EXPLANATORY STATEMENT
Federal Magistrates Court Amendment Rules 2006 (No. 1)
Select Legislative Instrument 2006 (No. 2)
Issued by the authority of the Federal Magistrates
of the Federal Magistrates Court of Australia
Section 81 of the Federal Magistrates Act 1999 permits the Federal Magistrates or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 81(3) of the Federal Magistrates Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Magistrates Act 1999 or another Act:
(a) as if a reference to a legislative instrument were a reference to a rule of court; and
(b) as if a reference to a rule-maker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates of the Court; and
(c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Magistrates Act 1999
The Federal Magistrates have agreed to adopt the Federal Magistrates Court Amendment Rules 2006 (No 1) (the Rules).
The Rules include a number of miscellaneous amendments, the most significant of which include:
- amendments to rules in relation to divorce proceedings consistent with amendments to the Family Law Act to replace the terms ‘dissolution of marriage’, ‘decree nisi’ and ‘decree absolute’ with ‘divorce’ and ‘divorce order’
- amendments to cater for the commencement of Family Law Amendment Act 2005 insofar as it provides for the enforcement of obligations under a bond
- consequential amendments as a result of the approval of separate bankruptcy rules by way of the Federal Magistrates Court (Bankruptcy) Rules 2006
- the introduction of a new prescribed form of affidavit of service for proceedings generally (previously no particular form of affidavit was prescribed) and some drafting amendments to the service rules generally
- a new rule to permit the court to dispense with attendance for cross-examination of a person making an affidavit
- a new power delegated to Registrars under the Family Law Act to rescind a divorce order under section 57 of that Act
- amendments consistent with amendments made to Order 81 by the Federal Court Amendment Rules 2004 (No 4) SR 281 of 2004 which remove the requirements that an application for relief under the Human Rights and Equal Opportunity Commission Act 1986 Act and a response to such an application be accompanied by an affidavit in support by prescribing forms 167 and 168 of the Federal Court Rules for use in human rights proceedings in the Federal Magistrates Court
- amendment to the subpoena rules to introduce new terms and tighten up the existing rules
- amendments to the rules in relation to ending a proceeding early to rationalise and make more consistent
The amendments are consequential upon the adoption of the Federal Magistrates Court (Bankruptcy) Rules 2006, which have been the subject of consultation with the Law Council of Australia, the Insolvency and Trustee Service of Australia and legal practitioners. The amendments are also consequential upon amendments made to the Family Law Rules and Federal Court Rules.
Details of the Rules are in the Attachment.
The Rules commence on 6 February 2006.
ATTACHMENT
Federal Magistrates Court Amendment Rules 2006 (No. 1)
Rule 1 – Name of Rules
Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2006 (No. 1).
Rule 2 – Commencement
Rule 2 provides that the Rules will commence on 6 February 2006 which is the same date as commencement of the Federal Magistrates Court (Bankruptcy) Rules 2006.
Rule 3 – Amendments to the Federal Magistrates Court Rules 2001
Rule 3 provides that the Federal Magistrates Court Rules 2001 (the Rules) are amended as set out in Schedule 1.
SCHEDULE 1
[1] Rule 1.05, General outline
This consequential amendment omits a dot point in the General Outline for the Rules relating to Chapter 4 of the Rules, since Chapter 4 is being omitted from the Rules by item [31]. This is because separate bankruptcy rules have been approved to come into effect on the same date as the commencement of these amendments: Federal Magistrates Court (Bankruptcy) Rules 2006.
[2] Paragraph 4.06 (2)(a)
This amendment removes the reference ‘decree nisi’ from paragraph 4.06(2)(a) and replaces it with ‘divorce order’ consistent with recent amendments to the terminology in the Family Law Act 1975 .
[3] Subrule 6.01(3)
This amendment requires the inclusion in an address for service of a telephone number at which the party may be contacted, allowing for a further method of communication. The amendment also allows for the inclusion of a facsimile number (if any) for the party. The amendment is based on a similar amendment made to the Family Law Rules 2004 (paragraph 8.05(4)(a)) by the Family Law Amendment Rules 2004 (No 3). [Para 8.05(4) of the Family Law Rules 2004 also allows for an address for service by electronic communication].
[4] Rule 6.05
The amendment requires an affidavit of service to be in the new form of affidavit of service (general) (which is being inserted into Part 1 of Schedule 2 by item [35]), unless the court otherwise orders.
[5] Division 6.4, heading
The amendment substitutes the heading ‘Substituted service’ with ‘Substituted service and dispensing with service’ to better reflect the nature of the rules prescribed in the Division.
Amendment item [5] is required as a consequence of the amendments made by items [6] and [7].
[6] Subrule 6.14(1)
[7] Rule 6.15
[8] Paragraph 6.15(a)
These amendments include provision for dispensation of service as well as substituted service by the court if it is impracticable to serve document.
Amendment item [8] does not relate to dispensation of service in the same way as do items [6] and [7]. Item [8] inserts a new paragraph (aa) into rule 6.15, which is a new matter to be considered in making an order for dispensing with service or substituted service.
[9] Subrule 10.01(2)
This amendment is a drafting amendment to better clarify the subrule.
[10] Default of appearance of a party
The amendment to the Rule is to clarify that the applicant and respondent referred to are the applicant and respondent on the originating process (similarly for cross application).
Amendment items [9] and [10] are related. The provisions about default of appearance at a first court date have been removed from subrule 10.01(2), and rule 13.03A now deals with default of appearance of a party generally. Rule 13.03A now also deals with interlocutory applications.
[11] Before rule 15.13, in Division 15.3
This amendment defines the following new terms ‘issuing party’ and ‘person subpoenaed’ used in the Division. ‘Issuing party’ is used instead of ‘party for whom the subpoena was issued’, and ‘person subpoenaed’ is used instead of ‘person to whom a subpoena is directed’.
[12] Subrule 15.13(3)
The amendment replaces the term ‘person to whom it is directed’ with ‘person subpoenaed’.
[13] After subrule 15.16(1)
The amendment inserts a note after subrule 15.16(1). Rule 15.16 deals with service of subpoenas, and the Note refers the reader to rule 6.06, which is relevant to the service of subpoenas.
[14] Subrule 15.16(2)
This consequential amendment replaces ‘party for whom the subpoena was issued’ with ‘issuing party’.
[15] Rule 15.17
The amendment includes a new subrule providing for a minimum amount of conduct money ($25).
Item [15] also inserts new rule 15.17A.
[16] Rule 15.19
This amendment is to clarify that the Rule is subject to Rule 15.20.
[17] Paragraph 15.20(1)(b)
The amendment replaces the existing terms with the new terms as defined in the Division and also introduces a requirement for ‘including an estimate of the loss or expense’ involved in complying with a subpoena.
[18] Subrule 15.20(2)
The amendment introduces the new defined terms and makes reference to the estimate mentioned in new paragraph (1)(b).
[19] Subrule 15.21(2)
The amendment introduces a requirement to permit the production of the document ‘no later than 2 days before the first day on which attendance is required’ rather than ‘by the day before the first day on which attendance is required’.
[20] Rule 15.23
The amendment redrafts the rule to omit the current subrule (2) with a replacement subrule (2) and to confirm that subrule(1) does not affect any power to the Court to punish a person for failure to comply with a subpoena.
[21] After rule 15.29
The amendment inserts new rule 15.29A which will permit the court to dispense with attendance for cross-examination of a person making an affidavit and direct that an affidavit be used without the maker being cross-examined.
[22] Subrule 16.05(3), note
This amendment to the note is as a consequence of the recent amendment to the terminology in the Family Law Act as set out in relation to item [2] and also amends the note to include reference to section 57 of that Act as well as section 58.
[23] Rule 16.08
This amendment introduces a new subrule (2) to clarify the processes in relation to the entry of orders.
[24] Paragraphs 20.00A(1)(b) and (c)
The amendment includes a new power to rescind a divorce order under section 57 of the Family Law Act delegated to Registrars for the purposes of subsection 103(1) of the Federal Magistrates Act 1999.
The amendment also omits from the Rules the delegation of power of the Court under the provisions of the Bankruptcy Act to Registrars as set out in Schedule 4, as such powers have now been included in the Federal Magistrates Court (Bankruptcy) Rules 2006 which commence on the same day as these amendment rules.
[25] Paragraph 20.01(1)(a)
This is a consequential amendment. It omits from the Rules a rule for the time for an application for review of the exercise of a power by a Registry under a provision of the Bankruptcy Act, as this is now included in the new Federal Magistrates Court (Bankruptcy) Rules 2006.
[26] Rule 21.10, note
This consequential amendment to the note makes reference the Federal Magistrates Court (Bankruptcy) Rules 2006 as all rules in relation to costs in bankruptcy proceedings are prescribed in Part 13 of those Rules.
[27] Part 25
This amendment substitutes a new Part 25 for Divorce proceedings to ensure consistency with the terminology now used in the Family Law Act by replacing the term ‘dissolution of marriage,’ ‘decree nisi’ and ‘decree absolute’ with ‘divorce’ and ‘divorce order’.
The amendment also introduces:
- new division 25.3 prescribing rules for attendance at hearing. This division includes a new rule 25.11 for attendance at hearing by electronic communication.
- new division 25.4 prescribing rules for hearing in absence of parties (see section 98A Family Law Act). The new rules introduce no change to the existing practice. The rule make provision for the seeking of a hearing in the absence of the parties in an applicant for divorce, where there are no children of the marriage under the age of 18 years or it is a joint application. The Court is to act on this request unless the respondent objects. New rule 25.11 provides that a respondent who does object to the divorce being heard in the absence of the parties must at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.
- New rule 25.18 was previously prescribed by way of Schedule 3 Part 1 incorporation but is now set out in Part 25.
- In redrafting Part 25 there have been some minor drafting changes but the rules are not intended to introduce any change to the existing practice in divorce proceedings.
The structure of new Part 25 is based on the structure of Chapter 3 of the Family Law Rules. Many of the new provisions are based on provisions in Chapter 3 of the Family Law Rules.
[28] Rule 25B.01, including the notes
[29] Paragraph 25B.02(2)(b)
[30] Rule 25B.04, note
These amendments are to cater for the commencement of Family Law Amendment Act 2005 insofar as it provides for the enforcement of obligations under a bond.
[31] Chapter 4
The amendment omits Chapter 4 (rules in relation to bankruptcy proceedings) from the Rules as separate bankruptcy rules have been approved by way of the Federal Magistrates Court (Bankruptcy) Rules 2006.
[32] After rule 41.02
[33] Rule 41.04
These amendments are consistent with amendments made by the Federal Court to Order 81 by the Federal Court Amendment Rules 2004 (No 4) SR 281 of 2004 which removed the requirements that an application for relief under the Human Rights and Equal Opportunity Commission Act 1986 and a response to such an application be accompanied by an affidavit in support by prescribing forms 167 and 168 of the Federal Court Rules for use in human rights proceedings in the Federal Magistrates Court.
[34] Schedule 1, Part 1
This item replaces Part 1 of Schedule 1 with a new Part 1 containing increased fees consistent with the recommendation of the Federal Costs Advisory Committee for an increase of 10.2% to the scale of costs.
[35] Schedule 2, Part 1, after Affidavit of service (divorce)
The amendment introduces a new prescribed form for an Affidavit of service (general).
[36] Schedule 2, Part 2, Form 18
The amendment to the form follows recent amendments to Form 18 Application – Contravention by the Family Law Amendment Rules 2005 (No 3) to provide for its use when it is alleged that a bond has been contravened.
[37] Schedule 2, Part 3
This amendment omits bankruptcy forms from the Rules as new bankruptcy forms have been prescribed for use in bankruptcy proceeding and can be found in the Federal Magistrates Court (Bankruptcy) Rules 2006.
[38] Schedule 2, after Part 2
This amendment inserts a new Part 4 in Schedule 2 which prescribed forms 167 and 168 for use in human rights proceedings in the Federal Magistrates Court. These forms are similar to the forms prescribed for use in similar proceedings in the Federal Court of Australia by way of Order 81 of the Federal Court Rules.
[39] Schedule 3, Part 1
This amendment omits Rule 3.13 Family Law Rules 2004 from Schedule 3 incorporation as a similar rule is now prescribed by new rule 25.18 (see item [27]).
[40] Schedule 3, Part 1
This amendment incorporates Part 6.5 Family Law Rules 2004 which was prescribed to cater for the commencement of the Bankruptcy and Family Law Legislation Amendment Act 2005 and make provision for a series of notice requirements on a party who is also a bankrupt or a debtor subject to a personal insolvency agreement, or a party to bankruptcy proceedings and the bankruptcy trustee.
[41] Schedule 4
This amendment omits Schedule 4 powers that may be exercised by a Registrar (Bankruptcy Act) as these provisions are now found in the Federal Magistrates Court (Bankruptcy) Rules 2006.
[42] Dictionary, after definition of Assessment Act
This amendment inserts a new definition for ‘authenticate’ in relation to an order.
[43] Dictionary, definition of Bankruptcy Act
The amendment omits the definition as the term is there is no reference to the Act in the Rules as separate bankruptcy rules have been prescribed in the Federal Magistrates Court (Bankruptcy) Rules 2006
[44] Dictionary, after definition of eligible carer
This amendment inserts a new definition for ‘enter’ in relation to an order.