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FEDERAL MAGISTRATES COURT AMENDMENT RULES 2007 (NO. 1) (SLI NO 179 OF 2007)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 179

 

Issued by the authority of the Federal Magistrates of the Federal Magistrates Court

of Australia

 

Federal Magistrates Court Amendment Rules 2007 No 1

 

 

 

Section 81 of the Federal Magistrates Act 1999 permits the Federal Magistrates or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

 

Under sub-section 81(3) of the Federal Magistrates Act 1999 the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Magistrates Act 1999 or another Act:

(a) as if a reference to a legislative instrument were a reference to a rule of court; and

 

(b) as if a reference to a rule-maker were a reference to the Chief Federal Magistrate acting on behalf of the Federal Magistrates of the Court; and

 

(c) subject to such further modifications or adaptations as are provided for in regulations made under section 120 Federal Magistrates Act 1999.

 

The Federal Magistrates have agreed to adopt the Federal Magistrates Court Amendment Rules 2007 No. 1 (‘the Amendment Rules’).

 

The Amendment Rules include a number of miscellaneous amendments to the Federal Magistrates Court Rules 2001 (‘the Rules’), the most significant of which include:

 

· amendments to remove the prescription, by Schedule, of forms for use in the Federal Magistrates Court. The amendments will enable forms to be approved by the Chief Federal Magistrate.

 

· consequential amendments to the terminology used in the Rules for dispute resolution to accord with the terminology in the Federal Magistrates Act 1999 and the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

· amendments to enable the filing of a statement of claim (points of claim) or defence (points of defence) rather than a supporting affidavit, in proceedings other than family law or child support.

 

· new rules to introduce a new form – Application in a case for those applications seeking interim, procedural, ancillary or interlocutory orders, after commencement of proceedings.

 

· an amendment to introduce time limits for the service of an application and any document filed, of no less than 3 days before the day fixed for the hearing of an application in a case; or no less than 7 days before the day fixed for the hearing of any other application.

 

· new rules in relation to child support proceedings which include applications for child maintenance. These new rules facilitate determination of such matters, where possible, on the first return date and include rules in relation to appeals from the Social Security Appeals Tribunal (‘SSAT’) consistent with recent legislative amendments to child support legislation.

 

The Amendment Rules have been the subject of consultation with the Federal Court of Australia, the Family Court of Australia, the Child Support Agency and the SSAT.

 

Details of the Amendment Rules are in the Attachment.

 

The Amendment Rules commence on the day after they are registered

 

 

ATTACHMENT

 

Federal Magistrates Court Amendment Rules 2007 (No. 1)

 

Rule 1 – Name of Rules

 

Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2007 (No. 1).

 

Rule 2 – Commencement

 

Rule 2 provides that the Rules will commence on the day after they are registered.

 

Rule 3 – Amendment to the Federal Magistrates Court Rules 2001

 

Rule 3 provides that the Rules are amended as set out in Schedule 1.


SCHEDULE 1

 

[1] Before subrule 2.04(1)

 

This amendment inserts a new subrule 2.04(1A) which permits the Chief Federal Magistrate to approve forms for use in the Federal Magistrates Court.

 

[2] Paragraph 2.05(1)

 

The amendment removes the words ‘Unless a fee is payable for the filing’ from paragraph 2.05(1) to facilitate filing of documents by facsimile.

 

[3] After subrule 4.01(3)

 

The amendment provides that an application in a case must be made in accordance with new rule 4.08. See item [50] amendment which inserts a definition for application in a case.

 

[4] Subrule 4.05(2)

 

This is an amendment to the rule which requires evidence supporting an application or response to be by way of affidavit. The amendment will permit, in proceedings other than family law or child support matters, the grounds to be pleaded by way of a statement of claim (points of claim) or defence (points of defence).

 

[5] Rule 4.06

 

This amendment omits Rule 4.06 requiring the filing of an information sheet to accompany certain applications.

 

[6] After rule 4.07

 

This amendment introduces new Rule 4.08 – Application in a case. New subrule 4.08(1) requires such applications to be made in accordance with an approved form to be used for interlocutory, interim or procedural orders sought after the original application or response has been filed. The application and supporting affidavit must be served on all persons against whom the order is sought in accordance with Part 6 of the Rules.

 

[7] Rule 5.02

 

This amendment is a consequence of the repeal of the prescribed application in Part 1 of Schedule 2 and provides that unless the Court orders otherwise, an urgent application must be made in the form approved for starting a proceeding under subrule 4.01(1) or an application in a case under subrule 4.08(1).

 

[8] Subrule 6.03(2)

 

The amendment is a consequence of the amendment in item [11] which introduces a new Rule 6.19 prescribing time limit for the service of applications.


 

[9] Subrule 6.03(3)

 

This miscellaneous amendment substitutes the existing rule in relation to the service requirement for documents other than an application, to also including ‘related documents’.

 

[10] Rule 6.05

 

This amendment is a consequence of the repeal of the form of affidavit of service (general) set out in Part 1 of Schedule 2. New substituted Rule 6.05 provides that unless the Court otherwise orders, evidence of service is to be given by affidavit and may be in accordance with the approved form.

 

[11] After rule 6.18

 

This amendment introduces new Rule 6.19 prescribing time limits for service of applications unless the Court orders otherwise. An application in a case may not be served less than 3 days before the hearing of the application. For all other applications, the time prescribed is no less than 7 days before the day fixed for hearing.

 

[12] Division 10.2, heading

 

The amendment substitutes the heading ‘ Primary Dispute Resolution’ with ‘ Dispute Resolution’ in accordance with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[13] Rule 10.04, heading

 

The amendment substitutes the heading ‘Agreement reached by primary dispute resolution’ with ‘agreement reached by dispute resolution’ in accordance with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[14] Rule 10.04

 

The amendment omits the word ‘primary’ in rule 10.04 to accord with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[15] Rule 10.04, note 1

 

The amendment omits the word ‘primary’ from note 1 to accord with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.


 

[16] Rule 10.04, note 3

 

The amendment omits the words ‘mediation and arbitration’ and inserts the words ‘family counselling and family dispute resolution’, to accord with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[17] Subrule 10.05(2)

 

The amendment omits the words ‘ a family and child counsellor or welfare officer’ and inserts instead the words ‘ a family counsellor, family dispute resolution practitioner or family consultant’, to accord with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[18] Subrule 11.08(2)

 

The amendment to the subrule omits the words ‘other than a proceeding under the Family Law Act’. The subrule will now apply to all proceedings.

 

[19] Subrule 12.03(1)

 

The amendment omits the word ‘assistance’ by inserting ‘assistance in relation to a proceeding before the Court’. This amendment accords with amendments to Order 80 Federal Court Rules.

 

[20] After rule 12.03

 

The amendment inserts a new rule 12.03A to provide for a Registrar to seek the direction of a Court or a Federal Magistrate in relation to a referral for pro bono assistance under rule 12.03. The amendment accords with amendments to Order 80 Federal Court Rules.

 

[21] Rule 13.03B, note

 

The amendment inserts a new rule 1A after subrule 12.05(1). The rule provides that, unless the Court or a Federal Magistrate otherwise directs, a referral ceases to have effect if:

· a lawyer has provided the legal assistance mentioned in the referral; or

· a lawyer has ceased to provide legal assistance under subrule(2); or

· the proceeding the referral relates to is finished or transferred to another court

 

The amendment accords with amendments to Order 80 Federal Court Rules.

 

[22] Rule 13.03B, note

 

The amendment omits the note to Rule 13.03B.


 

[23] Part 15

 

The amendment inserts a note before Division 15.1 referring to Section 69Z of the Family Law Act stating that particular provisions of the Evidence Act 1995 do not apply to child-related proceedings. This note reflects the recent amendment to section 69Z following passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[24] Subrule 20.00A(2), at the foot

 

The amendment inserts a note at the foot of subrule 20.00A(2) highlighting the protections and immunities of Registrars and a party, legal practitioner or witness appearing before a Registrar, in the exercise of the delegated powers of the Court.

 

[25] Rule 20.00B

 

The amendment omits the current rule which applies Order 36 of the Family Law Rules 1984. Order 36 was repealed upon commencement of the Family Law Rules 2004. It is not considered necessary to re-state the immunities and protections in a rule however the amendment introduced in item [24] notes these immunities and protections.

 

[26] Part 23, heading including notes 1, 2, and 3

 

This amendment substitutes the heading and notes to Part 23 with a heading and note which accords with changes to the dispute resolution provisions and terminology in the Family Law Act as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[27] Division 23.1, heading

 

This amendment substitutes the heading of Division 23.1 with a heading which accords with changes to the dispute resolution provisions and terminology in the Family Law Act as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[28] Subparagraph 23.01A(2)(a)(ii)

 

This amendment substitutes subparagraph 23.01A(2)(a)(ii) with a new subparagraph which refers to ‘child’s views’ rather than ‘child’s wishes’ to accord with changes to the terminology in the Family Law Act as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[29] Rule 23.01, including the note

 

This amendment substitutes Rule 23.01 and the accompanying note with a new rule which accords with changes to the dispute resolution provisions and terminology in the Family Law Act as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.


 

[30] Division 23.2

 

The amendment substitutes Division 23.2 with a new Division which accords with changes to the dispute resolution provisions and terminology in the Family Law Act as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[31] Subrule 25.08(1)

 

The amendment substitutes the form requirement for opposing an application for a divorce order as a consequence of the repeal of the form of response set out in Part 1 of Schedule 2. The amendment provides that a party who wishes to oppose an application for a divorce order, or to object to the jurisdiction of the Court, must file a response in accordance with the approved form.

 

[32] Rule 25.09

 

The amendment omits rule 25.09 as a consequence of item [31] new subrule 25.08(1). A party who now wishes to objection to the jurisdiction of the Court in opposing an application for divorce, must do so in the form of response approved for the purposes of subrule 25.08(1).

 

[33] Rule 25.10, heading

 

The amendment to the heading of Rule 25.10 removes the word ‘ or objection’ as a consequence of new [item 31] subrule 25.08 (1) and the [item 32] omission of rule 25.09.

 

[34] Rule 25.10

 

The amendment to Rule 25.10 removes the words ‘ or objection to jurisdiction’ as a consequence of new [item 31] subrule 25.08 (1) and the [item 32] omission of rule 25.09.

 

[35] Part 25A

 

This amendment substitutes new Part 25A rules in relation to child support proceedings which now includes applications for child maintenance. These new rules facilitate determination of such matters, where possible, on the first return date. Also included in the new Part are rules relating to appeals from the Social Security Appeals Tribunal (‘SSAT’) consistent with recent legislative amendments to the child support legislation. Part 25A does not affect the operation of Division 25B.2, and enforcement of child support matters is covered by the general enforcement rules set out in Division 25B.2.


 

[36] Rule 25B.01, note 3

 

The amendment omits reference to section 70NJ(6) of the Family Law Act and substitutes section 70NFB(4) for consistency with Rule 21.01 Family Law Rules 2004.

 

[37] Rule 25B.01, note 3

 

The amendment omits reference to section 70N0(2) of the Family Law Act and substitutes section 70NFG(2) for consistency with Rule 21.01 Family Law Rules 2004.

 

[38] Rule 25B.04, note

 

The amendment substitutes the note at the end of Rule 25B.04 with a note which is consistent with the note at the end of Rule 21.08 Family Law Rules 2004.

 

[39] After subrule 25B.05(2)

 

The amendment inserts new subrules (3) and (4) to Rule 25B.05. The amendment makes specific reference to the application of the service rules in Part 6, Division 6.2 and rule 6.03 of the Rules, rather than, Order 18 as referred in Order 33 of the Family Law Rules 1984,as Order [18] has been repealed.

 

[40] Rule 25B.06, note

 

The amendment includes a new note to reflect amendments made to the numbering of the relevant sections in the Family Law Act.

 

[41] Part 27, heading

 

The amendment substitutes the heading in Part 27 to accord with changes to terminology as a consequence of the Family Law Amendment (Shared Parental Responsibility) Act 2006.

 

[42] Rule 41.02A

 

The amendment is consequential on the amendment in item [1] and removes specific reference to Form 167. The substituted rule now requires an application for proceedings alleging unlawful discrimination to be in accordance with the ‘approved form’.

 

The amendment also introduces a new subrule 41.02A(2) removing the requiring for a supporting affidavit to be filed with an application in the approved form.


 

[43] Paragraph 41.03(b)

 

This amendment is as a consequence of the removal of the requirement for filing an information sheet (see item [5]). The amendment substitutes existing paragraph 41.03(b) by removing the requirement for applicants in human rights proceeding, to provide the Commission a copy of the supporting affidavit and information sheet. The applicant must now provide the Commission with ‘a copy of any other documents filed’.

 

[44] Rule 41.04

 

The amendment is consequential on the amendment in item [1] and removes specific reference to Form 168 by a requirement that a response to an application alleging unlawful discrimination must be in accordance with the ‘approved form’.

 

[45] Paragraph 43.04 (1)(a)

 

The amendment removes the words ‘cross-appeal’ to now read ‘cross-appeal in the approved form’.

 

[46] Further amendments – approved form

 

These amendments are as a consequence of the amendment made to the process of approval of forms for use in the Court in item [1] to remove the prescription, by Schedule, of forms for use in the Federal Magistrates Court. The amendment will enable forms to be approved by the Chief Federal Magistrate.

 

[47] Schedule 2

 

The amendment removes Schedule 2 and is a consequence of the amendment made to the process of approval of forms for use in the Court in item [1]. Forms will no longer be prescribed by Schedule. The amendment contained in item [1] will enable forms to be approved by the Chief Federal Magistrate.

 

[48] Schedule 3, Part 2

 

The amendment omits from Schedule 3 Part 2, rule 7 of Order 35 of the Federal Court Rules, as Rule 16.05 of the Rules deal with the setting aside a judgment or order and the application of rule 7 is not necessary

 

The amendment also specifically applies Order 35A of the Federal Court Rules to Schedule 3, Part 2.

 

[49] Schedule 3, Part 2

 

The amendment omits from Schedule 3, Part 2, Order 54B of the Federal Court Rules in view of the prescription of specific rules for proceedings under the Migration Act in Part 44 of the Rules.

 

The amendment also specifically applies Division 1 and 2 of Order 48 of the Federal Court Rules to workplace relations proceedings in the Court.

 

[50] Dictionary, after the definition of answers to specific questions

 

The amendment inserts a definition for application in a case to define the types of proceedings which are included in the new form introduced by way of items [3] & [6] amendment.

 

[51] Dictionary, after definition of approved registry

 

The amendment inserts a definition for approved form to mean a form approved by the Chief Federal Magistrate under subrule 2.04(1A) as a consequence of the amendment in [item1].

 

[52] Dictionary, definition of child support application or appeal

 

The amendment omits the definition of child support application or appeal as a consequence of item [35] amendments.

 

[53] Dictionary, after definition of service by hand

 

The amendment includes a new definition for SSAT as a consequence of item [35] amendments.

 


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