Family Law Rules (Amendment) 1994 No. 60
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 60
Issued by the authority of the Judges of 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 sections 48, 48A, 485, 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 wars 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 amends Order 17 rule 2 by requiring a statement of financial circumstances to be filed when an answer is filed by a respondent. this rectifies an unintended situation which required a respondent to file a statement of financial circumstances only if a cross application was filed.
Rule 4 amends Order 24 rule 1(9) (b) by omitting reference to sections 108 and 114(4) both of which have been repealed and substituting section 112AP.
Rule 5 enables Registrars of the Family Court and the Family Court of Western Australia to release copies of a Family Report to the parties or their legal representatives or to a practitioner representing a child under section 65 of the Act. in addition it enables Registrars to give directions as to the future disposition of the report and any copies of the report as a Registrar thinks fit.
Rule 6 amends order 28 rule 1 by omitting the words "or a Registrar" as being superfluous.
Rule 7 amends Order 305 rule 3 by requiring that the remuneration of an assessor be determined by the Court and paid by the Court or such other party or other person as the Court orders. The provision also allows the Court to order a party or any other person to pay or to give security for payment of such remuneration prior to an assessor being called on to assist the Court.
Rule 8 amends Order 31B rule 21 (1) by omitting reference to Form 42A and substituting Order 32A. Under Order 32A such applications are to be filed on a Form 67.
Rule 9 inserts a new Order 31C to cover the situation where a party in proceedings in the Family Court raises an issue which falls within Section 78B of the Judiciary Act 1903 being a matter "arising under the constitution or involving its interpretation". Under those circumstances Section 78B requires notices to be given to AttorneyGenerals of the Commonwealth and of the States and Territories. New Order 31C is an adaption of order 51 of the Federal Court Rules which specifically deals with this issue.
The provision requires that unless a Court otherwise directs, that a party to a proceedings pending in Court that involves a matter arising under the constitution or involving its interpretation within the meaning of Section 78B of the Judiciary Act, must file a notice of a constitutional matter in the filing registry in accordance with Form 42B of the Family Law Act and serve a copy on each party to the proceedings. The notice must state the nature of the matter and the facts showing that the matter involves a matter arising under the constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.
Sub Rule 2 requires that if the Court gives directions for notice in accordance with paragraph 78B(2)(b) of the Judiciary Act 1903, such notice must be In accordance with Form 42B. Sub rule 3 enables the court to give directions for the filing of an affidavit of service of notice referred to in rules 1 or 2 as it sees fit.
Rules 10 and 11 amend order 32 rule 17 and rule 21 by omitting the words "the Family Court" and substituting "a Family Court". This extends the operation of the rule to the Family Court of Western Australia.
Rules 12 and 13 amends the rules in relation to applications for orders as to costs. Rule 12 incorporates the provisions act out in order 38 rule 20 and places them in Order 38 rule 18. The amended provision does not produce any substantive changes. It states that an application for an order under sub-section 117(2) of the Act for costs may be made at any stage of the proceedings, or not later that twenty (28) days after the day on which the relevant decree in those proceedings or within such further time as the Court directs.
Sub-rule 2 provides that if a Court makes an order In any proceedings for the payment of costs, the Court may require that the costs be paid without delay, despite the proceedings not being concluded.
Rule 12 omits Order 33 rule 20 which has been incorporated in Order 38 rule 18.
Rule 14 inserts the words in Order 38 rule 44 or party entitled to the costs. This provision extends to litigants in person or to parties who have been ordered party/party costs the ability to obtain interest on outstanding costs which is to run from the date on which the solicitor or such a party could commence an action to recover costs.
Rule 14.2 is merely a stylistic amendment.
Rule 15.1 creates a new Form 42B, being a notice of a constitutional matter under Section 78B of the Judiciary Act 1903 in accordance with the provisions set out in the new Order 31C.
Rule 15.2 amends Form 67, being an application for leave to appeal. It redesigns the form to more closely comply with the provisions set out in Order 32A.