Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW RULES (AMENDMENT) 1995 NO. 2

STATUTORY RULES 1995 No. 2

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 Low 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 have been regularly reviewed since that date.

DETAILS OF THE PROVISIONS

Rule 1 - provides the commencement date is 1 February 1995.

Rule 2 - is a machinery provision.

Rule 3 - is to allow terms and conditions to be imposed on orders changing the venue of proceedings.

Rule 4 - is an amendment to recognise In the rubs that procedures for the taking of evidence on commission outside Australia, formerly covered by Order 30 Rule 6, ore now covered by the Foreign Evidence Act, 1994.

Rule 5 -creates a new rule which establishes procedures for the taking of evidence by video link.

Rule 6.1 - omits provisions permitting the making of an order for a letter of request to judicial authorities in another country for the taking of evidence there. This power is now provided by the Foreign Evidence Act 1994.

Rule 6.2 consequential amendment upon passing of the Foreign evidence Act, 1994.

Rule 6.3 - likewise.

Rule 7 - This sets out a new Division 4 of Order 31B. The effect of the changes are:

a       Applications for leave to appeal to the Full Court of the Family Court of Australia in child support matters ate to be governed by the provisions of Order 32A (which presently covers applications for leave to appeal to the Full Court in Family Law Act matters). This is preferred instead of the present separate provisions in Order 31 B Division 4.

b       The procedures in Division 4 governing applications to a Family Court for leave to appeal in child support matters from a decision of a court of summary jurisdiction have been rewritten in a more logical sequence and in clearer, plainer language.

c       The new Rule 22(1) introduces a requirement to serve the registrar of the court of summary jurisdiction (by delivery, post or fox) with copies of the application and supporting affidavits. The new Subrule 22(2) requires that the Registrar must transmit the papers to the Family Court when he receives those documents rather than the present provision whereby the obligation does not arise until he or she receives a request from the Family Court.

And,

d       The new Rule 26 applies the provisions of Order 32 (presently appeals to the Full Court under the Family Low Act) to appeals to the Full Court under child support legislation.

Rules 8 & 9 - these change the Form numbers of two forms to facilitate grouping of forms used in Full Court matters.

Rule 10 - this extends the application of Order 32 (presently appeals to the Full Court of the Family Court of Australia in matters under the Family Law Act) to all appeals to that Full Court.

Rule 11 - this introduces a heading for documents in Full Court matters which will ensure that they are easily distinguished from documents filed in other proceedings and are connected with the Full Court file.

Rule 12 - this introduces a new form of withdrawal of an appeal as the existing "Notice of Discontinuance" is the same form used in non-appeal matters and sometimes did not connect with the Full Court file, but with the other file.

Rule 13 - this introduces a new rule (Order 32 Rule 21C) to require the use of the new Form 42B for withdrawal of an an application to the Full Court. The purpose is to ensure the form connects with the Full Court file.

Rule 14 - consequential amendment of heading.

Rule 15 - amendments to definitions so that Order 32A will apply to all applications to the Full Court for leave to appeal.

Rule 16 - amendment for the same purpose.

Rule 17 - removes unnecessary Order 32A Subrule 6(2) requirement of notice by a Registrar of a direction under Subrule 6(1) as the direction would be made of the directions hearing fixed in the application. It will be a matter for the Judge who conducts the directions hearing to determine whether there is a need to notify anyone of the direction under Subrule 6(1).

Rule 18 - this amends the present Order 7 to incorporate the Chief Justice's practice direction of 1993 regarding conduct of leave applications without an oral hearing.

Rule 19 - this is an amendment to the heading of Order 34 Rule 9 to more accurately reflect the contents of the rule.

Rule 20 - this amendment wig delegate to Judicial Registrars the power to make an order for evidence to be taken by video link.

Rule 21 - these amendments follow upon amendments gazetted on 5 December 1994 to commence 1 February 1995. That amendment simplifies the procedures by introducing a single form "Notice of Address for Service" to replace two current forms, one for giving an address for service and one for changing it. The current requirements of Order 37 Subrules 1(2), (3) & (4) involve three further forms. The amendments will substitute the "Notice of Address for Service" for those three forms.

Subrules 22(1), 22(2) & 22(3) - these amendments are minor changes to Form 12A (Application for Consent Orders) to extend the information provided in the affidavits and to provide an improved sequence in that information.

Subrule 22(4) - this changes the existing Form 42B to Form 41B (see comments re: Rules 8 & 9).

Subrules 22(5) & 22(6) - these amend Form 42 (Notice of Appeal to Full Court) to avoid confusion by removing from the heading the file number of the proceedings appealed from. This is moved to the body of the document to minimise the possibility of the document connecting with the file of the proceedings appealed from instead of the appeal file.

Subrule 22(7) - this creates the new Form 42B (see comments re: Rules 12 & 13 above).

Subrule 22(8) - this amends Form 50 (Warrant to Take Possession of Child) to include a brief description of the powers given by the warrant. This was requested by Police authorities.

Subrule 22(9) & (10) - amends Form 66 (Notice of Child Abuse or Risk of Child Abuse). A copy of this form is provided by the Court to the child welfare authorities. The amendments are to include details to identify the child and the child's whereabouts and cater.

Subrule 22(11) - this amends the present Form 67 by clarifying the number in the heading is the appeal number, and including the number of the proceedings appealed from in the body of the form.