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FAMILY LAW RULES (AMENDMENT) 1991 NO. 414

STATUTORY RULES 1991 No. 414

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

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act 1975 provides that the fudges 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 Family Law Act.

Section 123 (2) of the Family Law Act provides that sections 48, 48A, 48B 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections to regulations were references to Rules of Court.

The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed since that date.

DETAILS OF THE PROVISIONS

Rule 1 provides the commencement date.

Rule 2 is a machinery provision.

Rules 3 and 4. Order 7 rule 3 has been relocated into Order 2 Rule 2 as this is a more appropriate location for the provision. Accordingly Order 7 rule 3 is deleted. Subrule 2(3) of Order 2 also expands the number of documents which do not require a cover sheet. This change merely reflects the practice in the Court in relation to the additional forms. Form 1A provides a seperate cover sheet for use solely by the Child Support Agency 1n matters filed by the Agency in accordance with forms 45A and 45B.

Rule 5 The new Rule 17A corrects an inadvertent limitation in the previous rules and allows Rule 17A to apply where an answer or an answer and cross application has been filed.

Sub rule 17A (2) provides that the leave of the Court is not required to amend an application or cross application made in accordance with sub rule 1. This provision was amended because the present provisions require leave to be sought to file an application where no such leave is required by the Act. In effect the rules are 'ultra vires' the Act. Sub rule 17A (3) requires that any applicant or respondent making an amendment in accordance with sub rule 1 must immediately file an application for a directions hearing. This is to ensure that any amendments filed are dealt with by a Registrar at a directions hearing as soon as possible.

Rule 6 Sub rule 23 (2) is amended to take into account the new provisions in order 17A by inserting the words "or rule 17A".

Rule 7 provides that any affidavits required to be filed must now a filed and served in accordance with the directions given by the Court. This is to ensure that the Court has greater control in providing a pleading time table for the filing of affidavits before a hearing.

Rule 8 - Rule 14 in each provision deletes reference to 28 days and substitutes the period of 1 month which is the period used in all appeal provisions under the Family Law Rules.

Rule 15 provides that appeals to the Full Court under O32 rule 2 may be initially filed by facsimile transmission subject to the original and two copies of the notice of the appeal being forwarded not later than 3 days after the application was filed by facsimile transmission.

Rule 16 this rule provides a set of rules to enable applications for leave to appeal do be made under the now section 94AA of the Act. Section 94AA provides that an appeal does not lie to a Full Court of the Family Court from a prescribed decree which is defined as an interlocutory decree being a decree of the kind mentioned in sub section 94(1) but does not include a decree in relation to a child welfare matter.

Rule 1 of new order 32A defines the word 'application' as meaning an application for leave to appeal under section 94AA of the Act and the word 'prescribed decree' which is defined in section 94AA and noted above.

The new rule 32A 2 provides that an application must be instituted by filing an original and two copies of the application in accordance with Form 67. A new Form 67 has been inserted in schedule 1. Rule 2 also enables an application under Order 32A to be filet by way of facsimile transmission subject to the original and copies being filed not later than 3 clear days after the application was sent by facsimile transmission. Rule 3 requires that an application must be filed not later than 21 days after the day on which the decree to which the application relates was made, or within such further time as a Judge of the Court directs.

New rule 4 requires that an application under this Order must be supported by an affidavit setting out the facts on which he application is based, and the specific questions of law raised by the application. The application must also have annexed to the application a copy of the prescribed decree appealed from, the reasons for judgment, a draft notice of appeal setting out the grounds of appeal to be relied upon in the event that the appeal is granted, and the seasons why leave to appeal should be granted. Each of the above items referred to are annexed to the affidavit rather than included in the affidavit as they are strictly not evidence able to be relied upon within an affidavit.

New sub rule 5 (1) provides that the applicant must serve a sealed copy of the application by assured service (defined in Order 1 Rule 4) not later than 7 days after instituting an application on each person who is a party to the proceedings when the prescribed decree to which the application relates was made. New Sub rule 5 (2) enables a party to the application to seek an order from either the Judge who made the decree or another Judge, if the first mentioned Judge is not reasonably available, to direct the applicant to serve a sealed copy of the application on a person who is not a party to the application.

New rule 6 provides that a Judge of the Appeal Division may direct that the application is to be dealt with by the Full Court without an oral hearing. If this direction is made the Principal Registrar is required to give notice to the parties that this direction has been given.

New rule 7 sets out the procedures to be followed if the matter is dealt with without an oral hearing. It enables a party served with the application to file an answer to the application by way of affidavit provided, that it is filed and served not later than 10 days after receipt by the respondent of the notice from the Principal Registrar.

New rule 8 provides that on the hearing of the application for leave, the Full Court may with the consent of the parties or of its own motion, hear and determine the application or treat the application as an application for directions, or hear and determine the appeal.

New rule 9 enables the Full Court to grant leave to appeal on any terms that it sees fit.

Rule 17 provides that section 67 of the Child Support (Registration and Collection Act 1980, which refers to penalties for late payment of child support, is included in Order 33 and can be enforced under order 33.

Rule 17.2 corrects an error in sub paragraph 2 (4A)(a)(i) of Order 33 adding the words "(Registration and Collection)", which were inadvertently omitted from the last set of rules.

Rule 18 inserts a new order 33 rule 11 into the rules. The provision provides the procedure to be used where an information is laid before a Magistrate under sub section 112AH(2) of the Family Law Act. New O33 r11 provides that an information laid before a Magistrate must be in accordance with Form 49A (which is a new form inserted in Schedule 1) if the informant seeks the issue of a summons under paragraph 112AH (2) (a) of the Act.

The new O33 r11 also provides that if the informant seeks the issue of a warrant as well as a summons under paragraph 112AH (2)(b) of the Act, the information must be in accordance with Form 49B (a new form which has also been inserted in Schedule 1).

Subrule 2 of the new order provides that it is not necessary to serve the original of the Information and Summons (Form 49A) and the Information for the Issue of a Warrant (Form 49B) laid before the Magistrate but that it is sufficient to serve a photostat copy of either document.

Rule 19 corrects an Inadvertent error in the previous Statutory Rules No. 122 of 1991.

Rule 20 provides for three further delegation of powers to Registrars under Order 36A rule 2 they are as follows:

1.       Paragraph (ea) the power to make an order relating to maintenance.

2.       Paragraph (1a) the power to make an,order under Section 84 of the Act in relation to enforcement proceedings instituted under O33.

3.       Paragraph (oa) being the power to grant, an injunction under sub section 114(1) of the Act in relation to the enforcement proceedings instituted under O33.

Each of these delegations have been made to enable Registrars to more properly exercise applications for enforcement under O33 by the Child Support Agency.

Rule 21 provides for further delegation of powers to Judicial Registrars by way of the following amendments to O36A r3:

1.       Paragraph 3 (f) by omitting sub section 64 (11A) or (11B) and substituting section 64A. This delegation is necessary because the previous sub sections 64 (11A) and (11B) have been deleted from the Act and placed in the new section 64A.

2.       Paragraph 3 (1) inserts Section 70AA which enables Judicial Registrars to order warrants for the arrest of persons who contravene custody or access orders.

3.       Paragraph (ra) the power to grant leave for the child to be examined under Section 102A of the Act.

4.       Paragraph (rb) in relation to an order made by a Judicial Registrar, the power under S112AK of the Act to vary or discharge an order under S112AD of the Act. This delegation allows a Judicial Registrar to vary or discharge orders made by a Judical Registrar but not by a Judge.

5.       Paragraph (ya) the powers of a Judge to deal with contempt in the face of the Court.

Rule 22 amends certain forms contained in Schedule 1.

Rule 22.2 inserts a new Form 1A which provides a cover sheet for proceedings brought by the Child Support Agency under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

Rule 22.3 amends form 7 by requiting information in new paragraph 8.4 as to whether the parties have attended mediation conferences. This provision has been included to take into account the new mediation rules which ale proposed by the Court as well as mediation conferences required by various Legal Aid authorities in the country.

Rule 22.4 amends Form 12 at paragraph 3 by a simple redrafting of paragraph 3.

Rule 22.5 amends For 39 Decree Nisi of dissolution of Marriage by setting out the fur options that are available by the court under Section 55A. The new form enables the decree nisi to-be printed out more easily on the Court's computerised Blackstone System. Paragraph 5 also amends the previous form by deleting the word "decree" and substituting the word "declared" to make the form conform with the provisions of Section 55A.

Rule 22.6 amends paragraph 2 of Form 41 by identifying which particular order has been made under Section 55A of the Act.

Rules 22.7 - 22.10 corrects a number typographical and format errors contained in statutory Rule 122 of 1991.

Rule 22.7 amends Form 44 by correcting the date of the Family Law Act from 1976 to 1975.

Rule 22.8 amends the first line of paragraph 3 of Form 45 by inserting the word "of" in substitution for the word "for".

Rule 22.9 amends the first sentence in paragraph 4 of Form 45A by deleting the word "fox" after the words "the issue" and substituting "of".

Rule 22.10 amends forms 47, 48 and 49 as follows:

Form 47 adds asterixes before the words "husband" "wife" and "other person" at the commencement of the form. On the second line on the paragraph commencing "AND FURTHER TAKE NOTICE" the words "sent our" are corrected to read "set out". At the commencement of the application in Form 47 the comments referring to the full name of the applicant are moved from between the brackets to the left hand side of the application. In addition the words "his occupation or office if any is" is amended to read "his occupation is" and square brackets are added to the right hand side of those words.

Form 48: the square brackets are enlarged against the first three headings in the form and a date is provided for the first two headings.

Form 49: the words "* other person" is moved under the words "*husband" and *wife", and the square buckets are enlarged after the words "APPLICANTS ADDRESS FOR SERVICE", and the paragraph commencing "AND TAKE FURTHER NOTICE" is amended to read "AND FURTHER TAKE NOTICE"].

Rule 22.10 also adds two new forms being Form 49A "INFORMATION AND SUMMONS" and Form 49B "INFORMATION FOR ISSUE OF A WARRANT" in accordance with the new O33 r11 (as set out in rule 18).

Rule 22.11 adds a new Form 67 - APPLICATION FOR LEAVE TO APPEAL - SECTION 994AA in accordance with the new O32A (as set out in rule 16).

Rule 23 Inserts 8A and 8B into Schedule 2 (Costs), thereby enabling solicitors to charge for the costs of transmitting urgent and necessary material by facsimile machine and, by being able to claim STD and ISD transmission fees for material sent by facsimile machine. Paragraph 9 and 10 of schedule 2 are amended to take into account the addition of 8A and 8B.