Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT RULES 2003 (NO. 1) 2003 NO. 172

STATUTORY RULES 2003 No. 172

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

FAMILY LAW AMENDMENT RULES 2003 (NO. 1)

Section 123 of the Family Law Act 1975 (the 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 Act.

Subsection 123 (2) of the 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.

NOTES ON PROPOSED AMENDMENTS

The details of the proposed amendments are as follows:

Rule 1 cites the Rules as the Family Law Amendment Rules 2003 (No. 1).

Rule 2 provides that the Rules commence on gazettal.

Rule 3 provides that Schedule 1 amends the Family Law Rules 1984 (the Rules).

Schedule 1, items [1] and [2], amend Order 1 subrule 4 (1) so that the term "technical medium" is removed and replaced with the term 'electronic means'. This change in terminology is consistent with the amendments to Order 30 Rule 2AAA.

Schedule 1, item [3], replaces Order 8A rule 6 so that the consideration of factors to be for the transfer of a matter from the Family Court of Australia to the Federal Magistrates Service is discretionary rather than mandatory by changing 'must consider' to 'may consider'. Paragraph 6 (a) has been reworded to clarify its meaning and paragraphs (d), (f), (g) and (h) add new factors to be considered.

Schedule 1, item [4] amends Order 14, rule 7 so that an application for consent orders may be made in accordance with rules 8 and 8A.

Schedule 1, item [5], inserts Order 14 rule 8A which sets out the procedures required when parties submit orders to made by consent in chambers where there are already proceedings on foot in the Court and those orders relate to a superannuation interest that will impose an obligation on the trustee of the eligible superannuation fund. The rule requires that at least 28 days before the consent orders are submitted, the parties must serve the trustee of the eligible superannuation fund with a signed copy of the consent orders that the parties intend to file and a written notice that the parties intend to file the orders unless the trustee objects within 28 days of receiving the notice. This order is consistent with the procedural fairness requirements set out in O14 r3A.

Schedule 1, item [6], omits Order 23, subrule 4(4): evidence of anything said by a child in an interview with a judicial officer is not admissible in any court. In ZN and YH and the Child Representative, the Chief Justice considered O23 r 4 and flagged a need to revisit the Rule. It was considered that O23r4 (4) was invalid and should be omitted.

Schedule 1, item [7], the heading of Order 30, rule 2AAA has been amended as a consequence of the omission of the definition of 'technical medium', and the insertion of the definition of 'electronic means', in Order 1, subrule 4 (1).

Schedule 1, item [8], inserts Order 30, rule 2AAB which sets out the additional requirements of a party seeking to adduce evidence by electronic means from a witness in a foreign country in accordance with the recommendations of the Attorney General's Department.

Schedule 1, items [9], [10] and [11], insert into Order 36A, rule 3, paragraphs (c) and (df) and (n) which grant additional jurisdiction to Judicial Registrars to make interim property orders and orders pursuant to Sections 34 and 105 of the Act.

Schedule 1, item [12] amends Order 40, rule 1 to prescribe a new interest rate of 9.55% per annum.

Schedule 1, item [13], amends Form 12A, Part F, boxed note after item 42 to read 'insert totals in item 52' which refers to the correct total which needs to be inserted and accords with the printed form.

Schedule 1, item [14], amends Order 23, rule 5, Order 30 subrule 2AAA (2) and Order 30 paragraphs 2AAA (5) (b), (g) and (h) and subrule 2AAA (6) to replace the term 'technical medium' with the term electronic means as a consequence of the omission of the definition of 'technical medium', and the insertion of the definition of 'electronic means', in Order 1, subrule 4 (1).