Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT REGULATIONS 2010 (NO. 1) (SLI NO 76 OF 2010)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 76

 

Subject: Family Law Act 1975

 

Family Law Amendment Regulations 2010 (No. 1)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Paragraph 125(1)(a) of the Act provides for the service overseas, pursuant to any convention between Australia and another country, of any documents in proceedings under the Act.

 

The Family Law Regulations 1984 (the Principal Regulations) outline the process for serving court documents on parties abroad under conventions between Australia and other countries about legal proceedings in civil and commercial matters.

 

The Regulations amend the Principal Regulations to provide rules for the service of documents abroad in court proceedings under the Act, consistent with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention), done at The Hague on 15 November 1965. Australia acceded to the Convention on 15 March 2010.

The Regulations amend the Principal Regulations by:

·        inserting a new Part IIAB setting out the harmonised rules for service of documents under the Hague Service Convention;

·        making consequential amendments to the Principal Regulations; and

·        replacing Form 1 in Schedule 1 to the Principal Regulations with new Forms 1A and 1B, to ensure that requests for service abroad are drafted in the form prescribed by the Hague Service Convention.

 

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on the day the Hague Service Convention enters into force for Australia, which will be 1 November 2010.

 

A Regulatory Impact Statement has not been prepared as the Regulations will not impact on business activity and will have no or low compliance cost or competition impact.

 

The Family Court of Australia and Federal Magistrates Court of Australia were consulted on the amendments.


ATTACHMENT

 

Details of the Family Law Amendment Regulations 2010 (No. 1)

 

Regulation 1 – Name of Regulations

 

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2010 (No. 1).

 

Regulation 2 – Commencement

 

Regulation 2 provides for the Regulations to commence on the day the Hague Service Convention enters into force for Australia.

 

The Hague Service Convention will enter into force for Australia, in the absence of any objection from a Contracting State, on the first day of the month, six months after Australia’s accession to the Convention. Accession takes place on the date on which the Ministry of Foreign Affairs of the Netherlands acknowledges receipt of Australia’s Instrument of Accession. Australia’s accession took place on 15 March 2010. Accordingly, the Hague Service Convention is expected to enter into force for Australia on 1 November 2010.

 

Regulation 3 – Amendment of Family Law Regulations 1984

 

Regulation 3 provides that the Family Law Regulations 1984 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule – Amendments

 

Item [1]: Subregulation 3(1)

 

Item 1 inserts in subregulation 3(1) of the Principal Regulations a definition of ‘Hague Service Convention’ meaning the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965.

 

Item [2]: Regulation 12

 

Item 2 omits regulation 12 of the Principal Regulations, providing for the service of documents in countries party to conventions other than the Hague Service Convention, to enable these provisions to be relocated elsewhere in the Principal Regulations.

 

Item [3]: Part IIAB and Part IIAC

 

Item 3 inserts a new Part IIAB and Part IIAC into the Principal Regulations.

These provisions are placed before Part IIA of the Principal Regulations to reflect the stage at which the service of documents takes place in court proceedings.

 

Part IIAB of the Regulations gives effect to model Rules of Court, developed by the Council of Chief Justices’ Harmonised Rules on Service Outside the Jurisdiction Committee, to implement the Hague Service Convention requirements into the Principal Regulations. Part IIAB consists of three new Divisions that deal with the service abroad of local judicial documents. The Regulations do not deal with the local service of foreign judicial documents as the Family Court of Australia is not be responsible for receiving foreign requests for the service of documents under the Hague Service Convention.

 

Division 1 of Part IIAB deals with preliminary matters, as follows:

·        Note 1 provides that Part IIAB implements Australia’s obligations under the Hague Service Convention and specifies the Central Authority and ‘other’ or ‘additional’ authorities under the Convention;

·        Note 2 provides for the matters dealt with by Part IIAB;

·        Note 3 provides that information about the Hague Service Convention is held by the Commonwealth Attorney-General’s Department;

·        Regulation 21AC sets out the definition of terms used in Part IIAB; and

·        Regulation 21AD provides that Part IIAB will prevail where there is any inconsistency between this Part and any other provision of the Principal Regulations.

 

Division 2 of Part IIAB sets out the procedure for serving local judicial documents abroad in accordance with Articles 5 and 6 of the Hague Service Convention, including:

·        application of the Division (regulation 21AE);

·        the content of an application to the Registrar to request the service of documents in a Convention country of a local judicial document and documents that must accompany such an application (regulation 21AF);

·        how the Registrar must deal with an application under regulation 21AF (regulation 21AG);

·        the procedure the Registrar must follow upon receipt of a certificate of service (and any accompanying statement of costs) from a foreign country following the service (or attempted service) of a local judicial document (regulation 21AH);

·        payment of any costs associated with the service of a local judicial document abroad (regulation 21AI); and

·        the criteria that a certificate of service must satisfy in order to constitute evidence of service (or attempted service) abroad (regulation 21AJ).

 

Division 3 of Part IIAB implements requirements in Articles 15 and 16 of the Hague Service Convention and provides for the issuance and setting aside of a default judgment in civil proceedings following the service abroad of an initiating process, where the defendant has not appeared or filed a notice of address for service. It provides for the following matters:

·        application of the Division (regulation 21AK);

·        restrictions on the power to enter a default judgment if a certificate has been filed in local court proceedings stating that service was duly effected and the defendant has not appeared or filed a notice of address for service (regulation 21AL);

·        restrictions on the power to enter a default judgment if a certificate of service has not been filed in the proceedings, or a certificate has been filed stating that service has not been effected, and the defendant has not appeared or filed a notice of address for service (regulation 21AM); and

·        the circumstances in which the Court could set aside a default judgment entered against a party to proceedings under this Division (regulation 21AN).

 

Part IIAC of the Regulations sets out the process for serving documents in countries party to conventions, other than the Hague Service Convention, that are in force for Australia, about legal proceedings in civil and commercial matters. This Part mirrors regulation 12 of the Principal Regulations. It:

·        clarifies that Part IIAC applies only to the service of documents in countries that are parties to conventions other than the Hague Service Convention (regulation 21AO);

·        defines the terms ‘convention’ and ‘convention country’ (regulation 21AP);

·        ensures that, where the convention specifies the only method by which service could be effected in the countries party to the convention, documents would be served only in accordance with this Part (regulation 21AQ);

·        outlines the process for requesting the service of local judicial documents in a convention country abroad, including the form and content of a request as well as documents that must be provided to the Registrar to enable service to be validly effected (regulation 21AR); and

·        provides the criteria that a certificate of service would need to satisfy in order to constitute evidence of service (or attempted service) abroad (regulation 21AS).

 

Item [4]: Forms 5A and 5B

 

Item 4 replaces Form 1 in Schedule 1 to the Principal Regulations with a new Form 1A and Form 1B, referred to in Parts IIAB and IIAC of the Regulations. These forms are modelled on the forms annexed to the Hague Service Convention which must accompany a request for service of documents abroad.

 

Form 1A is to be used to request the service abroad of judicial documents and includes a certificate of service to be completed by the receiving authority once service of the documents has been effected or attempted.

 

Form 1B is to be used to provide a summary of the document to be served abroad.

 

 

 


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