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FAMILY LAW RULES 2004 - SCHEDULE 6

Costs--rules before 1 July 2008

(Chapter 19)

Summary of Schedule 6

Schedule 6 regulates:

(a)    party/party costs for applications that are not covered by Chapter 19; and

(b)    the charges of lawyers in family law cases that commenced before 1 July 2008 as provided in subclause 6.01(1), except:

            (i)      for a fresh application commenced after 30 June 2008;

           (ii)      under a new agreement between the lawyer and the client entered into after 30 June 2008;

          (iii)      under a new retainer entered into by a client in the client's case after 30 June 2008, if the client instructs a new lawyer in a new firm; or

          (iv)      for any part of a case in which a Family Court is exercising its bankruptcy jurisdiction.

Chapter 26 contains provisions which regulate the charges of lawyers for a part of a case involving bankruptcy matters.

The rules in Chapter 1 relating to the court's general powers apply in all cases and override all other provisions in these Rules.

A word or expression used in this Schedule may be defined in the dictionary at the end of these Rules.

Part 6.1 -- General

6.01   Application of Schedule 6

             (1)  This Schedule only applies to costs for work done for a case, or in complying with pre-action procedures associated with a case, that commenced before 1 July 2008.

             (2)  Subject to subclause (4), this Schedule applies to costs for work done for a case, or in complying with pre-action procedures, paid or payable by:

                     (a)  a client to a lawyer;

                     (b)  if paragraph (a) does not apply--one person to another person.

             ( 3)  For work to which this Schedule applies, a party may only recover costs from another party in accordance with this Schedule or an order.

Note:          A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.

             (4)  This Schedule does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.

             (5)  In this Schedule:

"small claim" means a case that was determined in accordance with Division 11.2.3 as in force immediately before 1 July 2008.

6.02   Interest on outstanding costs

                   Interest is payable on outstanding costs at the rate mentioned in rule 17.03.

6.03   Duty to inform about costs

             (1)  When a lawyer receives instructions to act for a party (the client ) in a case, the lawyer must give the client:

                     (a)  a costs notice; and

                     (b)  written advice about:

                              (i)  the basis on which costs will be calculated;

                             (ii)  an estimate, if practicable, or a range of estimates of the total costs of conducting the case;

                            (iii)  how party and party costs may apply in addition to the client's own costs; and

                            (iv)  whether any other lawyer or an expert witness will be retained and, if so, the estimated cost.

             (2)  The lawyer must, when sending an account or itemised costs account to a client, include in the account a notice referring to the costs notice.

             (3)  If an offer to settle is made during a property case, the lawyer for each party must tell the party:

                     (a)  the party's actual costs, both paid and owing, up to the date of the offer to settle; and

                     (b)  the estimated future costs to complete the case;

to enable the party to estimate the amount the party will receive if the case is settled in accordance with the offer to settle, after taking into account costs.

             (4)  In this clause:

"lawyer" does not include counsel instructed by another lawyer.

6.04   Notification of costs

             (1)  This rule applies to the following court events:

                     (a)  conciliation conference;

                     (b)  the first day of the allocated dates mentioned in rule 16.10;

                     (c)  any other court events that the court orders.

             (2)  Immediately before each court event, the lawyer for a party must give the party a written notice of:

                     (a)  the party's actual costs, both paid and owing, up to and including the court event;

                     (b)  the estimated future costs of the party up to and including each future court event; and

                     (c)  any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.

             (3)  At each court event:

                     (a)  a party's lawyer must give to the court and each other party a copy of the notice given to the party under subclause (2); and

                     (b)  an unrepresented party must give to the court and each other party a written statement of:

                              (i)  the actual costs incurred by the party up to and including the event; and

                             (ii)  the estimated future costs of the party up to and including each future court event.

             (4)  Immediately before the first day of the trial, an independent children's lawyer must give to the court and each party a written statement of the actual costs incurred by the independent children's lawyer up to and including the trial.

             (5)  In a financial case, a notice under subclause (2) or a statement under paragraph (3)(b) must specify the source of the funds for the costs paid or to be paid unless the court orders otherwise.

Note:          The court may relieve a party from being required to disclose the source of the funds if, for example, the source is a third party (see rule 1.12).

             (6)  At the end of a court event, the court must return the copy of the notice or statement given under this clause to the person who gave it.

             (7)  In this clause:

"court event" does not include an attendance with a family counsellor, a family dispute resolution practitioner or a family consultant in a parenting case.

"lawyer" does not include counsel instructed by another lawyer.

Part 6.2 -- Security for costs

6.05   Application for security for costs

             (1)  A respondent may apply for an order that the applicant in the case give security for the respondent's costs.

Note:          Chapter 5 sets out the procedure for making an application for interim, procedural, ancillary or other incidental orders.

             (2)  In deciding whether to make an order, the court may consider any of the following matters:

                     (a)  the applicant's financial means;

                     (b)  the prospects of success or merits of the application;

                     (c)  the genuineness of the application;

                     (d)  whether the applicant's lack of financial means was caused by the respondent's conduct;

                     (e)  whether an order for security for costs would be oppressive or would stifle the case;

                      (f)  whether the case involves a matter of public importance;

                     (g)  whether a party has an order, in the same or another case (including a case in another court), against the other party for costs that remains unpaid;

                     (h)  whether the applicant ordinarily resides outside Australia;

                      (i)  the likely costs of the case;

                      (j)  whether the applicant is a corporation;

                     (k)  whether a party is receiving legal aid.

             (3)  In subclause (1):

"respondent" includes an applicant who has filed a reply because orders in a new cause of action have been sought in the response.

6.06   Order for security for costs

                   If the court orders a party to give security for costs, the court may also order that, if the security is not given in accordance with the order, the case of the party be stayed.

Note:          The court may, on application or on its own initiative, dismiss a case for want of prosecution.

6.07   Finalising security

             (1)  Security for costs may be applied in satisfaction of any costs ordered to be paid.

             (2)  Security for costs may be discharged by order.

             (3)  If security for costs is paid into court, the court may order that it be paid out of court.

Part 6.3 -- Costs orders

6.08   Order for costs

             (1)  A party may apply for an order that another person pay costs.

             (2)  An application for costs may be made:

                     (a)  at any stage during a case; or

                     (b)  by filing an Application in a Case within 28 days after the final order is made.

             (3)  A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

Note 1:       The court may make an order for costs on its own initiative (see rule 1.10).

Note 2:       A party may apply for an order for costs within 28 days after the filing of a notice of discontinuance by the other party (see subrule 10.11(4)).

Note 3:       A party may apply for an extension of time to make an application (see rule 1.14).

             (4)  In making an order for costs, the court may set a time for payment of the costs that may be before the case is finished.

6.09   Costs order for cases in other courts

             (1)  This clause applies to a case in the Family Court that:

                     (a)  has been transferred from another court; or

                     (b)  is on appeal from a decision of another court.

             (2)  The Family Court may make an order for costs in relation to the case before the other court.

             (3)  The order may specify:

                     (a)  the amount to be allowed for the whole or part of the costs; or

                     (b)  that the whole or part of the costs is to be calculated in accordance with these Rules or the rules of the other court.

6.10   Costs orders against lawyers

             (1)  A person may apply for an order under subclause (2) against a lawyer for costs thrown away during a case, for a reason including:

                     (a)  the lawyer's failure to comply with these Rules or an order;

                     (b)  the lawyer's failure to comply with a pre-action procedure;

                     (c)  the lawyer's improper or unreasonable conduct; and

                     (d)  undue delay or default by the lawyer.

             (2)  The court may make an order, including an order that the lawyer:

                     (a)  not charge the client for work specified in the order;

                     (b)  repay money that the client has already paid towards those costs;

                     (c)  repay to the client any costs that the client has been ordered to pay to another party;

                     (d)  pay the costs of a party; or

                     (e)  repay another person's costs found to be incurred or wasted.

6.11   Notice of costs order

             (1)  Before making an order for costs against a lawyer or other person who is not a party to a case, the court must give the lawyer or other person a reasonable opportunity to be heard.

             (2)  If a party who is represented by a lawyer is not present when an order is made that costs are to be paid by the party or the party's lawyer, the party's lawyer must give the party written notice of the order and an explanation of the reason for the order.

Part 6.4 -- Lawyer and client costs

6.12   When this Part does not apply

                   This Part does not apply to costs for work done for a case, paid or payable by a client to a lawyer:

                     (a)  for a fresh application commenced after 30 June 2008;

                     (b)  by a lawyer who is first retained by a client after 30 June 2008, even if the case in which the lawyer is retained to act is pending on 30 June 2008; or

                     (c)  if the lawyer and client agree in writing, and free from undue influence, that these Rules do not apply to the regulation of the costs to be charged.

6.13   Costs not to be charged

             (1)  A lawyer must not charge:

                     (a)  an amount for costs improperly, unreasonably or negligently incurred by the lawyer; or

                     (b)  for work done for the administration of the lawyer's office.

             (2)  A lawyer must not make an agreement with a client to avoid the requirement under paragraph (1)(a).

             (3)  Despite any clause in this Schedule, if:

                     (a)  the client instructs the lawyer, in writing, to do work for a case, or incur an expense of a particular kind or amount, that the lawyer advises the client would be unreasonable and unlikely to be recovered on a party and party basis; and

                     (b)  the lawyer does the work, or incurs the expense, in accordance with the client's instructions;

the lawyer may, as between the lawyer and the client, charge an amount for the costs incurred.

6.14   Steps before costs recovery

                   A lawyer may start or continue a case to recover costs from a client only if:

                     (a)  the lawyer has served on the client an account and a costs notice, and no request for an itemised costs account has been made under clause 6.21; or

                     (b)  an itemised costs account has been served on the client and:

                              (i)  a Notice Disputing Itemised Costs Account has not been served under clause 6.24;

                             (ii)  a Notice Disputing Itemised Costs Account has been served under clause 6.24 and the dispute has been resolved by agreement between the parties; or

                            (iii)  a Notice Disputing Itemised Costs Account has been filed under subclause 6.25(3) and the dispute has been determined or the Notice Disputing Itemised Costs Account has been withdrawn.

6.15   Costs agreements

             (1)  A lawyer may make a written agreement (the costs agreement ) with a client about the costs to be charged by the lawyer for work done for a case for the client.

             (2)  The costs agreement must:

                     (a)  specify the type and amount of work to be done by the lawyer;

                     (b)  set out:

                              (i)  the costs payable by the client for the work as a lump sum; or

                             (ii)  the basis on which the costs will be calculated;

                     (c)  state whether a partner, employed lawyer or clerk will work on the case and, if so, that person's charge out rate;

                     (d)  be fair and reasonable; and

                     (e)  be signed by the lawyer and the client.

             (3)  The costs agreement may:

                     (a)  relate to part only of a case; and

                     (b)  be amended by written agreement.

             (4)  The costs agreement must not include a provision:

                     (a)  preventing the client from taking civil action (including liability for negligence) against the lawyer;

                     (b)  by which all or part of the costs payable for work done are calculated by reference to:

                              (i)  an amount ordered by the court;

                             (ii)  the amount of an agreed settlement or consent order; or

                            (iii)  the value of the property or money that may be recovered in a case to which the work relates; or

                     (c)  that makes the costs payable only if the outcome of the case is in the client's favour.

6.16   Notice about costs agreement

                   At the time of making a costs agreement with a client, a lawyer must:

                     (a)  give each other party to the costs agreement a costs notice; and

                     (b)  advise those parties to obtain independent legal advice about the costs agreement.

6.17   Validity and effect of costs agreement

                   A party to a costs agreement may apply for an order:

                     (a)  confirming, varying or setting aside the costs agreement; or

                     (b)  determining any question relating to the validity or effect of the costs agreement.

6.18   Setting aside costs agreement

                   The court may set aside a costs agreement if:

                     (a)  it is unfair or unreasonable;

                     (b)  it does not comply with this Part;

                     (c)  the client was subject to undue influence or misrepresentation, or was fraudulently induced to enter the agreement; or

                     (d)  the lawyer has not complied with clause 6.03, subclause 6.15(2) or (4) or clause 6.16.

Part 6.5 -- Calculation of costs

6.19   Maximum amount chargeable

             (1)  This clause sets out the maximum amount of costs a lawyer may charge and recover for work done for a case, or in complying with pre-action procedures:

                     (a)  for a client;

                     (b)  if the court orders that costs are to be paid and does not fix the amount; and

                     (c)  if a person is entitled to costs under these Rules.

             (2)  The maximum amount of costs that a lawyer may charge and recover is as follows:

                     (a)  for fees--an amount calculated in accordance with Schedules 3 and 4;

                     (b)  for an expense mentioned in Schedule 4 (other than item 101)--the amount specified in Schedule 4 for that expense;

                     (c)  for any other expenses--a reasonable amount.

             (3)  However, for lawyer and client costs only, if there is a valid costs agreement between a lawyer and a client:

                     (a)  subclause (2) does not apply; and

                     (b)  the maximum amount of costs that the lawyer may charge and recover is the amount calculated in accordance with the costs agreement.

6.20   Party and party costs

             (1)  The court may order that clause 6.19 does not apply and that a party is entitled to costs:

                     (a)  of a specific amount;

                     (b)  as assessed on a lawyer and client basis or an indemnity basis;

                     (c)  to be calculated in accordance with the method stated in the order; or

                     (d)  for part of the case, or part of an amount, assessed in accordance with Schedule 3.

Example for paragraph (1)(c)

The stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.

             (2)  In making an order under subclause (1), the court may consider:

                     (a)  the importance, complexity or difficulty of the issues;

                     (b)  the reasonableness of each party's behaviour in the case;

                     (c)  the rates ordinarily payable to lawyers in comparable cases;

                     (d)  whether a lawyer's conduct has been improper or unreasonable;

                     (e)  the time properly spent on the case, or in complying with pre-action procedures; and

                      (f)  expenses properly paid or payable.

Part 6.6 -- Claiming and disputing costs

Division 6.6.1 -- Itemised costs account

Note:      This Division provides that, if an account payable by a person is not in an itemised form, the person has the right to request an itemised account (an itemised costs account ). The person may then dispute the itemised costs account by following the procedures set out in this Division. A person may apply to extend the time for taking any action required under these Rules (see rule 1.14).

6.21   Request for itemised costs account

                   A person who has received an account (except an itemised costs account) and wants to dispute the account, or any part of it, must, within 28 days after receiving the account, request the lawyer who sent it to serve an itemised costs account for the whole or part of the account disputed.

Note:          A lawyer must give a costs notice to a client on receiving instructions and must, when serving an account or an itemised costs account, include a reference to the costs notice (see subclause 6.03(2)).

6.22   Service of lawyer's itemised costs account

             (1)  A person entitled to costs must serve an itemised costs account on the person liable to pay the costs within 28 days after:

                     (a)  for lawyer and client costs--receiving a request for an itemised costs account; or

                     (b)  for party and party costs--the end of the case.

Note:          A person entitled to costs may serve an itemised costs account even if the person liable to pay the costs has not requested it.

             (2)  For party and party costs, the person entitled to costs must serve a costs notice at the same time as the itemised costs account is served under subclause (1).

6.23   Lawyer's itemised costs account

             (1)  An itemised costs account (the account ) must specify each item of costs and expense claimed.

             (2)  Each item specified in the account must be numbered and described in sufficient detail to enable the account to be assessed.

             (3)  The account must set out, in columns across the page, the following information:

                     (a)  in relation to each item for which costs are payable:

                              (i)  the date when the item occurred;

                             (ii)  a description of the item, including whether the work was done by a lawyer or an employee or agent of a lawyer;

                            (iii)  the amount payable for the item;

                     (b)  at the end of the column setting out the amount payable--the total amount payable for the items.

             (4)  For each expense claimed, the account must include:

                     (a)  the date when the expense was incurred;

                     (b)  the name of the person to whom the expense was paid;

                     (c)  the nature of the expense; and

                     (d)  the amount paid.

6.24   Disputing itemised costs account

                   A person served with an itemised costs account may dispute it by serving on the person entitled to the costs a Notice Disputing Itemised Costs Account within 28 days after the account was served.

Note 1:       A person may apply for an extension of time to dispute an account (see rule 1.14).

Note 2:       If no Notice Disputing Itemised Costs Account is received and the costs are not paid, the person entitled to the costs may seek a costs assessment order (see clause 6.38).

Note 3:       If the parties agree on the amount to be paid for costs, they may file a draft consent order (see Part 10.4 for consent orders).

6.25   Assessment of disputed costs

             (1)  This clause applies if a Notice Disputing Itemised Costs Account has been served under clause 6.24.

             (2)  The parties to a dispute in relation to costs must make a reasonable and genuine attempt to resolve the dispute.

             (3)  If the parties are unable to resolve the dispute, either party may ask the court to determine the dispute by filing in the filing registry of the court where the case was conducted the itemised costs account and the Notice Disputing Itemised Costs Account no later than 42 days after the Notice Disputing Itemised Costs Account was served.

             (4)  The court may take into account a failure to comply with subclause (2) when considering any order for costs.

Note 1:       A party may apply for an extension of the time mentioned in subclause (3) (see rule 1.14).

Note 2:       A person filing a document must serve the document on each person to be served (see subrule 7.04(4)).

6.26   Amendment of itemised costs account and Notice Disputing Itemised Costs Account

                   A party may amend an itemised costs account or a Notice Disputing Itemised Costs Account by filing the amended document with the amendments clearly marked:

                     (a)  at least 14 days before the date fixed for the assessment hearing; or

                     (b)  after that time with the consent of the other party.

Note 1:       A party amending an itemised costs account or Notice Disputing Itemised Costs Account may apply for an extension of the time mentioned in paragraph (a) (see rule 1.14).

Note 2:       The only items that may be raised at an assessment hearing are those items included in the itemised costs account or Notice Disputing Itemised Costs Account (see subclause 6.33(2)).

Division 6.6.2 -- Assessment process

6.27   Fixing date for first court event

             (1)  On the filing of an itemised costs account and a Notice Disputing Itemised Costs Account under subclause 6.25(3), the Registrar must fix a date for:

                     (a)  a settlement conference (see clause 6.29);

                     (b)  a preliminary assessment (see clause 6.30); or

                     (c)  an assessment hearing (see clause 6.33).

             (2)  The date fixed must be at least 21 days after the Notice Disputing Itemised Costs Account is filed.

6.28   Notification of hearing

                   A party filing a Notice Disputing Itemised Costs Account must give the party who served the itemised costs account at least 14 days notice of the court event and the date fixed for the event under clause 6.27.

6.29   Settlement conference

                   At a settlement conference for an itemised costs account, the Registrar:

                     (a)  must:

                              (i)  give the parties an opportunity to agree about the amount for which a costs assessment order should be made; or

                             (ii)  identify the issues in dispute; and

                     (b)  must make procedural orders for the future conduct of the assessment process.

6.30   Preliminary assessment

             (1)  At a preliminary assessment of an itemised costs account, the Registrar must, in the absence of the parties, calculate the amount (the preliminary assessment amount ) for which, if the costs were to be assessed, the costs assessment order would be likely to be made.

             (2)  The Registrar must give each party written notice of the preliminary assessment amount.

6.31   Objection to preliminary assessment amount

             (1)  A party may object to the preliminary assessment amount by:

                     (a)  giving written notice of the objection to the Registrar and the other party; and

                     (b)  paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account;

within 21 days after receiving written notice of the preliminary assessment amount.

             (2)  On receiving a notice and security, the Registrar must fix a date for an assessment hearing for the itemised costs account.

             (3)  The party objecting may be ordered to pay the other party's costs of the assessment from the date of giving notice under paragraph (1)(a) unless the itemised costs account is assessed with a variation in the objecting party's favour of at least 20% of the preliminary assessment amount.

Note:          The court may order that a party is not required to pay security under paragraph (1)(b).

6.32   If no objection to preliminary assessment

                   If:

                     (a)  a Registrar does not receive a notice of objection under paragraph 6.31(1)(a); and

                     (b)  an amount as security for costs is not paid under paragraph 6.31(1)(b);

the Registrar may make a costs assessment order for the amount of the preliminary assessment amount.

6.33   Assessment hearing

             (1)  The Registrar conducting an assessment hearing for a disputed itemised costs account must:

                     (a)  determine the amount (if any) to be deducted from each item included in the Notice Disputing Itemised Costs Account;

                     (b)  determine the total amount payable for the costs of the assessment (if any);

                     (c)  calculate the total amount payable for the costs allowed;

                     (d)  deduct the total amount (if any) of costs paid or credited; and

                     (e)  calculate the total amount payable for costs.

             (2)  At the assessment hearing, a party may only raise as an issue a disputed item included in the Notice Disputing Itemised Costs Account.

             (3)  At the end of the assessment hearing, the Registrar must:

                     (a)  make a costs assessment order; and

                     (b)  give a copy of the order to each party.

Note:          At an assessment hearing, the onus of proof is on the person entitled to costs. That person should bring to the hearing all documents supporting the items claimed.

             (4)  Within 14 days after the costs assessment order is made, a party may ask the Registrar to give reasons for the Registrar's decision about a disputed item.

6.34   Powers of Registrars

             (1)  A Registrar may do any of the following at an assessment hearing:

                     (a)  summon a witness to attend;

                     (b)  examine a witness;

                     (c)  require a person to file an affidavit;

                     (d)  administer an oath;

                     (e)  order that a document be produced;

                      (f)  make an interim or final costs assessment order;

                     (g)  adjourn the assessment hearing;

                     (h)  if satisfied that there has been a gross or consistent breach of a lawyer's obligations under this Schedule--refer an issue to the appropriate professional regulatory body;

                      (i)  refer to the court any question arising from the assessment;

                      (j)  determine whether costs were reasonably incurred, were of a reasonable amount and were proportionate to the matters in issue;

                     (k)  make a consent order fixing the amount of costs to be paid;

                      (l)  dismiss an account if:

                              (i)  it does not comply with these Rules or an order; or

                             (ii)  the person entitled to costs does not attend the assessment hearing;

                    (m)  order costs;

                     (n)  do, or order another person to do, any other act that is required to be done under these Rules or an order.

Example for paragraph (1)(h)

An example of the kind of issue that may be referred to a professional regulatory body for a lawyer is if the lawyer grossly overcharged a client or failed to disclose an important issue.

             (2)  On being satisfied that the time for reviewing a costs assessment order has passed, the Registrar must:

                     (a)  determine how any amount paid as security for the costs of assessment is to be distributed or refunded; and

                     (b)  order that the payment be made out of court.

6.35   Assessment principles

             (1)  A Registrar must not allow costs that, in the opinion of the Registrar:

                     (a)  are not reasonably necessary for the attainment of justice; and

                     (b)  are not proportionate to the issues in the case.

Note:          A lawyer may charge an amount for costs unreasonably incurred if the client gives the lawyer written instructions to do work for a case, or incur an expense of a particular kind or amount, that the lawyer has advised the client would be unreasonable and unlikely to be recovered on a party and party basis (see subclause 6.13(3)).

             (2)  An itemised costs account for work that is the subject of a costs agreement must be assessed in accordance with the costs agreement.

             (3)  If the court has ordered costs on an indemnity basis, the Registrar must allow all costs reasonably incurred and of a reasonable amount, having regard to, among other things:

                     (a)  the scale of costs in Schedule 3;

                     (b)  any costs agreement between the party to whom costs are payable and the party's lawyer; and

                     (c)  charges ordinarily payable by a client to a lawyer for the work.

             (4)  When assessing costs as between party and party, a Registrar must not allow:

                     (a)  costs incurred because of improper, unnecessary or unreasonable conduct by a party or a party's lawyer;

                     (b)  costs for work (in type or amount) that was not reasonably required to be done for the case; or

                     (c)  unusual expenses.

6.36   Allowance for matters not specified

             (1)  A Registrar may allow a reasonable sum for work properly performed that is not specifically provided for in Schedule 3.

             (2)  When considering whether to allow an amount for costs or an expense, the Registrar may consider:

                     (a)  any other fees paid or payable to the lawyer and counsel for work to which a fee or allowance applies;

                     (b)  the complexity of the case;

                     (c)  the amount or value of the property or financial resource involved;

                     (d)  the nature and importance of the case to the party concerned;

                     (e)  the difficulty or novelty of the matters raised in the case;

                      (f)  the special skill, knowledge or responsibility required, or the demands made, of the lawyer by the case;

                     (g)  the conduct of all the parties and the time spent on the case;

                     (h)  the place where, and the circumstances in which, work or any part of it was done;

                      (i)  the quality of work done and whether the level of expertise was appropriate to the nature of the work; and

                      (j)  the time in which the work was required to be done.

6.37   Neglect or delay before Registrar

             (1)  This clause applies if, after a Notice Disputing Itemised Costs Account disputing an itemised costs account has been filed under subclause 6.25(3), a party or a party's lawyer:

                     (a)  fails to comply with these Rules or an order; or

                     (b)  puts another party to unnecessary or improper expense or inconvenience.

             (2)  The Registrar may:

                     (a)  order the party to pay costs; or

                     (b)  disallow all or part of the costs in the account.

6.38   Costs assessment order--costs account not disputed

             (1)  This clause applies to a person entitled to costs who:

                     (a)  has served an itemised costs account under clause 6.22; and

                     (b)  has not received a Notice Disputing Itemised Costs Account under clause 6.24.

             (2)  A Registrar may make a costs assessment order if the person has filed:

                     (a)  a copy of the itemised costs account; and

                     (b)  an affidavit stating:

                              (i)  when the itemised costs account was served on the person liable to pay the costs;

                             (ii)  the amount (if any) that has been received or credited for the costs;

                            (iii)  that the person liable to pay the costs has not served a Notice Disputing Itemised Costs Account under clause 6.24; and

                            (iv)  that the time for serving a Notice Disputing Itemised Costs Account has passed.

             (3)  If a costs assessment order is made under subclause (2), the person entitled to costs must serve a copy of the order on the person liable to pay costs.

6.39   Setting aside a costs assessment order

             (1)  This clause applies to a party who is liable to pay costs and receives a costs assessment order under clause 6.32 or subclause 6.38(3).

             (2)  The party may, within 14 days after receiving the costs assessment order, apply to have it set aside.

Note:          If a party wishes to object to a costs assessment order after an assessment hearing has taken place, the party must do so in accordance with Part 6.8.

Part 6.7 -- Specific costs matters

   

6.40   Application of Part 6.7

                   So far as this Part applies to lawyer and client costs, this Part does not apply if there is a valid costs agreement between a lawyer and a client.

6.41   Costs in court of summary jurisdiction

             (1)  This clause applies to a lawyer doing work for a case:

                     (a)  conducted in a court of summary jurisdiction; or

                     (b)  to be determined as a small claim.

Note:          For requirements relating to small claims, see rule 11.15.

             (2)  The lawyer must not charge for the work a fee that is more than 80% of the amount mentioned in Schedule 3 that may be charged for the work.

6.42   Charge for each page

             (1)  A lawyer may charge the amount specified in Schedule 3 for a document only if it complies with the requirements for documents specified in rule 24.01.

             (2)  For Schedule 3, the calculation of the number of words in a document excludes words that are part of:

                     (a)  an approved form;

                     (b)  the form in Schedule 2; or

                     (c)  a document in a form approved by the Chief Executive Officer.

6.43   Proportion of costs

                   If the scale in Schedule 3 provides for an amount to be charged that is based on time or number of words, the amount to be charged is an amount that is proportionate to the time or number of words actually taken or written.

6.44   Costs for reading

                   If it is reasonable for a lawyer to read more than 50 pages for a case, the amount to be charged under item 104 in Schedule 3 is at the discretion of the Registrar.

6.45   Postage within Australia

                   The charge mentioned in Schedule 3 for producing a document (including a letter) includes an allowance for:

                     (a)  preparing one file copy of the document; and

                     (b)  postage of the document in Australia.

6.46   Waiting and travelling time

             (1)  Subclause (2) applies if:

                     (a)  a lawyer has travelled less than 100 km from the lawyer's place of business to attend court; and

                     (b)  it is not appropriate or proper for an agent to attend court instead of the lawyer.

             (2)  The lawyer may charge an amount for time reasonably spent attending a court event if the lawyer was:

                     (a)  at court waiting for the court event to start or resume after the time allocated; or

                     (b)  travelling to or from court.

             (3)  A lawyer who attends court for the hearing of 2 or more cases may charge, for each case, an amount that is reasonable, having regard to the time spent at each hearing:

                     (a)  travelling to or from court; or

                     (b)  waiting for each hearing to start or resume.

             (4)  The total amount that may be charged under this clause for all cases must not be more than the amount that may be charged under Part 1 of Schedule 3 for one case.

Note 1:       The lawyer may charge a higher amount in certain circumstances (see subclause 6.13(3)).

Note 2:       This clause applies unless the court orders otherwise (see rule 1.12).

6.47   Agent's fees

                   The costs claimed by a lawyer for work done by another lawyer as agent of the lawyer must not be more than the amount the lawyer would have been entitled to charge under Schedule 3 if the lawyer had personally done the work.

Note:          This clause applies unless the court orders otherwise (see rule 1.12). An agent may claim for an amount that is specifically authorised by a client (see subclause 6.13(3)).

6.48   Costs of cases not started together

             (1)  This clause applies if:

                     (a)  a lawyer starts a case for a client that could reasonably have been started at the same time, and in the same court, as another case between the same parties; and

                     (b)  the case was not started at that time in that court.

             (2)  The lawyer may charge for work done for all the cases only the amount the lawyer could have charged if the lawyer had started all the cases at the same time in the same court.

6.49   Certificate as to counsel

                   The judicial officer hearing a case may certify that it was reasonable to engage a lawyer (including Queen's Counsel and Senior Counsel) as counsel to attend for a party.

6.50   Lawyer as counsel--party and party costs

             (1)  This clause applies to party and party costs for fees paid or to be paid to a lawyer engaged as counsel.

             (2)  The fees are a necessary expense for a case if:

                     (a)  either:

                              (i)  the case was heard by the Full Court; or

                             (ii)  in any other case--it was reasonable to engage counsel to attend in the case;

                     (b)  for a hearing or trial, counsel:

                              (i)  was present for a considerable part of the hearing or trial; and

                             (ii)  gave substantial assistance during the period to which the fees relate in the conduct of the case; and

                     (c)  the fees are not more than the amount otherwise payable under these Rules for counsel engaged to attend in a case.

6.51   Lawyer as counsel--assessment of fees

             (1)  This clause applies to party and party costs for fees paid or to be paid to a lawyer engaged as counsel.

             (2)  The Registrar may allow the costs of engaging more than one counsel, including counsel who is not Queen's Counsel or Senior Counsel.

             (3)  If:

                     (a)  counsel is engaged to attend at a trial; and

                     (b)  the trial takes more than one day;

the Registrar may allow a fee in accordance with Part 2 of Schedule 3 for each further day or part of a day.

             (4)  The Registrar must not allow:

                     (a)  a fee paid to counsel as a retainer;

                     (b)  a reading fee, unless:

                              (i)  the case is unusually complex; or

                             (ii)  the amount of material involved is particularly large;

                     (c)  for a case before a court of summary jurisdiction--an amount for counsel's fees, other than in accordance with item 203 or 204 of Schedule 3; or

                     (d)  if a daily fee for counsel's attendance is payable in accordance with Part 2 of Schedule 3--an additional amount for work done for the case by counsel on any day for which the daily fee applies.

6.52   Lawyer as counsel--lawyer and client costs

             (1)  This clause applies to costs as between lawyer and client if:

                     (a)  an amount is claimed for counsel's fees; and

                     (b)  the lawyer performing the work of counsel is:

                              (i)  another lawyer instructed by the lawyer for the client; or

                             (ii)  also performing the work of solicitor for the client.

             (2)  The fees for counsel are properly incurred if:

                     (a)  either:

                              (i)  the case was heard by the Full Court; or

                             (ii)  in any other case:

                                        (A)  it was reasonable to engage a lawyer to attend as counsel in the case; or

                                        (B)  the client asked that a lawyer be engaged to attend as counsel in the case; and

                     (b)  the fees are reasonable and are not more than the amount otherwise payable under these Rules for counsel to attend.

Part 6.8 -- Review of assessment

6.53   Application for review

             (1)  A party may apply to the court to review the decision of a Registrar under clause 6.33 by filing an Application in a Case.

             (2)  A party must include in the affidavit filed with the application:

                     (a)  the number of each item in the itemised costs account to which the party objects to the Registrar's decision;

                     (b)  the reasons for objecting to the decision; and

                     (c)  the decision sought from the court for each objection.

6.54   Time for filing an application for review

                   An application for review must be filed within 14 days after the applicant receives the Registrar's reasons given after a request made under subclause 6.33(4).

6.55   Hearing of application

             (1)  An application for review must be heard by a Judge.

             (2)  At the hearing of the application:

                     (a)  the court must not receive any new evidence;

                     (b)  the court may:

                              (i)  exercise all the powers of the Registrar;

                             (ii)  set aside or vary the Registrar's decision; and

                            (iii)  return any item to the Registrar for reconsideration; and

                     (c)  a party may raise an issue only if it:

                              (i)  was identified as a disputed item in the Notice Disputing Itemised Costs Account;

                             (ii)  concerns the costs of assessing the itemised costs account;

                            (iii)  concerns an alleged error of calculation in, or omission from, the assessment of the itemised costs account; or

                            (iv)  concerns an alleged error of law or fact by the Registrar, and the party has made a request under subclause 6.33(4).

             (3)  A hearing of an application for review does not operate as a stay of the decision reviewed.

Note:          This clause applies unless the court orders otherwise (see rule 1.12).

 


Dictionary  

(rule 1.16)

   

   

Note 1:      This dictionary is part of these Rules. There is also an explanatory guide that does not form part of these Rules but explains the meaning of other words and expressions used in these Rules.

Note 2 :      Section 18A of the Acts Interpretation Act 1901 provides that other forms of a word or phrase have a corresponding meaning, therefore other forms of a word or phrase defined in this dictionary are not included, for example, file is defined but filed and filing are not. Those terms are assumed to have a corresponding meaning to file .

Note 3:      An expression used in these Rules has the same meaning as in the Act, unless these Rules state otherwise (see paragraph 46(1)(b) of the Acts Interpretation Act 1901 ).

"abuse" , in relation to a child, has the meaning given by subsection 4(1) of the Act.

"Act" means the Family Law Act 1975 .

"address for service" means the address given by a party where documents may be left for the party or to where documents may be sent for the party (see rule 8.05).

"affidavit" means a document that complies with rules 15.08, 15.09 and 24.01.

"affirmation -- see the definition of oath" in this dictionary.

"appeal" includes:

                     (a)  an appeal to the Full Court of the Family Court of Australia from a Family Court, the Federal Circuit Court or the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia:

                              (i)  under subsection 94(1), 94(1AA) or 94AAA(1) of the Act;

                             (ii)  with permission, under section 102 or 102A of the Assessment Act; or

                            (iii)  with permission, under section 107 or 107A of the Registration Act;

                     (b)  an appeal to a Family Court from a court of summary jurisdiction:

                              (i)  under section 96 of the Act; or

                             (ii)  with permission, under section 105 of the Assessment Act; or

                            (iii)  with permission, under section 110 of the Registration Act; and

                     (c)  a cross-appeal.

Note:          An appeal is the procedure that enables a person to challenge an order made in relation to the person's case.

"Appeal Registrar" , for an appeal, means the Registrar at the Appeal Registry for that appeal, and includes the Regional Appeal Registrar.

"Appeal Registry" means:

                     (a)  for an appeal to the Full Court or from a decision of the Federal Circuit Court--the registry determined by the Regional Appeal Registrar to be the registry for that appeal; and

                     (b)  for an appeal from a court of summary jurisdiction--the registry in which the Notice of Appeal for the appeal was filed.

Note:          A Notice of Appeal for an appeal from a decision of a court of summary jurisdiction must be filed in the registry of a Family Court that is closest to the court that made the order appealed from (see rule 22.02).

"appellant" includes a cross-appellant.

"applicant" includes a cross-applicant who is seeking other orders in a response to an application.

"application" includes:

                     (a)  an Initiating Application (Family Law);

                     (b)  an Application in a Case;

                     (c)  an Application for Divorce;

                     (d)  an Application for Consent Orders;

                     (e)  an Application for Contempt;

                      (f)  a Notice of Appeal; and

                     (g)  a cross-application set out in a response to an application (Response to an Initiating Application (Family Law) or Response to an Application in a Case) .

"approved form" , for a provision of these Rules, means a form approved under subrule 24.04 (1) for the purposes of the provision.

"arbitration agreement" has the same meaning as in Part 5 of the Regulations.

"Assessment Act" means the Child Support (Assessment) Act 1989 .

"assessment hearing" means a hearing conducted by a Registrar at which the amount to be paid on an itemised costs account is assessed (see rule 19.32).

"attend" means present at a court event, including by electronic communication.

Note:          See rules 5.06, 12.12, 16.05 and 22.39 for attendance by electronic communication.

"balance sheet" means a balance sheet prepared in accordance with subrules 12.06(2), (3) and (4).

"bankrupt" has the meaning given by subsection 5(1) of the Bankruptcy Act.

" Bankruptcy Act" means the Bankruptcy Act 1966 .

"bankruptcy case" means a case in which a court has jurisdiction in bankruptcy under section 35, 35A or 35B of the Bankruptcy Act.

"case" :

                     (a)   means a proceeding under the Act, the Regulations, these Rules or any other law that vests jurisdiction in the Family Court; and

                     (b)  for Part 10.2--see rule 10.10.

Note:          A case does not include arbitration: see the definitions of arbitration and proceedings in the Act.

"case guardian" means a person appointed by the court under rule 6.10 to manage and conduct a case for a child or a person with a disability, and includes a next friend, guardian ad litem, tutor or litigation guardian (see Part 6.3).

"certified copy" means a copy of a document certified to be an exact copy by the person having custody or control of the document, or by another person at the direction of that person, and includes a copy of the document bearing the seal of a court or other form of authentication.

"child-related proceedings" has the meaning given by subsection 4(1) of the Act.

"Child Responsive Program" means an early intervention program with a focus on children, feedback to parents about the needs of children and the provision to the court of a Children and Parents Issues Assessment.

"Child Support Agency" means the part of the Department of Family and Community Services known by that name that administers the Assessment Act and the Registration Act.

"child support agreement" has the meaning given by section 81 of the Assessment Act.

"Child Support Application or Appeal" means an application or appeal in which the only orders sought are under the Assessment Act or the Registration Act (see Division 4.2.5).

"child support assessment" includes:

                     (a)  an administrative assessment for child support under Part 5 of the Assessment Act; and

                     (b)  an amended assessment to give effect to an order.

"child support liability" means an amount owing under the Assessment Act or the Registration Act (including a child support assessment or registered child support agreement) that may be registered for collection by the Child Support Agency.

"Child Support Registrar" means the Child Support Registrar under section 10 of the Registration Act.

"child welfare record" means a record relating to child welfare held by an agency mentioned in Schedule 9 to the Regulations.

"conciliation conference document" means a document in a form approved by the Chief Executive Officer that is required to be completed and exchanged by the parties before a conciliation conference.

"conduct money" means money paid by a party to a witness, before the witness appears at a court event for the party, for:

                     (a)  travel between the witness's place of residence or employment and the court; and

                     (b)  if necessary, reasonable accommodation expenses for the witness; and

                     (c)  in the case of a subpoena for production--the reasonable costs of complying with the subpoena.

"contact" has the same meaning as in Part VII of the Act.

"contravened" an order under the Act affecting children has the meaning given by subsection 4(1) of the Act.

"corporation" includes:

                     (a)  a company;

                     (b)  a body corporate; and

                     (c)  an unincorporated body that may sue or be sued or hold property in the name of its secretary or of an officer of the body appointed for that purpose.

"Corporations Rules" means the Federal Court (Corporations) Rules 2000 .

"costs" means an amount paid or to be paid for work done by a lawyer, and includes expenses.

"costs agreement" means a written agreement between a party and the party's lawyer, about the costs to be charged by the lawyer for work done for a case for the party, in accordance with:

                     (a)  for an agreement entered into before 1 July 2008--clause 6.15 of Schedule 6; or

                     (b)  for an agreement entered into after 30 June 2008--the law of a State or Territory.

"costs assessment order" means an order made by a Registrar fixing the total amount payable for costs (see rules 19.31, 19.32 and 19.37).

"costs notice" means a brochure, approved by the Chief Executive Officer, about costs under Chapter 19 or Schedule 6.

"counsel" includes a barrister and a solicitor acting as a barrister.

Note:          See section 122 of the Act and sections 55A and 55B of the Judiciary Act 1903 .

"court" means a court that:

                     (a)  has jurisdiction under the Act; and

                     (b)  is presided over by a judicial officer who has, or has been delegated, the power to exercise the jurisdiction.

"court event" includes:

                     (a)  a hearing or part of a hearing;

                     (b)  a trial or part of a trial;

                     (c)  a conference;

                     (d)  an attendance with a family consultant performing the functions of a family consultant; and

                     (e)  an attendance with a single expert witness performing the functions of a single expert witness.

"court of summary jurisdiction" means a magistrates' or local court of a State or Territory.

"Cross-vesting Act" means the Jurisdiction of Courts (Cross-vesting) Act 1987 .

"cross-vesting law" means a law relating to cross-vesting jurisdiction of:

                     (a)  the Commonwealth, other than Part 9 of the Corporations Act 2001 ; or

                     (b)  a State or Territory.

"declaration as to validity" , of a marriage, divorce or annulment, means an order that the marriage, divorce or nullity order is valid or invalid.

"discontinue" , for a case, means to withdraw all or part of the case.

"draft consent order" means a document that complies with subrule 10.15(2).

"each person to be served" --see subrule 7.04(4).

"earnings" includes:

                     (a)  wages, salary, fees, bonus, commission or overtime pay;

                     (b)  other money payable in addition to or instead of wages or salary;

                     (c)  a pension, annuity or vested superannuation money;

                     (d)  money payable instead of leave;

                     (e)  royalties;

                      (f)  retirement benefits due or accruing;

                     (g)  any salary sacrifice arrangement; and

                     (h)  performance-based incentives and non-monetary benefits.

"electronic communication" means:

                     (a)  video link;

                     (b)  audio link; or

                     (c)  another appropriate electronic means of communication.

Examples of electronic communication

Telephone or video conferencing; closed circuit television; facsimile; e-mail.

"eligible carer" has the meaning given by section 7B of the Assessment Act.

"enforcement officer" includes the Marshal, a delegate of the Marshal or any other officer of the court, or a person appointed by the court for the purpose of enforcing an order.

"enforcement order" means an order requiring a person to comply with an obligation, including an Enforcement Warrant, a Third Party Debt Notice, an order for the seizure and sale of real or personal property and an order varying an enforcement order.

"excluded child order" has the meaning given by subsection 37A(2A) of the Act.

"expense" means an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party.

"expert" means an independent person who has relevant specialised knowledge, based on the person's training, study or experience.

"expert witness" means an expert who has been instructed to give or prepare independent evidence for the purpose of a case.

"family consultant" has the meaning given by subsection 4(1) of the Act.

"family counselling" has the meaning given by subsection 4(1) of the Act.

"family counsellor" has the meaning given by subsection 4(1) of the Act.

"Family Court" means:

                     (a)  in a reference to the Family Court--the Family Court of Australia; or

                     (b)  in a reference to a Family Court--the Family Court of Australia or a Family Court of a State.

"family dispute resolution" has the meaning given by subsection 4(1) of the Act.

"family dispute resolution practitioner" has the meaning given by subsection 4(1) of the Act.

"Family Law Magistrate of Western Australia" means the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia.

"family report" means a report concerning the best interests of a child, prepared under subsection 55A(2) or section 62G of the Act.

"family violence" has the meaning given by subsection 4AB(1) of the Act.

"family violence order" has the meaning given by subsection 4(1) of the Act .

"file" means to lodge in a court registry (see Part 24.2).

"filing registry" means the registry of a court in which a case is started or to which a case is transferred.

"final order" means the order of the court that finally decides a case commenced by an Initiating Application (Family Law).

"financial agreement" means an agreement that is a financial agreement under section 90B, 90C or 90D of the Act, other than an ante-nuptial (pre-marriage) or post-nuptial (after marriage) settlement to which section 85A of the Act applies.

"financial case" means a case (other than an appeal) involving an application:

                     (a)  relating to the maintenance of one of the parties to a marriage, or of a de facto  relationship after the breakdown of the relationship, including an application for permission to start a spouse maintenance case;

                     (b)  relating to the property of the parties to a marriage, or of a de facto  relationship after the breakdown of the relationship , or of either of them, including:

                              (i)  an application for permission to start a property case;

                             (ii)  an application to set aside an order altering property interests under section 79A or 90SN of the Act;

                            (iii)  an application under section 85A of the Act in relation to a financial agreement;

                            (iv)  an application under section 90K of the Act in relation to a financial agreement;

                          (iva)  an application under section 90UM of the Act in relation to a Part VIIIAB financial agreement or a Part VIIIAB termination agreement; and

                             (v)  an application under section 106B of the Act in relation to a transaction to defeat a claim;

                   (ba)  relating to the vested bankruptcy property in relation to a bankrupt party to a marriage, or of a de facto  relationship after the breakdown of the relationship ;

                     (c)  relating to the maintenance of children;

                     (d)  under section 116, 123 or 129 of the Assessment Act;

                     (e)  relating to child bearing expenses (see section 67B of the Act); or

                      (f)  for the purposes of Part 13.1 that includes an application for the enforcement of a financial obligation.

"financial matters" has the meaning given by subsection 4(1) of the Act.

"financial orders" includes orders in relation to:

                     (a)  maintenance;

                     (b)  a Child Support Application under section 116, 123 or 129 of the Assessment Act;

                     (c)  contribution to child bearing expenses; or

                     (d)  property.

"first day before the Judge" means the trial management hearing referred to in rule 16.08.

"fresh application" means any of the following applications, including compliance with pre-action procedures associated with them, made after 30 June 2008:

                     (a)  an Application for Final Orders;

                     (b)  an application that includes an Application for Final Orders;

                     (c)  an Application in a Case filed in connection with a fresh application;

                     (d)  an Application for Divorce;

                     (e)  an application for consent orders;

                      (f)  a contempt, contravention or enforcement application, unless an allegation of the contempt, contravention or breach relates to an interim or interlocutory order made in a pending or ongoing Application for Final Orders filed before 1 July 2008;

                     (g)  an application relating to contempt in the face of the court arising from an event occurring after 30 June 2008;

                     (h)  an appeal, and a re-hearing following an appeal;

                      (i)  an application for review of final orders made by a Registrar or Judicial Registrar.

"gross value" , of property, means the value of the property excluding any mortgage, lien, charge or other security over the property.

"hearing" means the process, other than a trial, of determining:

                     (a)  an Application in a Case;

                     (b)  an Application for Divorce;

                     (c)  an application mentioned in rule 4.27;

                     (d)  part of a case; or

                     (e)  an enforcement application.

"holding period" , for a person arrested in accordance with a warrant, has the meaning given by subsection 65S(4) of the Act.

"independent children's lawyer" has the meaning given by subsection 4(1) of the Act.

"itemised costs account " means a document prepared in accordance with rule 19.22.

"items on the balance sheet" means assets, liabilities, superannuation, financial resources and add backs.

"judicial officer" includes a Judge, Judicial Registrar and Registrar.

"lawyer" means a person who is enrolled as a legal practitioner of:

                     (a)  a federal court; or

                     (b)  the Supreme Court of a State or Territory.

Note:          See section 122 of the Act and sections 55A and 55B of the Judiciary Act 1903 .

"legislative provision" includes a provision in an applicable Act, these Rules, the Regulations, any other regulations made under the Act and any conventions mentioned in a regulation made under the Act.

"Maintenance Application" means an Initiating Application (Family Law) in which the only orders sought are for maintenance (including a variation of a previous maintenance order) or a contribution towards child bearing expenses (see section 67B of the Act).

"Marshal" has the same meaning as in section 38P of the Act.

"Medical Procedure Application" means an Initiating Application (Family Law) seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease.

Example:    An example of a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease is a procedure for sterilising or removing the child's reproductive organs.

"non-convention country" means a country with which Australia does not have a convention as to service of documents (see rule 7.19).

"Notice of Child Abuse, Family Violence or Risk" means the form set out in Schedule 2, with any variations that are necessary or as the Chief Justice directs.

"notice of contention" means a notice of contention referred to in rule 22.08A.

"oath includes affirmation (see the definition of sworn" and sections 21 to 25 of the Evidence Act 1995 ).

Note:          Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not apply to the Family Court of Western Australia or any other court of a State.

"order" includes:

                     (a)  a decree, decision, declaration and judgment; and

                     (b)  for an appeal or review of a decision--a refusal to grant an application or make an order.

"order" , relating to a passport, includes:

                     (a)  an order permitting a child to leave Australia; and

                     (b)  an order relating to the issue, control or surrender of a passport.

"overseas child order" has the meaning given by subsection 4(1) of the Act.

"parenting case " means a case in which the application seeks a parenting order or a child related injunction under Part VII of the Act, other than an application for child maintenance.

"payee " means a person who is entitled to take action against a payer to enforce an obligation to pay money, created by an assessment, order or agreement, with which the payer has not complied.

Note:          The Child Support Registrar is a payee in relation to a registered child support liability.

"payer " means a person who has an obligation to pay money to, or do an act to financially assist, a payee under an assessment, order or agreement.

"penalty unit " has the meaning given by section 4AA of the Crimes Act 1914 .

Note:          The amount of a penalty unit at the commencement of these Rules is $110.

"permission" means the leave or consent of the court.

"person " includes a corporation, authority or party.

"person with a disability" , in relation to a case, means a person who, because of a physical or mental disability:

                     (a)  does not understand the nature or possible consequences of the case; or

                     (b)  is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

"post-separation parenting program" has the meaning given by subsection 4(1) of the Act .

"pre-action procedure " means the set of principles and procedures, the text of which is set out in Schedule 1, with which the parties must comply before starting a case.

"pre-argument statement" means a document in an appeal in which an appellant must state concisely the issues to be raised at the hearing of the appeal (see rule 22.14).

"prescribed child welfare authority " has the meaning given by subsection 4(1) of the Act.

"prescribed property" , for a person, means:

                     (a)  clothes, bed, bedding, kitchen furniture (not including an automatic dishwasher or microwave) and washing machine; and

                     (b)  ordinary tools of trade, plant and equipment, professional instruments and reference books, the combined value of which is not more than $5 000.

"primary order " has the meaning given by subsection 4(1) of the Act.

"property " includes real and personal property and superannuation.

"property case " means a case in which orders (other than consent orders) are sought relating to:

                     (a)  the property of the parties to a marriage , or of a de facto  relationship after the breakdown of the relationship, or of either of them; or

                     (b)  the vested bankruptcy property in relation to a bankrupt party to a marriage , or of a de facto  relationship after the breakdown of the relationship.

"protected earnings rate" means the actual threshold income amount that would apply to a payer under Part VI, Division 4B of the Bankruptcy Act 1966 if the payer were a bankrupt.

"recovery order" has the meaning given by subsection 4(1) of the Act .

"Regional Appeal Registrar" means the Registrar at the Regional Appeal Registry for an appeal.

"Regional Appeal Registry" , for an appeal other than from an order of a court of summary jurisdiction, means:

                     (a)  from an order in a case heard in Queensland, Lismore or the Northern Territory--the Brisbane Registry;

                     (b)  from an order in a case heard in the Australian Capital Territory or New South Wales, except Lismore--the Sydney Registry;

                     (c)  from an order in a case heard in South Australia, Tasmania or Victoria--the Melbourne Registry; or

                     (d)  from an order made in Western Australia--the Registry of the Family Court of Western Australia.

"registered" , for a document, means accepted for filing (see rule 24.05).

"Registrar" includes the Chief Executive Officer and a Deputy Registrar (except in Chapters 18 and 25).

"Registration Act" means the Child Support (Registration and Collection) Act 1988 .

"Registry Manager" has the meaning given by subsection 4(1) of the Act.

"Regulations" means the Family Law Regulations 1984 .

"seal " means a stamp or other impression that the court puts on a document to indicate that the document has been issued by the court.

"sealed copy" means a document that bears a court seal.

"security for costs" means the security that a respondent may ask the court to order the applicant to pay for costs that may be awarded to the respondent.

"serve " means to give or deliver a document to a person in the manner required by these Rules.

"service by electronic communication" includes service by facsimile, e-mail or any other form of electronic transmission.

"sign " means write a person's name, including a mark by a person who is unable to write his or her name.

"single expert witness" means an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue.

"special federal matter" has the meaning given by subsection 3(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 .

"State child order" has the meaning given by subsection 4(1) of the Act.

"step" means a procedural act taken in the conduct or management of a case.

"step-parent" has the meaning given by subsection 4(1) of the Act.

"submitting notice" means a submitting notice referred to in rule 8.07.

"superannuation information form" means a form approved by the Chief Executive Officer for obtaining information from the trustee of a superannuation fund in family law cases.

"sworn , for an affidavit or evidence, means an oath by a witness that the witness is telling the truth (see also affirmation and oath" ).

"termination agreement" has the meaning given by subsection 90J(1) of the Act.

"Third Party Debt Notice" means a notice given to a third party who holds money for, or owes money to, a payer demanding that the money be paid to a payee to satisfy an obligation that the payer owes the payee.

"third party debtor " means a person from whom a payee claims a debt that is owed to the payer.

"transcript" means a written record of a hearing or a trial prepared by a contractor providing transcription services to the court for the case.

"trial" means the process of determining a case started by an Initiating Application (Family Law).

"undertaking as to damages" --see subrule 17.06(4).

"unreasonable" , in relation to costs for work done in a case, means costs for work that would not normally be done in a case of a particular type.

"work done for a case" includes work done in relation to the case (including in relation to the pre-action procedure) and work done in anticipation of starting the case.

"written notice" means a document (for example, a letter) that complies with subrule 24.01(1).

Note:          A number of words and expressions commonly used in Commonwealth legislation, and in these Rules, have, unless otherwise stated, the meaning or effect set out in certain Acts of general application. See, for example, the Acts Interpretation Act 1901 and the Crimes Act 1914 .

Explanatory Guide  

Note:          This explanatory guide, unlike the dictionary, is not part of the Rules and is offered only as an explanation of the words and expressions mentioned in this guide.

"adduce" --to bring evidence before a court.

"adjourn" -- to defer to another time a conference, hearing or trial that has started. Some events, such as a case assessment conference or trial, will not be adjourned unless unforeseen or exceptional circumstances arise. Usually, an adjournment is granted on terms that may include an order that the party who asked for the adjournment pay the other party's costs thrown away.

"Anton Piller order" --an interim injunction used to preserve evidence.

Note:          See Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55.

"application without notice" -- an application that is heard by the court without first being served on the respondent.

"arbitration -- a dispute resolution process involving parties to a case and a neutral third party (an arbitrator" ). If agreement is not reached, the arbitrator determines the case and the decision (an award ) is binding on the parties (see Part III, Division 5, Subdivision B of the Act).

"assessor" -- a person specially qualified in the subject matter in which the assessor is appointed under Part 15.4. The assessor's function is to assist and advise the court on technical questions or issues arising in a case. Despite any advice or assistance that the court may receive from an assessor, the sole responsibility for the final decision in a case remains with the Judge presiding over the case. The Judge is not bound by an assessor's advice.

"bond (or recognisance" )--a written obligation to do or not to do a particular act specified in the obligation.

"business activity statement" -- a statement of a business's activities that allows the business to report its obligations for:

                     (a)  goods and services tax;

                     (b)  luxury car tax;

                     (c)  wine equalisation tax;

                     (d)  pay as you go (PAYG) withholding and instalments;

                     (e)  fringe benefits tax instalments;

                      (f)  deferred company instalments; and

                     (g)  superannuation fund instalments.

"case assessment conference" --a conference conducted by a Registrar at the start of a case (see rule 12.03).

"case stated" --a procedure in which a question of law is determined by the Full Court (see Part 22.10).

"cause of action" -- a claim seeking an order, other than for interim or procedural relief, for which a court has jurisdiction, for example, a claim relating to the property of the parties, the parenting of a child, child support or maintenance (see definition of matrimonial cause in subsection 4(1) of the Act).

"chambers" -- a private room other than a court room in which a judicial officer makes a decision in relation to a case, on the papers, in the absence of the parties and their lawyers (if any) and without a transcript being taken of the hearing and determination.

"child" -- a person under the age of 18 years.

"closing address" -- the final statement made by a party to the court at the end of a hearing or trial in which the party summarises the evidence for the party's case and states the reasons why the party considers the order sought should be made (see rule 16.07).

"common law" -- the law established by precedent from judicial decisions.

"conciliation" --a dispute resolution process in which an impartial third person assists the parties to the dispute to reach an agreement in the dispute.

"conciliation conference" --a conference held with a Registrar (see rules 12.05 and 12.06).

Note 1:       The purpose of a conciliation conference is to give parties an opportunity to resolve a dispute in a property case. Section 131 of the Evidence Act 1995 (which deals with exclusion of evidence of settlement negotiations) applies to conciliation conferences.

Note 2:       Subject to sections 4 and 5 of the Evidence Act 1995, that Act does not apply to the Family Court of Western Australia or any other court of a State.

"conference" -- includes a case assessment conference and conciliation conference.

"consent order" --an order that:

                     (a)  is made if all parties:

                              (i)  have reached agreement on an issue; and

                             (ii)  lodge the written agreement in the form of a draft consent order for approval by the court; and

                     (b)  is as binding as any other order made by the court.

"control" , in relation to a document--a person's enforceable right to obtain possession of a document from another person.

"convention country" -- a country other than Australia to which a convention for service of documents applies.

"costs thrown away" -- costs unnecessarily incurred by a party because of an action or omission by another party.

"counselling" -- a conference held with a mediator to help parties to a case:

                     (a)  to understand the needs of their children;

                     (b)  to reach agreement about arrangements for their children; or

                     (c)  to adjust to a separation or to court orders.

"court record" --includes the documents filed by the parties, a family report, orders and the settled reasons for judgment.

"credit" --reliability having regard to a witness's honesty and ability to observe or remember the fact or event about which the witness is giving evidence which is well capable of belief.

"cross-appellant" -- a respondent to an appeal who wishes to appeal against orders.

"cross-examine" --the questioning of a witness by a party other than the party who called the witness to give evidence.

"current case" -- a case in which final orders have not been made on the application.

"deponent" --a person whose evidence is set out in an affidavit and who swears that the contents of the affidavit are true.

"e-mail address" -- the mailing address to and from which an electronic communication may be sent and received using the Internet, an intranet or other similar network.

"enforcement hearing" -- a hearing conducted on the application of a payee when a payer and any witness is cross-examined about the payer's financial affairs and ability to pay a financial obligation.

"Enforcement Warrant" -- a warrant, used to enforce the payment of a sum of money, by which an enforcement officer is commanded to seize and sell sufficient of the payer's property to satisfy an obligation (including interest and costs).

"evidence" -- a statement to a court that is oral or written and tends to prove or disprove a fact.

"evidence in chief" -- the evidence of a witness set out in an affidavit or given in court on being questioned by the party who called the witness to give evidence, other than evidence given in response to questioning on re-examination.

"examination" -- questioning of a witness on oath.

"exhibit" -- a document or thing that is tendered in evidence during a hearing or trial.

"expediting the first day before the Judge" -- a process to have a case listed before a Judge sooner than it ordinarily would be (see rule 12.10A).

"facsimile" -- a copy of a document that has been sent and reproduced by facsimile transmission.

"financial institution" -- includes a bank, building society and credit union.

"first court date" -- the first court date set when an application or appeal is filed.

"foreign court" -- a court of a foreign country (see the definition in the dictionary to the Evidence Act 1995 ).

Note:          Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not apply to the Family Court of Western Australia or any other court of a State.

"frivolous -- not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless (see also vexatious" ).

"image" -- a picture that has been created, copied, stored or transmitted in electronic form.

"indemnity basis" -- an entitlement to costs, including costs under a costs agreement, for all costs incurred, other than costs that are unreasonable in amount or that have been incurred unreasonably.

"injunction" --an order requiring a person to do or refrain from doing a thing (see section 114 of the Act).

"interim order" -- an order that operates until a final order is made (see Chapter 5).

"interlocutory order" -- an order, not being a final order, made before trial (see regulation 15A of the Regulations).

"intervener" -- a person who is entitled to, or is given permission to, become a party in a case, for example, the Attorney-General or any other person intervening under section 91 or 92 of the Act.

"issue" -- includes any question of fact or law or both, being part of a case.

"joint applicati on" -- an Application for Divorce in which the husband and wife are the applicants.

"Judicial Registrar" -- see sections 26A to 26N of the Act.

"lawyer and client costs" -- the costs payable by a client to the client's lawyer.

"legal personal representative" , for a deceased party--the executor or administrator of the party's estate.

"location order" -- an order that requires information to be provided by a third party about the location of a child (see subsection 67J (1) of the Act).

"maintenance" --money paid by a person to:

                     (a)  a spouse or former spouse ( spousal maintenance ); or

                     (b)  a child (child maintenance).

"Mareva order" -- an order preventing a person from removing property from Australia or dealing with property either in or outside Australia.

"mediation" --a conference, including counselling, held with a mediator to help parties:

                     (a)  to understand the needs of their children;

                     (b)  to reach agreement about arrangements for their children;

                     (c)  to reach agreement about financial arrangements; or

                     (d)  to adjust to a separation or to court orders.

"Notice to Admit" -- a notice requiring a party to admit certain facts or the authenticity of certain documents for a case.

"Notice to Produce" -- a notice requiring a party to bring certain documents to a hearing or trial.

"nullity" -- nullity of marriage (see section 51 of the Act and sections 23 and 23B of the Marriage Act 1961 ).

"open court" -- a court in which a judicial officer is sitting that is open to the public (see section 97 of the Act).

"parental responsibility" -- all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children (see section 61B of the Act).

"parenting order" -- includes orders about the persons with whom a child lives, spends time or communicates with, child maintenance and parental responsibility (see subsection 64B(1) of the Act).

"parenting plan" -- a written plan agreed between parents about arrangements for the ongoing care, welfare and development of a child (see subsection 63C(1) of the Act).

"party and party costs" -- the costs payable by one party to another party under these Rules or by order.

"personal property" -- all property except land and other real estate.

"postpone, for an event" -- to put off or to delay to a future fixed time before the start of the event.

"practice direction" -- a direction about procedure that is published with the authority of the Chief Justice.

"privilege from disclosure" -- the right of a party to refuse to disclose a document or answer a question on the ground of some special interest recognised by law, for example, legal professional privilege.

"procedural hearing" -- a hearing at which procedural orders are made to progress a case.

"procedural order" --an order made about the practice or procedure to be taken by a party to progress a case.

"producing, for disclosure of a document" -- includes searching for, arranging, copying and providing the document, if necessary.

"proportionate, for a case" -- balancing the costs and expenses of the case with achieving a satisfactory outcome.

"public interest" -- the importance of the outcome of a case to the public.

"real property" -- land, structures and rights arising from land.

"reasons for judgment" -- the reasons given by a judicial officer for the making of orders.

"re-examination" --the questioning of a witness by the party who called the witness to give evidence after the cross-examination of the witness.

"registry" -- the office of the court, including the courtrooms.

"Registry Manager" -- the officer of the court who is responsible for the management of a Registry.

"respondent" --a party named in an application or Notice of Appeal as a respondent.

"response" , in relation to an application--a form that a respondent uses to answer the orders sought in the application, including:

                     (a)  for an Application for Final Orders -- Response to an Application for Final Orders ;

                     (b)  for an Application in a Case -- Response to an Application in a Case ; and

                     (c)  for an Application for Divorce -- Response to an Application for Divorce .

"security" -- a form of guarantee of or safeguard for compliance, for example, the payment of a sum of money into court that is returned if the obligation is met and forfeited if it is not.

"self-executing order" -- an order, a term of which requires an act to be done and provides that non-compliance will automatically result in a stated consequence.

"sequestration" --temporary possession or occupation of property and collection of income.

"sequestrator" -- a person appointed by the court under rule 20.43.

"set aside" -- cancelled.

"specialist family court program" -- a specific program offered by a Family Court to help people, for example, parenting after separation, group program or intractable contact program.

"specific questions" -- written questions relevant to an issue in a case served by a party to the case on another party.

"statement made on information and belief" -- a statement, in an affidavit filed in an Application in a Case, made on information received from another source that is believed to be true.

"stay" , for a case--to suspend the case.

"struck out" :

                     (a)  for a case--r emoved from the list of cases to be heard on a day, but able to continue with the court's permission; and

                     (b)  for the content s of a document--not considered or relied on by the court in the determination of a case.

"subpoena" --a witness summons issued by the court that requires a named person to attend the court to give evidence or bring documents, books or other things to the court.

"subpoena for production" -- a witness summons requiring a named person to attend as directed and produce a document or other thing.

"subpoena to give evidence" --a witness summons requiring a named person to attend as directed for the purpose of giving evidence.

summary judgmen t --a judgment given in favour of an applicant if there is evidence to prove the claim and the respondent has no real defence.

"tender" , for a hearing or trial--to hand a document to the judicial officer during the hearing or trial with a request that the document be filed or admitted into evidence.

"trial Judge" -- the Judge listed to determine a trial or who finally determines a case.

"undefended basis" --the court may order that a hearing or trial may proceed, because of the respondent's failure to comply with a rule or order, as if a response has not been filed. The court may make the orders set out in the application on being satisfied by evidence that the orders should be made.

"vest" -- to pass legal ownership, rights or powers to another person.

"vexatious" , in relation to an application--having no reasonable prospect of success (see section 118 of the Act for the court's powers in relation to a vexatious case; see also frivolous ).

"without prejudice" , in relation to an offer to settle--an offer made, orally or in writing, during settlement negotiations between parties that may not be revealed to the court (unless the parties agree otherwise) until the only outstanding issue is costs (see section 131 of the Evidence Act 1995 ).

Note:          Subject to sections 4 and 5 of the Evidence Act 1995 , that Act does not apply to the Family Court of Western Australia or any other court of a State.

"witness" --a person who gives evidence, orally or by affidavit, to the court.




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