EXPLANATORY STATEMENT
STATUTORY RULES
Issued by the authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law 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 Law Act.
Section 123(2) of the Family Law Act provides that the 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 Law Rules came into operation on 2 January 1985. They have been regularly reviewed since that date.
DETAILS OF THE PROVISIONS
Rule 1 provides the commencement date.
Rule 2 is a machinery provision.
Rule 3 provides for the definition of ‘cause of action’ to be inserted in Order 1 rule 4.
Rule 4 provides for an amendment to Order 2 rule 2 whereby after the initial documents are filed the full address of a party need not be shown on the Form 1 cover sheet of subsequent documents unless the address of a party has changed since the previous documents were filed.
Rule 5 provides for the exercise of jurisdiction in chambers of proceedings relating to a matrimonial cause other than a final hearing in contested proceedings.
Rule 6 provides for an amendment to Order 7 rule 9 by providing that where orders for urgent relief are sought an application in accordance with Form 8 may be filed. The amendment further provides machinery provisions with respect to the further hearing of applications made under this new sub-rule.
Rule 7 provides that a pleading shall bear the date on which the previous pleading in the proceeding was filed and served.
Rule 8 provides that a new Order 11 rule 5 be substituted for the existing rule. This rule which provides for the contents of pleadings now specifies that a pleading shall contain the necessary particulars of any material fact pleaded. The rule further provides that particulars shall be included if they are necessary to enable another party to plead, or, to define questions for trial, or to avoid taking a party by surprise. Further where a party intends to prove a different version of the facts from that already pleaded, the facts on which that party intends to rely must be pleaded.
A new rule 5A is to be included in Order 11 which enables the Court of its own motion or on the application of a party to direct a party to file particulars or further particulars of any matter pleaded.
Rule 9 provides that a new rule 8 be substituted for that currently in Order 11 and this new rule has the effect of altering the time limits for the filing of documents to 21 days.
Rule 10 provides that paragraph (b) of Order 11 rule 11 is to be altered to provide that a pleading or any part thereof may be struck out if it is scandalous, frivolous, vexatious, irrelevant or prolix.
Rule 11 provides that a new rule 12 be substituted for that currently in Order 11. This new rule deals with the failure of a party to file pleadings or particulars and provides that the proceedings may be stayed or dismissed, orders in default may be made or directions given for the filing of pleadings or particulars.
Rule 12 provides for a new rule 15 to be substituted for that currently in Order 11. This new rule provides that where a respondent seeks orders different to the cause or causes of action contained in the application, the respondent shall respond to the application by filing an answer and shall plead the new cause of action in a cross-application in accord with Form 7A.
Rule 13 provides that a new sub-rule 16(1) be substituted for the existing sub-rule. The new rule provides that a reply and answer to a cross-application shall be in accordance with Form 7B and a reply to an answer only shall be in accordance with Form 7C.
Rule 14 provides for a new rule 17A to be inserted in Order 11. This rule provides that where an applicant or a respondent who has filed a cross-application seeks an order relating to a cause of action other than that contained in the application or cross application already filed then the order shall be sought by way of amendment to the application or the cross-application as the case may be.
Rule 15 provides that rule 17 of Order 15 shall be deleted. This rule dealt with a prohibition on the filing of affidavits containing material set out in an affidavit previously sworn by the deponent.
Rule 16 provides for an amendment to subrule 10(1) of Order 18 to provide for exparte applications to be made in accordance with Form 8.
Rule 17 provides for three amendments to Order 19 which as particulars are fully dealt with in the amendments to Order 11 will mow refer only to specific questions.
1. The heading to the Order as it currently stands is to be omitted and it is to read “ANSWERS TO SPECIFIC QUESTIONS”
2. Rules 1 and 2 of Order 19 are to be omitted and the new rules 1 and 2 make provision for a party to proceedings to request the other party in writing to answer specific questions. The new rules further make provision for the party who has been requested to supply answers to do so within 21 days of receiving the request and the answers are to be verified by affidavit.
3. Rules 4, 5 and 6 of Order 19 are to be omitted and the substitute rules 4, 5 and 6 make provision for
service of the answers on the party who made the request, the filing of the request and answers with the Court and the power of the Court to deal with a party who fails to provide answers.
Rule 18.1 provides that subrule 1(4) of Order 24 is to be omitted and the new subrule 1(4) provides that an Order 24 conference may be conducted by a Judicial Registrar, a Registrar or an officer of the Court. This will permit a Judicial Registrar to be appointed in appropriate cases to conduct an Order 24 in relation to an appeal to the Full Court.
Rule 18.2 provides an amendment to enable a conference pursuant to s79(9) of the Act to be conducted by a Judicial Registrar.
Rule 19 provides an amendment to Order 31 rule 6 to enable an error contained in a decree to be referred to the court, or to the Magistrate or Registrar who made the decree. Subrule 6(4) is also to be amended to enable the Court, Magistrate of Registrar to rectify the error.
Rule 20 provides that rule 5 of Order 31B is to be amended by substituting 21 for 28 days in the original rule.
Rule 21 provides subrule 6(1) of Order 31B is to be omitted and the new subrule 6(1) of this order makes clear the requirements of service under both the Child Support Assessment and Registration Acts.
Rule 22 provides that rule 12 of Order 31B is to be omitted and the substitute rule 12 provides that where an application is made under s117 of the Assessment Act a Form 17 in addition to 2 copies of the Assessment shall be filed with the application.
Rule 23 provides that a new rule 12A is to be inserted in Order 31B. This rule provides that where an application is made under s123 of the Assessment Act 2 copies of the administrative assessment are to be filed.
Rule 24 provides that rule 19 of Order 31B is to be amended by substituting 21 days for 28 days.
Rule 25 provides that subrule 6(1) of Order 34 is to be amen led by inserting paragraph (aa) which provides that the provisions of Order 34 are to apply where it is alleged there has been a breach of an order made under S112AD of the Act.
Rule 26 provides for three further delegations of powers to Registrars by inserting three further paragraphs in Order 36A rule 2. They are as follows:
1. Paragraph (ca) the power to set aside, in whole or part, a subpoena.
2. Paragraph (ja) the power to make an order under s65 of the Act.
3. Paragraph (ma) is to be inserted in subrule 2(2) and delegates to Registrars the power under Order 33.
Rule 27 provides for 5 amendments to rule 3 of Order 36A being the delegation of powers to Judicial Registrars.
1. Paragraph (da) is to be inserted and provides that Judicial Registrars shall have the power to hear defended proceedings for dissolution of marriage.
2. Paragraph (db) is to be inserted and provides that Judicial Registrars shall have the power to make an order for a decree of nullity.
3. Paragraph (ea) provides that Judicial Registrars have the power to vary or suspend an order until further order under ss64(7) of the Act.
4. Paragraph (i) is to be omitted and the power to make an order under s112AD of the Act is substituted.
5. Paragraph (m) is to be amended to provide that a Judicial Registrar shall have the power to vary or set aside an order that could have been made under paragraph (1).
6. Paragraph (x) is to be omitted.
Rule 28 provides for a new subrule 3A to be inserted into Order 36A rule 7. This provision provides for Registrars and Judicial Registrars to stay the exercise of power where an application for review has been filed.
Rule 29 provides for the deletion of the reference to Part 5 of the Regulations in subrule 3(2) of Order 38 as Part 5 was deleted from the Regulations by Statutory Rule No 326 of 1989.
Rule 30 provides for amendments to Order 38 rule 38.
1. Subrule 2 is omitted and the substitute rule now provides that a notice of rights in relation to accounts is to be in a form approved by the Principal Registrar.
2. Subrule 4 relating to requests for a detailed account is to be amended to provide that a solicitor may forward one notice of rights in relation to all accounts.
3. Subrule 6 relating to the filing of notice disputing costs likewise provides that a solicitor may serve one notice of rights in relation to all accounts.
4. Subrules 9 and 10 are likewise amended to provide that the solicitor may serve one notice of rights in relation to all accounts.
Rule 31 provides that rule 4 of Order 39 be omitted.
Rule 32 provides that the rate of interest for the purposes of paragraph 87(11) (b) and ss 117B(1) of the Act is to be increased from 15% to 18%. This is to ensure that the amount of interest to be charged operates as a true penalty.
Rule 33 amends certain forms contained in Schedule 1.
A new Form 7 has been substituted which provides for the numbering of sub paragraphs in the Form.
A new Form 7A has been substituted which provides for the orders sought to be set out separately in Part 3 of the Form.
Form 7B has been altered and is now titled “Reply To Answer And Answer To Cross Application”. This form is to be used specifically in these circumstances.
A new form titled “Reply” and numbered 7C has been inserted and is to be used for the purpose of a Reply only.
Form 13 is to be amended in that the heading is now to read “Answer-Principal Relief”.
A new form numbered 27A and titled “Request For Particulars/Further And Better Particulars” is inserted and is to be used where a party seeks particulars or further and better particulars from another party to the proceedings.
A new Form 46 Enforcement Summons has been substituted and now provides that a party summoned to attend the Court must attend from day to day until that party is excused or released from attendance.
A new Form 63 being an Application or Appeal under the Child Support legislation has been substituted and this form now provides a provision for the date of separation and for the grounds of the application or appeal to be provided.