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FAMILY LAW RULES (AMENDMENT) 1995 NO. 371
EXPLANATORY STATEMENTSTATUTORY RULES 1995 No. 371
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 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 Law Act.
Section 123(2) of the Family Law Act provides that Sections 48, 48A, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of Court as if references in those sections in regulations were references to Rules of Court.
The present Family Law Rules came into operation on 2nd January 1985. They have been regularly reviewed and amended since that date.
SIMPLIFICATION RULES
The purpose of these rules is to simplify procedures in the Family Court of Australia and in the Family Court of Western Australia.
The objectives are:
- To provide access to the Court at reduced cost with as little complexity to the litigants as is possible;
- To encourage an expectation by clients of the Court that their dispute will be resolved by agreement rather than hearing;
- To offer all litigants and prospective litigants the opportunity to determine their dispute by a resolution method other than trial;
- To provide a procedure tailored to the 95% of applications which will not proceed to judgment; and
- To ensure that those matters which do proceed to hearing do so in a fair, equitable and timely fashion.
The scheme of the simplification amendments is to ensure that the bare minimum of documentary material is to be filed until such time as all alternative dispute resolution procedures: counselling, mediation and conciliation have been exhausted
GENERAL NOTES
1. A consequential order to ensure "application" includes any document by which a specific order may be sought.
2. An important aspect of the simplification rules is the omission of all reference to pleadings. This affects a number of rules.
3. "Return day" is rarely used and mostly been replaced in the rules by the "Hearing date" which needs no definition.
There are a number of consequential amendments to other orders.
ORDER 1 - PRELIMINARY
RULE 4 - Interpretation
Application Pleading Pro-Hearing Conference Return Day
NOTES ON RULES
ORDER 1 - PRELIMINARY
Rule 4 - Definitions
Application The amendments to this definition are consequential.
Pleading As pleadings have been abandoned this definition is omitted.
Return Day This definition is omitted. For clarity what was termed the return day is now described as a hearing date. This emphasises the nature of the hearing on that day.
Birth Certificate This amended definition enables an easier and far less expensive method of proof of birth.
Divorce The term divorce is now used in some forms eg. Form 4, the application for dissolution of marriage. As the term divorce is not used at all in the Act a definition is necessary.
Folio This definition has been moved from 0.38
ORDER 2 - DOCUMENTS AND FORMS
Rule 2 - Requirements with respect to documents
This rule is to clarify the requirements as to documents and to permit further documents to be hand printed and to limit further documents to a single page.
Rule 3 - Cover sheets
The new type of simplified form means that many forms do not require a cover sheet. This rule sets out which forms must still have cover sheets.
Rule 3A - Corporation Cover Sheet
This provides that a document naming a corporation as a party or seeking leave for a corporation to intervene must contain specified particulars of the corporation.
Rule 3B - Chance of Name
This is a new rule requiring the use of a specific form for a party to notify the Court and other parties if the party changes his or her name during proceedings this will avoid confusion for the Court and other parties which can occur where a party commences use of a different name in documents after the commencement of the proceedings.
Rule 4 - Filing of documents
This rule sets out effectively the meaning of the word "filed"
Rule 4A - Refusal to accept documents for filing
This rule was formerly in Order 40 but is more appropriately in this Order. It has been expanded and clarified to define when a Registrar may refuse to accept a document for filing and gives a right to the litigant to review a decision refusing to accept a document for filing.
Rule 5
Sub rule (3) required a form to be completed in accordance with any directions in the form. This amending rule points out that the directions need not be included in documents filed. It has not been unusual for these directions to be included in typed forms when filed adding to costs and the volume of paper.
The new sub rules (3B) and (3C) are included as the Court proposes to issue computer software to reproduce forms thus assisting in uniformity. Some computer systems could not reproduce forms in the exact format in which they are set out in Schedule 1 to the rules.
Rule 8
This is not a new rule. It was formerly Order 7 Rule 4. As it relates to the numbering of proceedings it is more appropriately placed in this order.
ORDER 3 - TIME
Rule 3
This redraft removes the right of parties to extend or abridge times. The purpose is to maintain strict control by the Court and Case Management.
ORDER 4 - GENERAL
As many litigants now proceed without legal representation h is desirable to add "or a Registrar" to powers which may be exercised by a Judicial Registrar or Registrar. Order 36A Rule 3(a) delegates to Judicial Registrars all powers delegated to Registrars. This alteration is made in a number of instances in these amendments.
Rule 1A
A cross-application under the simplification rules will be referred to as a response that is. a response to the application. This is considered more appropriate language than the present "Answer and cross-application" and is consistent with the use of "respondent" as the person who files the response.
NEW ORDER 7 - PROCEEDINGS FOR PRINCIPAL RELIEF
DIVISION 1 -GENERAL
The present Order is omitted and replaced by the new Order 7 as follows:
Rule 1
Application of Order- Applies to applications for dissolution of marriage, nullity of marriage, for a declaration as to the validity of a marriage or of the annulment or dissolution of a marriage.
Rule 2
Proceedings to be instituted by filing an application.
Rule 3
Application for decree of nullity of marriage - Form 2 (which is a simplified plain english combination of the present Forms 2 and 3).
Rule 4
Application for decree of dissolution of marriage - Form 4
Rule 5
Application for declaration under S113 of Act - Form 6
Rule 6
Filing of Marriage Certificate or Affidavit in lieu with application. This also permits use of a photocopied or certified copy Marriage Certificate, saving cost and inconvenience.
Rule 7
Fixing a return day.
Rule 8
Response - Form 13
Rule 9
Response objecting to jurisdiction - Form 14
Rule 10
Time for filing response.
Rule 11
Response out of time.
Rule 12
This is a new rule covering rescission of decrees nisi. Previously there has been no rule as to how such an applications should be made.
Rule 13
Discontinuance.
DIVISION 2
PROCEEDINGS FOR DISSOLUTION OF MARRIAGE IN THE ABSENCE OF PARTIES
Rule 14
Application where request served or joint application
Rule 15
Request not to hear application in absence of parties.
NEW ORDER 8 - APPLICATIONS OTHER THAN FOR PRINCIPAL RELIEF
This is one of the significant Orders to effect simplified procedures. It covers:
(a) The filing of all applications within the division of the Family Court (other than applications for principal relief):
(b) Documents to be filed with applications.
(c) Responses and replies; and
(d) The fixing of dates for directions hearings or hearing dates.
DIVISION 1 - GENERAL
Rule 1
Order 8 applies to all applications other than applications for principal relief.
Rule 2
No affidavit is to be filed unless permitted by the rules or by order of the Court or a Registrar.
DIVISION 2
APPLICATION, RETURN DAY AND DIRECTIONS HEARING
Rule 3
Form of application. Form 7 or Form 7A for final orders, Form 8 for interim or procedural applications and applications under the Marriage Act and Form 12 for maintenance applications.
Rule 4
Applications - No form prescribed. (Form 8 is to be used. Other orders prescribe specific forms in such matters as enforcement and child support applications)
Rule 5
Applications by amendment.
Rule 6
Contents of applications.
Rule 7
Affidavit in support - Form 8 - containing only the facts on which the Court will be asked to make the orders sought. Can refer to material in an earlier affidavit to save costs of repetition.
Rule 8
Directions hearing - Form 7 Applications.
Rule 9
Hearing date for interim or procedural relief -Superior Court.
Rule 10
Hearing date - Court of Summary Jurisdiction
Rule 11
Service of applications.
DIVISION 3
DOCUMENTS TO BE FILED WITH APPLICATION
Rule 12
Filing of Marriage Certificate or other document with application. Can use photocopied or certified documents to save cost and inconvenience.
Rule 13
Application seeking financial relief - Form 17
Statement of Financial Circumstances to be filed.
DIVISION 4
RESPONSE AND REPLY
Rule 14
Response to application in Form 7 by Form 7A setting out any orders agreed to or opposed and all orders sought.
Rule 15
Applicants reply in certain circumstances - Form 7B,
Rule 16
Time of service of response and reply.
Rule 17
Response to application in Form 8 by Form 8A.
Rule 18
Time to file and serve response to Form 8 application.
Rule 19
Response objecting to jurisdiction.
NEW ORDER 9 - CONDUCT OF PROCEEDINGS OTHER THAN FOR PRINCIPAL RELIEF
Again this is a new Order and the second of the vital orders in simplified procedures.
This Order sets out the procedures to be adopted in all applications (other than applications for principal relief) from the directions hearing or fixed hearing date until resolution by agreement or by Court determination.
This order sets out:-
(a) Division 1 - the application of the Order;
(b) Division 2 - the scope of directions hearings and the orders that may be made;
(c) Division 3 - amendment of documents; and
(d) Division 4 - discontinuance.
The Order in detail is as follows:-
DIVISION 1 - APPLICATION
Rule 1 Order applies to all applications other than proceedings for principal relief.
DIVISION 2 - DIRECTIONS HEARING
Rule 2
Scope of directions hearing, the orders which may be made and all interim and procedural applications to be determined.
Rule 3
An "administrative" adjournment may be granted if a request in writing signed by all parties is received 2 days before the hearing date. Such adjournment must be for not more than 4 weeks and cannot be granted more than twice.
This avoids personal appearances where adjournment is necessary because of short service or unavailability of client.
DIVISION 3 - AMENDMENT
Rule 4
Interpretation ("document").
Rule 5
Amendment by party.
Rule 6
Amendment by leave of the Court.
Rule 7
Time limit for amendment by leave of the Court.
Rule 8
Filing amendment by party.
Rule 9
Endorsement of amended document.
Rule 10
Service of amended document.
Rule 11
Response to amended document.
DIVISION 4 - DISCONTINUANCE
Rule 12
Discontinuance - Form 15A
Order 10 - Summary Application Contravention of Access Order
This is a new Order. It was formerly partly set out in Order 34 Rule 9. Order 34 covers "Contempts and Offences". Probably in view of its position in the rules it was seldom used as it should have been and with it being made a separate Order it is thought it will be used more frequently.
This order will provide a summary procedure for prompt hearing of all access enforcement proceedings in this order and the amendment to Order 34 rule 6(i)(a) the option of using the longer procedure if access proceedings commenced by Form 7 is removed.
Otherwise it follows the existing summary procedure in present Order 34 Rule 9 and the necessary consequential additions to provide for a hearing date service, the procedure on hearing and for the issue of a warrant for non-appearance.
NEW ORDER 10 - SUMMARY ENFORCEMENT OF ACCESS ORDERS
Rule 1
Form of application.
Rule 2
Return day.
Rule 3
Service of application.
Rule
Time for hearing.
Rule 6
Procedure on hearing.
Rule 6
Warrant of arrest for non-appearance.
Rule 7
Court may order respondent to be held in custody or released with security.
ORDER 11 - SUMMARY MAINTENANCE PROCEEDINGS
This Order was previously Order 9.
Under the new simplified procedures all applications for maintenance must now be made under this Order whereas previously it was an alternative to an application included in Form 7. Forms 12 and 12B have been specifically designed to assist parties in maintenance applications. The single procedure will be quicker and involve less cost than the former Form 7 procedure.
Apart from the above the only changes are consequential 'amendments taking into account amended Forms. In particular the information and documents to be provided have been reviewed in the light of the fact that all maintenance applications must now be made under this Order.
NEW ORDER 11 - SUMMARY MAINTENANCE PROCEEDINGS
Rule 1
Application for maintenance for spouse or child and for child bearing expenses.
Rule 2
Hearing dates.
Rule 3
Certain documents not required eg. Form 17.
Rule 4
Response - Form 12B - Both applicant and respondent must be given a pamphlet explaining what they must do.
Rule 5
Information to be provided by the Registry to an applicant.
Rule 6
Documents to be provided by respondent.
Rule 7
Hearing - to be on fixed hearing date.
ORDER 12 - URGENT EX PARTE APPLICATIONS
NO CHANGE
ORDER 13 - ORAL APPLICATIONS IN PENDING PROCEEDINGS
Rule 3
Is amended to omit words which are redundant.
Rule 3
Is further amended to provide for orders to attend information sessions and, by consent, for mediation.
ORDER 14 - CONSENT ORDERS AND ORDERS UNDER S87 OF THE ACT
This Order brings together and clarifies but does not change a number of matters with regard to consent orders. It brings into the Order applications for approval of agreements under S87 of the Act. There is also a change to Form 12A (Application for Consent Orders) so that instead of setting out the orders in the form, they can be attached.
This order takes in the former Order 9A which provided for an initiating application for consent orders, Order 31 Rule 8 which provided for an application for consent orders in pending proceedings and the powers of the Court to make consent orders on oral application.
The order brings together and clarifies as to when each type of application is appropriate. Rule 4 simplifies the consent order procedure in chambers by enabling the consent orders to be attached to the application rather than having to repeat then in the application.
NEW ORDER 14 - CONSENT ORDERS AND ORDERS UNDER SECTION 87 OF THE ACT
DIVISION 1 - CONSENT ORDERS
Rule 1
Applications for consent orders.
Rule 2
Form of application for consent orders.
Rule 3
Filling in the application.
Rule
Copies of orders sought to be filed with
application.
Rule 5
Filing period - consent lapses after 60 days.
Rule 6
Who can make consent orders?
Rule 7
Applications in pending proceedings.
Rule 8
Written consent by party to proceedings.
DIVISION 2 - APPLICATIONS UNDER SECTION 87 OF THE ACT
Rule 9
How to apply.
Rule 10
Documents to be filed by applicant.
Rule 11
Documents to be filed by respondent.
ORDER 15 - INTERVENERS AND OTHER PARTIES
This Order replaces the old Order 14. There are some amendments such as replacing an answer and cross-application by a response and introduction of improved forms for third party applications or responses but otherwise there are no amendments of significance.
NEW ORDER 15 - INTERVENERS AND OTHER PARTIES
DIVISION 1 - INTERVENERS
Rule 1
Intervention by the Attorney-General in proceedings generally.
Rule 2
Intervention by the Attorney-General under S58 of the Act.
Rule 3
Intervention in proceedings by a person not a party - Form 8.
Rule 4
Documents to be filed by intervener.
Rule 6
Court may order notice be given.
DIVISION 2 - THIRD PARTIES
Rule 6
Third parties.
Rule 7
Third party notice.
Rule 8
Service on third parties.
Rule 9
Hearing of claim against a third party in Court of summary jurisdiction.
Rule 10
Response by third party.
DIVISION 3 - OTHER PARTIES AND RELATED MATTERS
Rule 11
Parent other than applicant.
Rule 12
Notice to particular persons in proceedings relating to children.
Rule 13
Proceedings after death of a person.
ORDER 16 - AFFIDAVITS
This Order replaces the former Order 15.
There are some changed provisions which are significant to case management and simplification of procedures namely:
(a) That an affidavit not in accordance with the Order may not be received in evidence.
(b) The Court may make orders as to the giving of evidence by a deponent who attends for cross-examination including for out of pocket expenses.
(c) Affidavits may not be filed without the leave of the Court or rule permitting that filing.
(d) An affidavit may only be used in the application in respect of which it is filed. However a previous affidavit may be quoted if the quote is less than one folio or the quote is by reference to the paragraph numbers in the earlier affidavit.
NEW ORDER 16 - AFFIDAVITS
Rule 1
Form of affidavit.
Rule 2
Signing of affidavit.
Rule 3
Affidavit by blind or illiterate person etc.
Rule
Documents annexed or exhibited.
Rule 5
Cover sheet.
Rule 6
Nature of person who prepares or settles affidavit.
Rule 7
Filing and service of affidavit.
Rule 8
Affidavit that does not comply with this order.
Rule 9
Court may order objectionable material struck out.
Rule 10
Notice to attend for cross-examination.
Rule 11
Deponent's attendance and expenses.
Rule 12
Dates etc to be in figures.
Rule 13
Two or more deponents.
Rule 14
Affidavits not to be filed.
NEW ORDER 17 - FINANCIAL CIRCUMSTANCES
This order makes an important change in that it omits provision permitting the filing of an affidavit of financial circumstances in lieu -of a Form 17 (which is now called) a Financial Statement.
The Order also adds specific requirements that a full and frank disclosure of financial circumstances must be made and that if such circumstances change during that proceedings then the Form 17 must be amended.
The order also requires that copies of certain financial documents must be served within 14 days after the directions hearing.
This order is therefore much more specific in both the use and purpose of the Financial Statement.
Rule 1
This order applies to proceedings with respect to financial matters, including proceedings under Sections 79, 79A, 85A or 87 of the Act, but, unless the Court orders otherwise, does not apply to:
(a) applications for interim or procedural relief; or
(b) applications under Order 11 or Order 14
Division 1.
Rule 2
Statement of Financial Circumstances.
Rule 3
Full and frank disclosure. This spells out that a person who flies a financial statement has a duty to make full and frank disclosure and specifies some matters which must be disclosed.
Rule
Production of documents. This rule requires the person to serve copies of specified documents.
Rule 5
Amendment of statement if circumstances change.
ORDER 18 - SERVICE
Minor amendments are made to this Order.
Rule 5(1)
Is amended to provide that a document must be served as soon as practicable after it is filed. This relieves a party of serving copies of documents on a party who is served with the application but does not participate in the proceedings or oppose the application.
Rule 8
This is a consequential amendment.
NEW ORDER 19 - ANSWERS TO SPECIFIC QUESTIONS
This order replaces the previous Order 19 but makes no significant change other than:
1) to prohibit a request for answers to specific questions until after a conciliation conference or if no such conference is ordered until after the directions hearing unless otherwise ordered by the Court or a Registrar.
2) to provide that where discovery is to be provided by a party, that party is not required to answer specific questions is they are served before the period for discovery has expired.
Rule 1
Request for answer to specific questions and when such request made be made.
Rule 2
Only one request without leave.
Rule 3
Answer to specific question.
Rule 4
Service of specific questions and answers.
Rule 5
Answers not required before discovery.
Rule 6
Order directing party to answer specific questions.
Rule 7
Use of question or answer.
ORDER 20 - DISCOVERY AND INSPECTION
Rule 2
The amended Rule changes the present position in that it prohibits the service of a notice for discovery (except by leave) in proceedings commenced by an application for final orders until after a conciliation conference is completed or if no conciliation conference is ordered until after the directions hearing.
Rule 4
This Rule is amended to require the Court or a Registrar to take Rule 2 into account in making an order for discovery.
Rule 7
This Rule is amended to take into account the removal of pleadings from the Rules and in relation to third parties to again prohibit an order for third party discovery before conclusion of a conciliation conference or if no such conference is ordered until after the directions hearing unless there are special circumstances in proceedings commenced by an Application for Final Orders (Form 7).
ORDER 24 - CONCILIATION CONFERENCES AND INFORMATION SESSIONS
The heading to this Order is amended as the provisions with respect to enquiries by Court Officers have been omitted.
The omission is for 3 principal reasons.
(1) The enquiries were carried out by Registrars and almost invariably the party dissatisfied with the result reviewed the decision. It is to be noted that in order to review such a result it is not necessary to allege that there has been any error on the part of the Registrar.
(2) Such enquiries proved to be little if any less expensive to the parties than a hearing before a Judge.
(3) Use of such enquiries over the past 15 years has been rare.
The amendments to the Order are:
Rule 3
This is a new Rule. At the time of the conciliation conference there will be no pleadings and no affidavits filed. The only factual matter on file will be a Form 17 in property cages. Apart from formal matters such as date of marriage and age of the parties the only material on file will be the Form 17 (if applicable) and the orders sought by each party.
Parties will, in order to assist in the conduct of the conference, produce a new document (Form 17A) termed Conciliation Conference Particulars.
As a conciliation conference is privileged this document will not be filed. It will be delivered to the Registrar who is to conduct the conference 3 days before the conference and to each other party 7 days before the conference.
At the end of the conference the Registrar will return the copy of the Form 17A to the party which produced it and it will not be admissible in evidence except in the circumstances set out in Sub Rules (6) and (7)
Rule 4
This Rule sets out the action to be taken and directions to be given by the Registrar who conducts the conference if, at its conclusion, any matters remain unresolved.
Rule 5
This deals with information sessions which were previously dealt with only in Case Management Guidelines. The only change is that it gives power to a Registrar to order parties to attend an Information Session.
ORDER 24A - PRE-HEARING CONFERENCES
The present Rule 2 has been included in Order 24 Rule 4(1). The new Rule 2 sets out the matters which must be considered at a Pre-Hearing Conference. It is to be noted that this is the last occasion at which the Court will offer assistance at resolving issues without hearing, After this conference the parties must prepare for trial and the costs will rapidly increase.
ORDER 25A - MEDIATION
The references to Forms 3 and 5 in rule 3(7) is removed because these two forms have been abolished.
ORDER 28 - SUBPOENAS
Sub rule 1(1B)
This amendment limits the time at which a subpoena may be issued in proceedings commenced by Form 7. A subpoena may not issue without leave of the Court until the completion of the conciliation conference or if no conference is ordered at the completion of the directions hearing. The restriction does not apply to an application for interim or procedural orders.
Sub rule 1(1C)
Leave is only to be granted under sub rule 1 (1 B) where there are special circumstances existing.
ORDER 30 - EVIDENCE
Rule 2
This rule strictly limits the evidence in chief by affidavit to one affidavit by each party and one to each witness unless the Court or a Registrar otherwise orders. It also restricts repetition which, unless one folio or less, must be by reference. This is intended to save legal costs.
Rule 2AAA
This is a rule to permit evidence by video link or telephone and takes into account the Evidence and Procedure (New Zealand) Act 1994. It replaces Order 30 Rule 6A which is omitted. It is amended to overcome an error in the present rule ("see and hear" the person giving evidence or making submissions by telephone).
ORDER 31 - DECREES
Rule 8
This Rule has been transferred to the new Order 14 - Consent Orders and Orders under Section 87 of the Act.
ORDER 31A - JURISDICTION UNDER CROSS-VESTING ACT
Rules 4 & 6
These amendments simplify the requirements as to information to be included in an application based on cross-vested jurisdiction
Rule 5(3)
This amendment tightens the procedure on the cross vesting of proceedings by requiring the Registrar not the party (as at present) to fix a date for a directions hearing.
ORDER 31B - CHILD SUPPORT JURISDICTION
Rule 2
Consequential amendment.
ORDER 33 - ENFORCEMENT
Rule 3
This amendment to sub rule 3(1) and the new (1A) provides for a Notice or Examination summons to be issued without a written application or request.
ORDER 34 - CONTEMPTS AND OFFENCES
Rule 6
This rule has been amended so that summary access enforcement is the only procedure to enforce access (see Order 10).
Rule 9
Consequential amendment.
ORDER 36A - DELEGATION OF POWERS TO JUDICIAL REGISTRARS AND REGISTRARS
Rule 2
The addition of paragraph (2)(1)(1) gives the essential power to Registrars to dispense with the requirement of a conciliation conference if appropriate.
Sub rule 2(2) has been fully redrafted. The present order nominates those parts of an order where a Registrar has power whereas the amendment nominates the order and then makes any necessary exclusion.
Rule 3
This amendment simplifies the Rule and is more accurate in giving a Judicial Registrar all the powers of a Registrar under the Rules.
ORDER 38 - COSTS
Rule 1
The definition of "folio" has been moved to the definitions in Order 1 Rule 4 as the word is now used in Order 30 as well as in Order 38.
Rule 4
These amendments are designed to clarify that the higher basic composite amount can only be charged when the solicitor engages another solicitor or counsel to appear. (They included the fees of the person who appears.)
ORDER 40 - MISCELLANEOUS
Rule 5
This Rule is moved to Order 2 Rule 4A.
ORDER 41 - CORPORATIONS RULES
Rules 5 and 9
These amendments require a cover sheet where Form 8 is used or an application to transfer proceedings so that the cover sheet includes the required information regarding corporation(s).
Rule 6
Consequential amendment to take in changes of terminology under the Corporations Law.
Schedule 1
These are the changes to forms and the introduction of new forms. The forms has been designed with the aims of the simplification, using plain english, making them more user friendly, making them suitable for completion in hand printing and saving legal costs.
Schedule 2 - Part 3
The amendments are to clarify that the higher basic composite fees are only payable if the solicitor engages another solicitor or counsel to appear.
Transition Provisions
This preserves documents prior to the commencement of these Rules but provides that all documents thereafter be in accordance with the new Rules.