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FAMILY LAW AMENDMENT RULES (NO. 3) 2001 NO. 191
EXPLANATORY STATEMENTSTATUTORY RULES 2001 No. 191
Issued by the authority of the Judges of the Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law Act 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 Law 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 reference 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 and amended since that date.
DETAILS OF AMENDMENTS
ORDER 1 RULE 4, ORDER 2 RULE 3A; ORDER 41 : ABN
These amendments are necessary due to a directive from Treasury that as a consequence of the new tax system all references to Corporations Law Registration Numbers in Legislation and Statutory Rules are required to be amended to ABN from ACN.
ORDER 1 RULE 4 ORDER 40 RULE 4 AND FURTHER AMENDMENTS ([paragraph 61] draft stat. rule): BOND
FLAA 2000 introduced the term "Bond" instead of "Recognizance" in the Act example ss. 70NM and 112AF. Recognizance is still the term in ss. 65U & 65W. The terms are interchangeable and mean the same thing. O40 Rule 4 and the Form 59 have been amended so that the terminology used is consistent with that in the Act.
ORDER 1 RULE 4"technical medium"
see new O30R2AAA.
ORDER 2 RULE 2 (3) ( i): Requirements for documents
This amendment is in response to a concern that persons upon whom sealed court documents are served cannot, at the moment, be satisfied that they have received a complete copy of the document that was filed. Therefore this new subrule requires that a document comprising more than one page must be securely fastened.
ORDER 2 RULE 2 (5): Printing of documents
The amendment to this rule is cosmetic only to improve the drafting to simple more understandable language and to remove the need to amend this rule each time a form change occurs. There is no substantive change to procedure.
ORDER 2 RULE 3A; ORDER 41 : ABN
These amendments are necessary due to a directive from Treasury that as a consequence of the new tax system all references to Corporations Law Registration Numbers in Legislation and Statutory Rules are required to be amended to ABN from ACN.
ORDER 11 RULE 1A: Spouse maintenance & property applications.
The amendment to this Rule is to improve the drafting to ensure that it is clear that when an application for spousal maintenance is made:-
- at the same time as an application for property settlement it must be included in the Form 3 or 3A; or
- whilst an application for property is pending it must be added by way of amendment to the Form 3 or 3A
rather than by the filing of a separate Form 12.
A consequence of the amendment is to remove child maintenance (and contribution to birth expenses) applications from under the umbrella of the requirements in the Rule. The original intention when the Rule was introduced in 1997 was to capture spousal maintenance applications only to save the filing of repetitive material particularly when both applications were to be heard at the same time at a final hearing. Child maintenance applications are normally best dealt with promptly and summarily rather than consolidated with a property application although this is an option for the court, if appropriate.
ORDER 19 RULE 1: Request for answers to specific questions
This amendment is necessary to remove the reference to Order 10 (which was omitted by SR 60/1996) and to improve the drafting of the Rule. The effect on existing procedure is minimal. In proceedings commenced by Form 3(7) it is not possible to deliver a request for answers to specific questions until after the directions hearing/ conciliation conference unless leave is granted. In all other applications leave is required to deliver a request.
ORDER 23 RULE 5 : Child as witness
FLAA 2000 (143/00) introduced Ss.100B (1) and 100B(2) which empower the court to make orders allowing a child to swear an affidavit and to be called as a witness. As there is now legislative power for these orders to be made, this Rule is no longer necessary apart from paragraph 2 which provides for the method by which a child's evidence can be received by the court.
ORDER 30 RULE 2AAA: Evidence by technical medium
This is a new rule which introduces a specific procedure for parties to use when they wish to make an application for proceedings or part thereof to be heard by "technical medium" ie telephone or video link. The Rule requires the filing of a Form 8 and affidavit in support not later than 7 days prior to the date of hearing of the substantive application. The information required in the affidavit is set out in detail in R2AAA(5). The application will be listed, where possible, before the judicial officer hearing the substantive application. It is not intended that the court will bear any cost associated with a hearing by technical medium.
ORDER 31 RULE 11 HEADING; ORDER 37 HEADINGS, ORDER 38, SCHEDULE 2; FURTHER MISCELLANEOUS AMENDMENTS[para.60 draft stat rule]: lawyer
All of these amendments are as a result of the Court's policy decision to use the generic term "lawyer" instead of the various terms solicitor, barrister, legal representative throughout the Rules. These amendments, where practicable, completely replace all those different terms with the word " lawyer" or its derivative.
ORDER 32 RULE 5: Security for costs (appeals)
In Finlayson & Finlayson & Gillam [2001] FamCA 49 the Full Court held that O32 R 5 is beyond the rule making power of the Court. It is therefore omitted . The effect of this is that where an appeal has been instituted any application for security for costs must be made to the court vested with jurisdiction in the appeal.
ORDER 32 RULE 17A : Applications without oral hearing (appeals)
Section 94(2B) FLA 1975 (inserted by FLAA 2000) provides for certain orders to be made concerning the conduct of an appeal such as a consent order, joinder of parties and procedural directions. S. 94(2D) FLA 1975 (inserted by FLAA 2000) provides for certain applications to be made concerning the conduct of an appeal including extension of time to institute an appeal, leave to amend grounds of an appeal, leave to reinstate an appeal and a stay. Sections 94(2C) & (2E) empower the court to make Rules providing a procedure for these orders/applications to be dealt with without an oral hearing.
This amendment is to make it clear that the procedure set out in this O32R 17A applies to any order/ application pursuant to ss 94 (2B) , (2D) and 94AAA (8) & (10).
ORDER 32 RULE 17B
See new definition for technical medium inserted in Order 1 Rule 4.
ORDER 32 RULES 21A and 21AA: application to court (appeal)
Section 94(2B) FLA 1975 (inserted by FLAA 2000) provides for certain orders to be made concerning the conduct of an appeal such as a consent order, joinder of parties and procedural directions . S. 94(2D) FLA 1975 provides for certain applications to be made concerning the conduct of an appeal including extension of time to institute an appeal, leave to amend grounds of an appeal, leave to reinstate an appeal and a stay. The effect of the amendments to these Rules is that an application pursuant to Ss. 94(2B) & 94(2D) must be made on a Form 42A supported by an affidavit and may be listed for directions before the Full Court, a Judge of the Appeal Division (or another Judge, if not available) and may be heard by technical medium.
ORDER 33 RULE 2 (1) (ha): Enforcement of financial agreements
Financial agreements cannot be registered in the Court. However s.90KA Family Law Act 1975 provides that the court can enforce them. This amendment is to enable parties to use the summary procedure in Order 33 for the enforcement of the applicable provisions in financial agreements ie payment of maintenance or other sum of money for the benefit of a party or a child of the marriage, once an order has been made under s.90KA.(c).
ORDER 35 : Contraventions
* The amendments to Order 35 Rules 2(a), 2(c), 2(d), 6(1) are necessary in light of amendments made to the FLA 1975 by FLAA 2000 (143 /00) to ensure that the rules correctly reflect the provisions of the Act including the correct terminology.
* Order 35 Rule 8 is omitted but it in fact becomes new Rule 18 because the content of the rule has been moved out of Division 3 which refers to applications into a new "Division 4 Information laid before a Magistrate." The rule is further amended to ensure it correctly reflects the provisions of the Act, otherwise there is no substantive change.
* Order 35 Rule 17 is amended to specifically refer to Order 35 Rule 16 (2)(a). Rule 16 provides that a programme provider is to provide a Notice to the court in three circumstances - failure to attend, unsuitable for programme, unsuitable to attend further. Only in the circumstance referred to in s70NIA (ie non attendance) is the court given power to relist the matter and make any appropriate order. Order R 17 will reflect this.
ORDER 36A: Delegations
These amendments have the effect of delegating the following powers to respective Registrars:
Judicial Registrars
* The powers under s. 19EA and 19F of the Act in relation to arbitration including determining a question of law and reviewing a registered award and subregulation 67Q(5) to determine whether to register an award.
* The powers under s 70NO and s. 112AH in relation to enforcement of parenting orders
* The powers under s.90J and 90 K in relation to termination and setting aside of financial agreements up to the jurisdictional limit of $700,000 or with the consent of the parties.
* The power under subregulation 36(2) Family Law Regulations to make an order discharging, suspending, reviving or varying a registered overseas maintenance order.
* O36A(3)(y) is amended to adjust the number of the rule referred to due to the amendments to Order 38. There is no substantive change affected by this amendment.
Judicial Registrars and SES II Registrars
* The powers under s.100 B to allow a child to swear an affidavit or appear as a witness
All Registrars including Deputy Registrars
* The power under ss. 19D and 19E to refer a matter to arbitration and make appropriate directions for the conduct of same
* The power under s.62G to order a family report (O25 already delegated) including s62G(5) to order the attendance of a party/child at a certain time and place to enable the preparation of a family report.
ORDER 38: Costs
Order 38 was substantially amended in 1997. It introduced a number of different steps in the taxation/objection process of a Bill of Costs. The amendments in this batch of proposed amendments for July 2001 fall into two categories - those that are a result of the decision to use the uniform term "lawyer" and those that are aimed at remedying some of the identified problems and inconsistencies in some subrules of O38. Due to the extent of the proposed amendments it is the practice of the Legislative Drafting Office to renumber the Rule and substitute a completely new Rule for the old.
The substantive changes are explained in the notes below.
1. New ORDER 38 RULES 4, 5 and 6 replace 4A, 4B, 4C, 4D, 4E(a) and 4F(1)
These amendments are to simplify the drafting and to ensure it is clear that both costs paid and costs owing are to be included in the costs advice the subject of the rule. No substantive change is intended.
2. The amendments to change the terminology from solicitor etc to lawyer are throughout the whole Rule example old Division headings, Rules 5, 10, 14, 15, 23,24,25,26,29, 36, 37,38(1), 54 The impact of these amendments is:-
* It is not intended that there be any substantive change to the rules. "lawyer and client costs" is intended to have the same meaning as the well understood terminology of "solicitor and client costs". Ie the body of law that has developed around the term "solicitor & client" applies to the new description of "lawyer & client".
* Division 3 relates to fees and disbursements for solicitors work and Division 4 relates to fees for counsels work. Lawyers are not able to charge twice for the same work under both divisions. There is no change in substance only in form.
3. New ORDER 38 RULES 13, 23 & 24 / old 10, 23, 24 & 25 Due to the change in terminology (`lawyer") these rules were redrafted to ensure that they apply to lawyer & client costs and party & party costs and that they capture the 3 types of retainer solicitor acting as counsel, solicitor instructing counsel and counsel retained directly by the client. It acknowledges the changes wrought by the fused profession and the relevant provisions of the various State and Territory Legal Profession Acts.
4. New ORDER 38 RULE 22 / old Division 3 Rules 19 - 22
This amendment is to simplify the rule into more understandable language and to remove the unnecessary repetition of the information in Part 3 of Schedule 2. It is not intended to change the substantive rights created by the rule.
5. Old ORDER 38 RULES 37, 44, 45(4),
These amendments are to remove specific reference to Legal Aid bodies as there is no distinction to be drawn between that body and other clients of the court who enter into agreements in relation to costs.
6. New ORDER 38 RULE 36 / old Rule 38
This amendment to the contents of the Notice of Rights is to clarify that it is only a Bill of Costs which can be filed with a Form 57 (and taxed) not an account.
7. New ORDER 38 RULE 37 / old Order 38 Rules 39 and 46
The impact of the amendments to these rules fall into 2 categories.
* The first is to address a problem identified by Cohen J in Abeles & Brott SY8204/99 unreported judgment 11 November 1999 where a client was unable to request a bill on a strict reading of the extant Rule 41. The other reason for the amendment to this rule is to consolidate into one rule all situations in which a lawyer is restricted from commencing or continuing recovery proceedings if there is a dispute in relation to their costs. Previously this was spread out between Rules 39, 41(6) and 46 and varied depending on whether there was or was not a costs agreement in place. This distinction has been removed.
8 New ORDER 38 RULES 38 & 39 / old Order 38 Rules 40 and 41
Rules 38 and 39 are new provisions which replace the existing rules 40 & 41 completely. Prior to the amendments a distinction was drawn dependant on the existence or not of a costs agreement. Inconsistencies existed in the process that applied, the time limits for certain actions to be taken, and the restrictions on recovery action in different situations. These new Rules are drafted in simple language, remove any distinction in relation to costs agreements and provide uniform time limits.
It is intended that Rule 38 apply to lawyer and client costs and Rule 39 to party and party costs. The basic process (introduced by the Rules amendments in 1997) has not changed.
9. New ORDER 38 RULE 44 /old Order 38 Rule 48
This rule is amended to make provision for a pretaxation conference to be allocated upon the filing of a Form 57. This has been the procedure in place in most Registries for some time. This conference gives the parties the opportunity to resolve their dispute and enables the taxing officer and the parties to raise any preliminary issues. The likely duration of the taxation can be assessed and appropriate directions can be made in relation to the conduct of the taxation.
10. New ORDER 38 RULE 47 /old Order 38 Rule 51 is amended to make it clear that this rule (what occurs at a taxation) applies only to disputed bills in other words it does not apply to the default procedure provided for in Rule 49 (where the taxing officer does not "tax" the bill.)
11. New ORDER 38 RULE 48 (.i)
This is a new subrule enabling a taxing officer to issue a certificate of taxation by consent for an agreed amount.
ORDER 40 RULE 4 AND FURTHER AMENDMENTS ([paragraph 61] draft stat. rule): BOND
FLAA 2000 introduced the term "Bond" instead of "Recognizance" in the Act example ss. 70NM and 112AF. Recognizance is still the term in ss. 65U & 65W. The terms are interchangeable and mean the same thing. O40 Rule 4 and the Form 59 have been amended so that the terminology used is consistent with that in the Act.
ORDER 41: ABN
This amendment is necessary due to a directive from Treasury that as a consequence of the new tax system all references to Corporations Law Registration Numbers in Legislation and Statutory Rules are required to be amended to ABN from ACN.
Schedule 1
FORM 36: Subpoena
The amendments to this form are slight wording changes that don't affect its substance
FORM 42C: Short reasons for decision
The amendments to this form are slight wording changes that don't affect its substance .
FORM 49
The amendments to this form are slight wording changes that don't affect its substance to ensure the terminology used is consistent with the Act.
FORM 56 : Bill of Costs
The amendments to this form are to change the reference to the applicable rule number due to the amendments to O38.
FORM 57: Notice disputing costs
The amendments to this form are slight wording changes that don't affect its substance to ensure the terminology used is consistent with the relevant rule and to change the reference to the applicable rule number due to the amendments to O38.
FORM 58: Certificate of taxation
The amendments to this form are to change the reference to the applicable rule numbers due to the amendments to O38
FORM 59: Bond
* See explanation under Order 40 Rule 4.
SCHEDULE 2; FURTHER MISCELLANEOUS AMENDMENTS [para.60 draft stat rule]: lawyer
All of these amendments are as a result of the Court's policy decision to use the generic term "lawyer" instead of the various terms solicitor, barrister, legal representative throughout the Rules. These amendments, where practicable, completely replace all those different terms with the word " lawyer" or its derivative.