Family Law Act 1975
Family Law Rules (Amendment)
(Statutory Rules 1988 No. 166)
Explanatory Statement
Outline
The purpose of the amendments is threefold.
(a) First, to make Rules of Court consequential upon amendments to the Family Law Act 1975 (‘the Act’) as a result of the enactment of the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (‘the AJEP Act’). Section 26B of the Act provides for the Judges of the Court to make Rules of Court delegating to Judicial Registrars all or any of the powers of the Court except the power to make an order in relation to the custody, guardianship or welfare of, or access to, a child, other than an interim order or an order in undefended proceedings or with the consent of all the parties. Section 37A of the Act provides for the Judges of the Court to make Rules of Court delegating to Registrars all or any of the powers of the Court subject to the limitations referred to in sub-section 37A(2) of the Act. Order 36A of the Rules, inserted by these Rules, delegates the powers of the Court to Judicial Registrars and Registrars in accordance with the above provisions.
(b) Second, to make Rules of Court with respect to the practice and procedure to be followed by a court in proceedings involving a cross-vesting law. Order 31A of the Rules, inserted by these Rules, provides the procedure to be followed in such proceedings.
(c) Third, to make general amendments to the Rules.
Notes on Rules
Rule 1: Commencement
This rule provides for the Rules to commence on 1 July 1988.
Rule 2: Interpretation
This rule defines the terms ‘assured service’ and ‘Judicial Registrar’ which are used in the Rules.
Rule 3: Proceedings in Chambers
This rule amends Order 4 by adding new rules 8, 9 and 10 which provide for the conduct of proceedings in chambers, including the kinds of proceedings that may be heard in chambers (ie. proceedings which are uncontested and in which the order sought is not a final order), the procedures to be applied, the effect of such proceedings and the recording of the proceedings.
Rule 4: Title of documents
This rule amends sub-rule 3(1) of Order 7 by adding a reference to Form 42A (application for dismissal of appeal).
Rule 5: Applications other than for principal relief
This rule amends rule 9 of Order 7 to require an application for the commencement of proceedings to be in accordance with Form 7 if there are no pending proceedings in the filing registry between the parties to the application or the only pending proceedings are proceedings for principal relief.
Rules 6 and 7: Institution of summary maintenance proceedings
These rules amend rules 1 and 2 of Order 9 respectively to provide a uniform procedure for instituting summary maintenance proceedings. The amendments in paragraph (b) of rule 6 are consequential upon the passage of the Family Law Amendment Act 1987.
Rule 8: Discontinuance
This rule inserts new Order 11A which provides the procedure and sets out the requirements for discontinuance of proceedings by an applicant or a cross-applicant who is a party to proceedings. The order also provides for costs in the event of discontinuance.
Rule 9: Notice to particular persons in proceedings relating to children
This rule is consequential upon the passage of the Family Law Amendment Act 1987 and provides uniformity of wording between the Rules and the Act.
Rule 10: Mode of Service
This rule amends rule 5 of Order 18 to include transmission by a facsimile transmission service as a method of effecting service.
Rule 11: Children to whom subsection 60H(1) of the Act applies
This rule amends rule 2 of Order 23 to make the wording consistent with subsection 60H(1) of the Act.
Rule 12: Advice as to effect of proceedings
This rule amends rule 3 of Order 25 by omitting the unnecessary reference to section 61C of the Act and by removing the requirement for service of the ‘effects’ document outside Australia.
Rules 13-15: Applications under subsection 40(6), 41(4A) or 46(3A) of the Act
The amendments effected by these rules are consequential upon the insertion of Section 46(3A) which deals with removal to the Family Court of Australia or a Supreme Court of proceedings pending in a court of summary jurisdiction. The rules deal with the procedures to be followed in an application for the transfer of proceedings, including the documents to be filed, matters to be considered by the court in relation to the application, and the transmission of papers.
Rule 16: Issue of Subpoenas by Registrar
Rule 16 amends Order 28 to provide for subpoenas to be addressed to more than one person and inserts new sub-rule (1A) which provides that a subpoena which comes within the scope of the rule shall not name 2 or more persons unless the same books, documents or things are specified in relation to all those persons named.
Rule 17: Evidence in chief by affidavit
Rule 17 repeals rule 2 of Order 30 and substitutes a new rule which requires evidence in chief in respect of all applications to be by affidavit unless the court otherwise orders.
Rule 18: Orders by consent
Rule 18 amends rule 8 of Order 31 to make it clear that the consent of a party to proposed orders may be indicated by the signed endorsement by that party on a document prepared by another party setting out those orders.
Rule 19: Cross-vesting
Rule 19 inserts new Order 31A which includes rules governing the practice and procedure to be followed by courts exercising jurisdiction under the Act where proceedings involve a cross-vesting law, including the Jurisdiction of Courts (Cross-vesting) Act 1987. Order 31A is modelled on draft rules prepared by the Special Committee of Solicitors-General in order to provide uniformity of procedure in proceedings involving a cross-vesting law.
Rule 20: Interpretation
Rule 20 amends rule 1 of Order 32 by omitting the definition of ‘assured service’. The definition has been relocated in rule 4 of Order 1 which is the interpretation provision for the Rules.
Rule 21: Repeal
Rule 21 repeals rule 26 of Order 32 which provided the procedure for review of a decision of a Registrar. The procedure for review of a decision of a Registrar has been relocated in rules 5, 6 and 7 of Order 36A inserted by these Rules.
Rule 22: Exercise of powers and functions of Registrar
Rule 22 amends rule 1 of Order 36 by adding the office of Judicial Registrar to the class of office holders referred to in the rule who may exercise a power or function that is expressed by the rules to be conferred upon a Registrar.
Rule 23: Delegation of powers to Registrars and Judicial Registrars
Rule 23 inserts new Order 36A which provides for the delegation of powers of the Family Court of Australia to Registrars and Judicial Registrars as a consequence of amendments to the Act by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988.
Interpretation
Rule 1 of Order 36A defines terms used in Order 36A.
Delegation of powers to Registrars
Rule 2 of Order 36A lists the powers of the Family Court of Australia that are delegated to each Registrar in accordance with s.37A of the Act. Sub-rule 2(1) includes a delegation of all of the powers of the court listed in s.37A(1). In addition to these powers the following powers have also been delegated to Registrars under sub-rule 2(1):
• the power to make orders in relation to the custody, guardianship or welfare of, or access to, a child in undefended proceedings (para (g)). This delegation falls within the exception to the limitation on delegation in s.37A(2)(d) of the Act.
• the power, where there are special circumstances, to allow an application for dissolution of a marriage to proceed notwithstanding that the parties have not considered a reconciliation in accordance with s.44(1B) - (para (h))).
• the power to make a decree of dissolution of marriage in undefended proceedings (para (i)).
• the power to make an order under ss.55(2) or s.55A in relation to a decree of dissolution of marriage (para (j)) - these powers relate to a decree nisi becoming absolute and are consequential upon Registrars being given the power to make a decree of dissolution of marriage in undefended proceedings in para (i).
• the power to make an order under s.66ZB(1) - time limit for institution of proceedings in relation to the birth of a child (para (k)). This power is consequential upon Registrars being given the power under the Act to make an order under s.66ZA (urgent financial orders in relation to the birth of a child). Registrars are also delegated the power to discharge, suspend, revive or vary an order for the payment of maintenance pending the disposal of the proceedings.
• the power, in undefended proceedings, to modify a child maintenance order, to make an order in relation to the birth of a child and to make or modify a spousal maintenance order (para (1)).
• the power to make an order approving a maintenance agreement under s.87 of the Act (para (m)). The limitation on the delegation of this power to Registrars (former s.37A(2)(c)) was removed by an amendment to the Act contained in the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988.
• the power to make orders in respect of the removal of proceedings (para (q)).
Sub-rule 2(2) of Order 36A delegates to Registrars the powers of the court under certain rules of court. The powers listed are essentially those previously delegated to Registrars under sub-rule 1(2) of Order 2 of the Family Court of Australia (Delegation of Powers) Rules. In addition to these powers delegations have been made under sub-rule 2(2) in respect of the following orders:
• Order 8, rules 1 and 2 (para (c)) - proceedings for dissolution of marriage in the absence of the parties.
• Order 11A, rules 1 and 2 (para (e)) - discontinuance.
Delegation of powers to Judicial Registrars
Rule 3 of Order 36A lists the powers of the Family Court of Australia that are delegated to each Judicial Registrar in accordance with s.26B of the Act. The delegated powers are as follows:
(a) all of the powers delegated to Registrars under rule 2 of Order 36A.
(b) the power to make an order until further order for the guardianship, custody or welfare of a child, or for access to a child. This delegation comes within the exception to the limitation upon the powers that may be delegated to Judicial Registrars referred to in s.26B(1) of the Act.
(c) the power to make any order relating to maintenance.
(d) the power to make an order in any undefended proceedings.
(e) the power to grant leave to bring maintenance and property proceedings out of time.
(f) the power to issue warrants in respect of custody and access orders and to make orders requiring information concerning the whereabouts of a child where a warrant has been issued.
(g) the power to make an order requiring a person to give evidence in parentage proceedings or to make an order requiring a person to submit to a parentage testing procedure.
(h) the power to make an order in respect of child bearing expenses and setting aside the registration of child agreements in the circumstances referred to in s.66ZE.
(i) the power to make an order to enforce a custody or access order or an injunction or order granted in respect of the marital relationship.
(j) the power to make an order or grant an injunction for the welfare of children or to grant an injunction in respect of the marital relationship.
(k) the power to make an order for the arrest of a person where there is non-compliance with an injunction in relation to a child or the marital relationship.
(l) the power to make a declaration or order in respect of parties’ interests in property or an order altering the interests of the parties in the property. Where the parties consent to the hearing and determination of the matter by a Judicial Registrar there is no limitation as to the value of the property in respect of which the powers of the Judicial Registrar may be exercised. Where there is no such consent Judicial Registrars may only exercise powers in respect of property having a gross value not exceeding $100,000. The term ‘gross value’ is defined in rule 1 of Order 36A to mean the value of the property disregarding any mortgage, lien, charge or other security over the property.
(m) the power to make an order or to vary or set aside an order of a Judicial Registrar altering the interests of the parties in the property on the grounds set out in s.79A and to make another order under s.79 in substitution.
(n) the power to make an order in relation to the execution of a deed or instrument in the circumstances set out in s.84.
(o) the power to set aside or restrain the making of an instrument or disposition intended to defeat an existing or anticipated order.
(p) the power to set aside a maintenance agreement registered under s.86.
(q) the power to revoke the approval of a maintenance agreement under s.87 in the circumstances set out in that section. The same limitations as to value apply as in para (1).
(r) the power to enforce maintenance agreements approved by the court.
(s) the power to make declarations of legitimacy under the Marriage Act 1961.
(t) the power to direct that automatic withholding of maintenance liability from salary or wages is not to apply and the power to exercise the powers of the court on appeal in respect of decisions made under the Child Support Act 1988 which are reviewable by the court.
(u) the powers of the court under the following Family Law Regulations:
• Regulations 28A(6), (7) and (8), 29, 31(1), 32(1), 34(1), 38 and 39(3) which deal with the power of a court to make, cancel, vary or confirm orders relating to overseas maintenance involving a reciprocating jurisdiction listed in Schedule 2 of the Regulations.
• Regulations 50(4), 51 and 52(1) which deal with the procedure of the court in dealing with applications under the Convention on Recovery Abroad of Maintenance for the recovery of maintenance under Australian law.
(v) the power to make orders under the Family Law (Child Abduction Convention) Regulations relating to the wrongful removal of children either to or from Australia from a Convention country.
(w) the power to deal with the report of a court counsellor or welfare officer relating to the welfare of children in the manner set out in sub-rule 5(2) of Order 25.
(x) the power to enforce an order of the court by any of the means provided for in Order 33 including garnishment, seizure and sale of personal property, sequestration of estate and sale of real property.
(y) the power to require a person to be brought before the court in relation to a contempt in the face of the court in proceedings before that Judicial Registrar.
Protection and immunity of Judicial Registrar
Rule 4 of Order 36A extends to Judicial Registrars the protection and immunity given to Registrars under rule 6 of Order 36.
Prescribed times in relation to review
Rule 5 of Order 36A prescribes the times in which an application for review of the exercise of delegated powers by Judicial Registrars and Registrars must be made in accordance with ss.26(C) and ss.37A(9) of the Act. In the case of Judicial Registrars a time of 7 days is prescribed where a power referred to in rule 3(a) of 0.36A (ie. a power delegated to Registrars in accordance with rule 2 of 0.36A) has been exercised by a Judicial Registrar. This is consistent with
the time prescribed in sub-rule 5(2) for review of the exercise of a delegated power by a Registrar. In all other cases involving the exercise of a delegated power by a Judicial Registrar the prescribed time is one month.
Extensions of time
Rule 6 of Order 36A provides for an extension of the times presribed by rule 5.
Procedure on application for review
Rule 7 of Order 36A sets out the procedure to be followed in respect of an application for a review of the exercise of a power by a Judicial Registrar or Registrar. The review is by way of a new hearing.
Interpretation
Rule 24 amends rule 5 of Order 39 by including ‘Judicial Registrars’ within the meaning of the terms ‘Judge’ for the purposes of Order 39 which deals with the publication of lists of proceedings.
Schedule 1
Rule 25 amends Schedule 1 to the Rules which contains forms in respect of proceedings under the Act.
Schedule 2
Rule 26 amends item 10 of Schedule 2 to the Rules by extending the scope of the item to include time spent by a clerk of a solicitor on work other than work referred to in items 1-9 inclusive of the Schedule and to increase the rate for work within the scope of that item from $47.00 per hour to $57.00 per hour.
Minor amendments
Rule 27 makes minor amendments to the Rules consequential upon the passage of the Family Court (Additional Jurisidiction and Exercise of Powers) Act 1988.
Repeal of Family Court of Australia (Delegation of Powers) Rules
Rule 28 repeals the Family Court of Australia (Delegation of Powers) Rules which delegated certain powers of the court to Registrars. The repealed Rules have been superseded by Order 36A of these Rules.