EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 292

 

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

 

FAMILY LAW AMENDMENT RULES 2005 (No. 3)

 

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.

 

Section 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.

 

As a result of various legislative and rules changes over the past twelve months it is now necessary to amend some of the forms prescribed in the Family Law Rules.

 

The major changes introduced by the amendments are as follows:

 

§         To cater for the commencement of the Family Law Amendment (Annuities) Act 2004 insofar as it provides for eligible annuities to be split in the same way as other superannuation.

§         To cater for the commencement of the Bankruptcy and Family Law Legislation Amendment Act 2005 insofar as it firstly provides for creditors and any other person whose interests may be affected by the making of an order to become a party to proceedings, and secondly provides for a trustee of a personal insolvency agreement to be joined as a party to proceedings.

§         To cater for the commencement of Family Law Amendment Act 2005 insofar as it provides for the enforcement of obligations under a bond.

§         To cater for the changes to the Family Law Rules in relation to the notice required to be given to a superannuation trustee.

 

The balance of the amendments correct an error and improve drafting.

 

DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

 

The name of the rules is the Family Law Amendment Rules 2005 (No. 3)

 

Rule 2 Commencement

 

The rules amendments commence:

 

a)                  on 1 December 2005 – Rules 1 to 3 and Schedule 1;

b)                  on 1 February 2006 - Schedule 2;

 

Rule 3 Amendment of Family Law Rules 2004

 

Schedules 1 & 2 amend the Family Law Rules 2004.

 

Schedule 1, item 1.  Form 11 Application for Consent Orders

 

This form is amended as follows:

 

·        By expanding item 20 to apply to a debtor subject to a personal insolvency agreement.

·        By introducing item 22 requiring the person(s) completing the form to indicate if there is a person who may be entitled to become a party under sub-section 79(10) of the Family Law Act, and if so, whether written notice has been given to that person.

·        By making consequential amendments to the item numbers in items 49 and 54.

·        By expanding item 52 to include an “eligible annuity” as an option.

·        By amending Parts I and K to bring the references to the notice that must be given to a trustee of a superannuation plan in line with the recent amendments to Rules 10.16 and 14.06 of the Family Law Rules.

 

Schedule 2, item 1. 

Form 1 Application for Final Orders

 

This form is amended as follows:

 

·        By providing for items 20, 21 and 22 to be completed when an application is made for spouse maintenance.

·        By expanding item 22 to apply to a debtor subject to a personal insolvency agreement.

 

Form 1A Response to an Application for Final Orders

 

This form is amended as follows:

 

·        By providing for Part G to apply to an application for spouse maintenance.

·        By expanding item 18 to apply to a debtor subject to a personal insolvency agreement.

 

Form 1B Reply

 

This form is amended as follows:

 

·        By providing for Part C to apply to an application for spouse maintenance.

·        By expanding item 5 to apply to a debtor subject to a personal insolvency agreement.

·        By ensuring that the heading to Part D covers separate applications for property settlement and spouse maintenance.

 

Form 2 Application in a Case

 

This form is amended to correct an inconsistency with the Family Law Rules in the “Important Notices to the Respondent” on page 4.  Under the heading “For all other applications” the notice will indicate that a copy of the documents filed must be served on each other party not less than two days rather than seven days before the court date.

 

Schedule 2, item 2.  Form 13 Financial Statement

 

This form is amended by expanding item 45 to include an “eligible annuity” as an option.

 

Schedule 2, item 3.  Form 18 Application - Contravention

 

This form is amended to provide for its use when it is alleged that a bond has been contravened.