provisions
The Statutory Rules 1986 No. 193 introduce several significant changes to the Family Law Rules, impacting the practice and procedure within the Family Court of Australia and the Family Court of Western Australia. These changes include modifications to the rules regarding annexures to affidavits (Order 15 Rule 4(1A)), requiring any annexure to be endorsed by the deponent to clearly identify it as referenced in the affidavit. In financial proceedings, an applicant, respondent, or cross-applicant must file a verified statement or affidavit of financial circumstances (Order 17 Rule 2). Additionally, Order 25 Rule 3 mandates that respondents to applications for dissolution or nullity of marriage, or for declarations regarding the validity of such proceedings, must be served with documents explaining the implications of these proceedings.
The Rules also impose specific procedural requirements to enhance the efficiency and clarity of family law matters. For example, Order 29 Rule 1 requires that offers of settlement, notices of withdrawal, and acceptances of offers be placed in a separate file from the main court file. This ensures a clear distinction between settlement discussions and the main proceedings. Order 32 Rule 3A sets forth time limits for filing a certificate of a Full Court enabling an appeal to the High Court, either within one month after the decree or within any additional time directed by a judge.
Furthermore, Order 34 Rule 9 introduces a summary procedure for urgent matters related to alleged contraventions of access orders, allowing for the issuance of a warrant for arrest if the respondent fails to appear without reasonable excuse. This expedited procedure helps address urgent issues promptly and effectively. Lastly, Order 37 Rule 1(5) makes it mandatory for solicitors to file a notice when they cease to represent a party in certain circumstances, ensuring transparency and proper record-keeping.
The obligations placed on parties and solicitors are stringent, requiring adherence to these new procedural requirements and timely filing of documents. Failure to comply with these rules may result in legal consequences. For instance, not serving the required financial statements or annexures correctly could lead to delays or dismissals in proceedings. Additionally, not filing the mandatory notices as per Order 37 Rule 1(5) might result in administrative penalties or complications in the case. The Rules provide clear directives to ensure that all parties and legal representatives understand their responsibilities and the importance of following these procedural mandates to maintain the integrity and efficiency of the family law process.