EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 55

 

FEDERAL MAGISTRATES COURT AMENDMENT RULES 2009 (NO. 1)

 

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

of Australia

 

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 2009 No 1 (‘the Amendment Rules’).

 

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

 

•         an amendment to subrule 2.08 which deals with access to records of the Court. The amendments mirror recent amendments to Rule 24.13 Family Law Rules 2004 by way of the Family Law Amendment Rules 2008 (No. 2). The changes reflect current practice of the Court in relation to access of records in relation to family law/child support proceedings by permitting access by certain persons but restricting access to correspondence and other records subject to express permission. In relation to access to searching of records in a proceeding that is not family law or child support, Rule 6 of Order 46 of the Federal Court Rules applies and there has been no amendment to this other than the subrule being renumbered;

 

•         an amendment to subrule 13.11 which deals with vexatious litigants. The amendments are consistent with recent amendments to the Federal Court Rules by way of the Federal Court Amendment Rules 2008 (No. 2) and provide that an application by a person who is subject to such an order may be determined by the Court without an oral hearing;

 

•         consequential machinery amendments as a result of the commencement of de facto financial matters jurisdiction on the Court;

 

•         miscellaneous modifications to the Application of Order 33 of the Family Law Rules 1984;

• paragraph 44.05(2)(c) is amended to reflect amendments to s.477 of the Migration Act made by the Migration Legislation Amendment Act 2009 (No. 1) by requiring that the supporting affidavit for an application which seeks an extension of time must include "the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension";

 

• amendments to the cost schedule to give effect to the recommended increase of the Joint Cost Advisory Committee - First Report on Legal Practitioners Costs 2008;

 

• amendments to the terminology used in the Rules to replace the term child representative with independent children's lawyer to accord with the terminology used in the Family Law Act.

 

The Amendment Rules are consequential in nature and have not been the subject of consultation. The amendment to Schedule 1 - costs - implements the recommendation of the Joint Costs Advisory Committee First Report on Legal Practitioners Costs 2008, which conducted public consultation as part of its review.

 

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 2009 (No. 1)

 

Rule 1 – Name of Rules

 

Rule 1 provides that the Rules are to be cited as the Federal Magistrates Court Amendment Rules 2009 (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] Subrule 2.08(2)

 

The amendments to subrule 2.08(2) mirror recent amendments to Rule 24.13 Family Law Rules 2004 by way of the Family Law Amendment Rules 2008 (No. 2). The changes reflect current practice of the Court in relation to access of records in relation to family law/child support proceedings by permitting access by certain persons but restricting access to correspondence and other records subject to express permission. In relation to access to searching of records in a proceeding that is not family law or child support, Rule 6 of Order 46 of the Federal Court Rules applies. There has been a consequential re-numbering of this subrule which was subrule 2.08(2) and is now subrule 2.08(4).

 

 

[2] After subrule 13.11(6), before the note

 

Subrule 13.11(6) provides that where an Order has been made under Rule 13.11, the Court shall only give leave to institute or continue any proceeding where the Court is satisfied that the proceeding is not an abuse of process and that there are prima facie grounds for the proceeding. The amendment permits an application for leave pursuant to this rule to be determined by the Court without an oral hearing. The amendment accords with an amendment to Order 21, rule 5 Federal Court Rules by way of Federal Court Amendment Rules 2008 (No. 2)

 

 

[3] Rule 20.00A, table, Item 2, subparagraph(l)(i)

 

Item 2, subparagraph (l)(i) is amended to include reference to section 90SG, following a consequential amendment to the Federal Magistrates Act 1999 by way of Schedule 2 of the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008.

 

[4] Rule 20.00A, table, Item

 

Item 20 is omitted from Rule 20.00A which lists the Family Law Act powers delegated to each Registrar who is approved to exercise the power under subsection 103(1) of the Federal Magistrates Act 1999 as paragraph 79(9) only applies to the Family Court or a Family Court of a State.

 

 

[5] Paragraph 24.07(1)(b)

 

The amendment includes a reference in paragraph 24.07(1)(b) to new section 90SN in addition to section 79A. Section 90SN empowers the court to vary and set aside orders altering property interests in financial matters relating to de facto relationships following passage of the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008. The amendment clarifies that the obligation of service on the trustee of the eligible superannuation plan applies if a person is seeking an order to set aside an earlier order made in relation to a superannuation interest under section 79A or section 90SN.

 

[6] Rule 25B.05

 

The effect of the amendment to Rule 25B.05 is that the modifications to Order 33 are no longer sets out in subrules to Rule 25B.05 but are set out in Schedule 5.

 

[7] Paragraph 44.05(2)(c)

 

Paragraph 44.05(2)(c) is amended to reflect amendments to s.477 of the Migration Act made by the Migration Legislation Amendment Act 2009 (No. 1) by requiring that the supporting affidavit for an application which seeks an extension of time must include "the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension".

 

[8] Schedule 1

 

Amendments have been made to the cost schedule (Schedule 1) to increase the costs consistent with the recommendation of the Joint Cost Advisory Committee - First Report on Legal Practitioners Costs 2008.

 

 

[9] Schedule 5

 

In light of the passage of the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 certain consequential amendments have been made to Order 33; which modifications have been incorporated in Schedule 5. These include amendments to accord with changed provisions of the Family Law Act. Additional modifications have been made to ensure consistency with the terminology employed in the relevant legislative provisions and the Federal Magistrates Court Rules 2001.

 

[10] Dictionary, definition of child representative

 

The definition of child representative has been removed from the dictionary as all references to the term have been removed from the rules by way of item [13] consistent with the terminology now used in the Family Law Act being ' independent children's lawyer'.

 

[11] Dictionary definition of financial matter

 

The definition of financial matter also includes reference to section 90SM of the Family Law Act as a consequence of passage of Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008.

 

[12] Dictionary, after definition of Human Rights Act

 

This amendment includes in the dictionary a definition of independent children's lawyer which is the new term used in place of the definition of child representative removed from the Rules by way of item [10].

 

[13] Further amendments

 

This amendment omits the term child representative where it appears in provisions of the Rules and replaces this term with the term independent children's lawyer consistent with the terminology now used in the Family Law Act.