Matrimonial Causes Rules

STATUTORY RULES.

1960. No. 97.

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RULES UNDER THE MATRIMONIAL CAUSES ACT 1959.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Rules under the Matrimonial Causes Act 1959.

Dated this 30th day of November, 1960.

DUNROSSIL

Governor-General.

By His Excellency’s Command,

(sgd.) G.E. BARWICK

Attorney-General.

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MATRIMONIAL CAUSES RULES.

PART I.—PRELIMINARY.

Citation.

1. These Rules may be cited as the Matrimonial Causes Rules.

Commencement.

2. These Rules shall come into operation on the day on which the Matrimonial Causes Act 1959 comes into operation.

Parts.

3. These Rules are divided into Parts, as follows:—

Part I.—Preliminary (Rules 1-14).

Part II.—Reconciliation (Rule 15).

Part III.—Proceedings.

Division 1.—Commencement of Proceedings (Rules 16-18).

Division 2.—Applications to the Court or to a Registrar (Rules 19-23).

Part V.—Petitions.

Division 1.—General (Rules 27-38).

Division 2.—Petitions for Dissolution of Marriage (Rules 39-44).

Division 3.—Petitions for Nullity of Marriage (Rules 45-49).

Division 4.—Petitions for Judicial Separation (Rules 50-51).

Division 5.—Petitions for Restitution of Conjugal Rights (Rules 52-53).

Division 6.—Filing Petitions and Notices of Petitions (Rules 54-59).

*Notified in the Commonwealth Gazette on 1st December, 1960.

4515/60.—PRICE         16/14.11.1960.

Part  VI.—Service.

Division 1.—General Provisions relating to Service of Documents (Rules 60-65).

Division 2.—Service of Petitions and Answers (Rules 66-68).

Division 3.—Service on Infants and Persons of Unsound Mind (Rules 69-70).

Division 4—Proof of Service (Rules 71-75).

Part  VII.—Pleadings.

Division 1.—Answers (Rules 76-78).

Division 2.—Replies and Rejoinders (Rules 79-82).

Division 3.—Pleadings Generally (Rules 83-87).

Division 4.—Discontinuance (Rule 88).

Part  VIII.—Amendment of Pleadings, Supplementary Petitions and Supplementary Answers.

Division 1.—Amendment of Pleadings (Rules 89-97).

Division 2.—Supplementary Petitions and Supplementary Answers (Rules 98-105).

Part  IX.—Parties.

Division 1.—General (Rules 106-112).

Division 2.—Infants (Rules 113-116).

Division 3.—Persons of Unsound Mind (Rules 117-121).

Division 4—Guardians ad Litem (Rules 122-130).

Part  X.—Default in Pleading (Rules 131-133).

Part  XI.—Preparation for Trial.

Division 1.—Preliminary (Rules 134-136).

Division 2.—Particulars, Discovery and Inspection of Documents (Rules 137-148).

Division 3.—Admissions and Notices to Produce (Rules 149-153).

Division 4.—Medical Examination of Parties (Rules 154-160).

Division 5.—Discretion Statements (Rules 161-164).

Division 6.—Compulsory Conferences (Rules 165-169).

Division 7.—Consolidation of Proceedings (Rule 170).

Division 8.—Setting Suits down for Trial (Rules 171-181).

Part  XII.—Decrees (Rules 182-191).

Part  XIII.—Intervention by Persons not Parties to Proceedings (Rules 192-194).

Part  XIV.—Proceedings for Ancillary Relief.

Division 1.—Preliminary (Rules 195-201).

Division 2.—Maintenance pending Suit (Rules 202-210).

Division 3.—Certificates of Means (Rules 211-213).

Division 4.—Custody (Rules 214-217).

Division 6.—Variation of Orders (Rule 219).

Part  XV.—Appeals (Rules 220-223).

Part  XVI.—Evidence.

Part  XVII.—Enforcement of Decrees.

Part  XIX.—Registrars and Registries.

Part  XX.—Fees (Rules 300-304).

Part  XXI.—Effect of Non-compliance with these Rules or with an Order (Rules 305-308).

Part  XXII.—Proceedings for Jactitation of Marriage, Declarations, &c.

Part  XXIII.—Miscellaneous (Rules 316-328).

Part  XXIV.—Transitional Provisions (Rule 329).

Interpretation.

4.—(1.) In these Rules, unless the contrary intention appears—

(2.) In these Rules, references to a marriage shall be read as including references to a purported marriage and references to the spouse of a person shall be read as including references to the purported spouse of a person.

(3.) In these Rules, a reference to a court sitting in public chambers shall be read as including a reference to a court sitting in court as in chambers.

Exercise of powers and functions of registrar.

5.—(1.) In relation to a power or function that by these Rules is expressed to be conferred on a registrar, the judge or judges authorized under the law of a State or Territory to make rules of court or other provision in relation to the practice and procedure of the Supreme Court of that State or Territory may designate from time to time an office or offices in or in connexion with that Supreme Court as the office the holder of which may, or as the offices the holders of which each may, exercise or perform that power or function in relation to proceedings in that Supreme Court, and that power or function may be so exercised or performed accordingly and not otherwise.

(2.) Where a registrar is required by any of these Rules to do an act of a merely ministerial nature, not being the hearing and determination of an application under these Rules to a registrar, it is sufficient if the act is done on behalf of the registrar by another officer of the court or by a clerk in the registrar’s office.

Designation of parties to proceedings.

6.—(1.) In the title of a document filed in, or issued out of, the office of a court in connexion with proceedings instituted by petition, a party to the proceedings who is the petitioner or respondent or a co-respondent, a party cited, a party named or an intervener within the meaning of these Rules shall be designated by whichever of those expressions is applicable.

(2.) For the purpose of the last preceding sub-rule, a document filed or issued for the purpose of proceedings that are instituted by application to a court and are in relation to proceedings instituted by a petition shall be deemed to have been filed or issued in connexion with the proceedings instituted by that petition.

(3.) In the title of a document filed in or issued out of the office of a court in connexion with proceedings of a kind referred to in paragraph (e) of the definition of “matrimonial cause”, the party to the proceedings who institutes or instituted the proceedings shall be designated as the applicant and any other party to the proceedings shall be designated as a respondent.

(4.) In any part (not being the title) of a document filed in or issued out of the office of a court in connexion with proceedings—

Filing of documents.

7.—(1.) Subject to this rule, where a document relating to proceedings is required by these Rules to be filed, the document shall, unless the contrary intention appears, be filed in the office of the court in which the petition or application instituting the proceedings was filed.

(2.) Where proceedings have been transferred from a court to another court under section 26 of the Act, a document relating to the proceedings shall be filed in the appropriate office of the court to which the proceedings have been transferred.

(3.) Where a decree has been registered in a court under section 103 or section 105 of the Act, a document relating to the enforcement of the decree by that court shall be filed in the appropriate office of that court.

(4.) During the trial of proceedings by a court, a document relating to the proceedings may, by leave of the court, be filed in court.

(5.) During the hearing of an application by a registrar, a document relating to the application may, by leave of the registrar, be filed with the registrar.

Computation of time.

8.—(1.) Where a period of time dating from a given day, act or event is prescribed by or allowed under these Rules for doing an act or taking a proceeding, the time shall, unless the contrary intention appears, be reckoned exclusive of the day, or of the day of the act or event, from which the time dates.

(2.) Where the time for doing an act or taking a proceeding expires on a Saturday or Sunday or on a day that is a public holiday or court holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, the act may be done or the proceeding may be taken on the first day following that is not a Saturday, Sunday, public holiday or court holiday.

(3.) Except as otherwise provided in relation to the Supreme Court of a State or Territory of the Commonwealth by a rule made by virtue of sub-section (4.) of section 127 of the Act, time runs, in connexion with any proceedings in such a court, during any vacation of that court.

(4.) Where a period of time dating from a given day, act or event, being a less period than five days, is prescribed by or allowed under these Rules for doing an act or taking a proceeding, a Saturday or Sunday or a day that is a public holiday or court holiday in the place at which the act is to be or may be done, or the proceeding is to be or may be taken, shall not be reckoned in computing the period.

(5.) In reckoning a period of clear days in relation to the doing of an act in connexion with proceedings or the taking of a proceeding in a court, any day on which the office of the court is not open shall be excluded.

Chambers.

9.—(1.) Proceedings of a kind referred to in paragraph (c) or (e) of the definition of “matrimonial cause” may be heard by the court sitting in public chambers.

(2.) Proceedings of a kind referred to in paragraph (d) of the definition of “matrimonial cause” may be heard by the court sitting in public chambers or in private chambers.

(3.) A court sitting in open court may—

(4.) A court sitting in public chambers may—

(5.) A court sitting in private chambers may adjourn proceedings for consideration by the court sitting in public chambers or for hearing in open court.

(6.) This rule does not authorize a court sitting either in public or private chambers to hear proceedings that relate to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” where it is practicable for the court to hear those proceedings at the same time as the proceedings for such a decree.

Directions as to practice and procedure.

10.—(1.) Where a court is satisfied that—

the court may give such directions with respect to the practice and procedure to be followed in the case as the court considers necessary.

(2.) Subject to any order made by a court on appeal, an act done or proceeding taken in accordance with a direction in force under the last preceding sub-rule shall be deemed to have been duly done or taken.

(3.) Where a direction given by a court under sub-rule (1.) of this rule is varied by a court on appeal, any act done or proceeding taken in accordance with the direction as so varied shall be deemed to have been duly done or taken.

On hearing of ancillary proceedings, further applications may be made.

11.—(1.) Subject to this rule, where proceedings that are in relation to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” (in this rule referred to as “the principal proceedings”) are heard by a court before the trial of the principal

proceedings, the court may, in addition to determining the first-mentioned proceedings—

(2.) An application for an order referred to in the last preceding sub-rule—

(3.) Where an application for an order referred to in sub-rule (1.) of this rule is made to a court in a case where proceedings seeking that order have been instituted but not heard by a court—

(4.) Without limiting the generality of sub-rule (1.) of this rule, application may be made to a court under this rule for an order with respect to—

(5.) An application under sub-rule (1.) of this rule may be heard by a court notwithstanding that any facts relied on in support of, or in opposition to, the application are not verified by affidavit or by evidence given orally upon the hearing of the application.

(6.) Nothing in the preceding sub-rules of this rule shall be taken to prevent the court—

Address for service.

12.—(1.) Unless the court otherwise orders—

(2.) A person may give an address as his address for service for the purpose of any proceedings by stating that address as his address for service—

and, in the case of a notice referred to in paragraph (b) or (c) of this sub-rule, serving a copy of the notice on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(3.) The address given as a person’s address for service shall be not more than five miles from the office of the court in which the document stating the address is filed, and, subject to that requirement, shall, in the case of a person who is represented by a solicitor, be the address of the solicitor for that person, or of a solicitor acting as the agent of that solicitor.

(4.) The address for service given, or last given, by a person in accordance with this rule in relation to any proceedings is his address for service for the purpose of those proceedings and also for the purpose of any other proceedings that constitute a matrimonial cause and are related to those proceedings, or to which those proceedings are related.

Schedules and Forms.

13. In these Rules, a reference to a Schedule by number shall be read as a reference to the Schedule so numbered to these Rules and a reference to a Form by number shall be read as a reference to the Form so numbered in the First Schedule to these Rules.

Compliance with Forms.

14.—(1.) Strict compliance with the Forms in the First Schedule is not necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, is sufficient.

(2.) Where a person referred to in a Form in the First Schedule is not represented by a solicitor, a reference in the Form to the solicitor for the person shall be read as a reference to the person.

(3.) Where the word “Title” appears on a Form in the First Schedule, it shall be taken to indicate that a document required to be in accordance with that Form shall—

PART II.—RECONCILIATION.

Petitioners and certain applicants and respondents to be informed of facilities available to assist reconciliation.

15.—(1.) In this rule, “a document to which this rule applies” means—

but does not include a petition instituting, by leave of the court under section 43 of the Act, proceedings for a decree of a kind referred to in paragraph (a) of this sub-rule, a supplementary petition or a supplementary answer.

(2.) Where a document to which this rule applies is filed on behalf of a party who is represented by a solicitor, the document is not effective for the purposes of proceedings under the Act unless the solicitor has, by a certificate, in accordance with Form 3, under his hand and written on the document, certified that—

(3.) Where a document to which this rule applies is filed in the office of the Supreme Court of a State or Territory and, at the date when the document is filed, the party on whose behalf it is filed is outside that State or Territory, it is sufficient compliance with the last preceding sub-rule if the solicitor filing the document has, by a certificate under his hand and written on the document, certified that the party is outside that State or Territory at that date and that he has been informed by a specified legal practitioner that that practitioner has, whether within or outside Australia, brought to the attention of the party the matters referred to in paragraph (a) of that sub-rule arid discussed with the party the matter referred to in paragraph (b) of that sub-rule.

PART III.—PROCEEDINGS.

Division 1.—Commencement of Proceedings.

Institution of proceedings.

16.—(1.) Proceedings required by sub-section (1.) of section 68 of the Act to be instituted by petition shall be instituted by filing a petition, addressed to a court having jurisdiction under the Act, in a proper office of that court.

(2.) Where leave has been granted under sub-section (3.) of section 68 of the Act for the institution of proceedings of a kind to which that sub-section applies otherwise than in the relevant petition or answer, the proceedings shall be instituted by filing an application to the court.

(3.) Subject to the last two preceding sub-rules, proceedings in a matrimonial cause shall, except as otherwise provided in these Rules, be instituted by filing an application to a court having jurisdiction under the Act in the proper office of that court.

(4.) Where proceedings to which the last preceding sub-rule applies are instituted in relation to pending proceedings, the proceedings shall be instituted in the court in which those proceedings are pending.

(5.) Subject to the Act and to these Rules, where proceedings to which sub-rule (3.) of this rule applies are instituted in relation to completed proceedings, the proceedings shall be instituted in the court in which the completed proceedings were heard and determined or in a court in which the decree of that court has been registered.

(6.) Where an application relating to proceedings is, under these Rules, required or permitted to be made to a registrar of a court, the application shall be made by filing—

an application to a registrar of that court.

(7.) For the purposes of this rule, proceedings determined in the High Court shall be deemed to have been determined in the court from which the proceedings were taken on appeal, or removed, to the High Court.

(8.) Nothing in sub-rule (3.) of this rule shall be taken to authorize the institution of proceedings without the leave of the court in a case where such leave would be otherwise required.

How proceedings intituled.

17.—(1.) A document filed in, or issued out of, the office of a court in relation to proceedings instituted by petition shall be intituled in accordance with Form 4.

(2.) Subject to these Rules, the title to a document referred to in the last preceding sub-rule shall include the full name and the designation of every party to the proceedings instituted by the petition (including any person who, upon the filing of that document, will become a party).

(3.) Where proceedings are or have been instituted under the Act for a decree of nullity of marriage on the ground that a marriage is void, the title to a document filed in, or issued out of, the office of a court in relation to the proceedings shall contain the surname, at the date of the institution of the proceedings, of the female party to the purported marriage followed by the word “otherwise” and followed then by the name that was that party’s surname immediately before the solemnization of the purported marriage.

(4.) Where a person intervenes in proceedings under sub-section (2.) of section 45 of the Act or under these Rules, the person becomes a party to the proceedings, and the title to the proceedings shall be deemed to have been amended accordingly.

(5.) Subject to Part IX. of these Rules, where, after the institution of proceedings in a matrimonial cause, a pleading is filed, or an amendment to a pleading is made, by which the petitioner or respondent is alleged to have committed adultery with a specified person, whether or not a decree is sought on the ground of the adultery, that person becomes a party to those proceedings, and the title of those proceedings shall be deemed to have been amended accordingly.

(6.) Where a party to proceedings is dismissed from the proceedings, the title to the proceedings shall be deemed to have been amended by omitting the name and designation of the party.

Proceedings to be numbered.

18.—(1.) Subject to sub-rule (3.) of this rule, the registrar of the court in which proceedings are instituted, or to which proceedings are transferred, shall cause a distinguishing number to be allotted to the proceedings.

(2.) Where proceedings that constitute a matrimonial cause had been instituted in the Supreme Court of a State or Territory before the commencement of the Act, the distinguishing number applicable to those proceedings immediately before the commencement of the Act shall be deemed to have been allotted to those proceedings by the registrar of that Supreme Court under this rule.

(3.) Where, after the commencement of the Act, proceedings are instituted in a court in relation to concurrent, pending or completed proceedings to which a number has been allotted or is deemed to have been allotted under this rule, that number shall be deemed to have been allotted to those first-mentioned proceedings.

(4.) Where a decree made by a court is registered in another court under section 103 or section 105 of the Act, the registrar or other proper officer of that other court shall cause a distinguishing number to be allotted to the decree.

(5.) A document filed in, or issued out of, the office of a court in connexion with proceedings or in connexion with a decree in respect of which a distinguishing number has been allotted, or is deemed to have been allotted, under this rule shall have that number endorsed on the document.

Division 2.—Applications to the Court or to a Registrar.

How applications instituted.

19.—(1.) Subject to these Rules—

(2.) Subject to these Rules, an application—

(3.) An application shall bear date the day on which it is filed.

(4.) Notwithstanding sub-rule (1.) of this rule, the court or registrar may permit the use, in support of an application, of an affidavit that was filed subsequently to the filing of the application.

Parties to application.

20. Where an application to a court or registrar relates to pending or completed proceedings, the applicant and each other party to those pending or completed proceedings who is affected by the application are parties to the application.

Service of copy of application.

21.—(1.) Subject to the next two succeeding sub-rules, when an application to a court or registrar has been filed, the applicant shall cause service of the application to be effected on each other party to the application.

(2.) It is not necessary for service of an application to be effected on a party to the application—

(3.) Subject to any provisions of these Rules that expressly require service of an application to be effected on a party to the application, it is not necessary for service of the application to be effected on a party to the application unless that party has an address for service.

(4.) Service of an application on a party shall be effected by serving a copy of the application on the party.

(5.) Unless a judge or registrar, as the case may be, otherwise directs, there shall be at least three clear days between the service of the application and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Affidavits in support of application.

22.—(1.) The grounds on which a court or registrar, as the case may be, will be asked to make the order specified in an application, and the facts on which the applicant proposes to rely in support of the application for that order, shall be stated in the affidavits filed in support of the application.

(2.) Where service of an application is effected on a party to the application, a copy of each affidavit filed in support of the application shall be served on the party at the time of the service of the application or within a reasonable time before the hearing of the application.

Affidavit in answer and in reply.

23.—(1.) A party to an application other than the applicant may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit in answer to an affidavit in support of the application.

(2.) A party filing an affidavit in answer shall cause a copy of the affidavit in answer to be served on each other party to the application who has an address for service as soon as practicable after the affidavit in answer has been filed.

(3.) A party on whom a copy of an affidavit in answer is served may, before the hearing of the application or, by leave of the court or registrar by whom the application is heard, during the hearing of the application, file an affidavit in reply to that affidavit.

(4.) A party filing an affidavit in reply to an affidavit filed by another party to the application shall cause a copy of the affidavit in reply to be served on each other party who has an address for service as soon as possible after the affidavit in reply has been filed.

PART IV.—APPLICATIONS FOR LEAVE TO INSTITUTE PROCEEDINGS FOR DISSOLUTION OF MARRIAGE OR JUDICIAL SEPARATION.

Application may be made ex parte.

24. An application under section 43 of the Act for leave to institute proceedings may be made ex parte.

Affidavit in support of application.

25. The affidavit in support of an application under section 43 of the Act for leave to institute proceedings for a decree of dissolution of marriage or of judicial separation shall—

Service of copy of order.

26. A petitioner who institutes proceedings for dissolution of marriage or of judicial separation by leave of the court under section 43 of the Act shall cause service of a copy of the order of the court granting the leave to be effected on his spouse at the same time as service of the petition is effected on his spouse.

PART V.—PETITIONS.

Division 1.—General.

Particulars of parties, &c., to be included in petition.

27.—(1.) A petition shall state the full name of each party to the proceedings and, in addition—

(2.) Where the address, at the date of the petition, of a party or person referred to in the last preceding sub-rule is not known to the petitioner, the petition shall state that the address is not known to the petitioner and also state the last address (if any) of the party or person known to the petitioner.

Contents of petition.

28. A petition shall state—

Particulars relating to marriage.

29.—(1.) For the purpose of paragraph (a) of the last preceding rule, the particulars of the marriage or purported marriage that are required to be stated in a petition are—

(2.) Where a petitioner has been previously married, his petition shall state—

(3.) Where the respondent to a petition has been previously married, the petition shall, so far as those facts are known to the petitioner, state—

Particulars of date and place of birth of parties.

30.—(1.) For the purpose of paragraph (b) of rule 28 of these Rules, the particulars relating to the birth of the parties to the marriage that are required to be stated in a petition are the date and place of birth of each party to the marriage.

(2.) Where a party to the marriage was not born in Australia, particulars of the date on which the party entered Australia or, if the party has re-entered Australia after having left Australia, the date on which the party first entered Australia shall be stated in a petition in addition to the particulars referred to in the last preceding sub-rule.

Domicile or residence.

31.—(1.) This rule relates to the particulars relating to the domicile or residence of a petitioner in Australia that are required to be stated in a petition for the purpose of paragraph (c) of rule 28 of these Rules.

(2.) The petition shall state that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia.

(3.) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to find that the petitioner is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia shall be stated in the petition in as concise a form as the nature of the case allows.

(4.) A petition instituting proceedings in a court of a Territory shall state that—

as the case may be.

Particulars of cohabitation.

32.—(1.) For the purpose of paragraph (d) of rule 28 of these Rules, the particulars of the cohabitation of the parties that are required to be included in a petition, subject to the next succeeding sub-rule, are—

(2.) Where the parties to the marriage have never cohabited at a place of residence, the petition shall include a statement to that effect.

Particulars of children.

33.—(1.) This rule relates to the particulars of the children of the marriage who are infants that are required to be stated in a petition for the purpose of paragraph (e) of rule 28 of these Rules.

(2.) The petition shall state whether, at the date of the petition, any children of the marriage to which the petition relates are living and, if at that date children of the marriage are living, shall state the full name and date of birth of each child of the marriage who is living and the name of the person with whom the child is living.

(3.) Where the petitioner disputes the parentage of a child born, since the solemnization of the marriage to which the petition relates, to the female party to the marriage, the petition shall also state that the parentage of the child is in dispute and the grounds on which the parentage of the child is disputed.

(4.) Where a person who is deemed, by virtue of section 6 of the Act, to be a child of the marriage to which the petition relates is living at the date of the petition, the petition shall also state the circumstances that result in the person being so deemed to be a child of the marriage.

Particulars of previous proceedings.

34.—(1.) This rule relates to the particulars of previous proceedings that are required to be stated in a petition for the purpose of paragraph (f) of rule 28 of these Rules.

(2.) Subject to the next succeeding sub-rule, the petition shall state particulars of—

(3.) Where no proceedings referred to in the last preceding sub-rule have been instituted, the petition shall include a statement to that effect.

(4.) Where the petition includes particulars of any proceedings referred to in sub-rule (2.) of this rule, being proceedings that have been heard and determined by a court—

(5.) Where a decree of a court, or an agreement, making provision for the payment of maintenance in respect of a party to a marriage or a child of a marriage is in force, a petition relating to the marriage shall state the amount of maintenance payable under the decree or agreement and the total amount of the maintenance paid under the decree or agreement during the period of twelve months immediately preceding the date of the petition.

Condonation, connivance and collusion.

35.—(1.) A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (k), inclusive, of section 28 of the Act shall contain—

(2.) A petition instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

Particulars of other orders sought.

36.—(1.) Where a petitioner—

the petition shall set out particulars of the order sought in the proceedings or of the order sought as to costs, as the case may be.

(2.) Where a petitioner is, by his petition, seeking an award of damages under section 44 of the Act, the petition shall specify the amount of damages sought.

Date and signature.

37.—(1.) A petition shall bear date the day on which it is filed.

(2.) Where a petition is settled by counsel, the name of the counsel shall be written on the petition.

(3.) A petition shall be signed—

Petition to be verified.

38.—(1.) A petitioner shall, by an affidavit written on his petition and sworn within twenty-one days before his petition is filed—

(2.) Where, for the purpose of complying with the last preceding sub-rule, it is necessary for a petitioner to verify the doing of, or the failure to do, an act within, throughout or for a period ending on the day immediately preceding the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the doing of, or the failure to do, the act within, throughout or for, as the case may be, a period ending on the day immediately before the swearing of his affidavit.

(3.) Where, for the purpose of complying with sub-rule (1.) of this rule, it is necessary for a petitioner to verify that a certain circumstance existed at the date of his petition, it is sufficient compliance with that sub-rule if the petitioner verifies the existence of the circumstance at the date of swearing his affidavit.

Division 2.—Petitions for Dissolution of Marriage.

Form of petition for dissolution of marriage.

39. A petition for a decree of dissolution of marriage shall be in accordance with Form 6.

Ground for relief to be stated in petition.

40.—(1.) A petition for a decree of dissolution of marriage shall state the ground on which the decree is sought.

(2.) For the purpose of these Rules, a ground specified in a paragraph of section 28 of the Act specified in the first column of the following table may be stated in a pleading or affidavit in the terms set, out in the second column of that table opposite the paragraph:—

Arrangements for welfare of children.

41.—(1.) Where, at the date of a petition for a decree of dissolution of marriage, children of the marriage to which the petition relates are living, the petition shall state—

(2.) In the last preceding sub-rule, “children of the marriage” means—

Petition for dissolution of marriage on ground of separation.

42. A petition for a decree of dissolution of marriage on the ground specified in paragraph (m) of section 28 of the Act may state the arrangements made or proposed by the petitioner for the provision of maintenance or other benefits referred to in sub-section (2.) of section 37 of the Act for the respondent upon the decree becoming absolute.

Petition for dissolution of marriage on ground of presumption of death.

43. A petition for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 28 of the Act shall, in addition to the facts stated in pursuance of paragraph (g) of rule 28 of these Rules, state—

Death of person specified in petition.

44. Where a person specified in a petition for a decree of dissolution of marriage as a person with or on whom the respondent has committed adultery, rape or sodomy has, to the knowledge of the petitioner, died before the date of the petition, the petition shall state that the person so specified is dead and the date of his death.

Division 3.—Petitions for Nullity of Marriage.

Form of petition.

45. A petition for a decree of nullity of a marriage shall be in accordance with Form 6.

Ground for relief to be stated in petition.

46. A petition for a decree of nullity of marriage shall indicate whether the decree is sought on the ground that the marriage is void or on the ground that the marriage is voidable, and shall state the nature of the defect in the marriage.

Petition to state domicile at time of marriage.

47. In a petition for a decree of nullity of marriage, if the domicile of either of the parties immediately before the marriage is relevant to the determination of the proceedings, the petition shall state that domicile.

Petition for nullity— voidable marriage.

48.—(1.) In a petition for a decree of nullity of marriage on the ground that a marriage is voidable by virtue of paragraph (b), (c) or (d) of sub-section (1.) of section 21 of the Act, the date on which the petitioner discovered the existence of the facts constituting the ground and the date on which marital intercourse last took place with the consent of the petitioner shall be stated in addition to any other facts stated in pursuance of paragraph (g) of rule 28 of these Rules.

(2.) A petition instituting proceedings for a decree of nullity of marriage on a ground referred to in the last preceding sub-rule shall contain a statement that the petitioner was, at the time of the marriage, ignorant of the facts constituting the ground.

Arrangements for welfare of children.

49. Rule 41 of these Rules applies in relation to a petition for a decree of nullity of a voidable marriage as if the references in that rule to a decree of dissolution of marriage were references to a decree of nullity of a voidable marriage.

Division 4.—Petitions for Judicial Separation.

Form of petition.

50. A petition for a decree of judicial separation shall be in accordance with Form 6.

Application of certain rules to petition for judicial separation.

51. Rules 40 and 44 of these Rules apply in relation to a petition for a decree of judicial separation as if the references to a petition for a decree of dissolution of marriage were references to a petition for a decree of judicial separation.

Division 5.—Petitions for Restitution of Conjugal Rights.

Form of petition.

52. A petition for a decree of restitution of conjugal rights shall be in accordance with Form 7.

Petition for restitution of conjugal rights.

53.—(1.) In a petition for a decree of restitution of conjugal rights—

shall be stated in the petition in addition to any other facts that are stated in the petition in pursuance of paragraph (g) of rule 28 of these Rules.

(2.) A petition for a decree of restitution of conjugal rights shall state—

Division 6.—Filing Petitions and Notices of Petitions.

Marriage certificate to be filed with petition.

54.—(1.) At the time when a petition for a decree of—

is filed, the petitioner shall, unless he is unable to do so, also file a marriage certificate in respect of the marriage to which the petition relates.

(2.) If the marriage certificate filed in accordance with the last preceding sub-rule is not written in the English language, a translation, in the English language, of the marriage certificate shall also be filed at the same time.

(3.) A translation of a marriage certificate filed under the last preceding sub-rule shall be verified as a translation by the person who made the translation by an affidavit in which he also states that he is competent to make a translation of the marriage certificate.

(4.) Where a petitioner is unable, for any reason, to comply with sub-rule (1.) of this rule, the petitioner shall state in the affidavit verifying the petition the circumstances by reason of which he is unable so to comply.

(5.) In this rule, “marriage certificate”, in relation to a marriage, whether solemnized in Australia or elsewhere, means—

Notice of petition or of proceedings.

55.—(1.) A notice of petition or notice of proceedings which, under these Rules, a petitioner or respondent is required to serve on another person shall be a notice signed by the registrar of the court and sealed with the seal of the court and shall be in accordance with Form 8, Form 9 or Form 10 (whichever is appropriate).

(2.) Where a form of notice is properly presented to the registrar of the court by or on behalf of the petitioner or respondent and a copy of the form of notice is filed, the registrar shall sign and seal the form of notice for the purposes of this rule.

Time for answer or reply to be specified in notice of petition or notice of proceedings.

56. The time to be specified in a notice of petition or notice of proceedings as the time limited for the filing of an answer or reply, as the case requires, by a person entitled so to do is—

Notice of petition or of proceedings in force for twelve months.

57.—(1.) Subject to this rule, a notice of petition or a notice of proceedings, in relation to a petition or answer, remains in force, for the purposes of service, until the expiration of twelve months from the day on which the petition or answer was filed.

(2.) The registrar of the court may, upon being satisfied that it is reasonable so to do, grant an extension of the time within which the notice may be served until a date twelve months after the expiration of that period, or of that period as previously extended.

(3.) A registrar may grant an extension of the time within which a notice may be served notwithstanding that the notice has ceased to be in force and notwithstanding that the time has previously been extended.

(4.) Where a registrar grants an extension of the time within which a notice may be served, he shall write on the notice, and on the copy of the notice that was filed in pursuance of sub-rule (2.) of rule 55 of these Rules, particulars of the extension, sign his name under those particulars and seal the particulars with the seal of the court.

(5.) In this rule—

Lost notice.

58.—(1.) Where a notice of petition or notice of proceedings addressed to a person and signed by a registrar has been lost without having been served, the registrar of the court may, upon being satisfied of the loss, sign and seal another notice in lieu of the lost notice.

(2.) A notice of petition or notice of proceedings signed in pursuance of the last preceding sub-rule shall state the last day of the period for which it remains in force.

Concurrent notices.

59.—(1.) A petitioner or respondent may, at the time of, or at any time within twelve months after, the filing of a petition or answer, procure the issue of a concurrent notice of petition or a concurrent notice of proceedings, or of more than one such concurrent notices, addressed to a person to whom an original notice of petition or notice of proceedings was addressed.

(2.) A concurrent notice of petition or notice of proceedings shall bear teste of the same day as the original notice of petition or notice of proceedings and shall be stamped with a stamp bearing the word “concurrent” and the date of issuing the concurrent notice.

(3.) The provisions of rules 56, 57 and 58 of these Rules apply to and in relation to concurrent notices in like manner as they apply to and in relation to original notices.

PART VI.—SERVICE.

Division 1.—General Provisions relating to Service of Documents.

Manner of service.

60. Where service of a document is required by these Rules to be effected on a person, service may, subject to the provisions of these Rules that limit the methods of service of particular classes of documents, be effected, either in or outside Australia—

Personal service.

61.—(1.) Subject to the next succeeding sub-rule, service of a document on a person by delivering it to him personally shall not be effected by the party to proceedings on whose behalf the document is being served but may be effected by another person in the presence of that party.

(2.) Where it is impracticable for service of a document on a person by delivering it to him personally to be effected by a person other than the party to the proceedings on whose behalf the document is being served, that party may effect service of the document on the person in that manner but, in such a case, he shall state in any affidavit of the service of the document sworn by him the circumstances that rendered it impracticable for another person to effect the service.

(3.) Where service of a document on a person by delivering it to him personally is effected by the party on whose behalf the document is being served, that party shall obtain from the person a receipt for the document signed by the person unless the person refuses to sign and give a receipt for the document, and that party shall, in any affidavit of the service of the document sworn by him, state whether the person signed or refused to sign a receipt for the document.

Service by post.

62.—(1.) For the purpose of paragraph (b) of rule 60 of these Rules, service of a document on a person shall be effected by properly addressing and posting (under prepaid postage) the document, together with—

as a letter, to the person at the last address of the person known to the person on whose behalf the document is being served.

(2.) Subject to the next succeeding sub-rule, where a document has been posted to a person in accordance with the provisions of the last preceding sub-rule, service of the document on the person shall be deemed not to have been effected unless the person signs and returns to the person on whose behalf the document is being served or to his solicitor an acknowledgment of the service in accordance with Form 11.

(3.) Where a document instituting proceedings has been posted to a person in accordance with the provisions of sub-rule (1.) of this rule, service of the document shall be deemed to have been duly effected on the person if, after the time when the document would in the ordinary course of post have been received by the person, the person files a document giving an address for service for the purpose of the proceedings.

(4.) Where service of a document has been effected by posting the document to a person in accordance with the provisions of sub-rule (1.) of this rule, the date on which the person received the document shall be taken to be the date on which the service was effected.

When service effected if posted to address for service, &c.

63. Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 60 of these Rules by posting the document to the person or to his solicitor, service of the document shall, unless the contrary is proved, be deemed to have been effected on the person at the time when the letter containing the document would, in the ordinary course of post, be delivered at the address to which it is posted.

Service in Convention countries.

64.—(1.) This rule applies, subject to the provisions of the relevant Convention, in relation to service of a document in a country that is a party to a Convention, extending to the Commonwealth, regarding Legal Proceedings in Civil and Commercial Matters.

(2.) Where, under a Convention referred to in the last preceding sub-rule, service of a document relating to proceedings is not to be effected in the country otherwise than in accordance with the Convention, service of such a document in the country shall not be effected otherwise than in accordance with this rule.

(3.) Where a party to proceedings who desires to effect service of a document relating to the proceedings on a person in a country referred to in sub-rule (1.) of this rule files a request for service of the document, in accordance with Form 12, and deposits with the registrar of the court in which the proceedings are pending the documents required by the next succeeding sub-rule to be deposited, the registrar shall forward the documents so deposited direct to the Secretary for transmission to that country for service.

(4.) Subject to the next succeeding sub-rule, the documents to be deposited under the last preceding sub-rule are—

and

(5.) Where the request indicates that the document is to be forwarded to a diplomatic or consular representative of Australia or a diplomatic or consular representative of the United Kingdom for service on a British subject, it is not necessary, unless the Convention provides otherwise, for a translation and a copy of the translation to be deposited under sub-rule (3.) of this rule.

(6.) Subject to the next succeeding sub-rule, a request referred to in sub-rule (3.) of this rule shall state whether the party on whose behalf the request is filed desires the document to be forwarded, for service, to—

(7.) A document, a translation of a document or a copy of a document shall, before being forwarded to the Secretary in accordance with sub-rule (3.) of this rule, be sealed with the seal of the court.

(8.) Where a registrar has received a certificate, transmitted through diplomatic channels, by a diplomatic or consular representative of Australia, a diplomatic or consular representative of the United Kingdom or a judicial authority in a country referred to in sub-rule (1.) of this rule certifying that a document has been served on a person on a date specified in the certificate, the certificate may be filed and, subject to the next succeeding sub-rule, is then evidence of the matters stated in the certificate.

(9.) A certificate referred to in the last preceding sub-rule is not evidence that a document has been served on a person personally unless it also certifies the means by which the person who served the document identified the person served.

(10.) In this rule—

Substituted service.

65.—(1.) Where a registrar, upon application made ex parte by a party to proceedings for an order under this rule, is satisfied—

the registrar may order that service of the document be effected in a manner specified in the order or that the giving of notice of the document and of its effect by advertisement or otherwise, as specified in the order, be substituted for service of the document.

(2.) Where an order has been made by the court or by a registrar authorizing the giving of notice of a document by advertisement, the form of the advertisement shall be approved by a registrar.

(3.) Where an order of a kind referred to in sub-rule (1.) of this rule has been made by the court or by a registrar in relation to service of a document on a person, compliance with the order shall, notwithstanding any other provision of these Rules, be deemed to be due service of the document on the person.

Division 2.—Service of Petitions and Answers.

Service of petitions.

66.—(1.) Subject to these Rules, a petitioner shall cause service of the petition to be effected on—

(2.) Service of a petition shall be effected on a person—

Service of answer.

67.—(1.) Subject to these Rules, a person on whose behalf an answer to a petition is filed shall cause service of the answer to be effected on—

(2.) Service of an answer to a petition shall be effected on a party to proceedings referred to in paragraph (a) of the last preceding sub-rule by serving, on the day on which the answer is filed or on the next following day, a copy of the answer on the person in a manner referred to in paragraph (c) of rule 60 of these Rules.

(3.) Service of an answer to a petition shall be effected on a person referred to in paragraph (b) of sub-rule (1.) of this rule—

(4.) Where a party to proceedings instituted by a petition files an address for service for the purpose of the proceedings on or after the day on which an answer to the petition is filed by another party to the proceedings, the party who filed the answer shall, upon request made by the first-mentioned party, cause service of a copy of the answer to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on the first-mentioned party on the day on which the request is made or on the next following day.

Stale petitions and answers.

68.—(1.) Service of a petition on a person is of no force and effect unless the notice of petition or notice of proceedings addressed to the person was in force, for the purposes of service, on the day on which service of the petition was effected.

(2.) Where, under these Rules, service of an answer on a person is required to be effected by serving on the person a notice of proceedings addressed to the person in addition to a sealed copy of the answer, service of the answer on the person is of no force and effect unless the notice of proceedings addressed to the person was in force, for the purposes of service, on the day on which service of the answer was effected.

Division 3.—Service on Infants and Persons of Unsound Mind.

Service of petition, &c., on infant.

69.—(1.) Subject to this rule, service of a petition on an infant shall be effected by—

(2.) Service of a sealed copy of a petition—

is not sufficient compliance with paragraph (b) of the last preceding sub-rule.

(3.) Where a registrar is satisfied that, for any reason, a petitioner would otherwise be unable to comply with paragraph (b) of sub-rule (1.) of this rule, the registrar may, by order, specify a person who, in the opinion of the registrar, is a proper person to advise the infant in connexion with the proceedings instituted by the petition as the person on whom a sealed copy of the petition may be served for the purpose of complying with that paragraph.

(4.) Where a registrar is satisfied that, having regard to the age and understanding of the infant, it is proper so to do, the registrar may, by order, dispense with compliance with paragraph (b) of sub-rule (1.) of this rule.

(5.) An application for an order under sub-rule (3.) or (4.) of this rule may be made ex parte.

(6.) The preceding sub-rules of this rule apply in relation to service of an answer on an infant who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if—

(7.) In this rule—

“answer” includes supplementary answer;

“petition” includes supplementary petition.

Service of petition, &c., on person of unsound mind.

70.—(1.) Unless the court or registrar otherwise orders, service of a petition shall be effected on a person of unsound mind by serving, in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules, a sealed copy of the petition and a notice of petition or notice of proceedings, as the case requires—

(2.) Service of a petition shall be deemed not to have been effected on a person of unsound mind in accordance with the last preceding sub-rule—

(3.) For the purposes of sub-rule (1.) of this rule, a person of unsound mind who is a patient in an institution shall be deemed to be in the care of the superintendent or other person in direct charge of the institution.

(4.) The preceding sub-rules of this rule apply to the service of an answer on a person of unsound mind who is specified in the answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy as if—

(5.) In this rule—

Division 4.—Proof of Service.

Proof of personal service of document.

71.—(1.) Subject to the next succeeding sub-rule, where service of a document is effected on a person in the manner referred to in paragraph (a) of rule 60 of these Rules, the due service of the document shall be deemed not to have been proved by affidavit unless the person who delivered the document to the person to be served states in an affidavit—

(2.) Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (a) of rule 60 of these Rules and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, the due service of the document shall be deemed not to have been proved by affidavit unless—

(3.) An affidavit of service of a document on a person personally shall be in accordance with Form 13.

Proof of service of document by post.

72.—(1.) Subject to the next succeeding sub-rule, where service of a document is effected on a person in the manner referred to in paragraph (b) of rule 60 of these Rules, the due service of the document shall be deemed not to have been proved by affidavit unless a person to whom an acknowledgment of service of the document was returned, being an acknowledgment that purports to be signed by the person to be served with the document, has deposed, in an affidavit to which the acknowledgment is annexed, to the manner in which the acknowledgment was returned to him.

(2.) Where service of a document, being a petition or answer, is effected on a person, being the respondent or the petitioner, as the case may be, in the manner referred to in paragraph (b) of rule 60 of these Rules and proof of the due service of the document is required at the trial of proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, the due service of the document shall be deemed not to have been proved by affidavit unless—

(3.) The signature appearing on an acknowledgment shall not, for the purposes of paragraph (b) of the last preceding sub-rule, be verified by the party to proceedings on whose behalf the document was served unless—

Proof of service by posting document to an address.

73. Where service of a document is effected on a person in accordance with paragraph (c) or (d) of rule 60 of these Rules by posting the document to the person or to his solicitor, the due service of the document shall be deemed not to have been proved by affidavit unless—

Proof of service of document by advertisement.

74.—(1.) Where, in pursuance of an order of the court or of a registrar under these Rules, an advertisement is published in the Gazette, in the government gazette of a State or Territory or in a newspaper, the person who obtained the order may deposit, in the proper office of the court, a copy of the page of the Gazette, government gazette or newspaper containing the advertisement.

(2.) Where the page of a copy of the Gazette, government gazette or newspaper containing the advertisement is deposited under the last preceding sub-rule, the registrar of the court shall cause the advertisement to be cut out of the page and annexed to a memorandum, in accordance with Form 14, referring to, and giving the date of publication of, the advertisement.

4515/60.—2

(3.) A memorandum referred to in the last preceding sub-rule shall be filed by the registrar and is evidence that the advertisement, a copy of which is annexed to the memorandum, was published in the Gazette, government gazette or newspaper specified in the memorandum on the date specified in the memorandum.

Affidavits of service.

75. Where a person states in an affidavit that he delivered or posted a copy of an application or a notice of hearing to a person, another copy of the application or notice shall be annexed to the affidavit.

PART VII.—PLEADINGS.

Division 1.—Answers.

Answer.

76.—(1.) The respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, may, by filing an answer—

being a fact material to proceedings, instituted by the petition, to which he is a party or in which he is entitled to intervene under sub-section (2.) of section 45 of the Act or under Part IX. of these Rules.

(2.) Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that it should dismiss the proceedings, he shall, in an answer filed for the purpose, ask the court to dismiss the proceedings.

(3.) Where the respondent or a co-respondent in proceedings instituted by petition, or a person named in a petition, desires to submit to the court that, if it makes an order in favour of the petitioner, that order should be different from the order sought by the petitioner, he shall, in an answer filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of the petitioner.

(4.) An answer shall be in accordance with Form 15 and shall be filed within the time limited by the notice of petition or notice of proceedings addressed to the person filing the answer.

(5.) Where an answer to a petition contains an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, the answer shall state the address and occupation, so far as known to the respondent, of that person.

(6.) Where the address, at the date of the answer, of a person referred to in the last preceding sub-rule is not known to the party filing the answer, the answer shall state that the address is not known to that party and also state the last address (if any) of the person known to that party.

Answer seeking dissolution, &c., of marriage.

77.—(1.) This rule applies to an answer by which a respondent to a petition institutes proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause”.

(2.) An answer to which this rule applies shall state that the respondent is, within the meaning of the Act, domiciled or resident, as the case may be, in Australia, and, if the respondent relies, for the purpose of establishing his domicile or residence in Australia, on any facts other than facts included in the petition, the answer, shall state those other facts.

(3.) The facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought in proceedings instituted by an answer to which this rule applies shall be stated in the answer in as concise a form as the nature of the case allows.

(4.) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in paragraphs (a) to (k), inclusive, of section 28 of the Act shall contain—

(5.) An answer instituting proceedings for a decree of dissolution of marriage or of judicial separation shall contain a statement that, in bringing the proceedings, the respondent has not been guilty of collusion with intent to cause a perversion of justice.

(6.) The provision of rules 36, 40, 41, 42, 44 and 53 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of dissolution of marriage or of restitution of conjugal rights, as if—

(7.) The provisions of rules 36, 41, 46, 47 and 48 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by which the respondent to a petition is seeking a decree of nullity of marriage, as if—

(8.) The provisions of rules 36, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to an answer to which this rule applies, being an answer by

which the respondent to a petition is seeking a decree of judicial separation, as if—

Answer under protest.

78.—(1.) A respondent or co-respondent to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined shall file an answer under protest, in accordance with Form 16, objecting to the jurisdiction of that court.

(2.) An answer under protest shall state the grounds on which the respondent or co-respondent objects to the jurisdiction of the court.

(3.) Where an answer under protest has been duly served, the party filing the answer may, within fourteen days after the day on which the answer is filed, file an application to the court for directions as to the time and place at which the objection is to be determined by the court.

(4.) It is not necessary for an application referred to in the last preceding sub-rule to be supported by an affidavit.

(5.) Upon the hearing of an application referred to in sub-rule (3.) of this rule, the court may also give directions as to whether disputed questions of fact are to be determined upon evidence given orally or upon evidence given by affidavit.

(6.) Where the party filing an answer under protest does not file the application referred to in sub-rule (3.) of this rule within the time limited by that sub-rule, the party shall be deemed to have waived the objection.

(7.) A petitioner in proceedings shall not, after an answer under protest has been filed and service of the answer has been effected on him, continue the proceedings against the party who filed the answer unless the court has overruled the objection to its jurisdiction or the party filing the answer under protest has waived the objection.

(8.) Where a court has overruled an objection to its jurisdiction, the party who filed the answer under protest may, within such time as the court allows, file a further answer to the petition.

Division 2.—Replies and Rejoinders.

Reply.

79.—(1.) Where an answer to a petition contains any allegation of fact, the petitioner may, by filing a reply—

(2.) A party cited or a person named in an answer may, by filing a reply—

being a fact material to proceedings, instituted by the answer, to which he is a party or in which he is entitled to intervene under sub-section (2.) of section 45 of the Act or under Part IX. of these Rules.

(3.) Where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that it should dismiss the proceedings, he shall, in a reply filed for the purpose, ask the court to dismiss the proceedings.

(4.) Where proceedings have been instituted by an answer to a petition and the petitioner, a party cited or a person named in the answer desires to submit to the court that, if it makes an order in favour of the party who filed the answer, that order should be different from the order sought by that party, he shall, in a reply filed for the purpose, set out particulars of the order that, in his submission, the court should make if it makes an order in favour of that party.

(5.) A reply shall be in accordance with Form 17.

(6.) The time limited for filing a reply to an answer is—

Reply under protest.

80.—(1.) A petitioner who desires to have the jurisdiction of the court to hear any proceedings instituted by an answer to the petition determined, or a party cited in an answer to a petition who desires to have the jurisdiction of the court to which the petition is addressed determined, shall file a reply under protest, in accordance with Form 18, objecting to the jurisdiction of that court.

(2.) A reply under protest shall set forth the grounds on which the petitioner or party cited objects to the jurisdiction of the court.

(3.) Sub-rules (3.) to (8.), inclusive, of rule 78 of these Rules apply in relation to a reply under protest as if—

Rejoinder.

81.—(1.) Where a reply contains any allegation of fact, the party who filed the answer in relation to which the reply was pleaded may, by filing a rejoinder—

(2.) The time limited for filing a rejoinder by a party is fourteen days after service of the reply on the party.

Farther rejoinder.

82.—(1.) Where a rejoinder or further rejoinder (in this rule called “the pleading”) contains any allegation of fact, the party who filed the reply, rejoinder or further rejoinder in relation to which the pleading was pleaded may, by filing a further rejoinder—

(2.) The time limited for filing a further rejoinder by a party is fourteen days after service on the party of the pleading to which it is pleaded.

Division 3.—Pleadings Generally.

Definition.

83. In this Division, unless the contrary intention appears, “pleading” means an answer, reply, rejoinder or further rejoinder.

When allegations in pleadings deemed to be admitted.

84. Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings does not, in a pleading filed by him—

the person shall be deemed to have admitted the truth of the fact for the purpose of the proceedings.

Date and signature of pleading.

85.—(1.) A pleading shall bear date the day on which it is filed.

(2.) Where a pleading is settled by counsel, the name of the counsel shall be written on the pleading.

(3.) A pleading shall be signed—

Affidavit verifying pleading.

86.—(1.) The party filing a pleading shall, by an affidavit written on his pleading and sworn within twenty-one days before his pleading is filed—

(2.) Sub-rules (2.) and (3.) of rule 38 of these Rules apply in relation to an affidavit verifying a pleading as if references to a petition and a petitioner were references to a pleading and a party filing a pleading, respectively.

(3.) Where the party filing a pleading states in the pleading that he does not know and cannot admit the truth of a particular fact, the party shall, in his affidavit verifying the pleading, state that he does not know and cannot admit the truth of the fact.

Service of pleading.

87.—(1.) A party who files a pleading for the purpose of proceedings shall cause service of a copy of the pleading to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on each other party to the proceedings who has, at the day on which the pleading is filed, an address for service for the purpose of the proceedings.

(2.) For the purpose of the last preceding sub-rule, a copy of a pleading shall be so served on the day on which the pleading is filed or on the next following day.

(3.) Where a party files an address for service for the purpose of proceedings on or after the day on which a pleading is filed, the party who filed the pleading shall, upon request made by that first-mentioned party, cause service of a copy of the pleading to be effected in a manner referred to in paragraph (c) of rule 60 of these Rules on that first-mentioned party on the day on which the request is made or on the next following day.

(4.) This rule does not apply in relation to service of an answer to a petition.

Division 4.—Discontinuance.

Withdrawal of pleading.

88.—(1.) Subject to the next succeeding sub-rule, a party to proceedings on whose behalf a pleading has been filed may withdraw the pleading by filing a notice in accordance with Form 19 and causing service of a copy of the notice to be effected, in a manner referred to in paragraph (c) of rule 60 of these Rules, on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(2.) Where an order pending the disposal of proceedings instituted by a petition is in force, the petition shall not be withdrawn under the last preceding sub-rule except by leave of the court.

(3.) Where a petitioner withdraws his petition, the proceedings instituted by the petition, and any proceedings instituted in relation to those proceedings, are discontinued but the discontinuance of those proceedings does not affect the continuance of—

(4.) Where a party to proceedings withdraws a pleading other than a petition, the proceedings, other than any proceedings instituted by that pleading, may be continued as if the party had never filed the pleading.

(5.) Where a party to proceedings withdraws a pleading, any other party to the proceedings who has filed a pleading for the purpose of the proceedings may make application to the court in which the proceedings are or were pending for an order as to the costs occasioned by the pleading and the withdrawal.

PART VIII.—AMENDMENT OF PLEADINGS, SUPPLEMENTARY PETITIONS AND SUPPLEMENTARY ANSWERS.

Division 1.—Amendment of Pleadings.

Amendments that may be made.

89.—(1.) Subject to this rule, all such amendments may be made to a pleading as are made in accordance with the succeeding provisions of this Division and are necessary for the purpose of determining the real questions in controversy between the parties.

(2.) An amendment shall not be made to a petition or answer if the amendment would have the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause”.

(3.) A party to a marriage shall not, by amending a pleading filed by him in connexion with proceedings, seek a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” upon a ground arising after the date on which the pleading was filed.

Amendment before service.

90. A petition may be amended by the petitioner if it has not been served on a party to the proceedings or on a person named in the petition.

Amendment after service.

91.—(1.) Subject to the next succeeding sub-rule, where a pleading filed on behalf of a party to proceedings has been served on another party to the proceedings, or on a person on whom service of the pleading is required by these Rules to be effected although the person is not a party to the proceedings, the pleading may be amended by the party who filed it—

(2.) Except by leave of the court, a pleading in any proceedings shall not be amended after—

or

(3.) Where a court or registrar gives leave to amend a pleading, the court or registrar may also, by order—

 (i) amend a pleading already filed by him in reply to the pleading; or

(ii) file a pleading in reply to the amended pleading,

(4.) Where the court or registrar gives a party leave to amend a pleading, the party may cause the pleading to be amended accordingly within seven days after the leave was given.

(5.) Where service of an amended pleading is to be effected on a party who has an address for service for the purpose of the proceedings, the service shall be effected on the day on which the pleading is amended or on the next following day.

Verification of amendment.

92.—(1). An amendment shall not be made to a pleading so as to alter a fact alleged in the pleading or to include an additional fact in the pleading unless the party on whose behalf the pleading was filed has filed an affidavit—

(2.) An amendment shall not be made to a petition or answer so as to allege additional facts that constitute a ground for a decree of dissolution of marriage or of judicial separation specified in any of paragraphs (a) to (k), inclusive, of section 28 of the Act and to seek such a decree on that ground, unless the party who filed the petition or answer has filed an affidavit in which the party—

(3.) A party shall be deemed to have complied with the requirements of the preceding provisions of this rule if the matters required by those provisions to be included in an affidavit are included in an affidavit by the party in support of an application for leave to amend the pleading.

Notice of application for leave to amend.

93.—(1.) Subject to this rule, where application is made for leave to amend a pleading filed for the purpose of proceedings, the applicant shall cause service of the application to be effected on each other party to the proceedings who has an address for service for the purpose of the proceedings.

(2.) The last preceding sub-rule does not apply to an application that is made to the court upon the trial of the proceedings for the purpose of which the pleading was filed.

(3.) An application to amend a pleading may be made ex parte if no party, other than the party who filed the pleading, has an address for service.

Method of amending pleading.

94.—(1.) A pleading shall be amended by writing the alterations or additions on the pleading in red ink or in such other manner as will distinguish the alterations or additions from the original pleading or from any previous amendment.

(2.) Where a pleading is amended by a party by leave of a court or registrar, the solicitor for the party or, if the party is not represented by a solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which leave to amend the pleading was given and the date on which the amendment is made to the pleading, in accordance with the following form:—

(3.) Where a pleading is amended by a party without the leave of a court or registrar, the solicitor for the party or, if the party is not represented by a solicitor, the party shall write at the top of the front page of the pleading, in red ink, particulars of the date on which the amendment is made to the pleading, in accordance with the following form:—

“Amended this day of   , 19 ,

in pursuance of rule 90 (or 91 (1.) (a)).”.

(4.) A solicitor or party writing on a pleading the particulars required by either of the last two preceding sub-rules shall sign his name immediately under those particulars and shall forthwith inform the registrar of the nature of the amendments made by him to the pleading.

(5.) Where the amendments made to a pleading are so numerous or of such a nature that the pleading is difficult or inconvenient to read or where the making of amendments to a pleading in the manner provided by sub-rule (1.) of this rule would make the pleading difficult or inconvenient to read, the party making the amendments—

(a) if the registrar so requests—shall; or

(b) in any other case—may,

file a copy of the pleading as amended.

(6.) Compliance with sub-rule (1.) of this rule is not necessary if, before a party writes the alterations or additions on the pleading in accordance with that sub-rule, the party files a copy of the pleading as amended, but every copy of the pleading as amended shall bear the notation referred to in sub-rule (2.) or (3.), as the case may be, of this rule.

Amendment not effective until served.

95.—(1.) Where a pleading is amended before service of the pleading has been effected on a person on whom service of the pleading is, by these Rules, required to be effected, service on the person of the pleading otherwise than as so amended is not due service for the purpose of these Rules.

(2.) Subject to these Rules and to any order made under sub-rule (3.) of rule 91 of these Rules, where a pleading is amended after service of the pleading has been effected on a person, service of the amended pleading on the person shall be effected—

(3.) Where a petition is amended by adding an allegation that the respondent has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the petition has been effected, or where an answer is amended by adding an allegation that the petitioner has committed adultery, rape or sodomy with or on a specified person, not being a person on whom service of the answer has been effected, service of a sealed copy of the amended petition or amended answer shall be effected on the person in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.

(4.) These Rules apply in relation to service of a sealed copy of an amended petition or an amended answer on a person referred to in the last preceding sub-rule in like manner as they apply in relation to service of a sealed copy of a petition or answer on the person.

Pleading to amended pleading.

96. Where a pleading has been amended, a person on whom service of a copy of the amended pleading has been effected shall not file a pleading in reply to the first-mentioned pleading but may file a pleading in reply to the amended pleading and, for the purposes of these Rules, the time limited for filing a pleading in reply to the amended pleading commences from the day on which service of the amended pleading was effected on the person.

Consequential amendment of subsequent pleading.

97.—(1.) Where a pleading is amended after a pleading (in this rule called “the subsequent pleading”) has been filed in reply to that pleading, the party who filed the subsequent pleading may, within ten days after the day on which service of the amended pleading was effected on him or within such other time as is specified in an order under sub-rule (3.) of rule 91 of these Rules, amend the subsequent pleading in such manner as he considers desirable.

(2.) An amendment of the subsequent pleading in accordance with the last preceding sub-rule may be made without the leave of the court or a registrar and does not count as an amendment for the purposes of sub-rule (1.) of rule 91 of these Rules but the other provisions of this Division apply to and in relation to the amendment.

Division 2.—Supplementary Petitions and Supplementary Answers.

Supplementary petitions and supplementary answers.

98.—(1.) Where a ground upon which a petitioner or respondent may seek a decree of dissolution of marriage or judicial separation arises after the petition was filed by the petitioner or an answer was filed by the respondent, as the case may be, the petitioner may, by filing a supplementary petition, or the respondent may, by filing a supplementary answer, as the case may be, seek appropriate relief of a kind referred to in paragraph (a) of the definition of “matrimonial cause”.

(2.) A supplementary petition shall be in accordance with Form 20.

(3.) A supplementary answer shall be in accordance with Form 21.

Contents of supplementary petition.

99.—(1.) In a supplementary petition, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary petition shall be stated in as concise a form as the nature of the case allows.

(2.) A supplementary petition shall state the address and occupation, so far as known to the petitioner, of any person specified in the supplementary petition as a person with or on whom the respondent is alleged to have committed adultery, rape or sodomy.

(3.) Where the address, at the date of the supplementary petition, of a person referred to in the last preceding sub-rule is not known to the petitioner, the supplementary petition shall state that the address is not known to the petitioner and also state the last address (if any) of the person known to the petitioner.

(4.) Subject to sub-rule (6.) of this rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40, 41, 42 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of dissolution of marriage as if references in those provisions to a petition were references to a supplementary petition.

(5.) Subject to the next succeeding sub-rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary petition for a decree of judicial separation as if, in those provisions, references to a petition were references to a supplementary petition and references to a petition for a decree of dissolution of marriage were references to a supplementary petition for a decree of judicial separation.

(6.) It is not necessary to include in a supplementary petition any matter that is included in the petition.

(7.) In this rule, “the petition” means the petition instituting the proceedings in relation to which the supplementary petition is filed.

Contents of supplementary answer.

100.—(1.) In a supplementary answer, the facts, but not the evidence by which the facts are to be proved, upon which the court will be asked to make the decree sought by the supplementary answer shall be stated in as concise a form as the nature of the case allows.

(2.) A supplementary answer shall state the address and occupation, so far as known to the respondent, of any person specified in the supplementary answer as a person with or on whom the petitioner is alleged to have committed adultery, rape or sodomy.

(3.) Where the address, at the date of the supplementary answer, of a person referred to in the last preceding sub-rule is not known to the respondent, the supplementary answer shall state that the address is not known to the respondent and also state the last address (if any) of the person known to the respondent.

(4.) Subject to sub-rule (6.) of this rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40, 41, 42 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent is seeking a decree of dissolution of marriage as if—

(5.) Subject to the next succeeding sub-rule, the provisions of sub-rules (2.) and (3.) of rule 31 and of rules 37, 38, 40 and 44 of these Rules, in so far as they are applicable to the circumstances of the particular case, apply to and in relation to a supplementary answer by which the respondent to a petition is seeking a decree of judicial separation as if—

(6.) It is not necessary to include in a supplementary answer any matter that is included in the answer or the petition.

(7.) In this rule, “the answer” means the answer in the proceedings in relation to which the supplementary answer is filed and “the petition” means the petition in relation to which the answer is filed.

Condonation, connivance and collusion.

101.—(1.) A supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation upon a ground specified in any of paragraphs (a) to (k), inclusive, of section 28 of the Act or alleging facts relied on as constituting such a ground shall contain—

(2.) A supplementary petition instituting proceedings for a decree of dissolution of marriage or of judicial separation or alleging facts relied on as constituting a ground for the making of such a decree shall contain a statement that, in bringing the proceedings or alleging the facts, the petitioner has not been guilty of collusion with intent to cause a perversion of justice.

(3.) The preceding sub-rules of this rule apply in relation to a supplementary answer in like manner as they apply in relation to a supplementary petition and as if—

(a) references to the petitioner were references to the respondent; and

(b) references to a supplementary petition were references to a supplementary answer.

Particulars of other orders sought.

102.—(1.) Where a petitioner seeks—

the supplementary petition shall set out particulars of the award (including the amount of damages) or order sought.

(2.) Where a respondent seeks—

the supplementary answer shall set out particulars of the award (including the amount of damages) or order sought.

Service of supplementary petitions and supplementary answers.

103.—(1.) Subject to sub-section (2.) of section 121 of the Act, service of a supplementary petition shall be effected on—

(2.) Service of a supplementary petition shall be effected on a person who has an address for service by serving a sealed copy of the supplementary petition on the person in the manner referred to in paragraph (c) of rule 60 of these Rules.

(3.) Service of a supplementary petition shall be effected on a person who does not have an address for service—

(4.) The preceding provisions of this rule apply in relation to a supplementary answer as if—

Time for filing an answer to a supplementary petition or reply to a supplementary answer.

104.—(1.) The time limited for the filing of an answer to a supplementary petition is—

(2.) The time limited for the filing of a reply to a supplementary answer is—

Pleading to supplementary petition or supplementary answer.

105. For the purpose of Part VII., a supplementary petition shall be deemed to be a petition, and a supplementary answer shall be deemed to be an answer to a petition.

PART IX.—PARTIES.

Division 1.—General.

Certain persons not parties to proceedings.

106. Subject to me Act, to these Rules and to any order made by a court upon the trial of proceedings or by a registrar upon the hearing of an application to a registrar, a person named in the title to a document instituting procedings, or making an application to a registrar, is not a party to the proceedings or application unless he is affected by the proceedings or application notwithstanding that he may be a party to related proceedings by reason of which he is so named.

How certain persons named become parties.

107. Where a person is entitled to intervene in proceedings under sub-section (2.) of section 45 of the Act, the person may intervene in the proceedings by filing, within the time limited for doing so—

Allegation of adultery or sodomy with person unknown.

108.—(1.) Where the petitioner alleges, in a petition for a decree of dissolution of marriage or of judicial separation, that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition, the suit shall not be set down for trial unless the court has made an order dispensing with the naming of the person.

(2.) The petitioner shall make application for an order under the last preceding sub-rule after service of the petition has been effected on the respondent or after such service has been dispensed with under sub-section (2.) of section 121 of the Act.

(3.) The affidavit in support of an application for an order under sub-rule (1.) of this rule shall state particulars of any enquiries made by the petitioner for the purpose of ascertaining the name of the person.

(4.) Service of an application for an order under sub-rule (1.) of this rule shall be effected on the respondent unless the court has dispensed with service of the petition on the respondent.

(5.) In this rule, “suit” has the same meaning as in Part XI. of these Rules.

(6.) The preceding sub-rules of this rule apply to and in relation to proceedings in which the respondent alleges, in an answer to a petition, that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer as if—

Amendment when name of adulterer, &c., becomes known.

109.—(1.) Where a petitioner who has, in a petition for a decree of dissolution of marriage or of judicial separation, alleged that the respondent has committed adultery or sodomy with or on a person whose name is unknown to the petitioner at the time of filing the petition becomes aware of the name of the person at any time before the making of the decree in the proceedings, the petitioner shall amend the petition accordingly.

(2.) Where a petition is amended in pursuance of the last preceding sub-rule—

(3.) Where a respondent who has, in an answer to a petition, alleged that the petitioner has committed adultery or sodomy with or on a person whose name is unknown to the respondent at the time of filing the answer becomes aware of the name of the person at any time before the making of the decree in the proceedings in relation to which the answer was filed, the respondent shall amend the answer accordingly.

(4.) Where an answer is amended in pursuance of the last preceding sub-rule—

(5.) These Rules apply in relation to the service of an amended petition or an amended answer on the person to whom the amendment relates in like manner as they apply to the service of a petition or answer on a person.

(6.) An amendment of a petition or answer in pursuance of this rule—

(7.) Where a petition or answer is amended in pursuance of this rule, service of the amended petition or amended answer shall be effected on the respondent or petitioner, as the case may be, but need not be effected on any other person on whom service of the petition or answer, as the case may be, has been effected before it was so amended.

(8.) Subject to this rule, the provisions of Division 1 of Part VIII. apply to and in relation to an amendment made in pursuance of this rule.

Death of adulterer.

110.—(1.) Nothing in sub-section (1.) of section 45 of the Act requires a deceased person to be made a party to proceedings.

(2.) Where, in proceedings for a decree of dissolution of marriage or of judicial separation, a co-respondent, party cited or party named dies after the institution of the proceedings or the filing of the answer, as the case may be, but before the making of a decree in the proceedings, the petitioner shall

amend the petition, or the respondent shall amend the answer, by alleging in the petition or answer the death of the person and the date on which he died.

(3.) Where a petition or answer is amended in pursuance of the last preceding sub-rule to allege the death of a person who is, at the date of the amendment, a party to the proceedings, the person alleged to have died ceases to be a party to the proceedings and the title to the proceedings and record of the proceedings shall be deemed to have been amended accordingly.

(4.) An amendment of a petition or answer in pursuance of this rule—

and the provisions of Division 1 of Part VIII. do not apply to or in relation to the amendment.

(5.) A petitioner who amends a petition, or a respondent who amends an answer, in accordance with the provisions of this rule shall, as soon as possible after the amendment is made, inform the registrar of the nature of the amendment made by him to the petition or answer and also give notice of the amendment, including a copy of each amended paragraph or new paragraph in the petition or answer, to each party to the proceedings who has an address for service for the purpose of the proceedings.

(6.) Proceedings do not abate upon the death of a co-respondent, party cited or party named but the court shall not make a finding of adultery or sodomy, as the case may be, against such a party who has died.

Certain infants are not parties to proceedings.

111.—(1.) Where—

is alleged to have committed adultery with a specified person who, at the date of the petition or answer, is under the age of fourteen years, whether or not such a decree is sought on the ground of the adultery, the person shall not be made a party to the proceedings except in accordance with the next succeeding sub-rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.

(2.) A person under the age of fourteen years with whom a petitioner or respondent is alleged to have committed adultery may intervene in the proceedings by filing, within the time limited for doing so—

and shall then be deemed to have become a party to the proceedings.

(3.) In this rule—

Incest with infant.

112.—(1.) Where—

is alleged to have committed adultery, whether or not such a decree is sought on the ground of the adultery, with a person (in this rule referred to as “the infant”) who, at the date of the petition or answer, as the case may be, is under the age of twenty-one years and is, if the respondent or petitioner is a male person, a descendant or sister of, or a female child adopted by, the respondent or petitioner, as the case may be, or, if the respondent or petitioner is a female person, a descendant or brother of, or a male child adopted by, the respondent or petitioner, as the case may be, this rule applies to those proceedings.

(2.) Where this rule applies to proceedings, the infant shall not be made a party to the proceedings except in accordance with this rule, but service of the petition or answer, as the case may be, shall be duly effected on the infant.

(3.) Where this rule applies to proceedings by reason of the fact that an allegation referred to in sub-rule (1.) of this rule is included in a petition, the petitioner shall, before service of the petition on any person, make application to the court for leave to serve the petition notwithstanding that the infant is not a party to the proceedings.

(4.) Where this rule applies to proceedings by reason of the fact that an allegation referred to in sub-rule (1.) of this rule is included in an answer, the respondent shall, before service of the answer on any person, make application to the court for leave to serve the answer notwithstanding that the infant is not a party to the proceedings.

(5.) An application referred to in either of the last two preceding sub-rules may be made ex parte.

(6.) Upon application made to a court under sub-rule (3.) or (4.) of this rule, the court shall—

(7.) Where a court makes an order under the last preceding sub-rule, the court may also, by order, specify an adult person on whom service of the petition or answer may be effected, and, for the purpose of sub-rule (1.) of rule 69 of these Rules, service of the petition or answer on the person so specified shall be deemed to be service on a person referred to in paragraph (b) of that sub-rule.

(8.) Where, in proceedings to which this rule applies, a court has granted leave to serve a petition or answer notwithstanding that the infant is not a party to the proceedings, the infant may intervene in the proceedings by filing, within the time limited for doing so after service of the petition or answer on the infant, an answer to the petition or a reply to the answer, as the case requires.

(9.) Where a court has directed that the infant shall become a party to the proceedings, the petitioner shall amend the title of the petition or the respondent shall amend the title of the answer, accordingly, and the infant shall then be deemed to have been made a party to the proceedings.

(10.) For the purpose of sub-rule (1.) of this rule, it is immaterial whether the relationship is of the whole blood or half-blood, or whether it is traced through or to any person of illegitimate birth.

(11.) In this rule—

Division 2.—Infants.

Institution of proceedings by infants.

113.—(1.) Where an infant desires to institute proceedings in a matrimonial cause, a person may, on behalf of the infant, institute the proceedings.

(2.) Proceedings referred to in the last preceding sub-rule shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person instituting them has been elected or appointed to be the guardian ad litem of the infant for the purpose of the proceedings—

Infant respondents, &c.

114.—(1.) Subject to sub-rule (4.) of this rule, where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is an infant, a guardian ad litem may, on behalf of the infant, file an answer to the petition or, if he does not desire to file an answer but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

(2.) Subject to sub-rule (4.) of this rule, where a party cited in proceedings, or a person named in an answer, is an infant, a guardian ad litem may, on behalf of the infant, file a reply to the answer or, if he does not desire to file a reply but desires to take any other action in the proceedings on behalf of the infant, file a notice of address for service.

(3.) A guardian ad litem of an infant who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the infant as the guardian thinks fit and the infant might have taken if he had been of full age.

(4.) Where a co-respondent, party cited or person named is an infant, it is not necessary for a guardian ad litem to be elected or appointed in order that the infant may file an answer or reply or take any other action in relation to the proceedings, but the infant may file the answer or take the action either by his solicitor or in person.

Intervention by infant.

115. A guardian ad litem may apply for leave to intervene, and may intervene, under Part VII. of the Act, in proceedings on behalf of an infant.

Application of these Rules to infants.

116.—(1.) Where an infant is a party to proceedings, references in these Rules to an affidavit of the party shall, notwithstanding that a guardian ad litem of the infant has been elected or appointed, be read as references to an affidavit sworn by the infant,

(2.) The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by a party to proceedings who is an infant be sworn by the guardian ad litem of the infant.

Division 3.—Persons of Unsound Mind.

Definition.

117. In this Division, “committee” means committee of the person.

Institution of proceedings by persons of unsound mind.

118.—(1.) Proceedings in a matrimonial cause may be instituted on behalf of a person of unsound mind—

(2.) Where proceedings referred to in the last preceding sub-rule are instituted by a committee of a person of unsound mind, the committee shall be deemed, for the purpose of this Part, to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings.

(3.) Where proceedings referred to in sub-rule (1.) of this rule are instituted by a person referred to in paragraph (c) of that sub-rule, the proceedings shall, unless the court otherwise orders, be deemed to be void and of no effect unless the person has been appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings—

Respondents, &c, who are persons of unsound mind.

119.—(1.) Where the respondent or a co-respondent in proceedings instituted by a petition, or a person named in a petition, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file an answer to

the petition or, if he does not desire to file an answer but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

(2.) Where a party cited in proceedings, or a person named in an answer, is a person of unsound mind, a committee of the person of unsound mind or a guardian ad litem may, on behalf of the person of unsound mind, file a reply to the answer or, if he does not desire to file a reply but desires to take other action in the proceedings on behalf of the person of unsound mind, file a notice of address for service.

(3.) A committee of a person of unsound mind or a guardian ad litem of a person of unsound mind who has an address for service for the purpose of proceedings may take such further action in and in relation to the proceedings on behalf of the person as the committee or guardian thinks fit and the person might have taken if he had not been of unsound mind.

Intervention by person of unsound mind.

120. A committee or guardian ad litem of a person of unsound mind may apply for leave to intervene, and may intervene, under Part VII. of the Act in proceedings on behalf of the person of unsound mind.

Application of these Rules to persons of unsound mind.

121.—(1.) Where a person of unsound mind is a party to proceedings, references in these Rules to an affidavit of the party shall be read as references to an affidavit sworn by the guardian ad litem of the party, or by the person who is deemed, for the purpose of this Part, to be the guardian ad litem of the party, as the case may be.

(2.) The court may, in a particular case, order that an affidavit required by or under these Rules to be sworn by the guardian ad litem of a party to proceedings who is a person of unsound mind be sworn by the party.

Division 4.—Guardians ad litem.

Election of guardian by infant.

122.—(1.) Subject to the next succeeding sub-rule, an infant may, by signing an election in accordance with Form 22, elect his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings.

(2.) An election referred to in the last preceding sub-rule is not effective until it is filed.

(3.) An election referred to in sub-rule (1.) of this rule shall have written on it the consent of the father, mother or legal guardian, as the case may be, to act as guardian ad litem of the infant for the purpose of the proceedings.

Appointment of friend of infant as guardian ad litem.

123.—(1.) Where an infant desires some person other than his father, mother or legal guardian to be his guardian ad litem for the purpose of proceedings—

(2.) There shall be filed in support of an application for appointment as guardian ad litem of an infant—

(3.) The consent referred to in paragraph (a) of sub-rule (1.) of this rule shall be annexed to the affidavit of the applicant in support of the application, and the signature appearing on that consent shall be verified as the signature of the infant by the affidavit of a person (who may be the applicant) conversant with the signature of the infant.

(4.) An application under this rule may be made ex parte.

(5.) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to act as the guardian ad litem of the infant in the proceedings or proposed proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.

Attorney-General may act as guardian of person of unsound mind.

124.—(1.) Where the Attorney-General or an authorized person signs a consent, in accordance with Form 23, to act as the guardian ad litem of a party to proceedings or proposed proceedings who is detained in an institution where persons may be confined for unsoundness of mind in accordance with law or who is receiving treatment as a voluntary patient in such an institution, the consent may be filed and the Attorney-General or authorized person, as the case may be, then becomes the guardian ad litem of the person for the purpose of the proceedings or proposed proceedings.

(2.) A person desiring to intervene in proceedings shall be deemed, for the purpose of the last preceding sub-rule, to be a party to the proceedings notwithstanding that the person has not intervened in the proceedings.

(3.) The Governor-General may make arrangements with the Governor of a State for the performance of the functions of an authorized person under this rule by any of the persons who from time to time hold an office of the State specified in an arrangement.

(4.) The Attorney-General may, by writing under his hand, appoint a person (including a corporation sole) to be an authorized person for the purposes of this rule either generally or in respect of a particular person of unsound mind.

(5.) Notice—

shall be published in the Gazette.

Appointment of friend as guardian of person of unsound mind.

125.—(1.) Where—

a fit and proper person may apply to a registrar to be appointed the guardian ad litem of the party for that purpose.

(2.) In the last preceding sub-rule, a reference to a party to proceedings shall be read as including a reference to a person desiring to intervene in the proceedings.

(3.) There shall be filed in support of an application under this rule an affidavit by a credible person deposing to the fitness of the applicant to act as guardian ad litem of the person of unsound mind.

(4.) An application under this rule may be made ex parte.

(5.) Where, upon application made under this rule, the registrar is satisfied that the applicant is a fit and proper person to be appointed to be the guardian ad litem of the person of unsound mind for the purpose of the proceedings and that it is desirable that he be appointed so to act, the registrar shall appoint the applicant accordingly.

(6.) In this rule, “committee” means committee of the person.

Appointment of guardian in other circumstances.

126.—(1.) Where a person who is a party to proceedings or who desires to intervene in proceedings is an infant or a person of unsound mind, the court may, at any stage of the proceedings, if it considers it advisable so to do, appoint a fit and proper person to be the guardian ad litem of the person for that purpose.

(2.) An appointment under this rule may be made by the court upon application by another party to the proceedings, by a person willing and able to act as the guardian ad litem of the person or by the court of its own motion.

Appointment of Public Trustee to be guardian of persons of unsound mind.

127. A corporation sole authorized under the law of a State to be appointed, or to act as, the guardian ad litem or next friend of a person of unsound mind may make application under either of the last two preceding rules to be appointed, and may be appointed, to be the guardian ad litem of a person of unsound mind for the purpose of proceedings.

Removal of guardian ad litem.

128. The court may, subject to such conditions as the court thinks fit, remove a person from the office of guardian ad litem of an infant or person of unsound mind if—

Notice of appointment of guardian ad litem.

129.—(1.) Subject to sub-rule (4.) of this rule, a person who becomes the guardian ad litem of the respondent or a co-respondent in proceedings instituted by a petition, or of a person named in a petition, shall serve notice of the fact on the petitioner.

(2.) Subject to sub-rule (4.) of this rule, a person who becomes the guardian ad litem of a party cited in proceedings, or of a person named in an answer, shall serve notice of the fact on the petitioner and the respondent.

(3.) Notice that a person has become a guardian ad litem shall be served on the day on which the person becomes the guardian ad litem or on the next following day.

(4.) Where an order appointing a person to be a guardian ad litem is made upon the application of a party to proceedings, it is not necessary for the notice required by sub-rule (1.) or (2.) of this rule to be served on that party.

Solicitor acting as guardian.

130. Where a solicitor is the guardian ad litem of a party to proceedings, neither that solicitor nor a partner of that solicitor shall act in the proceedings as the solicitor for the party.

PART X.—DEFAULT IN PLEADING.

Effect of failure to file pleading within due time.

131.—(1.) Where a pleading is filed on behalf of a party to proceedings after the time limited for the filing of the pleading has expired, any other party to the proceedings may, subject to these Rules, continue the proceedings as if the pleading had not been filed unless—

(2.) Consent to the filing of a pleading after the expiration of the time limited for the filing of the pleading shall be endorsed on the pleading and signed—

Default of pleading by infant or person of unsound mind.

132.—(1.) Where—

the petitioner shall not continue the proceedings instituted by the petition, or institute in relation to those proceedings any proceedings of a kind referred to in paragraph (c) or (d) of the definition of “matrimonial cause”, unless—

(2.) Where—

the petitioner shall not continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” instituted by the petition unless—

(3.) Where—

neither the petitioner nor the respondent shall continue the proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” instituted by the petition, or proceedings (if any) for such a decree instituted by the answer, unless—

(4.) A petitioner or respondent shall not be deemed to continue proceedings for the purpose of any of the preceding sub-rules of this rule by reason of his—

(5.) In this rule—

Time for filing answer or reply by guardian.

133. Where a person becomes the guardian ad litem of an infant or person of unsound mind who is the respondent, a co-respondent or a party cited in proceedings, or desires to intervene in proceedings, the guardian ad litem has the like time, after he becomes the guardian ad litem, for filing an answer or reply, as the case requires, for the purpose of the proceedings as the infant or person of unsound mind had after service on him of the petition or answer in the proceedings.

PART XI.—PREPARATION FOR TRIAL.

Division 1.—Preliminary.

Definitions.

134. In this Part—

Application to persons of unsound mind.

135. Where a person of unsound mind is a party to proceedings, this Part applies as if references to the party were references to the guardian ad litem of the party.

Time when pleadings in a defended suit complete.

136.—(1.) Where the respondent or a co-respondent in a defended suit has filed an answer to the petition, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings between the petitioner and the respondent are complete and, in addition, the pleadings between the petitioner and each co-respondent (if any) are complete.

(2.) Where the respondent in a defended suit alleges, in an answer or supplementary answer to the petition, that the petitioner has committed adultery, rape or sodomy with or on a specified person, whether or not a decree of dissolution of marriage or of judicial separation is sought on the ground of the adultery, rape or sodomy, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings between the respondent and each such person are complete.

(3.) Where the petitioner in a defended suit has filed a supplementary petition, the pleadings shall not be deemed to be complete for the purposes of this Part unless the pleadings in relation to the petition are complete and, in addition, the pleadings in relation to the supplementary petition are complete.

(4.) For the purposes of this rule, the pleadings between two parties are complete—

Division 2.—Particulars, Discovery and Inspection of Documents.

Particulars.

137.—(1.) A person on whom service of a pleading has been effected, being a person who is a party to the proceedings for the purpose of which the pleading was filed or who is entitled to intervene in the proceedings under sub-section (2.) of section 45 of the Act or under rule 111 or 112 of these Rules, may serve on the party on whose behalf the pleading was filed a request to give further particulars of an allegation in the pleading.

(2.) A party on whom a request under the last preceding sub-rule is served shall, within ten days after service of the request on him, give to the person who served the request—

(3.) The court may, upon application made by a person who has served a request under sub-rule (1.) of this rule for further particulars of an allegation in a pleading or who is entitled to serve such a request, order the party on whose behalf the pleading was filed to give further particulars of an allegation in the pleading within a time specified in the order, and may further order—

(4.) Further particulars of an allegation in a pleading shall be given by a party, whether in pursuance of a request or of an order, by filing an affidavit to which a document containing the further particulars is annexed, being an affidavit by which the party—

Discovery.

138.—(1.) A party to proceedings who has filed a pleading for the purpose of the proceedings may, after the pleadings in the proceedings have been completed and before the proceedings have been set down for trial, serve on another party to the proceedings a request to make discovery on oath of the documents that are or have been in his possession, custody or power relating to any matter in question in the proceedings.

(2.) For the purposes of the last preceding sub-rule, a person who has intervened in proceedings under Part VII. of the Act shall be deemed to be a party to the proceedings who has filed a pleading for the purpose of the proceedings.

(3.) A request under this rule shall be in accordance with Form 24.

(4.) A party to proceedings on whom a request under this rule has been served shall make discovery of documents by filing an affidavit of discovery, and serving a copy of the affidavit on the party who made the request, within ten days after service of the request on him.

(5.) Upon application made to a court by a party to proceedings who has duly served a request under this rule or is entitled to serve such a request, the court may make such order for the filing of an affidavit of discovery as the court considers necessary in order to dispose fairly of the matters in question or to save costs in the proceedings.

(6.) Where the court makes an order under the last preceding sub-rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied—

(7.) Where an order has been made requiring a person to file an affidavit of discovery, the person shall, within ten days of the date of the order or within such other time as the court orders, file the affidavit and serve a copy of the affidavit on the applicant for the order.

Affidavit of discovery.

139.—(1.) Subject to any order made under the last preceding rule in a particular case, a party’s affidavit of discovery shall—

that is not specified in the affidavit.

(2.) In an affidavit of discovery it is not necessary to specify each letter from a person to another person, but it is sufficient to specify the number of letters from the person to the other person and the dates of the first such letter and last such letter, respectively.

(3.) Where the specifying in an affidavit of discovery of documents in respect of which privilege is claimed would derogate from the privilege attaching to documents, it is not necessary to specify each of the documents in the affidavit but it is sufficient if—

(4.) An affidavit of discovery shall be in accordance with Form 25.

Discovery of particular document.

140.—(1.) The court may, upon application made by a party to proceedings, order another party to make discovery, on oath, whether a document, or a document included in a class of documents, specified in the order is or has been in the possession, custody or power of the party and, if the document is not but has been in the possession, custody or power of the party, when the party parted with the document and to whom he gave the document.

(2.) An order shall not be made under the last preceding sub-rule unless the applicant for the order has, in an affidavit filed in support of the application, deposed that he believes that the party has, or has had, the document, or a document included in the class of documents, in his possession, custody or power and that the document relates to a matter in question in the proceedings, and has set forth in the affidavit the grounds on which he so believes.

(3.) An order may be made under sub-rule (1.) of this rule whether or not an affidavit of discovery has been filed by the party to whom the order is directed and whether or not that party has been requested or ordered under rule 138 of these Rules to file such an affidavit.

Failure to discover document.

141. Where—

the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.

Inspection of documents.

142.—(1.) Subject to the next succeeding sub-rule, a party to proceedings may, by notice in writing to another party, request the other party to produce, for inspection by the party giving the notice, a document specified in the notice, being a document that is referred to in a pleading or affidavit filed on behalf of that other party or in further particulars given by that party in pursuance of a request or order under rule 137 of these Rules.

(2.) A document referred to in an affidavit of discovery filed on behalf of a party shall not be specified in a notice given to the party under the last preceding sub-rule if, in the affidavit, the party—

(3.) A party to whom a notice under the last preceding rule has been given shall, within four days after receipt of the notice, specify, in writing to the party who gave the notice—

(4.) A document produced for inspection in pursuance of a notice under sub-rule (1.) of this rule may be inspected and copied by the party to whom it is produced or by his solicitor.

(5.) Where a party to proceedings to whom a notice to produce a document has been given under sub-rule (1.) of this rule fails to produce the document for inspection and copying, the party is not entitled, except by leave of the court, to put the document or a copy of the document in evidence, or to furnish or cause to be furnished evidence of the document, at the trial of the proceedings.

Order for production of documents generally.

143.—(1.) The court may, upon application made by a party to proceedings who has duly served a request under the last preceding rule or who is entitled to serve such a request, order another party to the proceedings to produce, at such time and place as the court thinks fit and specifies in the order, a document that was specified or could be specified in such a request.

(2.) Where the court makes an order for the production of a document by a party under the last preceding sub-rule, the court shall not make an order with respect to the costs of the application in favour of the applicant unless the court is satisfied that—

Order for production of particular documents.

144.—(1.) Where a court is satisfied that a document relevant to a matter in question in proceedings is in the possession, custody or power of a party to the proceedings and that the party is not excused by law from producing the document for inspection by another party, the court may order the first-mentioned party to produce the document, at a time and place specified in the order, for inspection by that other party.

(2.) An order under the last preceding sub-rule shall not be made in respect of a document that could be specified in a notice under rule 142 of these Rules.

Copies of certain books.

145.—(1.) Instead of ordering a party to proceedings to produce a book used for the purposes of trade or business, a court may order the party to furnish a copy of an entry in the book verified as a true copy of the entry by the affidavit of a person who has compared the copy with the entry of which it purports to be a copy.

(2.) Where an entry in a book contains an erasure, alteration or interlineation and a copy of the entry is furnished in pursuance of an order referred to in the last preceding sub-rule, the copy shall be deemed not to have been verified as a true copy of the entry unless particulars of the erasure, alteration or interlineation are clearly shown in the copy or set forth in the affidavit of the person who compared the copy with the entry of which it purports to be a copy.

(3.) An order for the production of a book may be made by a court notwithstanding that a copy of an entry in the book has been furnished in pursuance of an order of the court.

Privilege.

146.—(1.) A party to proceedings who is requested or ordered under these Rules to make discovery of documents or to produce documents is not excused from making discovery of or producing a particular document by reason only of the fact—

(2.) Where, upon application for an order for the production of documents, a respondent to the application claims that he is excused, by reason of privilege, from producing a particular document, the court may require the respondent to produce that document to the court, and the court may inspect the document for the purpose of determining whether the respondent is so excused.

Non-compliance with order for discovery, &c.

147. Where a party to proceedings fails to comply with an order to give particulars, to file an affidavit of discovery, to make discovery or to produce documents, the court may order that—

(a) if the party is the petitioner—the proceedings instituted by the petition be stayed or dismissed for want of prosecution;

(b) if the party is the respondent—any proceedings instituted by him by an answer to the petition, and any other proceedings instituted by him in relation to proceedings instituted by the petition, be stayed or dismissed for want of prosecution; or

(c) if the party is any other party—his answer or reply, as the case may be, be struck out.

Interrogatories.

148. An order shall not be made by a court or a registrar authorizing the delivery of interrogatories in writing for the examination of a person.

Division 3.—Admissions and Notices to Produce.

Admission of facts.

149.—(1.) A party to proceedings may file an admission of the truth of a fact alleged in the proceedings by another party.

(2.) Where a party files an admission under the last preceding sub-rule, a copy of the admission shall be served on each other party to the proceedings who has filed a pleading for the purpose of the proceedings.

Notice to admit documents.

150.—(1.) A party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice, in accordance with Form 26, served on another party to the proceedings, call upon that other party to make the admissions with respect to a document that are indicated in that form, and that other party may, by notice served on the first-mentioned party, make such of those admissions as he is willing to make.

(2.) If the other party desires to challenge the authenticity of the document, the party shall, within seven days after service on him of the notice to admit, serve on the party giving the notice a notice that he does not admit the document and requires it to be proved at the trial.

(3.) If the other party refuses or fails to serve notice under the last preceding sub-rule within the time prescribed by that sub-rule and fails to serve, before the trial of the proceedings, a notice under sub-rule (1.) of this rule, the party shall be deemed to have made the admissions indicated in the notice served on him, unless the court otherwise orders.

(4.) Where a party to proceedings does not admit a document after service on him of a notice under sub-rule (1.) of this rule, the costs of proving the document shall, unless the court certifies that the refusal to admit was reasonable, be payable by the party.

(5.) Where a notice to admit a document has not been given by a party to proceedings, the party is not entitled to the costs of proving the document unless the taxing officer is of the opinion that the omission to give the notice saved expense.

(6.) An admission made or deemed to have been made under this rule with respect to a document does not prevent the party who made or is deemed to have made the admission from objecting to the admission of the document in evidence on a ground that is not inconsistent with his admission.

Notice to admit facts.

151.—(1.) Subject to sub-rule (5.) of this rule, a party to proceedings may at any time not later than ten days before the trial of the proceedings, by notice in writing served on another party to the proceedings, call upon the other party to admit, for the purpose of the proceedings, any specific fact or facts mentioned in the notice, and that other party may, by notice in writing, admit the fact or any of those facts.

(2.) If the party on whom a notice to admit has been served refuses or fails to admit in writing a fact mentioned in the notice within seven days after service of the notice on the party, or within such further time as is allowed by the court, the court may order that party to pay the costs of proving the fact.

(3.) An admission made by a party to proceedings in pursuance of a notice to admit served under sub-rule (1.) of this rule shall be deemed to be made only for the purpose of the proceedings and shall not be used—

(4.) A court may at any time allow the party to amend or withdraw an admission made under this rule upon such terms as the court thinks fit.

(5.) Nothing in this rule shall be deemed to authorize a party to proceedings to call upon another party to admit a fact which that other party has denied in a pleading filed for the purpose of the proceedings.

(6.) A notice referred to in sub-rule (1.) of this rule shall be in accordance with Form 27, and an admission of a fact in answer to such a notice shall be in writing and in accordance with Form 28.

(7.) An admission made under this rule with respect to a fact does not prevent the party who made the admission from objecting to the admission of the fact in evidence on a ground that is not inconsistent with his admission.

Affidavit of signature to admissions.

152. An affidavit by the solicitor representing a party, or by a clerk of that solicitor, of the due signature of admissions made by that party in pursuance of a notice to admit documents or facts is sufficient evidence of those admissions, if that evidence is required.

Notice to produce documents.

153.—(1.) A party to proceedings may, by notice in writing served on another party to the proceedings, require the other party to produce, at the trial of the proceedings, a document specified in the notice, being a document that is in the possession, custody or power of that other party.

(2.) A notice referred to in the last preceding sub-rule shall be in accordance with Form 29.

Division 4.—Medical Examination of Parties.

Medical examination in nullity proceedings.

154.—(1.) This rule applies to proceedings for a decree of nullity of marriage on the ground that a party to the marriage is incapable of consummating the marriage.

(2.) In proceedings to which this rule applies, the petitioner or respondent may make application to a registrar for an order under sub-rule (4.) of this rule.

(3.) An application referred to in the last preceding sub-rule shall not be made to a registrar—

(4.) Where, in proceedings to which this rule applies, application is made to a registrar for an order under this sub-rule, the registrar may, by order—

Appointment of medical inspector upon the trial of proceedings.

155. Notwithstanding that a registrar has dispensed with the examination of the petitioner or respondent by a medical inspector appointed under the last preceding rule, where the court, upon the trial of proceedings to which the last preceding rule applies, thinks it desirable that the petitioner or respondent in the proceedings be examined or re-examined by a medical inspector or two medical inspectors appointed by the court, the court may appoint a medical inspector or two medical inspectors to examine or re-examine the petitioner or respondent, as the case may be.

Medical examination in divorce proceedings.

156. In proceedings for a decree of dissolution of marriage on the ground that a party to the marriage has wilfully and persistently refused to consummate the marriage, a registrar may, upon application made by either party to the marriage—

Service of notice of appointment of medical inspector.

157.—(1.) Where, under rule 154, 155 or 156 of these Rules, an order has been made, upon application by the petitioner in proceedings, for the appointment of a medical inspector to examine the respondent in the proceedings, the petitioner shall cause a copy of the order to be served on the respondent.

(2.) Where, under rule 154, 155 or 156 of these Rules, an order has been made, upon application by the respondent in proceedings, for the appointment of a medical inspector to examine the petitioner in the proceedings, the respondent shall cause a copy of the order to be served on the petitioner.

(3.) Where, upon the trial of proceedings, a court has of its own motion made an order under rule 155 of these Rules for the appointment of a medical inspector to examine a party, being the petitioner or the respondent, to the proceedings and the party was not before the court at the time when the order was made, another party, being the respondent or petitioner, to the proceedings who was before the court either in person or by his counsel or solicitor at that time shall cause a copy of the order to be served on the first-mentioned party.

(4.) Service of a copy of an order referred to in any of the preceding sub-rules of this rule shall be deemed not to have been duly effected on a party on whom it is required to be served, unless—

(5.) Unless the court or registrar, as the case may be, otherwise orders, service of a copy of an order referred to in this rule and of a notice referred to in the last preceding sub-rule shall not be effected otherwise than in a manner specified in paragraph (a), (b) or (c) of rule 60 of these Rules.

Medical inspector’s oath and identification of person to be examined.

158.—(1.) A medical inspector appointed under this Division to examine a person shall not carry out the examination unless the medical inspector has made and subscribed, before the registrar of the Supreme Court of a State or Territory or before a person authorized by the registrar of such a court for the purpose, an oath, in accordance with a form approved by the registrar, that he will well and truly examine the person, or each person who submits himself for examination in accordance with an order made under this Division, and will make to the appropriate court a correct report of the examination or of each such examination.

(2.) Before a person is examined by a medical inspector appointed under these Rules—

Report on medical examination.

159.—(1.) When a medical inspector appointed under these Rules to examine a person has examined the person, the medical inspector shall report the result of the examination to the court.

(2.) When a party to proceedings has failed to submit to examination by the medical inspector appointed under these Rules to examine him or has failed to comply with the last preceding rule, the medical inspector shall report to the court accordingly.

(3.) A report referred to in either of the last two preceding sub-rules shall be forwarded by the medical inspector to the registrar of the court.

(4.) A report referred to in sub-rule (1.) or (2.) of this rule shall be filed—

(5.) Each party to the proceedings is, upon request to the registrar, entitled to be furnished with a copy of the report.

Failure to comply with provisions of this Division.

160.—(1.) Proceedings to which rule 154 of these Rules applies shall not be set down for trial unless—

(2.) Where, in proceedings to which rule 156 of these Rules applies, the court has, under that rule, appointed a medical inspector or two medical inspectors to examine the parties or a party, the proceedings shall not be set down for trial unless the provisions of rules 157 and 159 of these Rules have been complied with.

(3.) Where, in proceedings referred to in either of the last two preceding sub-rules, a copy of an order appointing a medical inspector to examine a party to the proceedings is required, under rule 157 of these Rules, to be served on the party, the proceedings shall not be set down for trial unless—

Division 5.—Discretion Statements.

Discretion statements to be deposited.

161.—(1.) This rule applies in relation to a petitioner or respondent in proceedings—

(2.) A petitioner or respondent to whom this rule applies shall deposit a discretion statement with the registrar of the court—

Form, contents and destruction of discretion statements.

162.—(1.) A discretion statement, which shall be in accordance with Form 30, shall state particulars of the acts of adultery committed by the petitioner or respondent, as the case may be, since his marriage, the circumstances giving rise to the commission of the acts of adultery and the grounds upon which the court will be asked to make a decree of dissolution of marriage or judicial separation notwithstanding the adultery.

(2.) Where a petitioner or respondent alleges that an act of adultery set forth in his discretion statement has-been condoned, he shall state in the discretion statement particulars of the facts that are alleged to constitute condonation of the adultery.

(3.) Where a petitioner or respondent who has deposited a discretion statement in accordance with the last preceding rule commits a further act of adultery after depositing the discretion statement, a further discretion statement deposited by him shall be deemed to comply with sub-rule (1.) of this rule if it relates only to that further act of adultery.

(4.) Where, in a discretion statement deposited by a petitioner or respondent in accordance with the last preceding rule, the petitioner or respondent states that he has committed adultery and that he and the person with whom he has committed adultery are living together as if they were husband and wife, it is not necessary for a further discretion statement to be deposited setting forth particulars of any further acts of adultery committed by the petitioner or respondent, as the case may be, with that person.

(5.) A party to proceedings shall not deposit a discretion statement with a registrar unless—

(ii) if the party is not so represented—signed by the party, certifying that the statement is duly signed and verified, and that it bears the date on which it was signed.

(6.) When a party deposits a discretion statement with the registrar of the court, the registrar shall write the date of the depositing on the envelope in which the discretion statement is enclosed and shall give to the party an acknowledgment of the depositing of the discretion statement.

(7.) When a decree nisi of dissolution of marriage has become absolute, the registrar of the court may cause any discretion statement deposited for the purpose of the proceedings to be destroyed.

Service of notice of allegation on spouse.

163.—(1.) Where a discretion statement of a party to proceedings contains an allegation that the party’s spouse has committed adultery or another matrimonial offence, not being adultery or an offence particulars of which have been included in a pleading filed, on behalf of the party, for the purpose of the proceedings, the party shall, subject to the next succeeding sub-rule, cause service of notice of the allegation to be effected on his spouse before the proceedings are set down for trial.

(2.) The court may, on the hearing of proceedings, excuse a party who has failed to serve notice of an allegation on his spouse in accordance with the last preceding sub-rule if the court is satisfied that the failure has not prejudiced the spouse in connexion with the proceedings.

Disclosing discretion statement.

164.—(1.) A person, other than the Attorney-General or a person authorized in writing by the Attorney-General, is not entitled, by searching at the office of a court, by inspecting any records of a court or by making any other enquiries, to be informed whether or not a petitioner or respondent in proceedings has deposited a discretion statement in accordance with rule 161 of these Rules.

(2.) A discretion statement deposited by a party to proceedings in accordance with rule 161 of these Rules is not, without the leave of the court, open to inspection by a person other than the Attorney-General.

(3.) The last preceding sub-rule does not prevent the court from requiring a discretion statement to be tendered in evidence or read out in open court at any stage of the trial of the suit to which it relates if the court considers it proper so to require.

(4.) Where a party to a suit has deposited a discretion statement under rule 161 of these Rules, the registrar of the court shall cause that fact to be brought to the notice of the court at the commencement of the trial of the suit.

(5.) A discretion statement is not, without the leave of the court, open to inspection by the Attorney-General before the trial of the suit unless the Attorney-General furnishes to the registrar of the court having custody of the discretion statement a certificate certifying that, in the opinion of the Attorney-General, inspection of the discretion statement is necessary for the purpose of determining whether the Attorney-General should intervene in the suit under Part VII. of the Act.

(6.) Where the Attorney-General furnishes a certificate referred to in the last preceding sub-rule, the discretion statement may be inspected by the Attorney-General or by a person authorized in writing by the Attorney-General to inspect the discretion statement.

(7.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under Part VII. of the Act.

Division 6.—Compulsory Conferences.

Application of Division.

165. Where—

 (i) who are not likely to have attained the age of sixteen years before the decree is made; or

(ii) in relation to whom the petitioner or respondent has obtained or is seeking an order under sub-section (3.) of section 71 of the Act,

and the petitioner and respondent are not in agreement concerning the arrangements that, in the event of a decree of dissolution or of nullity of marriage being made, should be made for the welfare, advancement and education of those children,

this Division applies to the suit.

Conference to be held before certain suits set down for trial.

166.—(1.) Subject to the next succeeding sub-rule, a suit to which this Division applies shall not, except by leave of the court, be set down for trial upon application made by a party to the suit, being the petitioner or respondent, unless—

(2.) Where a registrar is satisfied—

it would be unreasonable in the circumstances of the particular case to require a conference for the purpose of this Division to be held before the suit is set down for trial;

the registrar may set the suit down for trial notwithstanding that the requirements of the last preceding sub-rule have not been complied with.

(3.) Where a registrar sets a suit to which this Division applies down for trial in accordance with the last preceding sub-rule, a conference for the purpose of this Division shall, unless the court otherwise orders, be held before the commencement of the trial of the suit.

Conference.

167.—(1.) A conference for the purpose of this Division is a conference at which the petitioner and respondent discuss, and make a bona fide endeavour to reach agreement on, any matters in question—

(2.) A petitioner or respondent may attend a conference for the purpose of this Division in person, either with or without counsel or a solicitor, or may be represented by counsel or a solicitor.

(3.) A conference for the purpose of this Division may be adjourned from time to time and from place to place.

(4.) Subject to the next succeeding sub-rule, evidence of anything said, or of any admission made, in the course of a conference for the purpose of this Division is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory of the Commonwealth, or by consent of the parties, to hear, receive and examine evidence.

(5.) The last preceding sub-rule does not prevent evidence of anything said, or of any admission made, in the course of such a conference being admitted in evidence in a court upon the trial of a person for an offence committed at the conference.

Conference relating to custody, &c., where both parties represented by solicitor.

168.—(1.) Where the petitioner and respondent in a suit to which this Division applies are each represented by a solicitor, this rule applies to the suit.

(2.) Where, in a suit to which this rule applies, the pleadings are complete, the solicitor for the petitioner may give to the solicitor for the respondent a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Division.

(3.) Where the solicitor for the petitioner has not given a notice under the last preceding sub-rule and a period of not less than fourteen days has elapsed since the pleadings were completed, the solicitor for the respondent may give to the solicitor for the petitioner a notice in writing specifying a day, time and place for the holding of a conference for the purpose of this Division.

(4.) When the solicitor for a respondent has duly given a notice under the last preceding sub-rule, the solicitor for the petitioner ceases to be entitled to give a notice under sub-rule (2.) of this rule.

(5.) In a notice given under sub-rule (2.) or (3.) of this rule, unless the solicitor for the petitioner and the solicitor for the respondent otherwise agree—

Conference relating to custody, &c., where a party not represented by solicitor.

169.—(1.) Where the petitioner or respondent in a suit to which this Division applies is not represented by a solicitor, this rule applies to the suit.

(2.) Where, in a suit to which this rule applies, the pleadings are complete, the petitioner and respondent may agree as to the day, time and place for the holding of a conference for the purpose of this Division.

(3.) Subject to the next succeeding sub-rule, where the petitioner and respondent fail so to agree within fourteen days after either has approached the other for that purpose, the registrar shall, at the request of either party, fix a reasonable day, time and place for the holding of a conference for the purpose of this Division.

(4.) A registrar may refuse to comply with a request under the last preceding sub-rule if he is satisfied that, under sub-rule (2.) of rule 166 of these Rules, he would be entitled to set the suit down for trial notwithstanding that the requirements of sub-rule (1.) of that rule have not been complied with.

(5.) On the day on which the registrar fixes a day, time and place for the holding of a conference for the purpose of this Division, or on the next following day, the party at whose request the day, time and place were fixed shall serve on the petitioner or respondent, as the case may be, notice of the day, time and place so fixed.

(6.) The petitioner and respondent may agree to appoint a particular person, being a person willing so to act, to act as chairman at the conference held for the purpose of this Division.

(7.) Where the petitioner or respondent is represented by a solicitor, references in this rule to the petitioner or respondent, as the case may be, shall be read as references to that solicitor.

Division 7.—Consolidation of Proceedings.

Consolidation of proceedings.

170.—(1.) The court may, upon application made by the petitioner or respondent in proceedings, order that the proceedings be consolidated with other proceedings that are pending in the court and to which that petitioner and respondent are parties, and that both proceedings be tried together.

(2.) An order may be made under the last preceding sub-rule notwithstanding that a party to one of the proceedings is not a party to the other proceedings.

(3.) A court shall specify, in an order made under sub-rule (1.) of this rule, the party who shall be deemed to be the party having the carriage of the consolidated proceedings.

Division 8.—Setting Suits down for Trial.

Setting undefended suit down for trial.

171.—(1.) Subject to rules 108 and 160 of these Rules and to this rule, the registrar of the court in which an undefended suit is pending may, upon request made by the petitioner, set the suit down for trial.

(2.) A request referred to in the last preceding sub-rule shall be in accordance with Form 31 and shall state the court town at which the petitioner desires the suit to be tried.

(3.) Subject to rule 175 of these Rules, a registrar shall not set an undefended suit down for trial unless—

(4.) Paragraph (a) of the last preceding sub-rule does not require a registrar to be satisfied as to the due service of a petition—

(5.) Subject to rule 175 of these Rules, where service of a petition on a person, whether or not that person is the respondent, has been dispensed with subject to compliance with a condition, a registrar shall not set the suit down for trial unless proof, by affidavit, of the due compliance with the condition has been filed.

(6.) A suit is not ready for trial for the purpose of paragraph (e) of sub-rule (3.) of this rule unless—

(7.) This rule applies to an undefended suit that consists only of proceedings instituted by the respondent to a petition as if—

Request to set defended suit down for trial.

172.—(1.) Where—

a period of less than fourteen days has elapsed since the date on which that conference was concluded or the date that was fixed for the holding of the conference, as the case may be;

a request to set the suit down for trial shall not be made by a party other than the petitioner.

(2.) Where—

has elapsed since the pleadings were completed, a request to set the suit down for trial shall not be made by a party other than the petitioner or the respondent.

(3.) Where a request to set a defended suit down for trial has been duly made by a party, another party shall not make a request to set the suit down for trial unless the first-mentioned request has been withdrawn by the party by whom it was made or has been refused.

Setting defended suit down for trial.

173.—(1.) Subject to rules 108, 160 and 166 of these Rules and to this rule, the registrar off the court in which a defended suit is pending may, upon request made by a party who has filed a pleading, set the suit down for trial.

(2.) A request referred to in the last preceding sub-rule shall be in accordance with Form 31 and shall state the court town at which the party making the request desires the suit to be tried and an estimate of the length of the trial.

(3.) A registrar shall not set a defended suit down for trial upon the request of a party unless—

(4.) A suit is not ready for trial for the purpose of paragraph (e) of the last preceding sub-rule unless—

(5.) For the purpose of paragraph (a) of the last preceding sub-rule, a party shall be deemed to have complied with a request or order referred to in that paragraph if the party who made the request or was the applicant for the order, as the case may be, has waived compliance with the request or order.

(6.) A suit which includes defended proceedings in which there is a claim with respect to permanent maintenance or the settlement of property shall not be set down for trial upon request made by a party to the proceedings, being the petitioner or respondent, unless—

(7.) Where the petitioner or respondent makes application to set down for trial a defended suit in relation to which Division 6 of this Part applies, the certificate or affidavit filed in pursuance of paragraph (e) of sub-rule (3.) of this rule—

as the case may be.

(8.) Where the certificate or affidavit states that a conference for the purpose of Division 6 of this Part has been held, the certificate or affidavit shall also state whether any agreement was reached at the conference, and, if agreement was so reached, brief particulars of that agreement.

Service of request to set suit down for trial.

174. A party who makes a request to set a defended suit down for trial shall, on the day on which the request is filed or on the next following day, cause a copy of the request to be served on each other party who has an address for service.

Request to set suit down for trial.

175.—(1.) Where a request to set a suit down for trial has been made to a registrar but the registrar is not satisfied that the suit is in order for trial, the registrar shall inform the party who made the request of the matters that, in his opinion, are not in order and, if such a matter relates to a pleading filed, or an application made or required to be made, by a party other than that first-mentioned party, shall also inform that party of the matter.

(2.) Where, under the last preceding sub-rule, a registrar has informed the party who made the request that he is not satisfied that the suit is in order for setting down for trial, that party may request the registrar, in writing, to set the suit down for trial notwithstanding that the registrar is not so satisfied, and the registrar shall, on receipt of the request, set the suit down for trial.

(3.) Where a period of not less than twenty-eight days has elapsed after a registrar informed the party who made the request that he is not satisfied that a suit is in order for setting down for trial and the suit has not been set down for trial, any other party entitled to make a request to set the suit down for trial may request the registrar, in writing, to set the suit down for trial, and the registrar shall, on receipt of the request, set the suit down for trial.

(4.) Where a registrar sets a suit down for trial in pursuance of a request under either of the last two preceding sub-rules, the registrar shall state on the certificate filed in pursuance of rule 178 of these Rules the matters that in his opinion are not in order.

Place at which suit may be set down for trial.

176.—(1.) A suit pending before the Supreme Court of a State or Territory may be set down for trial at a court town in that State or Territory.

(2.) An undefended suit shall be set down for trial at the court town specified in the request to set the suit down for trial.

(3.) A defended suit shall, except in a case where an order under rule 179 of these Rules has been made before the suit is set down for trial, be set down for trial at the court town specified in the request to set the suit down for trial.

Date of trial.

177.—(1.) When a registrar sets a suit down for trial at a court town, the registrar shall, if it is in accordance with the practice of the court so to do, set the suit down for trial on a particular date or at a sittings of the court at the court town commencing on a particular date.

(2.) Unless the court or registrar otherwise orders under rule 180 of these Rules, a defended suit shall not be—

that is less than fourteen clear days after the date on which the suit is set down for trial by a registrar.

Notice of trial.

178.—(1.) Subject to the next succeeding sub-rule, a party who requests a registrar to set a suit down for trial shall deposit with the registrar a form of notice, in accordance with Form 33, for signature by the registrar, and a copy of that form of notice for each party to the suit.

(2.) The last preceding sub-rule does not require the deposit of a copy of a form of notice for a party—

unless the party has an address for service, unless the party making the request is aware of an address of the party or unless the court, as a condition of dispensing with the service, required a copy of the petition or answer to be sent to or served on some other person.

(3.) A copy of a form of notice for a party to proceedings—

(4.) For the purpose of the last preceding sub-rule—the address of a party that is to be written on a copy of a form of notice is—

(5.) Where a registrar sets a suit down for trial, he shall—

and file that certificate.

(6.) In proceedings in a court, a certificate under the last preceding sub-rule, relating to a suit and under the hand of a registrar of the court, is evidence that the provisions of paragraphs (a) and (b) of that sub-rule have been duly complied with in relation to the suit.

(7.) The form of the notation required by paragraph (c) of sub-rule (3.) of this rule to be endorsed on a form of notice deposited by a party is as follows:—

“If not delivered within 7 days, return to (name of the solicitor for that party or name of that party, as the case may be, and address for service of that party).”.

Change of venue.

179.—(1.) At any time after a request has been made to a registrar to set a suit down for trial at a court town in a State or Territory, a party who has filed a pleading may, whether or not the suit has been set down for trial, make application to the court or to a registrar of the court for an order that the trial of the suit take place at a court town in that State or Territory specified in the application.

(2.) Where the court or a registrar is, upon the hearing of an application under the last preceding sub-rule, satisfied that it is proper so to do, the court or registrar shall order that the trial of the suit take place at a court town specified in the order.

(3.) Where an order has been made by the court or by a registrar under the last preceding sub-rule, the registrar shall set the suit down for trial at the court town specified in the order.

Expediting trial of suit.

180.—(1.) Where the court, or a registrar of the court, in which a suit is pending is satisfied that it is, by reason of special circumstances, proper so to do, the court or registrar may, by order—

(2.) An application for an order under the last preceding sub-rule may be made by any party who has filed a pleading.

Time of trial.

181. Subject to any order made by the court or a registrar under the last preceding rule, a suit shall be listed for trial at a court town in the order in which the suit is set down for trial at the court town.

PART XII.—DECREES.

Decree of dissolution of marriage.

182. A decree of dissolution of marriage shall be in accordance with Form 35.

Decree of nullity.

183. A decree of nullity of marriage shall be in accordance with Form 36 or Form 37 (whichever is appropriate).

Decree of judicial separation.

184. A decree of judicial separation shall be in accordance with Form 38.

Decree of restitution of conjugal rights.

185. A decree of restitution of conjugal rights shall be in accordance with Form 39.

Order approving arrangements for welfare of children.

186. Where a court makes an order under sub-section (1.) of section 71 of the Act declaring that it is satisfied that proper arrangements in all the circumstances have been made for the welfare and, where appropriate, the advancement and education of children, the court shall include in the order particulars of the arrangements that have been made for the welfare and, where appropriate, the advancement and education of the children to whom the order relates.

Adultery of party who has established ground for dissolution or judicial separation.

187. Where, upon the trial of proceedings for a decree of dissolution of marriage or of judicial separation, the court is satisfied of the existence of—

the court shall state accordingly in its decree and shall also state that a decree of dissolution of marriage or of judicial separation—

Death of party after decree nisi but before decree becomes absolute.

188.—(1.) Where, after a decree of dissolution of marriage or a decree of nullity of a voidable marriage has been made but before the decree has become absolute—

(a) it comes to the notice of a party to the proceedings who has an address for service that a party to the marriage died before, or has died after, the making of the decree; or

the party or solicitor, as the case may be, shall make and file an affidavit stating such particulars of the date and place of the death as are known to him.

(2.) Where the registrar is satisfied that the party is dead, he shall file a memorandum to that effect.

Decree absolute.

189.—(1.) A memorandum referred to in sub-section (1.) of section 73 of the Act shall be in accordance with Form 40.

(2.) A certificate referred to in sub-section (2.) of section 73 of the Act—

“I certify that the decree nisi of which this decree is a

copy became absolute on the day

of , 19 .

Dated this day of , 19 .

Registrar.”.

Rescission where parties reconciled.

190.—(1.) An application under section 74 of the Act by a party to a marriage to rescind a decree nisi on the ground that the parties to the marriage have become reconciled may be made ex parte if the parties to the marriage have, by a joint affidavit or by their respective affidavits filed in support of the application, verified the grounds of the application.

(2.) Subject to the last preceding sub-rule, service of an application referred to in that sub-rule shall be effected on the other party to the marriage in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.

Rescission on ground of miscarriage of justice.

191.—(1.) A party to proceedings who makes application for the rescission, under section 75 of the Act, of a decree nisi shall cause service of the application to be effected on each other party to the proceedings, except a party service on whom of the application is dispensed with under subsection (2.) of section 121 of the Act.

(2.) Service of an application referred to in the last preceding sub-rule shall be effected in a manner referred to in paragraph (a) or (b) of rule 60 of these Rules.

PART XIII.—INTERVENTION BY PERSONS NOT PARTIES TO PROCEEDINGS.

Intervention by Attorney-General.

192.—(1.) Where the Attorney-General is entitled to intervene in proceedings under section 76 or 77 of the Act, the Attorney-General may do so by causing to be filed a notice of intervention, in accordance with Form 42, stating whether he is intervening under section 76 or 77 of the Act.

(2.) Where the Attorney-General intervenes in proceedings under section 77 of the Act, the Attorney-General shall, at the time of intervening or as soon after that time as practicable, file a statement containing particulars of the matters relevant to the proceedings that the Attorney-General has reason to believe have not been, or may not be, but ought to be, made known to the court.

(3.) A copy of a notice of intervention, and a copy of a statement filed in pursuance of the last preceding sub-rule, shall, as soon as possible after it has been filed, be served on each other party to the proceedings who has an address for service.

(4.) The solicitor for the Attorney-General shall state in a notice of intervention the name and place of business of the solicitor, and the place of business so stated is the address for service of the Attorney-General.

(5.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 78 of the Act that is in force, the Attorney-General has delegated a power or function under Part VII. of the Act.

Intervention by Attorney-General after decree nisi.

193.—(1.) Where the Attorney-General intervenes in proceedings after a decree nisi has been made—

(2.) In this rule, a reference to the Attorney-General shall be read as including a reference to a person to whom, by a delegation under section 78 of the Act that is in force, the Attorney-General has delegated a power or function under Part VII. of the Act.

Intervention by other persons.

194.—(1.) Service of an application under section 79 of the Act for leave to intervene in proceedings shall, on the day on which the application is filed or on the next following day, be effected on each party to the proceedings who has an address for service.

(2.) Where the court makes an order under section 79 of the Act entitling a person to intervene in proceedings—

PART XIV.—PROCEEDINGS FOR ANCILLARY RELIEF.

Division 1.—Preliminary.

Definitions.

195. In this Part, unless the contrary intention appears—

Application of this Part.

196. This Part does not apply to proceedings for ancillary relief that are pending at the commencement of the Act.

Certain proceedings may be instituted without the leave of the court.

197.—(1.) Where proceedings for principal relief have been instituted by petition, the respondent may, by filing an answer to the petition, institute proceedings for ancillary relief that are in relation to those proceedings for principal relief without the leave of the court.

(2.) Proceedings for ancillary relief may be instituted by application and without the leave of the court if the proceedings relate to—

Application for leave to institute proceedings for ancillary relief.

198.—(1.) Where a party to proceedings for principal relief makes application to a court for leave, under section 68 of the Act, to institute proceedings for ancillary relief, service of the application shall, unless the court dispenses with the service, be effected on the spouse of the party in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.

(2.) A party to proceedings for principal relief who makes application for leave to institute proceedings for ancillary relief shall state in the affidavit in support of the application his reasons for not instituting the proceedings for ancillary relief by his petition or answer, as the case may be.

(3.) Where, before the making of the decree in proceedings for principal relief, proceedings for ancillary relief are instituted by leave of the court or under sub-rule (2.) of the last preceding rule, the proceedings for

ancillary relief shall be deemed to have been consolidated with the proceedings for principal relief to which they are related and, as far as is practicable, shall be heard and determined by the court at the same time as the proceedings for principal relief.

(4.) Where proceedings for ancillary relief are instituted by leave of the court, the court shall not make an order with respect to the costs of the proceedings in favour of the claimant unless the court is satisfied that there were good reasons for not instituting the proceedings by the petition by which the proceedings for principal relief to which those, proceedings for ancillary relief relate were instituted or by an answer to that petition, as the case required.

Particulars to be included in application for ancillary relief.

199.—(1.) A claimant shall state in his application for ancillary relief—

(2.) In proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the claimant shall state in his application for ancillary relief particulars of—

(3.) Where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in the last preceding sub-rule, the claimant shall state in his application for ancillary relief particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.

(4.) Where any particulars referred to in paragraph (c) or (d) of sub-rule (2.) of this rule are included in a petition or answer, particulars of the claimant’s means of knowing those first-mentioned particulars shall be stated in the petition or answer, as the case may be.

(5.) Where any particulars referred to in paragraph (c) or (d) of sub-rule (2.) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.

Defence to proceedings for ancillary relief.

200.—(1.) Where proceedings for ancillary relief have been instituted, the spouse of the claimant may, in a defence to the proceedings—

(2.) Without limiting the generality of the last preceding sub-rule, in proceedings for ancillary relief, being proceedings with respect to the maintenance of a party to the proceedings or of a child of the marriage, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of—

(3.) Without limiting the generality of sub-rule (1.) of this rule, where the pecuniary resources of the parties to the marriage are relevant to the determination of proceedings for ancillary relief, not being proceedings of a kind referred to in the last preceding sub-rule, the spouse shall, if he wishes to oppose the making of the order sought, state in his defence to the proceedings particulars of such of the matters referred to in paragraphs (a) to (g), inclusive, of that sub-rule as are relevant to those proceedings.

(4.) Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2.) of this rule are included in an answer or reply, particulars of the spouse’s means of knowing those first-mentioned particulars shall be stated in the answer or reply, as the case may be.

(5.) Where any particulars referred to in sub-paragraph (c) or (d) of sub-rule (2.) of this rule are included in an affidavit, the person swearing the affidavit shall state in the affidavit particulars of his means of knowing those first-mentioned particulars.

(6.) Where the spouse of a claimant states in his defence to the proceedings that any particulars of a matter referred to in sub-rule (2.) of this rule that are stated in the claimant’s application for ancillary relief are true and correct, this rule does not require the spouse to state those particulars in his defence to the proceedings.

Forms of application for ancillary relief.

201.—(1.) This rule does not apply to proceedings for ancillary relief that are instituted by petition or by answer to a petition.

(2.) Subject to the next two succeeding sub-rules, an application to a court for the purpose of instituting proceedings for ancillary relief shall be in accordance with Form 44.

(3.) Subject to the next succeeding sub-rule, an application to a court for the purpose of instituting proceedings for ancillary relief—

shall be in accordance with Form 5.

(4.) An application to a court for the purpose of instituting proceedings for maintenance pending the disposal of proceedings shall be in accordance with Form 45.

(5.) Subject to the next succeeding sub-rule, service of an application instituting proceedings for ancillary relief shall be effected on the spouse of the claimant in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.

(6.) Where proceedings for ancillary relief are instituted in relation to completed proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause”, service of the application shall not be effected in the manner referred to in paragraph (c) of rule 60 of these Rules unless the address for service of the spouse of the claimant is the address of a solicitor representing that spouse and that solicitor is, at the time of the service, representing that spouse in connexion with those proceedings for ancillary relief.

Division 2.—Maintenance pending Suit.

Order for maintenance pending suit where summary order in force.

202.—(1.) This rule applies in a case where—

and

(2.) A court shall not, in a case to which this rule applies, make an order for the maintenance of the party or the child, as the case may be, pending the disposal of proceedings unless the court also orders, under sub-section (5.) of section 8 of the Act, that the existing order shall cease to have effect.

(3.) In a case to which this rule applies—

(4.) In a case to which this rule applies, the claimant may, at any time after the filing of the application for ancillary relief, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.

(5.) A claimant who files a request under the last preceding sub-rule shall cause service of a notice, in accordance with Form 47, to be effected on the spouse of the claimant in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules unless service of the application for ancillary relief on the spouse is dispensed with.

(6.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.

(7.) Where, in a case to which this rule applies, the proceedings for ancillary relief were instituted by a petition or by an answer to a petition, and the respondent had not filed an answer to the petition, or the petitioner had not filed a reply to the answer, before a notice under sub-rule (5.) of this rule was served on him, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purposes of the proceedings—

Order for maintenance pending suit not to be made where order of superior court in force.

203. Where an order with respect to the maintenance of a party to a marriage or of a child of a marriage is in force, being an order made by a court in Australia other than a court referred to in paragraph (a) of sub-section (3.) of section 8 of the Act, a court shall not make an order, under sub-section (2.) of section 84 of the Act, for the maintenance of the party or the child, as the case may be, pending the disposal of proceedings.

Assessment by the registrar.

204.—(1.) This rule applies in a case, not being a case to which rule 202 or 203 of these Rules applies, where proceedings for ancillary relief have been instituted seeking a decree with respect to the maintenance, pending the disposal of proceedings, of the claimant, of a child of the marriage or of the claimant and a child of the marriage.

(2.) Where, in a case to which this rule applies, no defence to the proceedings has been filed although the time for filing a defence has expired, the claimant may, by filing a request in accordance with Form 48, request the registrar of the court to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request—

(3.) Where, in a case to which this rule applies, a defence to the proceedings has been filed, the claimant may, by filing a request in accordance with Form 48, request the registrar of the court to make an assessment for the purpose of this rule, and the registrar shall, as soon as practicable after the filing of the request—

(4.) Where, in a case to which this rule applies, a certificate of means is issued after a registrar has informed the claimant that he is unable to make an assessment, the registrar shall, as soon as practicable after the certificate of means is issued, make an assessment for the purpose of this rule having regard to the matters specified in that certificate.

(5.) An assessment made by a registrar for the purpose of this rule shall specify—

(6.) A registrar, in making an assessment for the purpose of this rule, shall not have regard to any allegation concerning the conduct of the claimant or the spouse of the claimant, whether or not that conduct is in question in the proceedings for principal relief unless that conduct is relevant to the means or financial needs of the claimant or his spouse or to the capability of the claimant or his spouse to earn income.

(7.) A registrar shall not, in proceedings for ancillary relief, make an assessment for the purpose of this rule specifying a rate per week for the maintenance of a claimant or a child if an order under rule 209 of these Rules has been made concerning the maintenance to be paid for the claimant or child, as the case may be.

(8.) An assessment for the purpose of this rule shall be in accordance with Form 49.

Service of assessment.

205.—(1.) Subject to the next succeeding sub-rule, a claimant who requests a registrar to make an assessment for the purpose of the last preceding rule in relation to proceedings for ancillary relief shall deposit with the registrar a form of assessment, in accordance with Form 49, for signature by the registrar and two copies of that form for the claimant and the spouse of the claimant, respectively.

(2.) The last preceding sub-rule does not require the deposit of a copy of a form of assessment tor the spouse of the claimant if service of the application for ancillary relief on the spouse—

unless the spouse filed a defence to the proceedings or the court, as a condition of dispensing with the service, required a copy of the application to be sent to or served on some other person.

(3.) A copy of a form of assessment for a person—

(4.) For the purpose of the last preceding sub-rule the address of a person that is to be written on a copy of a form of assessment is—

(5.) As soon as practicable after a registrar makes an assessment under the last preceding rule, the registrar—

(6.) Service of a copy of an assessment shall, unless the contrary is proved, be deemed to have been effected on a person at the time when the letter containing the copy of the assessment would, in the ordinary course of post, be delivered at the address to which it is posted.

(7.) In any proceedings, a certificate, under the hand of a registrar and written on an assessment, stating that a copy of the assessment was posted as a letter (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified person at a specified address is evidence of the facts stated in the certificate.

(8.) The form of the notation required by paragraph (c) of sub-rule (3.) of this rule to be endorsed on a form of assessment deposited by a claimant is as follows:—

“If not delivered within 7 days, return to (name of the solicitor for that claimant or name of that claimant, as the case may be, and address for service of that claimant).”.

Reference of claim to the court.

206.—(1.) When, in a case to which rule 204 of these Rules applies, the registrar has made an assessment for the purpose of that rule, the petitioner or respondent may, not later than ten days after service of a copy of the assessment on him, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court, and the registrar shall refer the proceedings accordingly.

(2.) Where a person on whom a copy of an assessment has been served does not duly file a request under the last preceding sub-rule, the person shall be taken to have consented to the court making, in the proceedings in relation to which the assessment was made, an order in accordance with the terms of the assessment, but that consent shall not be taken to prejudice the person in any other proceedings.

Default in payment of amount assessed.

207.—(1.) Subject to the next succeeding sub-rule, where, in proceedings with respect to maintenance, a claimant and his spouse are taken to have consented to the making of an order by the court in accordance with the terms of an assessment, the claimant may, by filing a request in accordance with Form 50, request the registrar to refer the proceedings to the court under this rule, and the registrar shall refer the proceedings accordingly.

(2.) The last preceding sub-rule does not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment had been an order for the payment of maintenance in accordance with its tenor exceeds, by more than the amount of the weekly rate, or the sum of the weekly rates, specified in the assessment in pursuance of paragraph (a) of sub-rule (5.) of rule 204 of these Rules, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of paragraph (b) of that sub-rule).

(3.) Where a registrar is required to refer proceedings to a court under sub-rule (1.) of this rule, the registrar shall bring the proceedings before the court which, if it thinks fit, may, without any application being made to it and without a hearing, order the payment of maintenance in accordance with the terms of the assessment less any amounts paid as maintenance in respect of the period covered by the assessment.

(4.) Where a court does not think fit to make an order under the last preceding sub-rule, the registrar of the court shall refer the proceedings to the court for hearing and determination and the spouse of the claimant may withdraw the consent that, under rule 206 of these Rules, he is taken to have given.

(5.) Where, in proceedings for ancillary relief, an order under rule 209 of these Rules has been made for the payment of maintenance for the claimant in the proceedings or for a child of a marriage, an order shall not be made under this rule for the payment of maintenance for the claimant or child, as the case may be, in accordance with the terms of an assessment made under rule 204 of these Rules.

Notice of hearing.

208.—(1.) The party at whose request proceedings for ancillary relief are referred to the court under rule 206 of these Rules, or the claimant in proceedings for ancillary relief that are referred to the court under sub-rule (4.) of the last preceding rule, shall cause to be served on the spouse of the party or claimant, as the case may be, a notice, in accordance with Form 51.

(2.) The last preceding sub-rule does not require service of a notice referred to in that sub-rule to be effected on the spouse if service on the spouse of the application for ancillary relief instituting the proceedings—

and the spouse did not file a defence to the proceedings.

Consent orders for maintenance pending the disposal of proceedings.

209.—(1.) Where the parties to proceedings for ancillary relief, being proceedings for an order with respect to the maintenance, pending the disposal of proceedings, of one of those parties or of a child of a marriage, agree as to the maintenance that should be paid for the party or the child pending the disposal of proceedings, a form of order may be deposited with the registrar providing for one or more of the following:—

(2.) A form of order shall not be deposited under the last preceding sub-rule unless it has endorsed on it the consent, signed by each of the parties either personally or by his solicitor, to the making of an order in the terms of the form.

(3.) Where a form of order is duly deposited with a registrar, the registrar shall bring the proceedings to which the form of order relates before the court which, if it thinks fit, may, without any application being made to it and without a hearing, make an order, or orders, in the terms of the form.

(4.) Where, after a registrar has made an assessment under rule 204 of these Rules specifying the rate per week at which the registrar considers maintenance should be paid for the person pending the disposal of proceedings, an order is made under the last preceding sub-rule with respect to the maintenance payable for the person pending the disposal of those proceedings, the assessment ceases to have effect for the purpose of rule 206 or 207 of these Rules.

Determination of claim for maintenance by the court.

210.—(1.) A court may, in determining proceedings for ancillary relief, being proceedings seeking an order with respect to the maintenance, pending the disposal of proceedings, of a party to a marriage or of a child of a marriage, have regard to the conduct of the parties to the marriage other than conduct that is in question in the proceedings for principal relief.

(2.) Notwithstanding the last preceding sub-rule, a court may take into account allegations concerning the conduct of a party to the marriage that is in question in the proceedings for principal relief if the truth of the allegations has been admitted by the party in a pleading or affidavit filed for the purpose of the proceedings for ancillary relief or in a pleading filed for the purpose of the proceedings for principal relief.

(3.) Where proceedings for ancillary relief are referred to a court in pursuance of a request under rule 206 of these Rules, the court shall not make an order with respect to the costs of the proceedings in favour of the party who made the request unless the court is satisfied that the reference of the proceedings to the court was justified.

Division 3.—Certificates of Means.

Application for certificate of means.

211.—(1.) This rule applies to proceedings for ancillary relief in which—

(2.) In proceedings for ancillary relief to which this rule applies, a party to the marriage may make application to a registrar for a certificate of means with respect to the pecuniary resources of the parties to the marriage and the capability of each of those parties to earn income.

(3.) Except by leave of the court, an application referred to in the last preceding sub-rule shall not be made—

(4.) An application for a certificate of means shall be in accordance with Form 52.

(5.) Service of an application under sub-rule (2.) of this rule by a party to a marriage shall be effected on the other party to the marriage in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules.

(6.) On the hearing of an application for a certificate of means in relation to proceedings for ancillary relief, the application for ancillary relief, and the defence to the proceedings (if any), filed for the purpose of those proceedings are each evidence of any facts relevant to that first-mentioned application that are stated in it.

(7.) It is not necessary for a party making application for a certificate of means to file an affidavit in support of his application.

(8.) Notwithstanding the last preceding sub-rule, either party to an application for a certificate of means may file affidavits for the purpose of the application, and sub-rule (2.) of rule 22, and rule 23, of these Rules apply to and in relation to affidavits so filed.

Issue of certificate of means.

212.—(1.) A registrar shall, upon application made under the last preceding rule or at the direction of the court, inquire into the pecuniary resources of the parties to the marriage to which the application relates and into the capability of each of those parties to earn income, and issue a certificate of means, in accordance with Form 53, with respect to those resources and capabilities.

(2.) Where a certificate of means is issued upon an application made after such a certificate has already been issued, the certificate already issued shall be deemed to have been revoked.

(3.) Where a judge directs an inquiry by a registrar into the pecuniary resources of the parties to a marriage and the capability of each of those parties to earn income, the judge may give such directions as he thinks fit with respect to service of notice of the date fixed for the hearing of the inquiry by a registrar and the filing and serving of affidavits for the purpose of that inquiry, and the parties of the marriage shall comply with any such directions.

Certificate of means to be evidence.

213. A certificate of means is evidence of the matters specified in the certificate.

Division 4.—Custody.

Notice of application for interim order.

214.—(1.) Where proceedings for ancillary relief, being proceedings seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of a marriage pending the disposal of proceedings, are instituted by a petition or by an answer to a petition, the petitioner or respondent, as the case may be, may, at any time after the filing of the petition or answer, set the proceedings for ancillary relief down for hearing by filing a request in accordance with Form 46.

(2.) A party who files a request referred to in the last preceding sub-rule shall cause service of notice, in accordance with Form 47, of the place, date and time fixed for the hearing of the proceedings to be effected, in a manner referred to in paragraph (a), (b) or (c) of rule 60 of these Rules, on each other party to the proceedings for ancillary relief, other than a party service on whom of the petition or answer instituting the proceedings was dispensed with.

(3.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of the notice and the day named in the notice for the hearing of the proceedings for ancillary relief.

(4.) Where a notice referred to in sub-rule (2.) of this rule is served on a respondent who has not filed an answer to the petition, or on a petitioner who has not filed a reply to the answer, the respondent or petitioner, as the case may be, may, in an affidavit filed for the purpose of the proceedings—

Respondent may make application for custody pending disposal of proceedings.

215.—(1.) The respondent to a petition instituting proceedings for principal relief may, at any time before the filing of an answer to the petition on behalf of the respondent but not later than the expiration of the time limited for the filing of such an answer, make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of a child of the marriage pending the disposal of the proceedings.

(2.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in the last preceding sub-rule and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Application for custody pending disposal of proceedings.

216.—(1.) Where, after proceedings for principal relief have been instituted, a dispute arises with respect of the custody, guardianship, welfare, advancement or education, as the case may be, of a child pending the disposal of the proceedings, the petitioner or respondent may make application to the court for an order with respect to the custody, guardianship, welfare, advancement or education, as the case may be, of the child pending the disposal of the proceedings.

(2.) Unless a judge otherwise directs, there shall be at least fourteen clear days between the service of an application referred to in the last preceding sub-rule and the day named in the application for the hearing of the application or the day fixed by the registrar for the hearing of the application, as the case may be.

Ex parte application for custody.

217.—(1.) Where proceedings for ancillary relief have been instituted seeking an order with respect to the custody, guardianship, welfare, advancement or education of a child of the marriage pending the disposal of proceedings, the court may, in a case of urgency, hear the proceedings, and make an order in the proceedings, ex parte.

(2.) The petitioner or respondent in proceedings for principal relief may, in a case of urgency, institute, by filing an application or, with the leave of the court, by making application orally to the court, proceedings for ancillary relief seeking an order of a kind referred to in the last preceding sub-rule, and the court may hear the proceedings for ancillary relief, and make an order in those proceedings, ex parte.

(3.) Where the court gives leave under the last preceding sub-rule to make an application orally to the court, the court may give the leave upon condition that the claimant gives to the court an undertaking to file, as soon as practicable, an application and such affidavits and other documents in support of the application as the court thinks fit.

(4.) Where a court makes an order of a kind referred to in sub-rule (1.) of this rule upon an application that was made ex parte, the court shall—

Division 5.—Proceedings for Ancillary Relief instituted by a Person not a Party to the Marriage.

Application for custody of a child by a person other than a parent of the child.

218.—(1.) Where a person who is not the petitioner or respondent in proceedings for principal relief institutes, in relation to those proceedings and by leave of the court, proceedings for ancillary relief, being proceedings with respect to the custody, guardianship, maintenance, welfare, advancement or education of a child of the marriage to which the proceedings for principal relief relate, this rule applies to those proceedings for ancillary relief, but the provisions of Division 2, Division 3 and Division 4 of this Part do not apply to or in relation to those proceedings for ancillary relief.

(2.) Where a person institutes proceedings for ancillary relief to which this rule applies—

(3.) Where proceedings for ancillary relief to which this rule applies are instituted in relation to completed proceedings for principal relief, service of the application instituting the proceedings for ancillary relief shall not be effected on a party in the manner referred to in paragraph (c) of rule 60 of these Rules unless the address for service of the party is the address of a solicitor representing that party and that solicitor is, at the time of the service, representing the party in connexion with those proceedings for ancillary relief.

(4.) Where proceedings for ancillary relief to which this rule applies are instituted before the trial of the proceedings for principal relief, the proceedings for ancillary relief shall, subject to any directions given under paragraph (e) of the last preceding sub-rule, be deemed to have been consolidated with, and shall, so far as is practicable, be heard and determined by the court at the same time as the proceedings for principal relief.

(5.) Where proceedings for ancillary relief to which this rule applies are instituted before the proceedings for principal relief are set down for trial—

(a) a copy of any request to set the proceedings for principal relief down for trial; and

(b) any application, or any document filed for the purpose of an application, with respect to the date on which or place at which the trial of the proceedings for principal relief shall take place,

shall be served on the person who instituted the proceedings for ancillary relief.

(6.) Subject to this rule and to any directions given under paragraph (e) of the sub-rule (2.) of this rule, the provisions of rules 21, 22 and 23 of these Rules apply to and in relation to proceedings for ancillary relief to which this rule applies.

Division 6.—Variation of Orders.

Variation of orders.

219.—(1.) Where application is made to a court for the variation of an order made in respect of a matter referred to in section 84 of the Act so as to increase or decrease any amount ordered to be paid by the order, the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 22 of these Rules—

as the case may be.

(2.) Where application is made to a court for an order increasing or decreasing—

the affidavits in support of the application shall state, in addition to any other facts stated in pursuance of rule 22 of these Rules, the material facts that are alleged by the applicant to have been withheld from a court or the material evidence previously given before a court that is alleged by the applicant to have been false, as the case may be.

(3.) Where a party has made application to the court for the variation of an order, another party to the application may, in an affidavit filed for the purpose and without filing an application to the court, request the court to vary the order in a manner specified in the affidavit, and the court shall then determine the request upon the hearing of the application.

(4.) Where a party makes a request referred to in the last preceding sub-rule, the affidavit of the party shall state whichever of the matters referred to in paragraph (a), (b) or (c) of sub-rule (1.), or in paragraph (a) or (b) of sub-rule (2.), of this rule are relevant to the request.

PART XV.—APPEALS.

Case stated.

220.—(1.) A special case under section 91 of the Act shall be divided into paragraphs numbered consecutively, and shall state concisely the facts and the question of law arising for the consideration of the High Court.

(2.) The judge by whom a special case is to be stated may give directions with respect to the procedure to be followed in and in relation to the preparation of the special case, and the parties shall comply with any such directions.

Time for appealing to State Full Court.

221. The time within which an appeal may be instituted under subsection (1.) of section 92 of the Act is twenty-one days after the making of the decree concerned

Practice and procedure on appeal to State Full Court.

222.—(1.) Subject to the next succeeding rule, the practice and procedure for the time being of the Supreme Court of a State applies to and in relation to an appeal under section 92 of the Act to the Supreme Court of that State sitting as a Full Court.

(2.) In the last preceding sub-rule, “the practice and procedure of the Supreme Court of a State” means the practice and procedure of the Supreme Court of a State applicable to and in relation to an appeal to that Supreme Court, sitting as a Full Court, from a decision of a judge of that Supreme Court exercising the jurisdiction of that Supreme Court.

Appeal Books.

223.—(1.) This rule applies to appeal books for the purpose of appeals under section 92 of the Act.

(2.) An appeal book shall be printed, or reproduced by a duplicating process, upon white folio foolscap paper.

(3.) The type used in the printing or reproduction of an appeal book shall not be less in size than 11 point type upon a 12 point body.

(4.) A page in an appeal book—

(5.) Subject to the preceding sub-rules of this rule, the practice and procedure for the time being of the Supreme Court of a State with respect to the printing of appeal books, or the reproduction of appeal books by a duplicating process, applies to and in relation to an appeal book to which this rule applies.

PART XVI.—EVIDENCE.

Division 1.—General.

Evidence to be given orally.

224.—(1.) Subject to this Division, testimony at the trial of proceedings shall be given orally.

(2.) Nothing in this Division shall be taken to prevent the admission in evidence, in accordance with the practice of the court, at the trial of proceedings—

Proof of service of documents.

225. Unless a court otherwise orders at the trial of proceedings or a registrar otherwise orders at the hearing of an application to the registrar, proof of the due service of a pleading or other document may be given by affidavit.

Evidence of when letter delivered in ordinary course of post.

226.—(1.) In any proceedings, a certificate under the hand of a person occupying, or performing the duties of, an office under the Post and Telegraph Act 1901-1950 of Director, Posts and Telegraphs, or a person authorized in writing by such a person to give certificates under this sub-rule, stating that a letter posted (postage being prepaid) at a specified time, on a specified day, at a specified place and addressed to a specified address would, in the ordinary course of post, have been delivered at that address on a specified day is evidence of the fact stated.

(2.) For the purposes of the last preceding sub-rule, a document purporting to be a certificate referred to in that sub-rule shall, unless the contrary is proved, be deemed to be such a certificate and to have been duly given.

Affidavit evidence on the trial of proceedings.

227.—(1.) This rule applies to proceedings for a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” and to any related proceedings that are heard and determined by a court at the same time as the proceedings for such a decree.

(2.) Subject to the next succeeding sub-rule, the court may, by order, grant leave to a party to proceedings to which this rule applies to furnish at the trial evidence of a particular fact by the affidavit of a person, whether a party to the proceedings or not, who has, of his own knowledge, deposed to the fact.

(3.) An order referred to in the last preceding sub-rule may be made by a court—

(4.) Where the court makes an order referred to in sub-rule (2.) of this rule before defended proceedings to which this rule applies are set down for trial—

(5.) Where the court makes an order referred to in sub-rule (2.) of this rule after defended proceedings to which this rule applies have been set down for trial, the order shall specify the time within which an affidavit may be filed and served, and the time within which affidavits in reply may be filed and served.

Affidavit evidence on the hearing of other proceedings.

228.—(1.) Evidence shall be given by affidavit upon the hearing of proceedings of a kind referred to in paragraph (c), (d) or (e) of the definition of “matrimonial cause” (not being proceedings to which the last preceding rule applies), or on the hearing of an application to a registrar, unless the court or registrar, as the case may be, orders otherwise.

(2.) Where an affidavit intended to be used upon the hearing of proceedings or an application to which the last preceding sub-rule applies is filed on behalf of a party to the proceedings or application, the party shall, on the day on which the affidavit is filed or on the next following day, serve a copy of the affidavit on each other party who has an address for service.

(3.) Where a party to proceedings or to an application has served on another party to the proceedings or application a copy of an affidavit intended to be used upon the hearing of the proceedings or application, the party on whom the affidavit was served may, within the time limited for replying to the affidavit or, if no such time is limited, within four days after

service of the affidavit on the party, serve on the party who served the affidavit notice that he desires, upon the hearing of the proceedings, or application, to cross-examine the person who made the affidavit.

(4.) A party who serves a notice that he desires to cross-examine the person who made an affidavit shall, unless that person is or has been the husband of the party, pay or tender reasonable expenses for the attendance of the person at the hearing.

(5.) Where a notice has been served under sub-rule (3.) of this rule and the last preceding sub-rule has been complied with, the affidavit in relation to which the notice was served shall not be admitted in evidence upon the hearing of the proceedings or application unless—

Division 2.—Affidavits.

Contents of affidavit.

229.—(1.) Where an affidavit states facts to which the deponent is unable to depose of his own knowledge—

(2.) The costs of a part of an affidavit that unnecessarily sets forth matters of hearsay, argumentative matter or copies of, or extracts from, documents are payable by the party filing the affidavit.

Document to be produced if extract set forth in affidavit.

230. Where a document or a portion of a document is set forth in an affidavit, the party filing the affidavit shall produce the document, or cause the document to be produced, upon the trial of the proceedings in connexion with which the affidavit is filed.

Exhibits.

231. A document, object or thing referred to in an affidavit as an exhibit shall have written on it, or on a paper attached to it, the title and number of the proceedings in connexion with which the affidavit is filed and a certificate signed by the person before whom the affidavit is sworn certifying that the exhibit is the particular exhibit referred to in the affidavit.

Use of figures.

232. In an affidavit, dates and sums of money shall be written in figures and not in words.

Before whom affidavit may be sworn.

233.—(1.) An affidavit may be sworn at a place in Australia before a person having authority to administer an oath at that place.

(2.) Without limiting the generality of the last preceding sub-rule, an affidavit to be used in proceedings in the Supreme Court of a State or Territory may be sworn at a place that is outside that State or

Territory, whether that place is within or outside Australia, before a person before whom affidavits for use in the Supreme Court of that State or Territory may, by virtue of a law of that State or Territory, be sworn at that place.

(3.) An affidavit may be sworn at a place outside Australia before an Australian Diplomatic Officer or an Australian Consular Officer as defined by section 2 of the Consular Fees Act 1955 or before a judge of a court of that place, a magistrate or justice of the peace of or for that place or a notary public.

(4.) The title of the person before whom an affidavit is sworn, and the date on which and place at which the affidavit is sworn, shall be stated in the jurat to the affidavit.

(5.) Where an affidavit purports to have been sworn at a place before a person before whom an affidavit is permitted to be sworn at that place, the affidavit shall, without proof of the signature of that person or of his title, be deemed, unless the contrary is proved, to have been sworn before such a person.

(6.) Notwithstanding sub-rule (1.) or (2.) of this rule, an affidavit is not admissible in evidence if sworn by the deponent before—

Form of affidavit.

234.—(1.) An affidavit shall be drawn up in the first person and shall be divided into paragraphs.

(2.) Where an affidavit contains more than one paragraph, the paragraphs shall be numbered consecutively.

(3.) Each paragraph shall, so far as practicable, be confined to a distinct part of the subject.

(4.) An affidavit shall be in accordance with Form 54.

(5.) Costs shall not be allowed for an affidavit departing substantially from this rule.

Affidavit to contain occupation and address of deponent.

235. An affidavit shall state the address and occupation of the deponent.

Signing affidavits.

236. An affidavit shall be signed on each page by the deponent and by the person before whom the affidavit is sworn.

Affidavit made by two or more deponents.

237.—(1.) Subject to the next succeeding sub-rule, where an affidavit is sworn by two or more deponents, the full name of each deponent shall be stated in the jurat.

(2.) If all the deponents swear the affidavit at the same time and before the same person, it is sufficient for the jurat to show that the affidavit was sworn or affirmed by all of the “abovenamed” deponents.

Affidavits to be filed before being used.

238.—(1.) An affidavit to be used in proceedings before a court shall, unless the court otherwise directs, be filed before it is so used.

(2.) An affidavit to be used in connexion with an application to a registrar shall, unless the registrar otherwise directs, be filed before it is so used.

Endorsements on affidavit.

239.—(1.) There shall be endorsed on an affidavit the name of the deponent, the date on which the affidavit is sworn and the party on whose behalf the affidavit is filed.

(2.) An affidavit that does not have endorsed on it the particulars referred to in the last preceding sub-rule shall not be used in proceedings, or on the hearing of an application to a registrar, unless the court before which the proceedings are tried, or the registrar, as the case may be, otherwise directs.

Irrelevant matter.

240. The court may, upon application by a party to proceedings, order that any scandalous or irrelevant matter included in an affidavit filed for the purpose of the proceedings be struck out, and may further order that the costs of the application be paid as between solicitor and client.

Alterations in affidavits.

241. When an affidavit filed for the purpose of proceedings, or of an application to a registrar, contains, in the jurat or in the body of the affidavit, an interlineation, alteration or erasure, the affidavit shall not be used in the proceedings, or on the hearing of the application, without the leave of the court before whom the proceedings are tried, or the registrar, as the case may be, unless—

(a) in the case of an interlineation or alteration, not being an alteration by erasure—the interlineation or alteration is authenticated by the initials of the person before whom the affidavit is sworn; or

(b) in the case of an erasure—the words or figures appearing at the time the affidavit is sworn to be written on the erasure are written in the margin of the affidavit and initialled by the person before whom the affidavit is sworn.

Affidavits by illiterate or blind persons.

242.—(1.) Where an affidavit is sworn by a deponent who appears to the person before whom it is sworn to be illiterate or blind, that person shall certify, in the jurat to the affidavit, that—

(2.) Where an affidavit that is sworn by a person who is illiterate or blind does not bear the certificate referred to in the last preceding sub-rule, the affidavit is not admissible in evidence in proceedings, or on the hearing of an application by a registrar, unless the court before whom the proceedings are tried, or the registrar, is satisfied that the affidavit was read over to the deponent and that the deponent appeared to understand the matter contained in the affidavit.

Affirmations.

243. Where the deponent to an affidavit objects to swearing on oath to the truth of the statements contained in the affidavit, he may solemnly and sincerely declare and affirm that he objects to swearing an oath and that the statements contained in the affidavit are true, and the jurat to the affidavit shall be altered accordingly.

Defective affidavits.

244. Where, in an affidavit filed for the purpose of proceedings or of an application to a registrar, there is a defect, by misdescription of parties or deponents or otherwise, in the title to, or jurat in, the affidavit, or there is any irregularity in the form of the affidavit, the court by whom the proceedings are tried, or the registrar, may direct that a memorandum be written on the affidavit authorizing the use of the affidavit notwithstanding the defect or irregularity, and the affidavit may then be used in the proceedings, or on the hearing of the application.

PART XVII.—ENFORCEMENT OF DECREES.

Division 1.—General.

Application.

245. Except as expressly provided in this Part, nothing in this Part shall be taken to limit the operation, throughout the States and Territories, of decrees and process made or issued under the Act or these Rules.

Enforcement of decrees.

246.—(1.) Subject to sub-rule (4.) of this rule, a decree made under the Act is not enforceable against a person unless—