Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW RULES (AMENDMENT) 1995 NO. 145

STATUTORY RULES 1995 No. 145

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

AMENDMENT OF THE FAMILY LAW RULES

Section 123 of the Family Low 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 Low Rules come into operation on 2 January 1985. They hove been regularly reviewed and amended since that dote.

DETAILS OF THE PROVISIONS OF THE AMENDMENTS

Rule 1 - provides the commencement date.

Rule 2 - is a machinery provision.

Rule 3 - This rule introduces a new Division 2 to Order 28 (subpoenas) to make the necessary provisions regarding service of subpoenas in New Zealand under the Evidence and Procedure (New Zealand) Act 1994.

The provisions at this stage apply only to the proceedings described in the note to the proposed Rule 11.

The proposed Rule 13 requires the use of the present subpoena forms.

The proposed Rule 16 requires the application for leave to serve the subpoena to be by on application on Form 8 accompanied by an affidavit.

The proposed Rule 15 sets out the matters to be contained in the affidavit.

The proposed Rule 16 provides that the application is not required to be served.

The proposed Rule 17 provides that the application can be heard in chambers rather than in open court.

The proposed Rule 18 provides that the conditions imposed by the court when granting leave to serve a subpoena in New Zealand can include a requirement that the applicant undertake to pay the losses and expenses of the person served with the subpoena incurred in complying with the subpoena.

The proposed Rule 19 provides for an application to set aside a subpoena served in New Zealand must be by a Form 8 accompanied by an affidavit.

The proposed Rule 20 sets out the procedure for production of a document or thing where that is all that the subpoena requires and requires the person who obtained leave to serve the subpoena to pay the costs incurred in producing and transporting such document or thing.

The proposed Rule 21 requires a certificate of non-compliance to be per Form 38A (new form set out at Rule 11.5).

Rule 4 This is a rewrite of the current Order 30 Rule 6A to widen it by including (a) submissions by video link or telephone. and, (b) evidence by telephone. The proposed Subrule (4) is an expansion of the present Subrule (4) by adding submissions to paragraph (a) and by introducing paragraphs (b) and (c).

Rule 5.1 - The proposed Rule 7 is a rewrite of the present Rule 7 of Order 30. The affect of the changes is to improve the language and layout of the rule to make it clearer.

The proposed Rule 8 is a new rule as to the requirements of fax copies relied upon pursuant to Part 6 of the Evidence and Procedure (New Zealand) Act 1994.

Rule 6 - Cross-examination of a Court Expert

This proposed rewrite of the existing Rule 5 of order 30A removes the requirement for a person who seeks to cross-examine a court expert to first obtain leave of the court and an order for the attendance of the expert. The rule instead requires the person to arrange the attendance of the expert, provides that a subpoena may be issued for that purpose and provides that unless the court orders otherwise, the party who arranges the attendance of the court expert at court is liable to pay the reasonable remuneration and expenses of the expert for attending.

Rule 7 - Remuneration of Court Experts

This is a rewrite of the existing Rule 6. It repeats in Subrule (2) the present joint several liability of the parties for the remuneration of a court expert for his report but instead of the present "remuneration determined by the court" refers to "reasonable remuneration and expenses" in order to simplify the procedure. The proposed Subrule (1) provides that if there is a dispute between parties as to the remuneration and expenses payable to a court expert, the court must determine the amount to be paid.

Rule 8 - Enforcement of Maintenance etc Orders and Debts due to the Commonwealth

This amends the present Order 33 Subrule 2(1) by (a) improving the lettering and adding paragraph (j) to make it clear that child support liabilities can be enforced under Order 33 even where the assessment is not registered under the Child Support (Registration and Collection) Act and the liability is not a debt due to the Commonwealth but a debt due to the custodian entitled to child support.

Rules 8.2. 8.3. 9.1. 9.2. and 9.3 - make amendments consequential upon the relettering in Order 33 Subrule 2(1).

Rule 10 This amendment delegates to Judicial Registrars power to make a declaration in proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise.

It also delegates to Judicial Registrars the power to make a direction for publication of details of proceedings which identify a party, a witness, a person related to or associated with a party or a person alleged to be concerned in a matter to which the proceedings relate.

Rule 11 - Items 11.1, 11.2. and 11.3 are consequential amendments to introduce to Forms 36, 37 and 38 reference to the new rule 13 of Order 28 introduced by the Amendments.

Item 11.4 amends the note to Form 38 to make provision regarding subpoenae served in New Zealand pursuant to the Evidence and Procedure (New Zealand) Act 1994.

Item 11.5 sets out the form of certificate required by Order 28 Rule 21 proposed in the amendments.