EXPLANATORY STATEMENT

Select Legislative Instrument 2010 No. 238

FAMILY LAW AMENDMENT RULES 2010 (No. 1)

Issued by the authority of the Judges of the Family Court of Australia

 

Section 123 of the Family Law Act 1975 (the Act) provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Act. The Judges of the Court made the Family Law Rules 2004, which commenced on 29 March 2004. These amending Rules, the Family Law Amendment Rules 2010 (No. 1), have now been made by the Judges to amend the Family Law Rules 2004.

 

Section 123(2) of the Act provides that the Legislative Instruments Act 2003 (apart from sections 5-7, 10, 11 and16) applies to Rules of Court. In this application, references to a legislative instrument in the Act are to be read as references to Rules and references to a Rule maker as references to the Chief Justice.

 

The Legislative Instruments Act provides for certain consultation obligations when Rules are made. The Chief Justice has authorised the Court’s Rules Committee to undertake consultation on Rules matters on her behalf.

 

In this case, the Court did not undertake consultation as these amendments are either of a technical or drafting nature or give effect to measures in the Law & Justice (Cross Border and Other Amendments) Bill 2009.

 

The major changes introduced by the amendments to the Rules are set out below.

1.                  To largely remove the requirement for the filing of supplementary documents establishing jurisdiction when starting a case.

2.                  Where an order is made requiring a party to provide particulars, or further and better particulars, of the orders sought by that party, this is extended also to the reasons the orders are sought.

3.                  In contempt and/or contravention proceedings, the Respondent will not be required to comply with the requirements of full and frank disclosure, which relate more appropriately to an initiating application and response.

4.                  To reflect that a Judge interviewing a child subject to proceedings is most unusual.

5.                  To make detailed and technical changes in the single expert rules.

6.                  To achieve a measure of conformity as between superior courts nationally in relation to interest payable on moneys unpaid.

7.                  To enable subpoenas issued under the Rules to be served as appropriate in New Zealand and to make necessary procedural arrangements.

8.                  To enable recipients of subpoenas to provide the Court with electronic copies of material produced in answer to subpoenas.

 

DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

The name of the rules is the Family Law Amendment Rules 2010 (No. 1).

 

Rule 2 Commencement

The rules amendments commence on 1 August 2010.

 

Rule 3 Amendment of Family Law Rules 2004

Schedule 1 amends the Family Law Rules 2004.

 

Schedule 1 – Amendments

 

Do not delete: Schedule Part Placeholder

[1] Table 2.2, items 1 and 2

This amendment removes the requirement to file a marriage, divorce or nullity or child’s birth certificate when filing an Initiating Application.

[2] Table 2.2, item 2B, paragraph (a)

[3] Table 2.2, item 2B, paragraph (b)

[4] Table 2.2, item 3

[5] Table 2.2, items 5 to 8

[6] Table 2.2, item 9, paragraph (a)

These amendments are consequential on removing the former requirements to file birth, marriage, divorce or nullity certificates.

 

[7] Subrules 2.02 (2) and (3)

These amendments are consequential on removing the former requirements to file birth, marriage, divorce or nullity certificates.

 

[8] Paragraph 7.04 (2) (c)

The amendment removes references to a marriage or birth certificate, reflecting the amendments to Table 2.2.

 

[9] Paragraphs 7.04 (2) (d), (e) and (f)

The amendment renumbers paragraphs and is of a technical drafting nature.

 

[10] Rule 10.15A, heading

[11] Paragraph 10.15A (2) (a)

[12] Paragraphs 10.15A (2) (b) and (3) (a) and (b)

The amendments include references to family violence.

 

[13] Table 11.1, item 2, paragraph (g)

The amendment adds to the power in the existing paragraph so that in addition to the court ordering a party to provide particulars, or further and better particulars, of the orders sought by that party, the party may also be ordered to provide particulars of the reasons why the orders are sought.

 

[14] Subrule 13.01 (1)

The amendment is consequential on new Subrule 13.01 (3).

 

[15] After Subrule 13.01 (2), including the note

The amendment inserts a new Subrule 13.01 (3) removing a party’s duty to make full and frank disclosure where the party is a respondent in a contravention or contempt application. The issue of disclosure does not generally arise in these circumstances.

 

[16] Rule 15.03

The amendment removes the Rule which dealt with cases where a subject child was interviewed by a judicial officer. This does not generally occur and where it does can be the subject of case specific orders.

[17] Subparagraph 15.29 (1) (b) (ii)

[18] Subrule 15.29 (2)

[19] Paragraph 15.29 (2) (c)

The amendments simplify the language used to describe the process for producing copies of documents via affidavit in answer to subpoenas.

 

[20] After subrule 15.29 (3)

The amendment defines a copy to include photocopies and PDF format on a CD-ROM.

 

[21] Rule 15.36H

The amendment sets out the procedure to be used when serving subpoenas in New Zealand.

 

[22] Rule 15.47, note 1

The amendment is consequential on the removal of Note 2 and is of a technical drafting nature.

 

[23] Rule 15.47, note 2

The amendment removes Note 2 which made a cross-reference to Rule 15.46.

 

[24] Subrule 15.54(3)

The amendment expands the existing method of joint instructions to single expert witnesses to cover either a joint statement of facts or (failing agreement) separate statements of facts. The Court retains the power to give directions about the form and content of such statement/s.

 

[25] Subrule 15.60 (1)

The amendment makes clear that a single expert witness can only make a written request for a procedural order before a final order in the case is made.

 

[26] Rule 17.03

The amendment creates a new basis upon which default interest is calculated. This is the Reserve Bank cash rate plus 6%. This amendment is made to help harmonise the approach to interest rates amongst the various Australian Superior Courts.

 

[27] Tables 18.1 and 18.2, column 3

To help avoid confusion, this amendment removes the “Description (for information only” column of tables 18.1 and 18.2.

 

[28] Table 18.2, item 1

The amendment is of a technical drafting nature.

 

[29] Table 18.2, item 1A

The amendment is consequential on the removal of item 1.

[30] Table 18.2, item 3

The amendment is of a technical drafting nature.

 

[31] Tables 18.3 and 18.4, column 3

To help avoid confusion, this amendment removes the “Description (for information only” column of tables 18.3 and 18.4.

 

[32] Table 18.4, item 9

[33] Table 18.4, item 11

The amendment is of a technical drafting nature.

 

[34] Table 18.4, item 12

To help avoid confusion, this amendment clarifies that the power arises only in undefended cases.

 

[35] Table 18.4, items 16 to 16C

To help avoid confusion, these amendments seek to re-number the relative items in consequential order and clarify that the power pursuant to section 60K (2) (a), (b) and (c) arises in procedural orders only.

 

[36] Table 18.4, items 28 and 29

The amendment is of a technical drafting nature.

[37] Table 18.5, column 3

To help avoid confusion, this amendment removes the “Description (for information only” column of table 18.5.

 

[38] Table 18.5, items 19A, 34 and 35

[39] Table 18.5, item 37, column 2

[40] Subrule 22.13 (2)

The amendments are of a technical drafting nature.

 

[41] Subrule 22.18 (1)

[42] Subrule 22.18 (2)

The amendment clarifies responsibility for filing appeal books.

 

[43] Subparagraph 24.05 (1) (a) (iii)

[44] Paragraph 24.05 (1) (b)

The amendments are consequential on the inclusion of paragraph 24.05 (1) (c).

 

[45] After paragraph 24.05 (1) (b), not including the note

The amendment adds a further requirement as to when a document is filed.

 

[46] Schedule 3

The amendment provides for a uniform increase of 3.2% to all items in the Itemised Scale of Costs excluding item 107 photocopying which has been increased in harmony with the existing Federal Magistrates Court scale charge for photocopying.

 

[47] Dictionary, definition of family report

The amendment removes the reference to Rule 15.03 which has been repealed.