Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW RULES (AMENDMENT) 1992 NO. 161

STATUTORY RULES 1992 No. 161

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

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Law Act 1975 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 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.

Rule 3 provides for the court to open between Christmas Day and New Years day. However each registry is still closed on Saturdays and Sundays (Order 6 rl(3)(a)) and public holidays which includes Christmas Day and New Years day (order 6 r1(3)(c)).

Rule 4 requires that the Director of Court Counselling provide a memorandum in accordance with new Form 69 to the Court at the end of court ordered counselling. This form has been in use In the Court for a number of years and is also required under the court's Case management Guidelines. The rule also requires that the parties be advised of the recommendations made in the memorandum.

Rule 5 enables the Court to call on one or more assessors to assist the court in relation to any matter before the court. The Court is not bound by any opinion or finding of the assessor and the Court has full discretion as to the conduct of a bearing in which an assessor has been called. The assessor is to be paid remuneration as determined by the Court and in the first instance by whichever party the court directs.

Rule 6 provides definitions for 'regional appeal registrar' and 'regional appeal registry' in accordance with the amendments to Order 31B rule 21 contained in Rule 7.

Rule 7 amends Order 31B rule 21 and provides that application for leave to appeal from a decision of the Family Court to the Full Court of the Family Court in relation to Child Support jurisdiction matters are to be filed in the regional appeal registry' as defined in order 32 and set down for hearing by the 'regional appeal registrar' also defined in order 32.

Rule 8 corrects a drafting error in 032 rule6 l(b)(ii) by deleting the reference to 'application' and substituting 'notice' in accordance with the terminology in 032 rule 6(1).

Rule 9 corrects a drafting error in Order 32 rule 7(1)(b)(ii) by deleting the reference to 'application' and substituting 'notice' in accordance with the terminology used in Order 32 rule 7(1).

Rule 10 enables the appeal registrar to list an appeal for hearing before the volumes of the appeal papers required under Order 32 rule 14(4) are filed.

Rule 11.1 delegates under 036A rule 2(1)(ea) to registrars the power to make 'any' order relating to maintenance.

Rule 11.2 omits paragraph 2(1)(1) of order 36A which delegated powers in relation to undefended maintenance hearings as these powers are now contained within O36A rule 2(1)(ea).

Rule 11.3 omits the reference to Order 38 rules 3(1) and 29(1) which have themselves been omitted in SR 1987 No. 15. The subrule also delegates to registrars the power to make costs orders against counsel or solicitors under Order 38 rule 39.

Rule 12 is a consequential amendment arising from the delegation of the same power to Registrars in Rule 11.1 above. The delegation of the power to Judicial Registrars to make any order relating to maintenance is now contained in Order 36A rule 3(a).

Rule 12.2 delegates the power to Judicial Registrars to make an order under Section 57 of the Act to recind a decree nisi where the parties have reconciled and an order under Section 58 of the Act to recind a decree nisi on the ground of miscarriage of justice.

Rule 12.3 omits the reference to paragraph 3(t), of Order 36A(3) as this power is now contained in paragraph 3(z) of Order 36A(3).

Rule 13 is a consequential amendment to take into account the further delegations of power to Judicial Registrars In paragraphs (ya) and (z) of Order 36A(3). The amendment also ensures that any future amendments to O36A rule 3 will be subject to the review period of one month as set out in Order 36 rule 5.

Rule 14.1 and 14.2 omits all references to 'subsection 70(1)' and substitutes 'section 112AD'. This is a consequential amendment to Form 49 as the offences previously set out in S70 have been omitted from the Act and are now provided under S112AD.

Rule 14.3 inserts a new form, Form 59 'Memorandum by Court counsellor' into Schedule 1 in accordance with the. new order 25, rule 4A (referred to in Rule 4).