Commonwealth Numbered Regulations - Explanatory Statements
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FAMILY LAW AMENDMENT RULES 2012 (NO. 1) (SLI NO 95 OF 2012)
FAMILY LAW AMENDMENT RULES 2012 (No. 1)
Select Legislative Instrument 2012
No. 95
EXPLANATORY STATEMENT
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 2012 (No. 1), 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 and16) 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 undertook consultation with the Family Law Section of the Law Council of Australia, and with other constituent bodies, in relation to the proposed amendments arising out of the commencement of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 and the filing of large affidavits. Consultation took place with the Standing Committee on Ordinances and Regulations in connection with the amendment to the prohibition on recording a court event. No consultation occurred with respect to the balance of the amendments as the changes were of a technical nature.
Section 9 of the Legislative Instruments Act 2003 provides that Rules of Court made for the Family Court of Australia are not legislative instruments for the purposes of that Act. As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in this Explanatory Statement.
The major changes introduced by the amendments to the Rules are set out below.
1. To further define the nature of court events, the recording of which is prohibited.
2. To make rules necessary or convenient to implement the amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
3. To implement a streamlined approach to the filing and storing of electronically filed large documents attached to affidavits.
A number of Rules are omitted or recast as the matters with which they dealt are now dealt with in the Act. An expression used in the Rules has the same meaning as in the Act unless the Rules state otherwise (see paragraph 46(1)(b) of the Acts Interpretation Act 1901).
DETAILS OF AMENDMENTS
Rule 1 Name of Rules
The name of the rules is the Family Law Amendment Rules 2012 (No. 1)
Rule 2 Commencement
The rules amendments commence on 7 June 2012.
Rule 3 Amendment of Family Law Rules 2004
Schedule 1 amends the Family Law Rules 2004.
Schedule 1 - Amendments commencing on 7 June 2012
[1] Rule 1.19
This amendment prohibits the photographing or recording of events specified in the Rule and a person who is in court premises. The specification of the events in question is intended to leave no doubt as to the operation of the prohibition in relation to which the definition is no longer inclusive. The prohibition addresses difficulties arising in past cases where persons have recorded court events and there has been an absence of any specified consequences for doing so. A penalty is imposed.
[2] Rule 2.04, definition of allegation of abuse or family violence
The definition is omitted consequential upon the amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The definition is now in the Family Law Act.
[3] Rule 2.04, after definition of Part VII order
A new definition of "Registry Manager" is inserted for the purposes of Division 2.3.1. This is aligned with the meaning of this term in the Family Violence provisions.
[4] Rules 2.04B and 2.04C
These rules are omitted, reflecting the amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 and the revision of rule 2.04D. Service of filed documents on each person to be served is addressed in Rule 7.04.
[5] Rule 2.04D
This rule is recast and new rules 2.04D and 2.04E are inserted.
The new rule 2.04D provides that the Notice of Child Abuse or Family Violence (Form 4) is prescribed for the purposes of subsections 67Z(2) and 67ZBA(2) of the Act. It also requires a person filing such a form to file an affidavit or affidavits setting out the evidence upon which the allegations made in the form are based.
The new rule 2.04E fills a possible gap in relation to an existing case as at the commencement of the amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. This may arise where a person alleges family violence or risk of family violence but has not yet filed the requisite notice. The new rule will require a Form 4 to be filed in such a case and require the court to treat the allegation as one to which section 67ZBB of the Act applies. If the family violence in question is such as to constitute child abuse, then it will be necessary to notify the relevant Child Welfare Authority.
[6] Rule 2.05
This rule is amended to require the filing of a copy of the family violence order affecting the child concerned or a member of the child's family.
[7] Rule 10.15A
This rule is recast having regard to the amendment made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 inserting section 67Q(1)(aa) into the Family Law Act. It applies if an application is made to the court for a consent parenting order. If the application is made orally, then the party or his or her lawyer must advise the court whether the child, the party or another party has been or is at risk of being subjected to family violence or, in the case of the child, exposed to abuse or neglect. If allegations of abuse or family violence have been made, an explanation must be given to the court how the proposed consent order attempts to deal with them. In the case of any other application, the party or the party's lawyer must certify as to these matters.
[8] Rule 15.11
This rule is omitted as it is now superfluous by reason of amendments to the Act.
[9] Paragraph 15.12(1)(a)
This amendment inserts a reference to the new sub rule 15.12 (7).
[10] After subrule 15.12(6)
A new subrule 15.12(7) refines the Court's electronic filing arrangements to deal more effectively with lengthy affidavits containing numbers of exhibits. Such affidavits have been filed without adequate pagination or distinguishing conveniently between the affidavit itself and the various exhibits in such a manner as to make their practical use by the court most difficult. While such an affidavit might still be filed electronically, in future, a hard copy of each exhibit must be provided to the Court before the hearing, so as to address these issues.
[11] Rule 15.26
This rule is consequential upon proposed subrule 15.26(2).
[12] Rule 15.26, after the note
A new sub rule 15.26(2) is inserted and replaces former rule 15.33, locating it more conveniently. This will enable the court to compel production of a document to enable the court to rule on objection to its production under subpoena.
[13] Rule 15.33
This rule is omitted.
[14] Table 18.4, item 16C
This item is omitted.
[15] Table 18.4, after item 18 A
This power to make procedural orders under paragraphs 67ZBB(2)(a) to (c) is delegated to Deputy Registrars.
[16] Dictionary, definition of family violence
Family violence in the Rules is given formally the definition it bears in the Act after the commencement of the amendments made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.
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