Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW RULES (AMENDMENT) 1994 NO. 401

STATUTORY RULES 1994 No. 401

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 Low 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

General: These amendments introduce the following major changes:

a)       A new improved Order 18 (Service Rules) using a more logical sequence of provisions and simplified provisions

b)       A new Form 4 (Application for Divorce) involving:

•       plainer language

•       user-friendly format

•       same form for joint applications

•       omission of more than half the form if there are no children under 18

•       incorporation of request for proceedings to be dealt with in absence of parties

•       incorporation of Counselling Certificate (Subsecs.44(1B) & 44(1C) of Family Law Act) as Part H for marriages of less than 2 years

c)       Revised service forms and Form 13 providing simpler forms in plainer language.

d)       Amendments to the rules to permit completion of Forms 4,13,18.19, 20, 21, 22 & 23 in clear legible handwriting

e)       Amendments as to the fees chargeable by solicitors as the "basic composite amount" to (i) adjust the fees downwards to allow for the reduction in work because of the simplified forms and procedures and the savings possible by using handwriting on the application and service forms; (ii) to change the definition of "basic composite amount" so that the prescribed amount will in most cases be all inclusive and in particular will include any fees of an agent or Counsel who appears; and, (iii) to adjust the amounts prescribed accordingly.

Rule 1 provides the commencement date is 1 February 1995.

Rule 2 is a machinery provision.

Rule 3 These are consequential amendments to amend the definition of 11 assured service" and "address for service" to refer to the appropriate provisions in the new Order 18 and to remove the definition of "personal service", which is no longer required.

Rule 4 These are amendments to Order 2 rule 2 to exclude various new forms from the requirement for a cover sheet, to require parts A & B of the new Form 4 to be on a single sheet of paper, to require Part H of Form 4 to be on a separate sheet of paper, to require various forms to be set out on a single sheet of paper. to permit the use of clear legible handwriting for completion of the forms in the amendment and to improve the wording of some parts of Order 2 Rule 2.

Rule 5 Improvement to the wording of Order 2 Rule 5(1)

Rule 6 Consequential amendment to Order 3 Rule 1 to refer to the relevant provision in the new Order 18 and improve the wording.

Rule 7 Amendment to Order 7 Rule 7 so that Form 4 is the prescribed form for all Divorce applications.

Rule 8 Consequential amendment to Order 8 Rule 1 to allow for the fact that a request for proceedings to be dealt with in the absence of the parties can now be made in the Divorce application.

Rule 9 As per 8.

Rules 10, 11, 12, 13,14 & 15 - Consequential amendments as a result of Form 13 being called a "Response" instead of an "Answer" and similar amendments to change the name of Form 14.

Rule 16 Order 14 Rule 2

Amendment so that the requirement that the Attorney-General serve a copy of his application and supporting affidavit does not include unnecessary reference to the service rules, which apply in any event.

Rule 17 Order 15 Rule 18

Amendment to the requirement that copies of affidavits filed be served on each other party to delete the reference to the service rules, which apply in any event.

Rule 18 This amendment introduces the new Order 18 to replace the present Order 18 which has been the subject of numerous changes. There are 12 rules comprising the current Order 18. The new Order has 18 rules. It is in a more logical sequence, with rules generally shorter. An attempt has been mode to use plainer language and to make the provisions more easily understood.

The provisions for service by Fax and document exchange have been extended and improved (Rules 9 & 10).

The prohibition of service of documents on Christmas Day and Good Friday has been removed. It was considered inappropriate, given that there con be a need to serve urgent applications (eg to prevent the removal of children from Australia) at such times. In addition, there is no prohibition of service of documents on other days of major significance to religious groups in the community.

The new Order 18 also caters specifically for unrepresented applicants in divorce applications by providing specific service forms for their situations (Subrule 15(2) and Forms 20 & 21).

The rules and forms for affidavits of service refer to a much wider range of methods of proving service (the most common ones) and should make it easier for litigants to prove service (eg see Rule 16, and Parts 5 & 6 of Form 21 and of Form 22).

Rules 19 & 20 Order 19 Rule 9 and Order 23 Rule 7

This removes unnecessary provisions which provide for service of "a document required by this order to be served" to be served in accordance with order 18. Order 18 makes such provision.

Rule 21 Order 23 Rule 7

This removes unnecessary reference to the precise provisions in Order 18 as to the mode of service so that the requirement for service on an infirm person is service in accordance with Order 18 on one of the committees or other persons already specified in Order 23 Rule 7. The effect is unchanged.

Rule 22 Order 25 Rule 4

This amendment removes the old Forms 34 & 35 (Counselling Certificates under Subsecs 44(1B) & 44(1C) of the Family low Act where Divorce application is within 2 years of marriage) and incorporates the Certificates in the Form 4 as Part H.

Rule 23 Order 28 Rule 1

This amendment replaces reference to provisions of the existing Order 18 with words describing the methods to be used for service of a subpoena. The effect is unchanged.

Rule 2 Order 33 Rule 2

This amendment removes unnecessary reference to the precise paragraphs of Order 18 so that the requirement for service is that it be served in accordance with Order 18. The effect is unchanged.

Rule 25 Order 33 Rule 3

Consequential amendment to change the references to provisions of Order 18 to accord with the new Order 18.

Rule 26 Order 33 Rule 4

This amendment removes unnecessary reference to specific paragraphs of Order 18 (in subrule 4(10) and a specific rule of Order 18 (in subrule 4(10) which are unnecessary references. Their removal in each case leaves a requirement of service in accordance with Order 18.

Rules 27 & 28 Order 34 Rule 2 & Order 34 Rule 9

These amendments are consequential amendments to change references to provisions of Order 18 to accord with the new Order 18.

Rule 29 Order 36A Rule 9

This amendment is a consequential amendment to change references to provisions of Order 18 to accord with powers delegated to Registrars under the new Order 18.

Rule 30 Order 38 Rule 4

This amends the definition of "basic composite amount". being fees charged by solicitors for acting on Divorce Applications. to make it (in most cases) oil inclusive. In particular it includes the fees of any agent or counsel who is instructed to appear in the proceedings.

Rule 31 Order 38 Rule 24

This amendment simplifies the wording of the subrules and removes unnecessary reference to Order 18, which applies in any event.

Rules 32, 33 & Schedule

The Schedule to the amendments introduces new amounts for basic composite fees for applications filed on or after 1 February 1995

Form 4 - Application for Divorce

Where there are no children under 18 and it is a marriage of 2 years or more the only parts of the Form required are Parts A, C, F, & G and the Notice to Respondent.

Where the parties have been married less than 2 years, Part H will also need to be provided.

For an application where there are three children under 18 the application will comprise:

Part A - 1 page

Parts C & D - 1 page

Part E - 2 pages

Parts F & G - 1 page

Notice of Application - 1 page

Total - 6 pages

The Notice of Application is not required for a joint application.

Part B should be omitted where there are children under 18 as the option of having the proceedings heard in the absence of the parties is not available in that situation.

The intention is that the Court will have printed a Form 4 kit for applications where there are no children under 18 and a Form 4 kit for applications where there are children under 18. The kits will include instructions about preparing, filing and serving the application.

Form 13 - Response (Divorce or Other Principal Relief)

The use of the expression "Response" has been preferred to "Answer" because it accords with the traditional and common use of "Respondent".

The form is designed to be simpler and easier to use.

For 18 - Notice of Address for Service

The Form 18 has been simplified. The current Form 19 (Notice of Change of Address for Service) has been dispensed with and the new Form 18 will be used instead of the current Form 18 and the current Form 19. This Form is limited to a single sheet.

Form 19 - Acknowledgment of Service

The Form has been simplified and Part 4 includes items (a) and (b) already printed for the convenience of persons applying for a divorce. This Form is limited to a single sheet.

Form 20 - Affidavit by Applicant of Service by Post (Divorce)

This Form is specifically designed for use by unrepresented applicants for divorce who serve the application themselves by post. It will cover service of other documents simultaneously. This form is limited to a single sheet.

Form 21 - Affidavit of Service (Divorce)

This form is specifically designed for proof of service of a Divorce application by any other method. It will cover service of any other documents simultaneously. It is designed for easier use by unrepresented litigants and for completion by process servers. It is limited to one sheet.

Form 22 - Affidavit of Service

This form is designed for use for proof of service in situations where Forms 20 & 21 do not apply (ie no Divorce application is service). The format and wording is designed to facilitate its use by unrepresented litigants and completion and swearing by process servers and other persons without legal qualifications. The rules limit this form to one sheet only. The printed form may therefore involve in parts use of smaller print than the standard print for court forms.

Form 23 - Affidavit of Proof of Signature

This form is designed for proof of the signature on an Acknowledgment of Service. It is in a simple format designed to be suitable even for unrepresented litigants.