Matrimonial Causes Rules (Amendment)

Legislation au C1966L00018 CourtRules Not in force Legislative Instrument

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STATUTORY RULES

1966 No. 18

 

RULES UNDER THE MATRIMONIAL CAUSES ACT 1959-1965.*

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 1959-1965.

Dated this third day of February, 1966.

Governor-General.

By His Excellency’s Command,

Attorney-General.

 

Amendments of the Matrimonial Causes RULES†

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

1. Rule 15 of the Matrimonial Causes Rules is amended—

(a) by inserting in sub-rule (2.), after the word and figure “ Form 3 ”, the words and figure “ or Form 3a (whichever is appropriate) ”; and

(b) by omitting sub-rule (3.).

2. After rule 64 of the Matrimonial Causes Rules the following rule is inserted:—

Power to dispense with service.

“ 64a.—(1.) The court or a registrar may, upon application made ex parte, dispense with the service of any process under the Act on a person if the court or registrar thinks it necessary or expedient to do so.

“ (2.) An order under the last preceding sub-section may be made subject to such conditions (if any) as the court or registrar thinks fit.”.

Service of petitions.

3. Rule 66 of the Matrimonial Causes Rules is amended by inserting after sub-rule (1.) the following sub-rule:—

“ (1a.) This rules does not require service of a petition to be effected where the petition institutes proceedings for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 28 of the Act and on no other ground.”.

Service of supplementary petitions and supplementary answers.

4. Rule 103 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1.) the words “ Subject to sub-section (2.) of section 121 of the Act, service of a supplementary petition shall ” and inserting in their stead the words “ Service of a supplementary petition shall, unless dispensed with,”.

 

* Notified in the Commonwealth Gazette on 4 February, 1966.

† Statutory Rules 1960, No. 97, as amended by Statutory Rules 1963, No. 1; and 1965, No. 29.

16341/65.—Price 9. (8c) 20/14.1.1966


Allegation of adultery or sodomy with person unknown.

5. Rule 108 of the Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the words “ under sub-section (2.) of section 121 of the Act ”.

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

6. Rule 124 of the Matrimonial Causes Rules is amended by omitting sub-rule (1.) and inserting in its stead the following sub-rule:—

“ (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—

(a) is detained in an institution where persons may, in accordance with law, be confined for unsoundness of mind;

(b) is receiving treatment as a voluntary patient in such an institution; or

(c) has been a patient in such an institution and, not having been discharged from the institution, is absent from the 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.”.

Appointment of friend as guardian of person of unsound mind.

7. Rule 125 of the Matrimonial Causes Rules is amended by omitting from sub-rule (3.) the word “ There ” and inserting in its stead the words “ Except where the application is made in pursuance of rule 127 of these Rules, there ”.

8. Rule 126 of the Matrimonial Causes Rules is repealed and the following rule inserted in its stead:—

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 or a registrar may, at any stage of the proceedings, if the court or registrar considers it advisable so to do, appoint a fit and proper person who consents to act as guardian ad litem of the person to be the guardian ad litem of the person for the purposes of the proceedings.

“ (2.) An appointment under this rule may be made by the court or registrar upon application by another party to the proceedings or a person who consents to act as the guardian ad litem of the person or without any application being made.

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

“ (4.) Where an application has been made to the court or a registrar under this rule, the court or registrar may adjourn the hearing of the application and direct that the application be served on such persons (if any) as the court or registrar thinks fit.”.

9. After rule 127 of the Matrimonial Causes Rules the following rule is inserted:—

Order appointing guardian ad litem to be served.

“ 127a. An order appointing a person to be the guardian ad litem of a party to proceedings or a person who desires to intervene in proceedings shall, unless the person appointed to be a guardian ad litem is the person on whose application the order was made be served on the person appointed on the day on which it is made or on the next following day.”.


Time when pleadings in a defended suit complete.

10. Rule 136 of the Matrimonial Causes Rules is amended by omitting paragraph (c) of sub-rule (4.) and inserting in its stead the following paragraph:—

“ (c) if a court or a registrar has dispensed with service of a pleading, being the petition or answer in the proceedings, on one of those parties,”.

Setting undefended suit down for trial.

11. Rule 171 of the Matrimonial Causes Rules is amended by omitting paragraphs (a) and (b) of sub-rule (4.) and inserting in their stead the following paragraphs:—

“ (a) on a respondent, if—

(i) the petition institutes proceedings for a decree of dissolution of marriage on the ground specified in paragraph (n) of section 28 of the Act and on no other ground;

(ii) service of the petition on the respondent has been dispensed with; or

(iii) the respondent has an address for service for the purpose of the proceedings; or

“ (b) on any other person, if—

(i) the person is dead;

(ii) service of the petition on the person has been dispensed with; or

(iii) the person has an address for service for the purpose of the proceedings.”.

Rescission on ground of miscarriage of justice.

12. Rule 191 of the Matrimonial Causes Rules is amended by omitting from sub-rule (1.) the words “ under sub-section (2.) of section 121 of the Act”.

Enforcement of decrees.

13. Rule 246 of the Matrimonial Causes Rules is amended by omitting sub-rule (4.) and inserting in its stead the following sub-rule:—

“(4.) Sub-rule (1.) of this rule does not apply to the enforcement of a decree against a person if a court or registrar has dispensed with service of a copy of the decree on the person.”.

Registration of maintenance orders in courts of summary jurisdiction.

14. Rule 271 of the Matrimonial Causes Rules is amended by omitting from sub-rule (2.) the words “under sub-section (2.) of section 121 of the Act”.


Form 3a.

15. After Form 3 in the First Schedule to the Matrimonial Causes Rules the following Form is inserted:—

Form 3a. Rule 15.

CERTIFICATE RELATING TO RECONCILIATION

I, (full name of solicitor) certify—

(a) that I am the solicitor representing the petitioner (or as the case may be);

(b) that I believe that the petitioner (or respondent) is outside (State or Territory in which the proceedings are to be instituted); and

(c) that I have been informed by (full name), a legal practitioner carrying on practice at (full address) that he (or his partner or a clerk in his office) has brought to the attention of the petitioner (or respondent) the provisions of the Matrimonial Causes Act relating to reconciliation of the parties to a marriage and the approved marriage guidance organizations reasonably available to assist in effecting a reconciliation between the petitioner and the respondent and has discussed with the petitioner (or respondent) the possibility of a reconciliation between the petitioner and the respondent being effected either with or without the assistance of such an organization.

Dated this    day of    , 19 .

Solicitor for the

Form 34.

16. Form 34 in the First Schedule to the Matrimonial Causes Rules is amended by inserting after paragraph 5 the following paragraph:—

“ 6. Service of the petition was (here state the manner in which the petition was served or that service of the petition was dispensed with)”.

Application.

17.—(1.) The amendments made by rule 1 of these Rules do not apply to a petition, answer or application filed before the date on which these Rules come into operation.

(2.) The amendment made by rule 9 of these Rules does not apply in relation to an order made before the date on which these Rules come into operation.

(3.) The amendments made by rules 2, 3, 7 and 8 of these Rules apply after the date on which these Rules come into operation to and in relation to proceedings instituted before, on or after that date.

 

By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra.

Overview

The Statutory Rules 1966 No. 18, made under the Matrimonial Causes Act 1959-1965, were enacted to amend existing rules concerning matrimonial causes and address certain procedural gaps in the handling of matrimonial matters. The enactment was carried out by the Governor-General in accordance with the Federal Executive Council. The rules introduced amendments primarily aimed at streamlining the processes related to petitions, service of documents, and the appointment of guardians for parties involved in matrimonial proceedings. This legislative instrument was intended to provide greater flexibility and efficiency in the administration of justice within the context of matrimonial disputes, ensuring that the courts could better manage cases with due regard to the circumstances of the parties involved.

Scope and Application

The Statutory Rules 1966 No. 18, made under the Matrimonial Causes Act 1959-1965, provides amendments to the Matrimonial Causes Rules primarily focusing on procedural aspects of matrimonial proceedings within the Commonwealth of Australia. The Act applies to individuals and entities involved in matrimonial causes, including petitioners, respondents, and guardians ad litem, particularly those who are of unsound mind or are infants. These rules govern the procedural aspects of matrimonial matters such as the service of petitions, the appointment of guardians ad litem, and the enforcement of decrees. Geographically, these rules apply nationwide within Australia, given that the Matrimonial Causes Act operates on a Commonwealth level. The amendments include provisions for the dispensation of service, the notification of reconciliation facilities, and the appointment of guardians for individuals of unsound mind or infants involved in matrimonial proceedings. Some rules apply retroactively to proceedings instituted before the date of operation of these Rules, while others apply only to proceedings initiated on or after the rules come into effect. These rules extend and clarify the application of the Act through subordinate instruments, ensuring the procedural aspects of matrimonial causes are comprehensively covered.

Key Provisions

The Statutory Rules 1966 No. 18, made under the Matrimonial Causes Act 1959-1965, introduce several amendments to the Matrimonial Causes Rules. Rule 1 amends Rule 15 to ensure that petitioners and certain applicants and respondents are informed of the facilities available to assist reconciliation. Specifically, it requires the insertion of "or Form 3a (whichever is appropriate)" in sub-rule (2) and omits sub-rule (3). Rule 2 introduces Rule 64a, which allows the court or a registrar to dispense with the service of any process under the Act on a person if deemed necessary or expedient, subject to any conditions the court or registrar may impose. Rule 3 modifies Rule 66 to exempt service of a petition instituting proceedings for a decree of dissolution of marriage on the specified ground in section 28 of the Act from the service requirements. Rule 4 amends Rule 103 to clarify that service of a supplementary petition shall not be required unless expressly dispensed with. Rule 5 removes certain wording from Rule 108 to streamline the process for allegations involving adultery or sodomy with a person unknown. Rule 6 updates Rule 124 to allow the Attorney-General or an authorized person to act as the guardian ad litem for a party detained or receiving treatment in an institution for unsoundness of mind. Rule 7 modifies Rule 125 by clarifying that certain provisions do not apply where an application is made under Rule 127. Rule 8 repeals Rule 126 and replaces it with a new Rule 126, allowing the court or a registrar to appoint a guardian ad litem for infants or persons of unsound mind at any stage of proceedings. Rule 9 introduces Rule 127a, requiring the service of an order appointing a guardian ad litem unless the appointed guardian is the applicant. Rule 10 amends Rule 136 to adjust the timing for when pleadings in a defended suit are considered complete. Rule 11 modifies Rule 171 to clarify the conditions under which a respondent or any other person may have a suit set down for trial. Rule 12 updates Rule 191 to remove certain references to section 121 of the Act regarding rescission on the ground of miscarriage of justice. Rule 13 amends Rule 246 to ensure that enforcement of a decree does not apply if service of the decree has been dispensed with. Rule 14 modifies Rule 271 to remove specific references to section 121 of the Act in relation to the registration of maintenance orders in courts of summary jurisdiction. Lastly, Rule 15 inserts Form 3a into the First Schedule, and Rule 16 amends Form 34 to include details on the manner of petition service or the dispensation of service. These amendments impose obligations on parties and entities involved in matrimonial proceedings to ensure compliance with the updated rules. For instance, parties must be informed of reconciliation facilities, and the court has discretion to dispense with service of process where necessary. Additionally, the Attorney-General or authorized persons can act as guardians ad litem for individuals in specified circumstances. Failure to comply with these rules may lead to civil consequences such as the dismissal of petitions or the inability to enforce decrees. The rules also provide for the appointment of guardians ad litem to protect the interests of parties who are infants or of unsound mind. The amendments emphasize the need for adherence to the procedural requirements set forth in the Matrimonial Causes Rules to ensure the proper administration of justice in matrimonial matters.

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Family Law
Instrument
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Definitions & Interpretation
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Guardianship and Representation

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