FAMILY LAW ACT 1975
Family Law Rules (Amendment)
(Statutory Rules 1989 No. 175)
Explanatory Statement
Outline
With successive amendments to the Family Law Act and increased jurisdiction for the Court, family law has become much more complex since 1976 and the affidavit procedures then appropriate have become far too cumbersome and expensive.
The Judges have thus determined to amend the Rules to introduce a form of pleading which will be appropriate for all family law cases and also for the more complex cases involving the Court’s additional jurisdiction.
The basic concepts of the pleading rules are:
(a) To reduce costs by reducing much of the affidavit material filed in proceedings.
(b) To enable a litigant in person to complete the necessary documentation and cover all relevant issues.
(c) To enable “usual” family law cases to proceed without undue complexity of documentation.
(d) To provide normal pleadings in cases where they are necessary for example, in Sec. 85, 85A, 87(11), third party proceedings generally and in cross-vesting cases.
(e) Facts only will be pleaded and not the evidence by which those facts are to be proved.
The second but equally important concept is to integrate the new pleadings with the current case management system.
To effect these results, the basic pleadings will be:
(a) An “application instituting proceedings”. This will be a new Form 7 and will require the applicant to do little more than fill in a form.
(b) An “Answer” or “Answer and cross-application” which will be a new Form 7A.
(c) A “Reply” which will include an answer to any cross-application.
(d) A Third Party procedure which has become necessary with increases in jurisdiction and cross-vesting legislation.
The current Form 8 application will remain in its present form and subject to the last paragraph will be used basically for interim and interlocutory applications where there are pending proceedings.
Other forms of application, for example, principal relief, contempt, urgent access or section 70 will be unchanged by these amendments.
Applications
The new Form 7, the application instituting proceedings, will be used in the same circumstances as the present Form 7 i.e. to commence proceedings and the current Form 8 will be used (unless there are no other current proceedings) for interim and interlocutory applications.
The Form 7 is divided into paragraphs and only those paragraphs required for the particular application will be completed. Paragraphs 1-7 setting out basic information such as the orders sought and particulars of the marriage, the ages and dates of birth of the children and so on, will be included in all cases. Paragraph 8 will be required only if there is an order sought with regard to children and sets out in particular the current arrangements for children and any proposed changes. Paragraph 9 will cover the necessary information for a property application and Paragraph 10 for a maintenance application. Paragraph 11 relates to injunctions and other relief and Paragraph 12 to cross-vesting applications.
Paragraphs 11 and 12 will cover the more “legal” or “technical” type of application such as sec. 85 or a cross-vesting case.
Answers
The answer of the respondent will be in a new Form 7A (called an Answer) and basically requires paragraph by paragraph answers to the allegations of fact in the Form 7. Thus each fact will be admitted or put in issue by a denial or by a statement that the respondent has no knowledge of the alleged facts.
Cross-application
A cross-application will be made by adding a cross-application to the Form 7A. This is provided for in the form.
Reply
Further relevant facts can be pleaded in a reply.
Further pleadings
No pleadings such as a rejoinder, rebutter etc. can be filed subsequent to a reply without the leave of a Court.
Third party proceedings
Third party proceedings will be commenced by filing and serving a third party notice as in a Common Law Court.
Interveners
An intervener will be required to file and serve a “Notice of intervention” within 14 days of leave to intervene being granted or the leave will lapse. That notice, unless the Court or a Registrar otherwise orders, will then be treated as an application.
Directions hearings
The main instrument by which the Court will exercise its case management control will be the directions hearings. These hearings are covered by Division 2 of Order 11.
When an application is issued, a day will be fixed for the first directions hearings. That day will allow sufficient time for service and for the respondent to file an answer or answer and cross-application and the applicant to file a reply.
The answer will enable the Registrar, hopefully, with the active assistance of the profession or the litigant in person, to ascertain where the real issues are, and to give more appropriate directions than can currently be given as to the future conduct of the case.
A second directions hearing will be held at the end of an Order 24 conference or in child welfare cases, after counselling has been completed.
A further directions hearing will be held a reasonable time before the date on which it is anticipated the case will be listed for hearing. Orders for affidavits setting out evidence-in-chief will then be made.
Affidavits
No affidavit will be filed with an application made by way of Form 7 unless the application also seeks interim or interlocutory relief. If an affidavit is filed it will cover the evidence necessary to support the interim or interlocutory application only.
Some advantages of pleadings
The obvious advantages are that each relevant fact will be set out at a particular point in the documentation. They will thus be easily and quickly found and none will be omitted.
With properly drawn affidavits filed just prior to the final hearing and setting out evidence-in-chief, arguments as to admissibility should be reduced to a minimum. Matters such as hearsay and argumentative and irrelevant material in affidavits will be strongly discouraged by costs orders.
The facts and issues should be clearly defined by the time the affidavits are prepared and sworn, so that the volume of affidavit material should be greatly reduced.
At the hearing, the issues having been more clearly defined than is possible with affidavits, the volume of evidence and hence the length of the trial should be reduced.
Notes on Rules
Rule 1 Commencement
This rule sets out that the commencement date is 1 October 1989.
Rule 2 Interpretation
The interpretation of “application”, “party to proceedings” and “pleading” are varied to include the introduction of third party procedures and to restrict the term “pleading” to the documentation required under the new Order 11.
Rule 3 Fixing of date - return day and directions hearing
This rule amends Rule 2 of Order 7. The return day for principal relief is not changed, but for other applications it is extended to not earlier than 56 days to allow time for service, counselling where appropriate and the completion of pleadings before the directions hearing. An urgent interim or interlocutory application may be brought on earlier and may be treated also as a directions hearing.
Rule 4 Applications other than for principal relief
This rule amends Rule 9 of Order 7 by:
(a) including “application or procedure” in lieu of “application” as a more appropriate expression; and
(b) including “or interlocutory” after interim again to improve accuracy; and
(c) deleting sub-rule 4 and adding new sub-rules 4, 5 and 6 as follows:
4. Where consent orders only are sought no affidavit need be filed (unless the Court otherwise orders) there being sufficient information for the Courts needs in paragraphs 1 to 7 of the application.
5. An affidavit must be filed in support of an interim or interlocutory application not being sought by consent.
6. Where an interim or interlocutory order is sought the respondent may oppose the making of that order by filing an affidavit.
Rule 5 Order 10 - Heading
Order 10 now only deals with answers to applications for principal relief. This enables all of the pleadings rules, which include answers to applications other than for principal relief, to be in the one Order i.e. Order 11.
Rule 6 Answer objecting to jurisdiction
This rule repeals Rule 3 of Order 10 and substitutes for it a similar rule but in modern form to cover objections to jurisdiction in applications for principal relief only.
Rule 7 Repeal
This rule repeals rules 4 and 5 of Order 10 which refer to cross-applications which are now covered in Order 11.
Rule 8 Answer out of time
This rule amends Rule 6 of Order 10 to comply with the updated language of Rule 3 of Order 10.
Rule 9 Pleadings
This rule repeals the whole of the present Order 11 and substitutes a new Order.
DIVISION 1 - APPLICATION & GENERAL
Application
1. This rule restricts the pleadings rules to applications other than for principal relief, interim or interlocutory applications unless there are no other proceedings before the Court and applications for which special forms are provided such as contempt and section 70 applications.
Interpretation
2. This rule provides that an intervener must in appropriate proceedings comply with the pleading rules and in Order 11 restricts the meaning of “proceedings” to proceedings to which Order 11 applies.
Filing of Pleadings
3. A pleading must be filed in accordance with Order 11.
Form of Pleadings
4. This rule sets out the form of pleadings being heading, date, paragraphing, signature and verification by affidavit.
Content of pleading
5.(1) This rule requires a pleading to be brief, to contain only facts and not evidence, to state specifically the orders sought and if the claim is not made under the Family Law Act the provisions of the relevant Act relied upon.
5.(2) Documents or quotations may be summarised.
Issues of law
6. A point of law or conclusion of law may be raised in a pleading provided the pleading also contains the material facts on which it is based.
Matter to be pleaded
7.(1) A fact must be pleaded if failure to do so would take another party by surprise.
7.(2) Any fact or point of law may be pleaded to show the application is not maintainable including a new fact not arising out of a previous pleading.
Time limits
8. Time limits are set at 28 days for an answer and 14 days for a reply.
Subsequent matter
9. A fact arising after the issue of proceedings may be pleaded. This is contrary to ordinary common law rules of pleading but is necessary in family law matters.
Inconsistent pleadings
10. An allegation or claim in a pleading cannot be inconsistent with those made in other pleadings by that same party except that facts or claims may be pleaded in the alternative.
Striking out pleadings
11. A pleading that does not disclose a valid claim answer or reply, that is frivolous or vexatious or scandalous or would cause undue prolongation of the case may be struck out or amended by order of the Court.
Effect of failure to file a pleading
12. This rule gives the Court a wide discretion where parties do not file the required pleadings.
Withdrawal of pleading
13. A pleading may be withdrawn but not after the time for reply without leave. Where a pleading is withdrawn notice must be given to all other parties and any other party may use the withdrawn pleading in evidence or in cross-examination.
DIVISION 2 - FURTHER PLEADINGS
Answer
14. A party served with an application may file an answer in accordance with Form 7A opposing the application. Any allegation of fact in an application not pleaded to in an answer is taken to be admitted.
Answer and Cross Application
15. A respondent may include a cross-application in his or her answer.
Reply
16.(1) Where an answer or answer and cross-application has been filed the applicant may file a reply.
16.(2) The applicant in a reply may seek orders including the dismissal of the cross application.
16.(3) An applicant who does not file a reply is deemed to deny each fact in an answer. This rule is made so that an applicant who merely denies all allegations in an answer need not go to the expense of filing a reply andalso as the reply is the last pleading that can be filed without leave.
16.(4) If there is a cross-application and the applicant wishes to deny any facts alleged then a reply must be filed.
Reply as final pleading
17. No pleading can be filed after a reply, without leave.
Right of parties consequent on cross-application
18. A cross application is to be treated as an application. This means for example that a respondent could file a reply to an answer to a cross-application.
Answer objecting to jurisdiction
19. This rule provides that a respondent may contest the jurisdiction of the court by filing Form 14. The terms of the provision are the same as the new Order 10 rule 3 which only applies to principal relief.
DIVISION 3 - DIRECTIONS HEARING
Scope of directions hearing
20. This order is designed to give the Court total control of all proceedings in accordance with its case management procedures. Those procedures ensure that no case “goes to sleep” and all cases are brought to hearing as soon as it is appropriate and possible to do so.
Hearing
21.(1) Sets out the powers of the Court to fix a further hearing, or hear or dismiss the application.
21.(2) Each party must make all necessary interlocutory applications and seek any required directions.
Determination by court of summary jurisdiction
22. This rule enables a Court of Summary Jurisdiction to hear and determine a case on the return day or to give directions as it may deem fit.
DIVISION 4 - AMENDMENT OF PLEADING
Amendment by party
23.(1) A party may amend once without leave before pleadings close or up to the time a date is fixed for the final hearing with the consent of all parties.
Amendment by court order
24. This rule sets out the matters the Court must consider in allowing an amendment.
Time limit for amendment by court order
25. An amendment by leave must be made within the time allowed by the Court or within 14 days if not time is fixed.
Amendment by party
26. A party amending must file a copy of the pleading with the amendments clearly marked.
Endorsement of amended pleading
27. There must be endorsed on the pleading the date of the order (if any) or the date of the amendment.
Service of amended pleading
28. An amended pleading must be served on all other parties as soon as practicable.
Answer to amended pleading
29. A party served with an amended pleading has 14 days in which to plead to it. If no such pleading is filed he or she is taken to rely on his or her previous pleading.
Rule 10 Amendment to Order 14
This rule provides for the insertion before Rule 1 of Order 14 of the words “Division 1 - Interveners”.
Rule 11 Leave to intervene
This rule repeals Rule 4 of Order 14 and substitutes a new Rule 4 being as to sub-rule (1) requiring a person given leave to intervene :
(a) to file a notice within 14 days in accordance with a new Form 15C;
(b) to file an application in accordance with Form 8 if the intervener seeks any orders, and,
(c) to serve copies on all parties.
Sub-rule (2) applies the provisions of Order 11 to an application by an intervener and Sub-rule (3) provides that at any time during the proceedings the Court may order a party to give notice to any person of a right to apply for leave to intervene.
Rule 12 Third parties
This rule repeals the current rules 5 and 6 of Order 14 which dealt with notices to persons interested and notices to particular persons in respect of applications relating to children. It then provides for new rules 5 to 9 inclusive.
Third Party
5.(1) Where a respondent seeks any contribution or indemnity or any relief related to the subject matter of the proceedings against a person who is not a party to the proceedings then that respondent may join that person as a third party.
5.(2) The respondent may so join a third party before a directions hearing, or with leave, after that hearing.
5.(3) The claim must be in accordance with Form 15B.
5.(4) This sub-rule sets out the contents of the claim including, if it is under a cross-vesting law, that it must comply with Order 31A.
5.(5) On the filing of the claim the third party becomes a party and the third party must be served within 14 days.
5.(6) This sub-rule requires earlier relevant pleadings to be served with the Third Party Notice and the order (if any) giving leave to file that notice.
5.(7) Where filed in a Court of Summary Jurisdiction a Third Party Notice may be heard and determined by the Court with the application on the return day.
Rights of third parties in answer
6.(1) The Third Party may file an answer or answer and cross-application in accordance with Form 7A but may file no further proceedings without leave.
6.(2) This sub-rule restricts the circumstances in which the applicant can be joined as a respondent to the Third Party’s cross-application.
DIVISION 3 - OTHER PARTIES & RELATED MATTERS
Parents other than applicant
7. In applications relating to children each parent must be either an applicant or respondent.
Notice to particular persons in proceedings relating to children
8. In proceedings concerning children notice of the proceedings must be given to the person who has guardianship custody or supervision of the child and to any other person as the Court may direct.
Proceedings after the death of a person
9.(1) Where a person dies and proceedings may be instituted or continued the Court may give any necessary directions as to joinder of or notice to other persons.
9.(2) By this rule “legal personal representative” includes a person who has been granted letters of administration limited to the purpose of taking the proceedings.
Rule 13
Repeals Rules 15 and 16 or Order 15 which deal with initiating affidavits which with the pleading rules are no longer required. The following rule is substituted:
Filing of affidavits
15. This rule provides that except as the rules otherwise provide or the Court directs no affidavits are to be filed except in interim or interlocutory applications and that any such affidavits may not be used on a final hearing.
These affidavits are usually out of date by the time the matter comes on for hearing and contain hearsay evidence etc. which would not in any event be admissible on a final hearing. The rule also discourages unnecessary and inflammatory matter.
Rule 14
This rule repeals Order 16 and substitute a new Order. The current Order 16 sets out the required contents of supporting affidavits which will not be required with pleadings.
The new Order 16 is:
ORDER 16
REQUIREMENTS FOR CERTAIN APPLICATIONS
Applications under Section 87
1. This rule repeats the present Rule 14 of Order 16 without change.
Urgent interim or interlocutory applications
2. This rule requires the circumstances of urgency to be set out in these applications on affidavit and in addition only such facts as are necessary. This again discourages unnecessary and inflammatory affidavit material.
Rule 15 Failure to comply with request
This rule amends Rule 6 of Order 19 by inserting the words “subject to Rule 6A”. The rule concerns failure to comply with a request for particulars or to answer specific questions giving the Court power to require the giving of such particulars or answers and to make orders as to the continuance of the proceedings.
The new Rule 6A sets out that no such orders shall be made before the filing of an answer except to enable the respondent to plead or for special reasons.
Rule 17 Applications under sub-sections 40(6), 41(4A) or 46(3A) of the Act
These sub-sections refer to transfers of proceedings from Supreme Courts, transfer to a State Family Court and transfers by a Supreme Court or the Family Court. The amendments now require such an application to be made on Form 8 not Form 7 consequent upon the changes made by these amending rules.
Rule 18 Evidence in Chief
This rule amends Rule 2 of Order 30 by adding a new sub-rule which strictly controls the number of affidavits that may be filed as evidence in chief and sets out that such affidavits must be filed more than 7 days prior to the final hearing. Unless the court otherwise orders evidence in chief at trial shall consist of (a), (b), (c), and (d) of Rule 2 of Order 30.
Rule 19 Proceedings involving cross-vesting law
This rule amends Rule 4 of Order 31A to comply with the new pleading rules. It in fact makes the Family Law Rules more in line with the Federal Court and the various Supreme Court Rules relating to cross-vesting matters.
Rule 20 Delegation of Powers to Registrars
This rule delegates to Registrars and consequently also to Judicial Registrars all necessary powers to deal with directions hearings.
Rule 21 Delegation of Powers to Judicial Registrars
This rule gives Judicial Registrars powers to grant leave to intervene. This rule is necessary to compliment the present powers of Judicial Registrars.
Rule 22(a)
This sub-rule amends certain forms and introduces new forms as follows:
(a) It omits Form 7 and introduces a new form 7 which has been described in the introductory remarks. This new form retains the verifying affidavit and Declaration by Solicitor in the current Form 7.
New Form 7A
This is the new form for the answer and cross-application. This form requires a paragraph by paragraph answer to the application and if there is a cross-application requires that cross-application to comply with such of paragraphs 8 to 12 of Form 7 as may be relevant.
New Form 7B
This is the form of Reply and requires a paragraph by paragraph reply to the answer or answer and cross-application.
Rule 22(b)
This sub-rule replaces the present Form 14 to comply with the more modern drafting of Rule 3 of Order 10 and Rule 19 of Order 11.
Rule 22(c)
This sub-rule introduces the new form Form 15B - a third party notice and specifically contemplates cross-vesting applications for which it will probably be extensively used.
This sub-rule also introduces the new Form 15C for a notice of intervention.