Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW AMENDMENT RULES 2000 (NO. 1) 2000 NO. 172

STATUTORY RULES 2000 No. 172

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 THE AMENDMENTS

Order 1 Rule 4, Order 9 Rule 4 (1) - definitions

These amendments are necessitated by the proposed amendments to 015, 023, 032 and 032A (as to which see later) to ensure the definition sections align with the new Rules.

Order 1 Rule 4 (1), Order 2 Rule 5 (2), (4) and (5), Order 11 Rule 5(1), Order 14 Rule 4 (2) (a), Order 28 Rule 3 (3) (c), Order 31B Rule 33 (1) (b), Order 32 Rule 15 (3) (a), Order 32A Rule 7 (5) (a) & (b), Order 25A Rules 11 and 21 (2), (3), (5).

The decision has been made to use the term "lawyer" in the Rules and Forms instead of solicitor, barrister or legal practitioner wherever it appears. As a Rule is amended for other reasons this amendment will be made. These Rules are amended accordingly to reflect that decision.

Order 2 Rule 2(5)

Due to the proposed amendments to Orders 15 and 23 Forms 15B and 15D are being omitted from the Rules (see later).

Order 2 Rule 3(2)

Forms 30, 37 and 38 are being omitted from the Rules (see later) therefore they are being omitted from this Rule which requires that forms have cover sheets. Forms 29 and 36 are produced in the new format and accordingly no longer require cover sheets.

Order 2 Rule 5 (1A)

This substantial compliance provision is being inserted to ensure that documents filed in the Federal Magistrates Court are deemed to substantially comply with the Family Court Rules for the purpose of proceedings in the Family Court.

Order 8 - Form of Application

To ensure uniformity between the Family Court and the Federal Magistrates Court the two Courts have agreed to use the same initiating application form: in the Family Court the new Form will be a Form 3. It is the intention of the Family Court to introduce a completely new procedural pathway in the near future at which time the relevant Rules will be substantially overhauled. Therefore the court has decided as an interim measure to only amend those Rules which are strictly related to the initiating applications to allow parties to use a Form 3 instead of a Form 7 and 8. At this stage parties will be able to use either a Form 7 & 8 or a Form 3. Form 3A will be the Response and a Form 3B the Reply.

Order 11 Rules 3(b) and 3A - step parent applications

This rule is being introduced to ensure the integrity of the court process is preserved when a party seeks an order in relation to child maintenance of a stepchild. The Court is concerned to ensure that its consent order procedure is not improperly used to adversely affect a step-parents child support obligations to natural children. Such applications must be supported by an affidavit and are required to be served on any person likely to be affected by the order such as the other parent of the step-parents natural children.

Order 14 Rule 2

This amendment provides that the correct procedure for applications referred to in Order 11 Rule 3A is a Form 12 supported by an affidavit, not a Form 12A.

Order 14 Rule 3 (2)

This amendment is to correct an inadvertent error which was created upon the amendment of the Form 12A in July 1999

Order 15 and Order 23

Both of these Rules are omitted and substituted with new Rules with the effect that Order 15 covers the field in relation to "parties to proceedings" and Order 23 covers matters relating to children only.

Order 15

Firstly this Rule has been amended to set out clearly the procedure for the joinder of parties. A party may name, as a respondent on the face of the application or the response, any person or entity considered to be a proper party to the proceedings, subject to the jurisdiction of the court. The respondent(s) so named is then a party to the proceedings until removed by order of the court. The effect of this is to make the Third Party procedure redundant hence Forms 15B and 15D are omitted. Secondly it has simplified the Rules in relation to intervention. Forms 29 and 30 have been combined into the one Form 29. Form 30 is therefore omitted. Thirdly any rules relating to children have been removed from Order 15 and placed in Order 23 to ensure that the latter Order covers the field in that respect. Fourthly it has removed the phraseology of "person under a disability" and substituted it with "person needing a Next friend" but the procedure itself has not altered.

Order 23

The amendments bring together in one Rule all those separate subrules relating to children from the existing Order 15 and Order 23. The only change in substance is that SES Registrars have delegated to them the power to interview children in chambers - see Rule 4 (1).

Order 25A

This rule has been amended to reflect the court's policy to refer to all counselling, mediation and conciliation interventions as "mediation". Form 69 has also been amended to reflect this change.

Order 28 - subpoenae

With a view to simplification the 3 subpoenae forms have been combined into one which will be a Form 36. Forms 37 and 38 are omitted and the amendments to this Rule reflect this change.

Order 30A Rule 9(2) and (3)

The amendment to this Rule is to include a provision similar to 034A of the Federal Court Rules and allows 2 experts to be sworn at once and to give their evidence conjointly.

Order 31B

These amendments are necessitated due to the change in procedure brought about by the Child Support (Assessment) Act 1998. This affected assessments issued for child support periods starting on or after 1 July 1999. Part 6B of the Assessment Act now provides for internal reconsideration of decisions of the Child Support Registrar before the aggrieved person can apply to the court. The amendments take into account the objection rights created by part 6B of the Assessment Act and reflect the time limits that now apply and the documents that the court now requires relating to specific appeals and applications.

Order 31B Rule 25, Order 32 and Order 32A

The amendments to these Rules are necessitated by various provisions in the Federal Magistrates Court Act 1999 and the Federal Magistrates Court Consequential Amendment Act 1999 which require the Rules to provide for appeals from the Federal Magistrates Court to the Family Court. Time standards are to be the same and the Forms used are to be the same. There are 2 other amendments as a result of recommendations from the Appeal Court Judges namely 032 R 16C and 032 R 18A.

Order 36A Rule 2(1A) (p)

This amendment delegates to Registrars the power to transfer proceedings, in whole or in part, from the Family Court to the Federal Magistrates Court.

Order 36A Rule 2(2) (n)

This amendment is necessitated by the amendments to Order 23 to make it clear that the power in 023 Rule 4 is not delegated to Deputy Registrars.

Order 36A Rule 3 (v)

This amendment is to correct an oversight created by the amendment to the Family Law (Child Abduction Convention) Regulations by SR 1995 No. 296 regs. 24 & 25. Before the amendment to the latter regulations the power to make an order in relation to access when the convention applies was set out in subregulation 24(6). When the regulations were amended this power was set out in subregulation 25(4) and this was not picked up by an amendment to the Rules.

Order 40 Rule 1

The applicable interest rate is increased to 11.3% to accord with the policy that the rate should be reviewed annually and should be 2% above the Commonwealth Bank of Australia's overdraft reference rate quarterly charging cycle for commercial loans as at 30 June.

Schedule

Form 3, 3A and 3B

In the interests of uniformity between the Family Court and the Federal Magistrates Court the two courts have agreed to have the one initiating application form. In the Family Court this is to be a Form. 3. Form 3A is the Response and Form 3B the Reply. Refer notes to Order 8 amendments.

Form 4

The amendments to this form are technical only and to correct minor grammatical matters.

Form 17

This form is in substitution for the extant Form 17. It is to be adopted by both the Family Court and the Federal Magistrates Court. The basic form requires less information than the current Form 17 and allows for an additional sheet to be attached when maintenance is sought.

Form 29

Forms 29 and 30 have been amalgamated.

Form 36

In the interest of reducing the number of prescribed forms, the subpoena forms have been amalgamated into one.

Forms 42,42A, 42B and 67

The heading and some of the wording to these forms is amended as these forms are now also applicable to appeals from the Federal Magistrates Court.

Form 69

O25A has been amended to reflect the court's policy to refer to all counselling, mediation and conciliation interventions as "mediation". Form 69 has also been amended to reflect this change.

Scale of Costs

The Federal Costs Advisory Board has recommended a 3% increase in the Scale of Costs and this has been implemented.