EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 393

 

FAMILY LAW AMENDMENT RULES 2009 (No.2)

 

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

 

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. The Judges of the Court made the Family Law Rules 2004, which commenced on 29 March 2004. These amending Rules, the Family Law Amendment Rules 2009 (No. 2), have now been made by the Judges to amend the Family Law Rules 2004.

 

Section 123(2) of the Act provides that the Legislative Instruments Act 2003 (apart from sections 5-7, 10, 11 and 16) applies to Rules of Court. In this application, references to a legislative instrument in the Act are to be read as references to Rules and references to a Rule maker as references to the Chief Justice.

 

The Legislative Instruments Act provides for certain consultation obligations when Rules are made. The Chief Justice has authorised the Court’s Rules Committee to undertake consultation on Rules matters on her behalf.

 

In this case, the Court did not undertake consultation as the amendments in items [1] – [7] and [9] – [14] were minor and primarily changes as to form only. The amendments in item [8] are derived directly from the passing of the Law & Justice (Cross Border and Other Amendments) Bill 2009 and were necessary to put that new legislation into effect. The amendments in items [15] – [21] have also been incorporated to enable effect to be given to the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

 

The major changes introduced by the amendments to the Rules are set out below.

1.                  To re-introduce the requirement for original consent orders to be accompanied by 2 copies of the order that are certified as true copies of the original. (Item [2] – Subrule 10.15(2))

2.                  Where an order is made requiring a party to provide particulars, or further and better particulars, of the orders sought by that party, this is extended such that the reasons why the orders are sought may also be ordered. (Item [3] – Table 11.1, item 2, paragraph (g))

3.                  The Law & Justice (Cross Border and Other Amendments) Bill 2009 was passed on 7 September 2009. The Bill amends the Evidence and Procedure (New Zealand) Act 1994 to extend the cooperative scheme for the service of subpoenas between Australia and New Zealand to certain family law proceedings. Various additions have been made to the Rules to facilitate the new legislation. (Item [8] – new Division 15.3.4: Subpoenas in Trans-Tasman Cases)

4.                  Subrule 24.05(4) is to be amended so that where a document is e-filed after 4:30pm ACT time, the document is taken to have been received by the filing registry on the next day when the filing registry is open. (Item [13] – Subrule 24.05(4))

5.                  Subrule 24.13(4) is to be amended so that a transcript is excluded from the definition of a court document. The effect of this is that inspection or copying of a transcript can only occur with the permission of the court as per subrule 24.13(2)(a)(ii). (Item [14] – Subrule 24.13(4), definition of court document)

 

DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

The name of the rules is the Family Law Amendment Rules 2009 (No. 2)

 

Rule 2 Commencement

The rules amendments commence on 1 January 2010.

 

Rule 3 Amendment of Family Law Rules 2004

Schedule 1 amends the Family Law Rules 2004.

 

Schedule 1 – Amendments

 

Do not delete : Schedule Part Placeholder

[1] Subrule 6.15(3)

To ensure consistency with s79(8) and s79A(1C) of the Act, the rule is amended so that the legal personal representative of the deceased person can be substituted for the deceased person as a party.

 

[2] Paragraphs 10.15(2) (b) and (c)

This amendment reinstates a provision from the previous 1984 Family Law Rules requiring that original consent orders be accompanied by 2 copies of the order that are certified as true copies by the applicant’s lawyer or each party to the application.

 

[3] Table 11.1, item 2, paragraph (g)

Currently there is a case management power to make an order requiring a party to provide particulars, or further and better particulars, of the orders sought by that party. This is extended so a party might also be ordered to particularise why the orders are sought. Examples of where particulars might be ordered are in applications pursuant to S.79A and S.106B of the Family Law Act.

 

[4] Paragraph 13.19(1)(b)

[5] Paragraph 13.19(1)(c)

[6] Paragraph 13.19(1)(f)

[7] Paragraph 13.25(b)

These amendments are of a technical drafting nature.

 

[8] After rule 15.36

New Division 15.3.4 - Subpoenas in Trans-Tasman Cases

The Law and Justice (Cross Border and Other Amendments) Act 2009 amends the Evidence and Procedure (New Zealand) Act 1994. One of the amendments allows subpoenas to be issued in Australia, in certain cases, which can be served in a compellable way in New Zealand. Subpoenas can only be issued with the leave of a judge.

 

An application for leave to issue the subpoena is made to a judge of the Family Court accompanied by an affidavit which deals with matters set out in the rules, including the name of the person subpoenaed; the name of any person who is under 18; the nature and significance of the evidence to be given; details of steps taken to obtain documentation without the issue of the subpoena; the date of intended service in New Zealand; an undertaking to pay the reasonable expenses in respect of compliance with the subpoena; details of the amount of conduct money and how it is to be paid or tendered. If a person is required to give evidence, the affidavit should set out details of the means by which that evidence might be given by telephone or video link. The affidavit should also deal with matters set out in s 14(2) or (3) of the Evidence and Procedure Act (any facts or matters going to a ground that the recipient of the subpoena in New Zealand might have available to them to set aside the subpoena) and details of any hardship or inconvenience occasioned by the issue of this subpoena.

 

The hearing of the leave application may happen ex parte. A judge may give directions about service of the subpoena.

 

A person affected by a subpoena may make an application to set the subpoena aside and the rules set out what should be included in the affidavit to accompany such an application. The rules provide that the subpoena may be served in accordance with s 10 of the Evidence and Procedure Act (in particular, that requires the subpoena to be served with a copy of the order granting leave for the issue of the subpoena).

 

The rules also deal with the procedure by which a registrar of the Family Court can ask for delivery of documents that have been lodged with the registry of the High Court of New Zealand. The Family Court may issue a certificate under s 16 of the Evidence and Procedure Act if a person in New Zealand fails to comply with a subpoena.

 

An explanation of the particular amendments is as follows;

 

New Rule 15.36A Application of Division 15.3.4

This rule describes the application of the new Division.

 

New Rule 15.36B General rules to apply

This rule makes clear that the general rules relating to subpoenas apply to a Trans-Tasman subpoena except where those rules are inconsistent with the new Division.

 

New Rule 15.36C Definitions for Division 15.3.4

This rule provides that terms used in the new Division and in the Evidence and Procedure (New Zealand) Act have the same meaning as in that Act.

New Rule 15.36D Subpoenas not to be served without leave

This rule provides that a subpoena may only be served in New Zealand with leave of a Judge.

 

New Rule 15.36E Application for leave to serve subpoena in New Zealand

This rule sets out the practice and procedure in relation to making an application for leave to serve a subpoena in New Zealand.

 

New Rule 15.36F Hearing of application

This rule deals with the hearing of an application. Amongst other things, this may be in the absence of a party.

 

New Rule 15.36G Setting aside a subpoena

This Rule describes the practice and procedure in relation to an application to set aside a Trans-Tasman subpoena.

 

 

New Rule 15.36H Service of subpoena

This rule requires a subpoena under the new Division to be served in accordance with the Evidence and Procedure (New Zealand) Act.

 

New Rule 15.36I Compliance

This rule deals with compliance with a Trans-Tasman subpoena.

 

New Rule 15.36J Non-compliance

In a case of non-compliance with a Trans-Tasman subpoena, this rule empowers the court to issue a certificate as to non-compliance under the Evidence and Procedure (New Zealand) Act.

 

[9] Rule 15.47, Note 2

This amendment adds a reference to Rule 15.60 which is the rule under which an expert witness may request the court to make orders.

 

[10] Table 18.2, item 18B

This amendment corrects the reference to the legislative provision to S.90SI which is the correct section dealing with the variation or discharge of a maintenance order.

 

[11] Rule 18.07, note 2

This amendment corrects an error in the previous reference to an Application in a Case. Where a party seeks to review an Appeal Registrar’s order relation to the conduct of an appeal, the correct form to complete is the “Application in an Appeal”.

 

[12] Subparagraph 24.05(1)(a)(iii)

This amendment is of a technical drafting nature.

 

[13] Subrule 24.05(4)

This amendment is made to clarify that where a document is e-filed after 4:30pm Australian Capital Territory time, the document is taken to have been received by the filing registry on the next day when the filing registry is open.

 

[14] Subrule 24.13(4)

This amendment is made to clarify that a transcript does not form part of the court documents that can automatically be inspected and copied under subrule 24.13(1). This means that a transcript may only be inspected or copied if the court has given permission as per subrule 24.13(2)(a)(ii).

 

[15] Chapter 25, heading

[16] Chapter 25, summary

[17] Rule 25.01

[18] Rule 25.02

[19] Rule 25.04

[20] Rule 25.05, heading

[21] Paragraphs 25.05 (a) and (b)

The effect of these amendments is to enable applications under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 to be made to and dealt with by the court.