Family Law Rules (Amendment) 1994 No. 58
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 58
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, 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 amends order 23A rule 2 to ensure that it a party files a notice under subsection 70BA(2) of the Act, that party must serve a copy of the notice on each other party as soon as practicable.
Subrule 2 merely restates the present provision that service of a copy of the notice must be by assured service.
Rule 4 inserts a new subrule 2A (1A) In Order 30 which requires that on the hearing of an interlocutory application evidence in chief must be given by affidavit unless the court otherwise orders.
Subrule 10 further requires that unless the court otherwise orders, only one affidavit by each party and one affidavit by each witness is admissible in evidence at a hearing.
Rule 5 omits Order 30 rule 3 as the rule is unduly restrictive in relation to powers the court already has.
Rule 6 amends order 33 rule 2 by ensuring that enforcement proceedings can be taken in relation to all maintenance orders made under the Family Law Act and all administrative assessments for child support under the child Support (Assessment) Act 1989.
Rule 6.2 amends order 33 rule 2(5) by substituting the word "matter" for the word "order". This ensures that the means of enforcement set out in Order 33 rule 2(5) also applies to administrative assessements for child support.
Rules 7, 8 and 9 Increase the maximum penalties in Order 33 rules 3 and 4 from $500 to $5000 in line with Commonwealth legislation.
Rule 9 amends Order 34 rule 9 by inserting a-new heading to the provision and omitting reference to "subsection 70(3) of the Act" and substituting flan access order". This amendment takes into account previous legislative amendments to section 70 and section 112AD of the Act.
Rule 9.2 inserts a new subrule 2A in Order 34 rule 9 to the effect that if an application for summary enforcement of access is filed, the Registrar of the filing registry must, if the respondent is resident in Australia - fix a return date not more than 14 days after the date the application is filed. If the respondent is not resident in Australia - fix a return date not more than 35 days after the date the application is filed.
Rule 10 amends Order 36A rule 2 by delegating to Registrars the power to give directions and make orders under subsection 105(2) of the Child Support (Registration and Collection) Act 1988 for the resolution of any difficulty arising in relation to the application of subsection 105(1) of that Act or in relation to a particular proceeding.
Rule 11 amends order 36A rule 3 by delegating to Judicial Registrars the power under subrule SA(2) Order 38 to make an order In relation to an agreement under rule 8 of order 38.
Rule 12 amends Order 30 rule 5 by omitting the present rule 5 in relation to vexious litigants and inserting new rules 5 and 6. New rule 5 enables a Registrar to reject a document lodged for filing it the document, on its face, appears to the Registrar to be an abuse of process or frivolous or vexatious. Subrule 2 provides that the person who sought to file the document may apply to the court for a review of the decision of the Registrar. Subrule 3 provides that a Registrar must not reject an application for review of the decision. Subrule 4 provides that an application for review must, in the first instance, be made ex parte.
New rule 6 provides that if a court considers it appropriate, the court may order that a parson must not institute proceedings of a kind or kinds specified In the order, without leave of the court. This provision in based on paragraph 118 (1) (c) of the Act. New subrule 6(2) provides that an order under this rule may be made by the court of its own motion or in the case of the Family Court of Australia on the application of the Chief Executive Officer or the Principal Registrar or In the case of the Family Court of western Australia - on the application of the Executive officer or the Registrar. Subrule 3 provides that If an order has been made under paragraph 118(1)(c) of the Act or under this rule, an application for leave to institute proceedings Must in the first instance, unless the order otherwise provides, be made ex parte.
Rule 13.1 amends Form 8 by omitting from the form the words "a crossapplication and an affidavit in support" and substituting "an affidavit setting out briefly the matters on which you rely and the orders you seek". The form is amended in this way as the rules do not provide for a cross-application to be filed to a Form 8.
Rule 13.2 amends Form 42A by omitting "Order 31B, rules 21 and 23". This is to take into account previous changes to order 31B.
Rule 13.3 amends Form 49 by adding two notes at the end of the form which restate the new provisions in Order 34 rule 9 (2A).
Rule 13.4 amends Form 53 by adding a note at the end of the form which advises that persons committed to prison under the Family Law Act are not Federal offenders and are not entitled to have the period specified by the court reduced by any remissions nor are they eligible to participate in any State pre-release schemes which apply to Federal offenders.
Rule 13.5 amends Form 58 to clarity the rules under order 38 rule 40 in relation to a re-consideration and the right to review the decision of the taxing officer.
Rule 13.6 amends Form 66 to ensure that the form is addressed not only to a prescribed Child Welfare authority but also to the full name and address of a person alleged to have abused the child or children or from whom the child or children are alleged to be at risk of abuse. it Is also to be addressed to each other party to the proceedings.