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FAMILY LAW ACT 1975 - SECT 123

Rules of Court

             (1)  The Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts and, in particular:

                     (a)  providing for and in relation to the attendance of witnesses; and

                     (b)  providing for and in relation to the manner of service of process of the Family Court or another court exercising jurisdiction under this Act, and for and in relation to dispensing with such service; and

                   (ba)  providing for and in relation to trial management; and

                   (bb)  providing for and in relation to proceedings transferred to the Family Court under section 35A of the Bankruptcy Act 1966 ; and

                     (c)  providing for and in relation to the time and manner of institution of appeals in and to the Family Court; and

                     (d)  prescribing the duties of officers of the Family Court; and

                     (e)  providing for and in relation to the prevention or termination of vexatious proceedings; and

                      (f)  prescribing the seals and stamps to be used in the Family Court and in any other court exercising jurisdiction under this Act; and

                     (g)  prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs; and

                     (h)  authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to any matters before the court; and

                      (j)  authorising an officer making an investigation mentioned in paragraph (h) to:

                              (i)  take evidence on oath or affirmation; and

                             (ii)  receive in evidence a report from a family consultant under section 55A or 62G; and

                            (iii)  receive in evidence a report from a person who has had dealings with a party to the matter under investigation under section 65F, 65L, 65LA, 70NEB or 70NEG; and

                    (ja)  enabling the summoning of witnesses before an officer making an investigation mentioned in paragraph (h) for the purposes of giving evidence or producing books or documents; and

                     (k)  regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (h); and

                    (m)  providing for and in relation to the procedure of a court exercising its powers under section 112AP to deal with a person for contempt of the court; and

                  (ma)  for the purposes of Divisions 2 and 3 of Part XI, providing for the conditions relating to the use of video links, audio links and other appropriate means of communication; and

                     (n)  providing for and in relation to the making of an application for a divorce order in relation to a marriage jointly by both parties to the marriage; and

                     (o)  providing for and in relation to the appointment, by the Attorney-General, of a guardian ad litem for a party to proceedings under this Act; and

                     (q)  providing for and in relation to:

                              (i)  the forfeiture of bonds and recognizances entered into in pursuance of requirements made under this Act; and

                             (ii)  the recovery of any money that may be due to the Commonwealth under such bonds and recognizances or from any person who has become a surety under this Act; and

                      (r)  providing for and in relation to the attachment of moneys payable by the Commonwealth, a State, a Territory or the Administration of a Territory, or by an authority of the Commonwealth, of a State or of a Territory (other than moneys as to which it is provided by any law of the Commonwealth, of a State or of a Territory that they are not liable to attachment); and

                      (s)  providing for and in relation to:

                              (i)  the attendance at family counselling by parties to proceedings under this Act; and

                             (ii)  the attendance at family dispute resolution by parties to proceedings under this Act; and

                            (iii)  the giving of advice and assistance by family consultants to people involved in proceedings under this Act; and

                            (iv)  the participation by parties to proceedings under this Act in courses, programs and other services (other than those mentioned in subparagraph (i), (ii) or (iii)) that the parties are ordered by the court to participate in; and

                             (v)  the use, for the purposes of proceedings under this Act, by courts exercising jurisdiction under this Act and officers of such courts, of reports about the future conduct of the proceedings that have been prepared by persons who dealt with the parties in accordance with Rules of Court made under subparagraphs (i), (ii), (iii) or (iv); and

                    (sa)  prescribing the functions and duties of assessors and of family consultants and arbitrators; and

                    (sb)  providing for and in relation to the making of applications under this Act for arbitration and for orders under sections 13E and 13F; and

                    (sc)  prescribing the disputes, proceedings or matters that may or may not be arbitrated under this Act; and

                  (sca)  prescribing the disputes, proceedings or matters in relation to which family consultants may, or must not, perform their functions; and

                    (sd)  providing for and in relation to:

                              (i)  the functions to be performed by family consultants; and

                             (ii)  the procedures to be followed in performing those functions; and

                            (iii)  the procedures to be followed by persons involved in proceedings in relation to which a family consultant is performing functions; and

                            (iv)  the procedures to be followed when a family consultant ceases performing functions in relation to a dispute, proceeding or matter; and

                  (sda)  providing for and in relation to:

                              (i)  the procedures to be followed by a family counsellor authorised under subsection 38BD(1) of this Act or engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 ; and

                             (ii)  the procedures to be followed by persons attending family counselling with such a counsellor; and

                            (iii)  the procedures to be followed when family counselling with such a counsellor ends; and

                  (sdb)  providing for and in relation to:

                              (i)  the procedures to be followed by a family dispute resolution practitioner authorised under subsection 38BD(2) of this Act or engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 ; and

                             (ii)  the procedures to be followed by persons attending family dispute resolution with such a practitioner; and

                            (iii)  the procedures to be followed when family dispute resolution with such a practitioner ends; and

                  (sdc)  providing for and in relation to:

                              (i)  the procedures to be followed by an arbitrator in relation to a dispute, proceeding or matter under this Act; and

                             (ii)  the attendance by persons at conferences conducted by arbitrators for the purpose of arbitrating a dispute, proceeding or matter under this Act; and

                            (iii)  the procedure to be followed when arbitration ends, both where it has resulted in an agreement or award and where it has not; and

                    (se)  prescribing matters relating to the costs of arbitration by arbitrators, and the assessment or taxation of those costs; and

                  (sea)  prescribing matters relating to the costs of family counselling by family counsellors authorised under subsection 38BD(1) of this Act or engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 ; and

                  (seb)  prescribing matters relating to the costs of family dispute resolution by family dispute resolution practitioners authorised under subsection 38BD(2) of this Act or engaged under subsection 18ZI(2) of the Federal Court of Australia Act 1976 ; and

                    (sf)  providing for and in relation to:

                              (i)  the registration of awards under section 13H; and

                             (ii)  the time and manner of making applications for review of registered awards under section 13J or for orders setting aside registered awards under section 13K; and

                    (sg)  providing for and in relation to conciliation conferences; and

                      (t)  prescribing matters incidental to the matters specified in the preceding paragraphs; and

                     (u)  prescribing penalties not exceeding 50 penalty units for offences against the standard Rules of Court.

          (1A)  A reference in subsection (1) to a court exercising jurisdiction under this Act does not include a reference to the Federal Circuit Court of Australia.

             (2)  The Legislation Act 2003 (other than sections 8, 9, 10 and 16 of that Act) applies in relation to rules of court made by Judges under this section or any other Act:

                     (a)  as if a reference to a legislative instrument were a reference to a rule of court; and

                     (b)  as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges; and

                     (c)  subject to such further modifications or adaptations as are provided for in regulations made under paragraph 125(1)(baa) of this Act.

          (2A)  Despite the fact that section 16 of the Legislation Act 2003 does not apply in relation to rules of court made by Judges under this or any other Act, the Office of Parliamentary Counsel (established by subsection 2(1) of the Parliamentary Counsel Act 1970 ) may provide assistance in the drafting of any of those Rules if the Chief Justice so desires.

             (3)  In this section, Judge means:

                     (a)  a Judge of the Family Court of Australia; or

                     (b)  where the Governor-General has made an arrangement with the Governor of a State under section 112 in relation to the performance, by a Judge of the Family Court of that State, of functions under this section--that Judge.

Note:          The power to make Rules of Court conferred by this section is extended by section 109A and subsection 111C(7A). Powers to make Rules of Court are also contained in sections 26B and 37A.



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