Family Law Rules 2004
Statutory Rules 2003 No. 375
as amended
made under the
This compilation was prepared on 1 March 2011
taking into account amendments up to SLI 2011 No. 15
This document has been split into two
volumes
Volume 1 contains Chapters 1–26 (Rr. 1.01–26.31), and
Volume 2 contains Schedules 1–6, Dictionary and the Notes
Each volume has its own Table of Contents
Prepared by the Office of
Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
Chapter 1 Introduction
Part 1.1 Preliminary
1.01 Name of Rules [see Note
1] 29
1.02 Commencement 29
1.03 Rules in Chapter 1 prevail 30
Part 1.2 Main purpose of Rules
1.04 Main purpose of Rules 31
1.05 Pre‑action procedure 31
1.06 Promoting the main purpose 32
1.07 Achieving the main purpose 32
1.08 Responsibility of parties and
lawyers in achieving the main purpose 33
Part 1.3 Court’s powers in all cases
1.09 Procedural orders in cases of
doubt or difficulty 35
1.10 Court may make orders 35
1.11 Court may set aside or vary
order 35
1.12 Court may dispense with Rules 35
1.13 Judicial officer hearing
application 36
1.14 Shortening or extension of
time 36
1.15 Time for compliance 36
Part 1.4 Other preliminary matters
1.16 Definitions — the
dictionary 37
1.17 Notes, examples etc 37
1.18 Sittings 38
1.19 Permission to record court
event 38
1.20 Publishing lists of cases 38
1.21 Calculating time 39
Chapter 2 Starting a case
Part 2.1 Applications
2.01 Which application to file 40
2.02 Documents to be filed with
applications 42
2.02A Documents filed by electronic
communication 46
Part 2.2 Brochures
2.03 Service of brochures 47
Part 2.3 Notification in certain cases
Division 2.3.1 Cases involving allegation of abuse or
family violence in relation to a child
2.04 Definition 48
2.04A Application of Division 2.3.1 48
2.04B Filing and service 48
2.04C Listing case 49
2.04D Prescribed document and
prescribed form 49
2.05 Family violence order 49
Division 2.3.2 Property settlement or spousal or de
facto maintenance cases
2.06 Notification of proceeds of
crime order or forfeiture application (Act ss 79B, 90M and 90VA) 50
2.07 Proceeds of crime 50
Chapter 3 Divorce
Part 3.1 Application for Divorce
3.01 Fixing of hearing date 52
3.02 Amendment of an Application
for Divorce 52
3.03 Discontinuance of an
Application for Divorce 52
Part 3.2 Response
3.04 Response 53
3.05 Objection to jurisdiction 53
3.06 Response out of time 53
3.07 Affidavit to reply to
information in an Application for Divorce 54
Part 3.3 Attendance at hearing
3.08 Attendance at hearing 55
Part 3.4 Hearing in absence of parties
3.09 Seeking a hearing in absence
of parties 56
3.10 Hearing in absence of
parties — joint application 56
3.11 Request not to hear case in
parties’ absence 56
Part 3.5 Events affecting divorce order
3.12 Application for rescission of
divorce order 57
3.13 Death of party 57
Chapter 4 Application for Final Orders
Part 4.1 Introduction
4.01 Contents of Application for
Final Orders 59
4.02 Filing affidavits 59
4.03 First court date 60
Part 4.2 Specific applications
Division 4.2.1 General
4.04 General provisions still apply 61
4.05 Application by Attorney‑General
for transfer of case 61
Division 4.2.2 Cross‑vesting
4.06 Cross‑vesting matters 61
4.07 Transfer of case 62
Division 4.2.3 Medical procedure
4.08 Application for medical
procedure 62
4.09 Evidence supporting
application 62
4.10 Service of application 64
4.11 Fixing of hearing date 64
4.12 Procedure on first court date 64
Division 4.2.4 Spousal or de facto maintenance
4.14 Procedure on first court date 64
4.15 Evidence to be provided 65
Division 4.2.5 Child support and child maintenance
4.16 Application of Division 4.2.5 67
4.17 Commencing
proceedings 67
4.18 Documents to be filed with
applications 67
4.19 Child support agreements 68
4.20 Time limits for applications
under Assessment Act 69
4.21 Appeals on questions of law 69
4.22 Time limit for appeals on
questions of law 69
4.23 Service of application or
notice of appeal 70
4.24 Service by Child Support
Registrar 70
4.25 Procedure on first court date 70
4.26 Evidence to be provided 71
Division 4.2.6 Nullity and validity of marriage and
divorce
4.27 Application of Division 4.2.6 72
4.28 Fixing hearing date 72
4.29 Affidavit to be filed with
application 72
Division 4.2.7 Applications relating to passports
4.30 Application relating to
passport 73
4.31 Fixing hearing date 73
Chapter 5 Applications for interim, procedural,
ancillary or other incidental orders
Part 5.1 General
5.01 Restrictions
in relation to applications 74
5.01A Filing of applications seeking
parenting orders during the Christmas school holiday period 75
5.02 Evidence in
applications to which Chapter 5 applies 76
5.03 Procedure before filing 76
5.05 Fixing a date for hearing or
case assessment conference 77
5.06 Attendance by electronic
communication 77
5.07 Attendance of party or witness
in prison 79
Part 5.2 Hearing — interim and
procedural applications
5.08 Interim orders — matters
to be considered 80
5.09 Affidavits 80
5.10 Hearing time of interim or
procedural application 80
5.11 Party’s failure to attend 81
Part 5.3 Application without notice
5.12 Application without notice 82
5.13 Necessary procedural orders 83
Part 5.4 Hearing on papers in absence
of parties
5.14 Request for hearing in absence
of parties 84
5.15 Objection to hearing in
absence of parties 84
5.16 Court decision to not proceed
in absence of parties 84
5.17 Procedure in hearing in
absence of parties 84
Part 5.5 Postponement of interim
hearing
5.18 Administrative postponement of
interim hearing 86
Chapter 6 Parties
Part 6.1 General
6.01 Parties 87
6.02 Necessary parties 87
Part 6.2 Adding and removing a party
6.03 Adding a party 89
6.04 Removing a party 89
6.05 Intervention by a person
seeking to become a party 89
6.06 Intervention by a person
entitled to intervene 90
6.07 Notice of constitutional
matter 91
Part 6.3 Case guardian
6.08A Interpretation 92
6.08 Conducting a case by case
guardian 92
6.09 Who may be a case guardian 92
6.10 Appointment, replacement or
removal of case guardian 92
6.11 Attorney‑General may
nominate case guardian 93
6.12 Notice of becoming case
guardian 93
6.13 Conduct of case by case
guardian 94
6.14 Costs of case guardian 94
Part 6.4 Progress of case after death
6.15 Death of party 95
Part 6.5 Progress of a case after
bankruptcy or personal insolvency agreement
6.16 Interpretation 96
6.17 Notice of bankruptcy or
personal insolvency agreement 96
6.18 Notice under paragraph
6.17 (1) (b) 97
6.19 Notice under paragraph
6.17 (1) (c) 97
6.20 Notice of bankruptcy
proceedings 98
6.21 Notice of application under
section 139A of the Bankruptcy Act 98
6.22 Official name of trustee 99
Chapter 7 Service
Part 7.1 General
7.01A Application 100
7.01 Service 100
7.02 Court’s discretion regarding
service 101
7.03 Service of documents 101
7.04 Service of filed documents 102
Part 7.2 Special service
7.05 Special service 104
7.06 Special service by hand 104
7.07 Special service by post or
electronic communication 104
7.08 Special service through a
lawyer 105
7.09 Special service on person with
a disability 105
7.10 Special service on a prisoner 106
7.11 Special service on a
corporation 106
Part 7.3 Ordinary service
7.12 Ordinary service 107
Part 7.4 Proof of service
7.13 Proof of service 108
7.14 Proof of special service 108
7.15 Evidence of identity 108
Part 7.5 Other matters about service
7.16 Service by electronic
communication 110
7.17 When service is taken to have
been carried out 110
7.18 Service with conditions or
dispensing with service 111
Part 7.6 Service in non‑convention
country
7.19 Service in non‑convention
country 112
7.20 Proof of service in non‑convention
country 112
Chapter 8 Right to be heard and address for
service
Part 8.1 Right to be heard and
representation
8.01 Right to be heard and
representation 114
8.02 Independent children’s lawyer 115
8.03 Lawyer — conflicting
interests 116
8.04 Lawyer — ceasing to act 116
Part 8.2 Address for service
8.05 Address for service 117
8.06 Change of address for service 118
Chapter 9 Response and reply
Part 9.1 Response to an Initiating
Application (Family Law)
9.01 Response to an Initiating
Application (Family Law) 119
9.02 Filing an affidavit with
Response to Initiating Application (Family Law) 120
9.03 Response objecting to
jurisdiction 120
Part 9.2 Reply to Response to an
Initiating Application (Family Law)
9.04 Applicant reply to Response to
an Initiating Application (Family Law) (Reply) 122
9.04A Additional party reply to
Response to an Initiating Application (Family Law), (Reply) 122
Part 9.3 Response to Application in a
Case
9.05 Response to Application in a
Case 123
9.06 Affidavit to be filed with
Response to an Application in a Case 123
9.07 Affidavit in reply to Response
to an Application in a Case 123
Part 9.4 Filing and service
9.08 Time for filing and service of
response or reply 124
Chapter 10 Ending a case without a trial
Part 10.1 Offers to settle
Division 10.1.1 General
10.01 How to make an offer 125
10.02 Open and ‘without prejudice’
offer 126
10.03 How to withdraw an offer 126
10.04 How to accept an offer 127
10.05 Counter‑offer 127
Division 10.1.2 Offer to settle — property cases
10.06 Compulsory offer to settle 127
10.07 Withdrawal of offer 128
Part 10.2 Discontinuing a case
10.10 Definition 129
10.11 Discontinuing a case 129
Part 10.3 Summary orders and separate
decisions
10.12 Application for summary orders 131
10.13 Application for separate
decision 131
10.14 What the court may order under
this Part 131
Part 10.4 Consent orders
10.15 How to apply for a consent
order 133
10.15A Consent parenting orders and
allegations of abuse or family violence 134
10.16 Notice to superannuation
trustee 135
10.16A Order or injunction binding a
third party 136
10.17 Dealing with a consent order 136
10.18 Lapsing of respondent’s
consent 136
Chapter 11 Case management
Part 11.1 Court’s powers of case management
11.01 General powers 137
11.02 Failure to comply with a
legislative provision or order 139
11.03 Relief from orders 140
11.04 Frivolous or vexatious case 140
11.05 Application for permission to
start a case 141
11.06 Dismissal for want of
prosecution 142
Part 11.2 Limiting issues
Division 11.2.1 Admissions
11.07 Request to admit 143
11.08 Notice disputing fact or
document 144
11.09 Withdrawing admission 144
Division 11.2.2 Amendment
11.10 Amendment by a party or court
order 145
11.11 Time limit for amendment 146
11.12 Amending a document 146
11.13 Response to amended document 146
11.14 Disallowance of amendment 147
Part 11.3 Venue
Division 11.3.1 Open court and chambers
11.16 Cases in chambers 148
Division 11.3.2 Transferring a case
11.17 Transfer to another court or
registry 148
11.18 Factors to be considered for
transfer 149
Division 11.3.3 Transfer of court file
11.20 Transfer between courts 150
Chapter 12 Court events — Registrar managed
Part 12.1 Application of Chapter 12
12.01 Application of Chapter 12 151
Part 12.2 Specific court events
12.02 Property case — exchange
of documents before first court date 152
12.03 Case assessment conference 153
12.04 Initial procedural hearing in
a parenting case 154
12.05 Property case — exchange
of documents before conciliation conference 155
12.06 Financial questionnaire and
balance sheet 155
12.07 Conduct of a conciliation
conference 156
12.08 Procedural hearing in a
financial case 156
12.09 Procedural hearing after the
Child Responsive Program 157
12.10 Procedural hearing where the
application includes both a financial case and a parenting case 158
12.10A Expedition 158
Part 12.4 Attendance at court events
12.11 Party’s attendance 160
12.12 Attendance by electronic
communication 160
12.13 Failure to attend court events 160
Part 12.5 Adjournment and postponement of
court events
12.14 Administrative postponement of
conferences or procedural hearings 162
Chapter 13 Disclosure
Part 13.1 Disclosure between parties
Division 13.1.1 General duty of disclosure
13.01 General duty of disclosure 164
Division 13.1.2 Duty of disclosure — financial cases
13.02 Purpose of Division 13.1.2 164
13.03 Definition 165
13.04 Full and frank disclosure 165
13.05 Financial statement 166
13.06 Amendment of Financial
Statement 167
Part 13.2 Duty of disclosure —
documents
Division 13.2.1 Disclosure of documents — all cases
13.07 Duty of disclosure —
documents 168
13.08 Inspection of documents 168
13.09 Production of original
documents 169
13.10 Disclosure by inspection of
documents 169
13.11 Costs for inspection 169
13.12 Documents that need not be
produced 169
13.13 Objection to production 170
13.14 Consequence of non‑disclosure 170
13.15 Undertaking by party 171
13.16 Time for filing undertaking 172
Division 13.2.2 Disclosure of documents — certain
applications
13.17 Application of Division 13.2.2 173
13.18 Party may seek order about
disclosure 173
Division 13.2.3 Disclosure of documents — Initiating
Applications (Family Law)
13.19 Application of Division 13.2.3 173
13.20 Disclosure by service of a
list of documents 174
13.21 Disclosure by inspection of
documents 175
13.22 Application for order for
disclosure 176
13.23 Costs of compliance 177
13.24 Electronic disclosure 177
Part 13.3 Answers to specific questions
13.25 Application of Part 13.3 178
13.26 Service of specific questions 178
13.27 Answering specific questions 179
13.28 Orders in relation to specific
questions 179
Part 13.4 Information from non‑parties
Division 13.4.1 Employment information
13.29 Purpose of Division 13.4.1 180
13.30 Employment information 180
Chapter 14 Property orders
14.01 Orders about property 181
14.02 Service of application 182
14.03 Inspection 182
14.04 Application for Anton Piller
order 182
14.05 Application for Mareva order 183
14.06 Notice to superannuation
trustee 184
14.07 Notice about intervention
under Part VIII or VIIIAB of Act 185
Chapter 15 Evidence
15.01 Definition 186
Part 15.1 Children
15.02 Restriction on child’s
evidence 186
15.04 Family reports 187
Part 15.2 Affidavits
15.05 No general right to file
affidavits 188
15.06 Reliance on affidavits 188
15.08 Form of affidavit 188
15.09 Making an affidavit 189
15.10 Affidavit of illiterate or
blind person etc 189
15.11 Affidavit outside Australia 190
15.12 Documents attached 190
15.13 Striking out objectionable
material 191
15.14 Notice to attend for cross‑examination 192
15.15 Deponent’s attendance and
expenses 192
Part 15.3 Subpoenas
Division 15.3.1 General
15.16 Interpretation 193
15.17 Issuing a subpoena 193
15.18 Subpoena not to issue in
certain circumstances 194
15.20 Amendment of subpoena 194
15.21 Subpoenas to produce documents 195
15.22 Service 195
15.23 Conduct money and witness fees 195
15.24 When compliance is not
required 195
15.25 Discharge of subpoena
obligation 196
15.26 Objection to subpoena 196
Division 15.3.2 Production of documents and access by
parties
15.27 Application of Division 15.3.2 197
15.28 Service of subpoena for
production 197
15.29 Compliance with subpoena 198
15.30 Right to inspect and copy 198
15.31 Objection to inspection or
copying of document 199
15.32 Court permission to inspect
documents 200
15.33 Claim for privilege 200
15.34 Production of document from
another court 200
15.35 Return of documents produced 201
Division 15.3.3 Non‑compliance with subpoena
15.36 Non‑compliance with
subpoena 202
Division 15.3.4 Subpoenas in Trans-Tasman Cases
15.36A Application of Division 15.3.4 202
15.36B General rules to apply 202
15.36C Definition for Division 15.3.4 202
15.36D Subpoenas not to be served
without leave 203
15.36E Application for leave to serve
subpoena in New Zealand 203
15.36F Hearing of application 204
15.36G Setting aside subpoena 205
15.36H Service of subpoena 205
15.36I Compliance 206
15.36J Non-compliance 206
Part 15.4 Assessors
15.37 Application of Part 15.4 207
15.38 Appointing an assessor 207
15.39 Assessor’s report 207
15.40 Remuneration of assessor 208
Part 15.5 Expert evidence
Division 15.5.1 General
15.41 Application of Part 15.5 209
15.42 Purpose of Part 15.5 210
15.43 Definitions 210
Division 15.5.2 Single expert witness
15.44 Appointment of single expert
witness by parties 211
15.45 Order for single expert
witness 211
15.46 Orders the court may make 212
15.47 Single expert witness’s fees
and expenses 212
15.48 Single expert witness’s report 213
15.49 Appointing another expert witness 213
15.50 Cross‑examination of single expert witness 214
Division 15.5.3 Permission for expert’s evidence
15.51 Permission for expert’s
reports and evidence 214
15.52 Application for permission for
expert witness 214
Division 15.5.4 Instructions and disclosure of expert’s
report
15.53 Application of Division 15.5.4 216
15.54 Instructions to expert witness 216
15.55 Mandatory disclosure of
expert’s report 217
15.56 Provision of information about fees 217
15.57 Application for provision of
information 217
15.58 Failure to disclose report 218
Division 15.5.5 Expert witness’s duties and rights
15.59 Expert witness’s duty to the
court 218
15.60 Expert witness’s right to seek
orders 219
15.61 Expert witness’s evidence in
chief 220
15.62 Form of expert’s report 220
15.63 Contents of expert’s report 221
15.64 Consequences of non‑compliance 222
Division 15.5.6 Clarification of single expert witness
reports
15.64A Purpose 222
15.64B Conference 223
15.65 Questions to single expert
witness 223
15.66 Single expert witness’s
answers 224
15.67 Single expert witness’s costs 224
15.67A Application for directions 225
Division 15.5.7 Evidence from 2 or more expert witnesses
15.68 Application of Division 15.5.7 225
15.69 Conference of expert witnesses 225
15.70 Conduct of trial with expert
witnesses 227
Part 15.6 Other matters about evidence
15.71 Court may call evidence 228
15.72 Order for examination of
witness 228
15.73 Letters of request 228
15.74 Hearsay evidence — notice
under section 67 of the Evidence Act 1995 229
15.75 Transcript receivable in
evidence 229
15.76 Notice to produce 230
15.77 Parenting
questionnaire 230
Chapter 16 Court events — Judge managed
Part 16.1 Preliminary
16.01 Application 231
16.02 Compliance check 231
16.03 Vacating dates that are Judge
managed 232
Part 16.2 Proceedings before the
Judge — general
16.04 Trial management 233
16.05 Attendance, submissions and
evidence by electronic communication 234
16.06 Foreign evidence by electronic
communication 236
16.07 Parties’ participation 237
Part 16.3 Proceedings before the
Judge — parenting case
16.08 First day of trial 238
16.09 Continuation of trial 238
16.10 Final stage of trial 239
Part 16.4 Proceedings before the
Judge — financial case
16.11 The first procedural hearing
before the Judge 240
16.12 Further days before the Judge 240
16.13 The trial 240
Part 16.5 Proceedings before the
Judge — combined parenting and financial cases
16.14 Conduct of combined cases 241
Chapter 16A Division 12A of Part VII of the Act
Part 16A.1 Consent for Division 12A of Part VII
of the Act to apply to a case
16A.01 Definition 242
16A.02 Application of Part 16A.1 243
16A.03 Consent for Division 12A of
Part VII of the Act to apply 243
16A.04 Application for Division 12A
of Part VII of the Act to apply for case commenced by application before
1 July 2006 243
Part 16A.2 Trials of certain cases to which
Division 12A of Part VII of the Act applies
16A.05 Definitions 244
16A.06 Application 244
16A.10 Parties to be sworn etc 245
Chapter 17 Orders
17.01 When an order is made 246
17.02 Errors in orders 247
17.03 Rate of interest 247
17.04 Order for payment of money 248
17.05 Order for payment of fine 248
Chapter 18 Powers of Judicial Registrars, Registrars
and Deputy Registrars
Part 18.1 Delegation of powers to Judicial
Registrars and Registrars
Division 18.1.1 General
18.01A Definitions 249
18.01 Exercise of powers and
functions 250
Division 18.1.2 Delegation to Judicial Registrars
18.02 Delegation of powers to
Judicial Registrars 250
18.03 Property value exceeding
limit — power to determine case 252
Division 18.1.3 Delegation of powers to Registrars and
Deputy Registrars
18.04 Application of Division 18.1.3 252
18.05 Registrars 252
18.06 Deputy Registrars 254
Part 18.2 Review of decisions
18.07 Application of Part 18.2 260
18.08 Review of order 260
18.09 Stay 261
18.10 Power of court on review 261
Chapter 19 Party/party costs
Part 19.1 General
19.01 Application of Chapter 19 263
19.02 Interest on outstanding costs 264
Part 19.2 Obligations of a lawyer about
costs
19.03 Duty to inform about costs 265
19.04 Notification of costs 265
Part 19.3 Security for costs
19.05 Application for security for
costs 267
19.06 Order for security for costs 267
19.07 Finalising security 268
Part 19.4 Costs orders
19.08 Order for costs 269
19.09 Costs order for cases in other
courts 269
19.10 Costs orders against lawyers 270
19.11 Notice of costs order 270
Part 19.5 Calculation of costs
19.18 Method of calculation of costs 271
19.19 Maximum amount of party/party
costs recoverable 272
Part 19.6 Claiming and disputing costs
Division 19.6.1 Itemised costs account
19.20 Request for itemised costs
account 273
19.21 Service of lawyer’s itemised
costs account 273
19.22 Lawyer’s itemised costs
account 273
19.23 Disputing itemised costs
account 274
19.24 Assessment of disputed costs 274
19.25 Amendment of itemised costs
account and Notice Disputing Itemised Costs Account 275
Division 19.6.2 Assessment process
19.26 Fixing date for first court
event 275
19.27 Notification of hearing 276
19.28 Settlement conference 276
19.29 Preliminary assessment 276
19.30 Objection to preliminary
assessment amount 276
19.31 If no objection to preliminary
assessment 277
19.32 Assessment hearing 277
19.33 Powers of Registrars 278
19.34 Assessment principles 279
19.35 Allowance for matters not
specified 280
19.36 Neglect or delay before
Registrar 280
19.37 Costs assessment order —
costs account not disputed 281
19.38 Setting aside a costs
assessment order 281
Part 19.7 Specific costs matters
19.40 Costs in court of summary
jurisdiction 282
19.41 Charge for each page 282
19.42 Proportion of costs 282
19.43 Costs for reading 282
19.44 Postage within Australia 282
19.45 Waiting and travelling time 283
19.46 Agent’s fees 283
19.49 Costs of cases not started
together 283
19.50 Certificate as to counsel 284
19.51 Lawyer as counsel — party
and party costs 284
19.52 Lawyer as counsel —
assessment of fees 284
Part 19.8 Review of assessment
19.54 Application for review 286
19.55 Time for filing an application
for review 286
19.56 Hearing of application 286
Chapter 20 Enforcement of financial orders and
obligations
Part 20.1 General
20.01 Enforceable obligations 288
20.02 When an agreement may be
enforced 289
20.03 When a child support liability
may be enforced 290
20.04 Who may enforce an obligation 290
20.05 Enforcing an obligation to pay
money 291
20.06 Affidavit to be filed for
enforcement order 291
20.07 General enforcement powers of court 292
20.08 Enforcement order 293
20.09 Discharging, suspending or
varying enforcement order 293
Part 20.2 Information for aiding
enforcement
Division 20.2.1 Processes for aiding enforcement
20.10 Processes for obtaining
financial information 294
Division 20.2.2 Enforcement hearings
20.11 Enforcement hearing 294
20.12 Obligations of payer 295
20.13 Subpoena of witness 296
20.14 Failure concerning Financial Statement or
enforcement hearing 296
Part 20.3 Enforcement warrants
Division 20.3.1 General
20.15 Definitions 297
20.16 Request for Enforcement
Warrant 297
20.17 Period during which
Enforcement Warrant is in force 298
20.18 Enforcement officer’s
responsibilities 298
20.19 Directions for enforcement 299
20.20 Effect of Enforcement Warrant 300
20.21 Advertising before sale 300
20.21A Sale of property at reasonable price 301
20.21B Conditions of sale of property 302
20.22 Result of sale of property under Enforcement
Warrant 302
20.23 Payee’s responsibilities 303
20.24 Orders for real property 304
Division 20.3.2 Claims by person affected by an
Enforcement Warrant
20.25 Notice of claim 305
20.26 Payee to admit or dispute
claim 305
20.27 Admitting claim 305
20.28 Denial or no response to claim 306
20.29 Hearing of application 306
Part 20.4 Third Party Debt Notice
20.30 Application of Part 20.4 307
20.31 Money deposited in a financial
institution 307
20.32 Request for Third Party Debt
Notice 307
20.33 Service of Third Party Debt
Notice 308
20.34 Effect of Third Party Debt
Notice — general 308
20.35 Employer’s obligations 309
20.36 Duration of Third Party Debt
Notice 309
20.37 Response to Third Party Debt
Notice 309
20.38 Discharge of Third Party Debt
Notice 310
20.39 Claim by affected person 310
20.40 Cessation of employment 310
20.41 Compliance with Third Party
Debt Notice 311
Part 20.5 Sequestration of property
20.42 Application for sequestration
of property 313
20.43 Order for sequestration 313
20.44 Order relating to
sequestration 314
20.45 Procedural orders for
sequestration 314
Part 20.6 Receivership
20.46 Application for appointment of receiver 316
20.47 Appointment and powers of receiver 316
20.48 Security 317
20.49 Accounts 317
20.50 Objection to accounts 317
20.51 Removal of receiver 318
20.52 Compliance with orders and Rules 318
Part 20.7 Enforcement of obligations other
than an obligation to pay money
20.53 Application for other enforcement orders 319
20.54 Warrant for possession of real property 319
20.55 Warrant for delivery 320
20.56 Warrant for seizure and detention of property 320
Part 20.8 Other provisions about enforcement
20.57 Service of order 321
20.58 Certificate for payments under
maintenance order 321
20.59 Enforcement by or against a non‑party 321
20.60 Powers of enforcement officer 321
Chapter 21 Enforcement of parenting orders,
contravention of orders and contempt
Part 21.1 Applications for enforcement of
orders, contravention of orders and contempt of court
21.01 Application of Part 21.1 324
21.02 How to apply for an order 324
21.03 Application made or continued
by Marshal 326
21.04 Contempt in the court room 327
21.05 Fixing of hearing date 327
21.06 Response to an application 327
21.07 Failure of respondent to
attend 327
21.08 Procedure at hearing 328
Part 21.2 Parenting orders —
compliance
21.09 Duties of program provider 329
21.10 Relisting for hearing 329
Part 21.3 Location and recovery orders
21.11 Application of Part 21.3 330
21.12 Application for order under
Part 21.3 330
21.13 Fixing of hearing date 330
21.14 Service of recovery order 330
21.15 Application for directions for
execution of recovery order 331
Part 21.4 Warrants for arrest
21.16 Application for warrant 332
21.17 Execution of warrant 332
21.18 Duration of warrant 333
21.19 Procedure after arrest 333
21.20 Application for release or
setting aside warrant 334
Chapter 22 Appeals
Part 22.1 Introduction
22.01 Application of Chapter 22 335
Part 22.2 Starting an appeal
22.02 Starting an appeal 336
22.03 Time for appeal 336
22.04 Parties to an appeal 337
22.05 Service 337
22.06 Notice about appeal to other
courts 337
22.07 Cross‑appeal 337
22.08 Time for cross‑appeal 338
22.09 Amendment of Notice of Appeal 338
22.10 Documents filed in a current
appeal 338
22.11 Stay 338
22.12 Application
for leave to appeal 339
22.13 Filing draft index to appeal
books 339
Part 22.3 Appeal to Full Court
22.14 Application of Part 22.3 341
22.15 Procedural hearing 341
22.16 Attendance at first procedural
hearing 342
22.17 Orders to be made at
procedural hearing 342
22.18 Preparation of appeal books 343
22.19 Contents of appeal books 343
22.20 Form of appeal books 344
22.21 Failure to file appeal books
by due date 345
22.22 Summary of argument and list
of authorities 345
Part 22.4 Appeal from Federal Magistrates
Court or a Family Law Magistrate of Western Australia heard by single Judge
22.23 Application of Part 22.4 347
22.24 Procedural hearing 347
22.25 Attendance at procedural
hearing 347
22.26 Procedural orders for conduct
of appeal 348
22.27 Documents for appeal hearing
if appeal book not required 349
Part 22.5 Appeal from court of summary
jurisdiction other than a Family Law Magistrate of Western Australia
22.28 Application of Part 22.5 350
22.29 Fixing of hearing date 350
Part 22.6 Powers of appeal courts and
conduct of appeal
22.30 Non‑attendance by party 351
22.31 Attendance by electronic
communication 351
22.32 Attendance of party in prison 352
22.33 Short reasons for decision 353
22.34 Subpoenas 353
Part 22.7 Applications in relation to
appeals
Division 22.7.1 How to make an application
22.35 Application of Part 22.7 354
22.36 Application in relation to
appeal 354
22.37 Hearing date for application 354
22.38 Decision without an oral
hearing 355
Division 22.7.2 Specific applications relating to appeals
22.39 Further evidence on appeal 355
22.40 Review of Regional Appeal
Registrar’s order 356
Part 22.8 Concluding an appeal, an
application for leave to appeal or an application in relation to an appeal
22.41 Consent orders on appeal 357
22.42 Discontinuance of appeal or
application 357
22.43 Abandoning an appeal 357
22.44 Application for reinstatement
of appeal 358
22.45 Dismissal of appeal and
applications for non‑compliance or delay 358
Part 22.9 Case stated
22.46 Application of Part 22.9 360
22.47 Case stated 360
22.48 Objection to draft case stated 360
22.49 Settlement and signing 361
22.50 Filing of copies of case
stated 361
22.51 Fixing of hearing date 361
22.52 Summary of argument and list
of authorities 361
Chapter 23 Registration of documents
Part 23.1 Registration of agreements,
orders and child support debts
23.01 Registration of agreements 363
23.01A Registration of State child
orders under section 70C or 70D of the Act 364
23.01B Registration of de facto
maintenance orders under section 90SI of the Act 364
23.02 Registration of debt due to
the Commonwealth under child support legislation 364
Part 23.2 Parenting plans
23.03 Requirements for registration
of an agreement revoking a registered parenting plan 365
23.04 Court may require service or
additional information 365
23.05 Application may be dealt with
in chambers 366
Chapter 24 Documents, filing, registry
Part 24.1 Requirements for documents
24.01 General requirements 367
24.02 Corporation as a party 368
24.03 Change of name of party 369
24.04 Forms 369
Part 24.2 Filing documents
24.05 How a document is filed 370
24.06 Filing a document by facsimile 371
24.07 Filing by e‑mail and
Internet 371
24.08 Additional copies for filing 372
24.09 Documents filed during a case 373
24.10 Rejection of documents 373
24.11 Filing a notice of payment
into court 374
Part 24.3 Registry records
24.12 Removal of document from
registry 375
24.13 Searching court record and
copying documents 375
24.14 Exhibits 376
Chapter 25 Applications under the Corporations Act
2001 and the Corporations (Aboriginal and Torres Strait Islander) Act
2006
25.01 Application of Chapter 25 377
25.02 Application of Corporations
Rules 377
25.03 Modification of Corporations
Rules 377
25.04 Application under Corporations
Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act
2006 378
25.05 Transfer of cases under Corporations
Act 2001 or Corporations (Aboriginal and Torres Strait Islander) Act
2006 378
25.06 Fixing a date for hearing 379
Chapter 26 Cases to which the Bankruptcy Act 1966 applies
Part 26.1 Introduction
26.01 Application of Chapter 26 380
26.02 Expressions used in the
Bankruptcy Act 381
Part 26.2 General
26.04 Bankruptcy Application and
Bankruptcy Application in a Case 382
26.05 Leave to be heard 383
26.06 Appearance at application or
examination 383
26.07 Opposition to Bankruptcy
Application or a Bankruptcy Application in a Case 384
Part 26.3 Examinations
Division 26.3.1 Interpretation
26.08 Definition for Part 26.3 385
Division 26.3.2 Examination of relevant person
26.09 Application for summons
(Bankruptcy Act s 81) 385
26.10 Hearing of application 385
26.11 Requirements of summons 386
26.12 Service of summons 386
26.13 Failure to attend examination 386
26.14 Application for discharge of
summons 386
Division 26.3.3 Examination of examinable person
26.15 Application for summons
(Bankruptcy Act s 81) 387
26.16 Hearing of application 388
26.17 Requirements of summons 388
26.18 Service of summons 389
26.19 Application for discharge of
summons 389
26.20 Conduct money and witnesses expenses 389
Part 26.4 Annulment of bankruptcy
26.21 Application of Part 26.4 391
26.22 Requirements of application 391
26.23 Notice to creditors 391
26.24 Procedural hearing —
report by trustee 391
26.25 Service of annulment order 392
Part 26.5 Trustees
26.26 Objection to appointment of
trustee (Bankruptcy Act s 157 (6)) 393
26.27 Resignation or release of
trustee (Bankruptcy Act ss 180 and 183) 393
Part 26.6 Warrants
26.28 Arrest of bankrupt (Bankruptcy
Act s 78) 395
26.29 Apprehension of person failing
to attend Court (Bankruptcy Act s 264B (1)) 395
Part 26.7 Costs
26.30 Order for costs 396
26.31 Application of Order 62 of
Federal Court Rules 396
Chapter 1 Introduction
Summary of
Chapter 1
Chapter 1 sets
out the rules relating to:
· the main purpose of
these Rules, and the obligations of parties, lawyers and the court;
· the court’s general powers that are to
apply in all cases; and
· other preliminary
matters, including sittings, definitions, calculation of time and publication.
These Rules are
not, and should not be read as if they were, a complete code of the court’s
powers. Other powers are found in the provisions of various Acts, the court’s
inherent jurisdiction and the common law.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 1.1 Preliminary
1.01 Name
of Rules [see Note
1]
These Rules are the Family Law Rules 2004.
1.02 Commencement
These Rules commence on 29 March 2004.
Note The Family Law Rules 1984
(the old Rules), as in force under the Family Law Act 1975
immediately before the commencement of these Rules (the new Rules),
are repealed — see the Family Law Repeal Rules 2004. The new Rules
apply to a case that was commenced in accordance with the old Rules and not
determined before the repeal of those Rules — see rule 4 of the Family
Law Repeal Rules 2004.
1.03 Rules
in Chapter 1 prevail
(1) Chapter 1 sets out the general rules that the court
may apply in all cases.
(2) If a rule in another Chapter conflicts with a rule
in Chapter 1 of these Rules, the rule in Chapter 1 applies.
Part 1.2 Main
purpose of Rules
1.04 Main
purpose of Rules
The main purpose of these Rules is to ensure that
each case is resolved in a just and timely manner at a cost to the parties and
the court that is reasonable in the circumstances of the case.
Note Section 43 of the Act sets out the
principles that the court must apply when exercising its jurisdiction under the
Act.
1.05 Pre‑action
procedure
(1) Before starting a case, each prospective party to
the case must comply with the pre‑action procedures, the text of which is
set out in Schedule 1.
(2) Compliance with subrule (1) is not necessary if:
(a) for a parenting case — the case
involves allegations of child abuse or family violence, or the risk of child
abuse or family violence;
(b) for a property case — the case involves
allegations of family violence, or the risk of family violence, or fraud;
(c) the application is urgent;
(d) the applicant would be unduly prejudiced;
(e) there has been a previous application in the
same cause of action in the 12 months immediately before the start of the case;
(f) the case is an application for divorce;
(g) the case is a child support application or
appeal; or
(h) the case involves a court’s jurisdiction in
bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1 The court publishes a
brochure setting out the pre‑action procedures for financial cases and
parenting cases.
Note 2 The court may take into account a
party’s failure to comply with a pre‑action procedure when considering
whether to order costs (see paragraph 1.10 (2) (d)).
Note 3 Subsections 60I (7) to (12)
provide for attendance at family dispute resolution before applying for an
order under Part VII of the Act in relation to a child.
1.06 Promoting
the main purpose
The court must apply these Rules to promote the
main purpose, and actively manage each case by:
(a) encouraging and helping parties to consider
and use a dispute resolution method rather than having the case resolved by
trial;
(b) having regard to unresolved risks or other
concerns about the welfare of a child involved;
(c) identifying the issues in dispute early in
the case and separating and disposing of any issues that do not need full
investigation and trial;
(d) at an early stage, identifying and matching
types of cases to the most appropriate case management procedure;
(e) setting realistic timetables, and monitoring
and controlling the progress of each case;
(f) ensuring that parties and their lawyers
comply with these Rules, any practice directions and procedural orders;
(g) considering whether the likely benefits of
taking a step justify the cost of that step;
(h) dealing with as many aspects of the case as possible
on the same occasion;
(i) minimising the need for parties and their
lawyers to attend court by, if appropriate, relying on documents; and
(j) having regard to any barriers to a party’s
understanding of anything relevant to the case.
1.07 Achieving
the main purpose
To achieve the main purpose, the court applies
these Rules in a way that:
(a) deals with each case fairly, justly and in a
timely manner;
(b) encourages parties to negotiate a settlement,
if appropriate;
(c) is proportionate to the issues in a case and
their complexity, and the likely costs of the case;
(d) promotes the saving of costs;
(e) gives an appropriate share of the court’s
resources to a case, taking into account the needs of other cases; and
(f) promotes family relationships after
resolution of the dispute, where possible.
1.08 Responsibility
of parties and lawyers in achieving the main purpose
(1) Each party has a responsibility to promote and
achieve the main purpose, including:
(a) ensuring that any orders sought are
reasonable in the circumstances of the case and that the court has the power to
make those orders;
(b) complying with the duty of disclosure (see
rule 13.01);
(c) ensuring readiness for court events;
(d) providing realistic estimates of the length
of hearings or trials;
(e) complying with time limits;
(f) giving notice, as soon as practicable, of an
intention to apply for an adjournment or cancellation of a court event;
(g) assisting the just, timely and cost‑effective
disposal of cases;
(h) identifying the issues genuinely in dispute
in a case;
(i) being satisfied that there is a reasonable
basis for alleging, denying or not admitting a fact;
(j) limiting evidence, including cross‑examination,
to that which is relevant and necessary;
(k) being aware of, and abiding by, the
requirements of any practice direction or guideline published by the court; and
(l) complying with these Rules and any orders.
(2) A lawyer for a party has a responsibility to
comply, as far as possible, with subrule (1).
Note The court recognises that a lawyer
acts on a party’s instructions and may be unable to establish whether those
instructions are correct.
(3) A lawyer attending a court event for a party must:
(a) be familiar with the case; and
(b) be authorised
to deal with any issue likely to arise.
Note The court may take into account a
failure to comply with this rule when considering costs (see subrule
19.10 (1) and subclause 6.10 (1) of Schedule 6).
Part 1.3 Court’s
powers in all cases
1.09 Procedural
orders in cases of doubt or difficulty
If the court is satisfied that:
(a) a legislative provision does not provide a
practice or procedure; or
(b) a difficulty arises, or doubt exists, in
relation to a matter of practice or procedure;
it may make such orders as it considers necessary.
1.10 Court may make orders
(1) Unless a legislative provision states otherwise, the
court may make an order, on application or on its own initiative, in relation
to any matter mentioned in these Rules.
(2) When making an order,
the court may:
(a) impose terms and conditions;
(b) make a consequential order;
(c) specify the consequence of failure to comply
with the order; and
(d) take into account whether a party has
complied with a pre‑action procedure.
1.11 Court may set aside or vary order
The court may set aside or vary an order made in
the exercise of a power under these Rules.
1.12 Court may dispense with Rules
(1) These Rules apply unless the court, on application
or its own initiative, orders otherwise.
(2) The court may dispense with compliance with any of
these Rules at any time, before or after the occasion for compliance arises.
(3) In considering whether to make an order under this
rule, the court may consider:
(a) the main purpose of these Rules (see rule
1.04);
(b) the administration of justice;
(c) whether the application has been promptly
made;
(d) whether non‑compliance was intentional;
and
(e) the effect that granting relief would have
on each party and parties to other cases in the court.
1.13 Judicial
officer hearing application
Unless a legislative provision states otherwise,
if:
(a) these Rules provide that an application or
appeal is to be heard by a particular judicial officer or particular class of
judicial officer; and
(b) such a person is unavailable;
the application or appeal may be listed before another judicial
officer who has jurisdiction to hear the application or appeal.
1.14 Shortening or extension of time
(1) A party may apply to the court to shorten or extend
a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1)
for an order extending a time to be made even though the time fixed by the rule
or order has passed.
(3) A party who makes an application under subrule (1)
for an extension of time may be ordered to pay any other party’s costs in
relation to the application.
1.15 Time for compliance
If a rule or order requires a person to take an
action but does not specify a time by which the action is to be taken, the
person must take the action as soon as practicable.
Part 1.4 Other
preliminary matters
1.16 Definitions —
the dictionary
(1) The dictionary at the end of these Rules defines and
explains certain words and expressions.
(2) Within a definition, the defined term is identified
by bold italics.
(3) The dictionary is part of these Rules.
(4) A definition of a word or expression in the
dictionary applies to each use of the word or expression in these Rules, unless
the context does not permit.
1.17 Notes, examples etc
(1) The following are explanatory only and are not part
of these Rules:
(a) chapter summaries;
(b) examples;
(c) flow charts;
(d) notes.
(2) The explanatory guide at the end of these Rules is
not part of these Rules and is not to be used in interpreting these Rules.
Note 1 See section 13 and paragraph
15AB (2) (a) of the Acts Interpretation Act 1901.
Note 2 In interpreting these Rules:
Specific prevails over the general
In these Rules, if there is a conflict between a general rule and
a specific rule, the specific rule prevails.
Use of ‘and’ and ‘or’ between paragraphs etc
A series of paragraphs may be
joined by the word and or or, which will appear between the last
2 paragraphs only. The series is to be read as if the same word appears between
each paragraph in the series — for example:
(1) This is:
(a)
a paragraph;
(b)
another paragraph; and
(c)
yet another paragraph.
and
(2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
If the paragraphs are to be read as a list, the words and
or or are not used — for example:
(3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
1.18 Sittings
The Family Court of Australia must sit at the times
and places the Chief Justice directs.
1.19 Permission to record court event
A person must not photograph, or record by
electronic or mechanical means, any court event.
Note Section 121 of the Act restricts
publication of information relating to cases.
1.20 Publishing lists of cases
(1) A list of cases to be heard in the court prepared by
a Registry Manager may be:
(a) published in the law list in a newspaper;
and
(b) made available to members of the legal
profession and their employees.
Note See subsection 121 (2) of the
Act.
(2) The list may contain:
(a) subject to subrule (3), the family name of a
party, but not a given name;
(b) the file number of a case;
(c) the name of the judicial officer for a
hearing or trial;
(d) the time and place where a named judicial
officer will sit; and
(e) the general nature of an application.
(3) For a case in which a court has jurisdiction in
bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain
the given name of a party.
1.21 Calculating time
(1) Time in a case runs during a period when the filing
registry is closed.
(2) If:
(a) the period allowed by these Rules or an
order for an action to be validly taken is 5 days or less; and
(b) the period includes a day when the filing
registry is closed;
that day is not counted.
(3) For the calculation of time of one day or more from
a particular day, or from the occurrence of a particular event, the particular
day, or the day when the event occurs, is not counted.
(4) If the last day for taking an action requiring
attendance at a filing registry is on a day when the filing registry is closed,
the action may be taken on the next day when the filing registry is open.
(5) Subsection 36 (2) of the Acts Interpretation
Act 1901 does not apply to these Rules.
Chapter 2 Starting a case
Summary of
Chapter 2
Chapter 2 sets
out rules about:
· the form of
application you must file to start a case in a court, respond to an application
or seek orders in the course of a case;
· the documents you must file with an
application or response; and
· the brochures that must be served in a
case.
Before starting a
case, you must comply with the court’s pre‑action procedures (see subrule
1.05 (1) and Schedule 1).
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 2.1 Applications
2.01 Which application to file
A person starting a
case must file an application as set out in Table 2.1.
Table 2.1 Applications
|
Item
|
Kind of application
|
Application form to be
filed
|
|
1
|
Application seeking final orders (other than a consent
order or a divorce), for example:
· property
settlement
· parenting
· maintenance
· child
support
· medical
procedures
|
Initiating Application (Family Law)
|
|
|
· nullity
· declaration
as to validity of marriage, divorce or annulment
· order
relating to passport (see Division 4.2.7)
|
|
|
2
|
Interim order sought at the same time as an application
for final orders is made
|
Initiating Application (Family Law)
|
|
2A
|
Interim order sought after an application for final orders
is made
|
Application in a Case
|
|
3
|
Procedural, ancillary or other incidental order relating
to an order or application sought at the same time as an application for
final orders is made
|
Initiating Application (Family Law)
|
|
3A
|
Procedural, ancillary or other incidental order relating
to an order or application sought after an application for final orders is
made
|
Application in a Case
|
|
4
|
Enforcement of a financial obligation or parenting order
|
Application in a Case
|
|
5
|
Review of an order of a Registrar or Judicial Registrar
|
Application in a Case
|
|
6
|
Divorce
|
Application for Divorce
|
|
7
|
Consent order when there is no current case
|
Application for Consent Orders
|
|
8
|
Contravention of an order under Division 13A of
Part VII of the Act affecting children, for example, a breach of a
contact order
|
Application — Contravention
|
|
9
|
Contravention of an order under Part XIIIA of the Act not
affecting children, for example, a breach of a property order
|
Application — Contravention
|
|
10
|
Failure to comply with a bond entered into in accordance
with the Act
|
Application — Contravention
|
|
11
|
Contempt of court
|
Application — Contempt
|
Note 1 A respondent seeking orders
in another cause of action may make an application in a Response to Initiating
Application (Family Law) (see paragraph 9.01 (3) (c)).
Note 2 For further information
about:
(a) a divorce application, see Chapter 3;
(b) starting a case for final orders other than a divorce,
see Chapter 4;
(c) making an Application in a Case, see Chapter 5;
(d) an application for a consent order, see Chapter 10;
(e) an application for contempt, enforcement or
contravention, see Chapters 20 and 21; and
(f) an application relating to the failure of a party to
comply with a bond, see Chapter 21;
(g) an appeal or an application relating to an appeal, see
Chapter 22; and
(h) an application relating to a bankruptcy case, see
Chapter 26.
Note 3 An application seeking orders
under the Act may not be filed in a court of a Territory unless the applicant
or respondent ordinarily resides in the Territory at the time the application
is filed (see subsection 39 (8) and section 69K of the Act).
2.02 Documents
to be filed with applications
(1) A person must file with an application mentioned in
an item of Table 2.2, the document mentioned in the item if the document has
not already been filed.
Table
2.2 Documents to be filed with applications
|
Item
|
Application
|
Documents to be filed with application
|
|
2A
|
Initiating Application
(Family Law) in which an order is sought under Part VII of the Act, for
example, a parenting order
|
(a) a certificate
given to the applicant by a family dispute resolution practitioner under subsection
60I (8) of the Act; or
(b) if no certificate is
required because paragraph 60I (9) (b), (c), (d), (e) or (f) of the
Act applies — an affidavit in a form approved by the Principal Registrar
unless another affidavit filed in the proceedings sets out the factual basis
of the exception claimed
|
|
2B
|
Initiating Application
(Family Law) in which an order is sought relating to a de facto relationship
|
(a) the
documents required by an item in this table that applies to the application
(for example items 2A to 6 and 9); and
(b) to satisfy the court
for section 90SB of the Act that the relationship is or was registered
under a prescribed law — the certificate of registration; and
|
|
|
|
(c) for
an applicant who has made a choice under subitem 86A (1) or 90A (1)
of Schedule 1 to the Family Law Amendment (De Facto Financial Matters
and Other Measures) Act 2008 — a document that satisfies the
requirements of subitem 86A (5) or 90A (5) of that Act
|
|
3
|
Initiating Application (Family Law), or Response to
Initiating Application (Family Law), in which financial orders are sought,
for example, property settlement, maintenance, child support
|
a completed Financial Statement (see
rule 13.05)
|
|
4
|
Initiating Application (Family Law) or Response to
Initiating Application (Family Law) in which property settlement orders are
sought, and Reply responding to Response to Initiating Application (Family
Law) in which property orders are sought as a new cause of action
|
(a) the documents mentioned in
this column in item 3;
(b) a completed superannuation information form
(attached to the Financial Statement) for a superannuation interest of the
party filing the Initiating Application (Family Law), Response or Reply to an
Initiating Application (Family Law)
|
|
5
|
Initiating Application (Family Law) or Response to an
Initiating Application (Family Law) relying on a cross‑vesting law, or
seeking an order under Part 4.2:
· for a
medical procedure;
· for step‑parent maintenance, if there is consent;
· for nullity of marriage;
· for a declaration as to validity of a marriage or divorce
or annulment; or
· relating to a passport
|
an affidavit (see section 66M of the
Act and rules 4.06, 4.09, 4.29 and 4.30)
|
|
6
|
Initiating Application (Family Law) or Response to an
Initiating Application (Family Law) in which a child support application or
appeal is made
|
the documents
mentioned in rule 4.18 for the application
|
|
7
|
Application for interim,
procedural, ancillary or other incidental orders in an Initiating Application
(Family Law) or Application in Case (other than an application seeking review
of a decision of a Registrar or Judicial Registrar)
|
an
affidavit (see rules 5.02 and 9.02)
|
|
9
|
Application for Consent Orders
|
(a) if the orders sought are
for a de facto relationship — one of the documents mentioned in
this column in item 2B;
(b) for an Application for
Consent Orders in which orders are sought in relation to a superannuation
interest (see rule 10.16) — a completed superannuation information
form for the superannuation interest
|
|
10
|
Application —
Contravention, other than an application to which item 10A applies
|
an affidavit
(see subrules 21.02 (2) and (3))
|
|
10A
|
Application — Contravention in which an order is sought
under Part VII of the Act
|
(a) an affidavit (see subrules
21.02 (2) and (3)); and
(b) either:
(i) a certificate given to the applicant by the
family dispute resolution practitioner under subsection 60I (8) of the
Act; or
(ii) if no certificate is required because
paragraph 60I (9) (b), (c), (d), (e) or (f) of the Act
applies — an affidavit in a form approved by the Principal Registrar
unless another affidavit filed in the proceedings sets out the factual basis
of the exception claimed
|
|
11
|
Application — Contempt
|
an affidavit (see subrule 21.02
(2))
|
(4) If a document
mentioned in Table 2.2 is not in English, the person filing the document must
file:
(a) a translation of the document, in English;
and
(b) an affidavit,
by the person who made the translation, verifying the translation and setting
out the person’s qualifications to make the translation.
(5) An applicant in proceedings mentioned in subsection
100 (1) of the Assessment Act or subsection 105 (1) of the
Registration Act is not required to file in the court a certificate given to
the applicant by a family dispute resolution practitioner under subsection
60I (8) of the Family Law Act.
Note 1 A party must not file an
affidavit with an Initiating Application (Family Law) unless an application
seeking interim, procedural, ancillary or other incidental orders is included
in the Initiating Application (Family Law) or permitted to do so by Chapter 4
or an order (see rules 1.12 and 4.02).
Note 2 A document that is filed must be
served (see rules 7.03 and 7.04).
Note 3 For information about filing
documents, see Chapter 24.
2.02A Documents
filed by electronic communication
A person who files a document by electronic
communication must:
(a) include in the filed document and each copy
served on another person any details the person knows about the location, date
and time of the next court event in the matter; and
(b) if the Registry Manager notifies the person
of the details of the next court event — give a copy of the notice as soon
as practicable to each person on whom the document is or has been served.
Part 2.2 Brochures
2.03 Service
of brochures
A person who files an Initiating Application
(Family Law) or an Application for Divorce must, when serving the application
on the respondent, also serve a brochure prepared by the court for
section 12F of the Act.
Note In addition to the requirements of
this rule, an applicant who has filed an application for enforcement must serve
the relevant brochure on the respondent (see paragraph 20.11 (3) (b)).
Part 2.3 Notification
in certain cases
Division 2.3.1 Cases
involving allegation of abuse or family violence in relation to a child
2.04 Definition
In this Division:
allegation of abuse or family violence means
an allegation:
(a) that a child has been abused or that there
is a risk of a child being abused; or
(b) that there has been family violence involving
a child or a member of the child’s family or that there is a risk of family
violence involving a child or a member of the child’s family.
Part VII order has the same meaning as in
subsection 60I (1) of the Act.
2.04A Application of Division 2.3.1
This Division applies to a case if an application
is made to a court for a Part VII order in relation to a child in the case.
2.04B Filing and service
(1) In a case to which
this Division applies, if any of the following persons makes an allegation of
abuse or family violence the person must file a Notice of Child Abuse or Family
Violence (Form 4):
(a) a party in the case;
(b) an independent children’s lawyer in the case;
(c) a person seeking to intervene in the case.
(2) A person who files a Form 4 must file an affidavit
or affidavits setting out the evidence on which the allegations in the Form 4
are based, no later than the time the Form 4 is filed.
Note The requirements for service of
filed documents are set out in rule 7.04. For service of a notice filed in
a case to which section 67Z of the Act applies, subsection 67Z (2)
specifically requires that a person alleged in the notice to have abused a
child in the case, or to be a person from whom a child in the case is at risk
of being abused, must be served with a copy of the notice.
2.04C Listing case
If a Form 4 has been filed in a case, a Registrar
may list the case for hearing or procedural hearing.
2.04D Prescribed document and prescribed form
A Notice of Child Abuse
or Family Violence (Form 4) is:
(a) the document prescribed for the purposes of
paragraph 60K (1) (d) of the Act; and
(b) the prescribed form for the purposes of a
notice mentioned in subsection 67Z (2) of the Act.
2.05 Family violence order
(1) A party must file a
copy of any family violence order affecting the parties or a child of the
parties:
(a) when a case starts; or
(b) as soon as practicable after the order is
made.
(2) If a copy of the
family violence order is not available, the party must file a written notice
containing:
(a) an undertaking to file the order within a
specified time;
(b) the date of the order;
(c) the court that made the order; and
(d) the details of the order.
Division 2.3.2 Property settlement or spousal or de facto maintenance cases
2.06 Notification of proceeds of crime order or
forfeiture application (Act ss 79B, 90M and 90VA)
If a party to a
property settlement or spousal maintenance case, or a de facto property
settlement or maintenance proceedings, is required to give the Registry Manager
written notice under subsection 79B (3), 90M (3) or 90VA (3) of
the Act of a proceeds of crime order or forfeiture application, the party must:
(a) attach to the notice a sealed copy of the
proceeds of crime order or forfeiture application, if not already filed; and
(b) file the notice as soon as possible after the
party is notified by the Director of Public Prosecutions under paragraph 79B
(3) (b), 90M (3) (b) or 90VA (3) (b) of the Act.
2.07 Proceeds of crime
(1) If the Director of Public Prosecutions applies under
section 79C, 90N or 90VB of the Act to stay a property settlement or
spousal maintenance case, or a de facto property settlement or maintenance
proceedings, the Director must, at the same time, file a sealed copy of the
proceeds of crime order or forfeiture application covering the property of the
parties to the marriage or either of them, if not already filed.
(2) An application under section
79D, 90P or 90VC of the Act to lift a stay of a property settlement or spousal
maintenance case, or a de facto property settlement or maintenance
proceedings, must have filed with it:
(a) proof that the proceeds of crime order has
ceased to be in force or that the forfeiture application has been finally
determined; and
(b) if made by a party, the written consent of
the Director of Public Prosecutions under section 79D, 90P or 90VC of the Act.
Note A party seeking a stay of a case or
an order lifting a stay under this rule must file an Application in a Case (see
Chapter 5).
Chapter 3 Divorce
Summary of Chapter 3
Chapter 3 sets
out the procedure for obtaining a divorce. You may also need to refer to other
Chapters in these Rules, particularly Chapters 7 and 24, when applying for a
divorce.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 3.1 Application
for Divorce
3.01 Fixing of hearing date
(1) On the filing of an Application for Divorce, the
Registry Manager must fix a date for the hearing of the application.
(2) The date fixed must be:
(a) for a joint application — at least 28
days after the application is filed; or
(b) for any other application:
(i) if the respondent is in
Australia — at least 42 days after the application is filed; or
(ii) if the respondent is outside
Australia — at least 56 days after the application is filed.
Note 1 An Application for Divorce (other
than a joint application) must be served on the respondent (see rule 7.03).
Note 2 When an Application for
Divorce is served, the respondent must also be given a brochure approved by the
Principal Registrar (see rule 2.03).
3.02 Amendment
of an Application for Divorce
An applicant may amend an Application for Divorce:
(a) within 14 days before the hearing; or
(b) within any shorter time permitted by the
court or consented to by the respondent.
3.03 Discontinuance
of an Application for Divorce
An applicant may discontinue an Application for
Divorce by filing and serving a Notice of Discontinuance at least 7 days
before the date fixed for the hearing.
Note The court may, at the hearing, give
permission for an Application for Divorce to be discontinued.
Part 3.2 Response
3.04 Response
(1) A respondent to an Application for Divorce who
seeks to oppose the divorce or contest the jurisdiction of the court must file
a Response to an Application for Divorce:
(a) if the respondent is served in Australia —
within 28 days after the day when the Application for Divorce is served on the
respondent; or
(b) if the respondent is served outside
Australia — within 42 days after the day when the Application for
Divorce is served on the respondent.
(2) If a respondent files
a Response to an Application for Divorce:
(a) the hearing must proceed in open court; and
(b) each party must attend or be represented by a
lawyer.
Note A document that is filed must be
served (see rules 7.03 and 7.04).
3.05 Objection to jurisdiction
(1) If, in a Response to an Application for Divorce, a
respondent objects to the jurisdiction of the court, the respondent will not be
taken to have submitted to the jurisdiction of the court by also seeking an
order that the application be dismissed on another ground.
(2) The objection to the jurisdiction must be determined
before any other orders sought in the Response to an Application for Divorce.
3.06 Response out of time
If a respondent
files a Response to an Application for Divorce after the time allowed under
subrule 3.04 (1):
(a) the applicant may consent to the late
filing; or
(b) if the applicant does not consent, the court
may continue the case as if the response had not been filed.
Note The respondent may apply to the court
for permission to file a Response to an Application for Divorce after the time
allowed by rule 3.04 (see rule 1.14).
3.07 Affidavit
to reply to information in an Application for Divorce
A respondent to an Application for Divorce who
disputes any of the facts set out in the application, but does not oppose the
divorce, may, at least 7 days before the date fixed for the hearing of the
application, file and serve an affidavit setting out the facts in dispute.
Part 3.3 Attendance
at hearing
3.08 Attendance
at hearing
(1) A party may apply under rule 5.06 to attend the
hearing of an Application for Divorce by electronic communication.
(2) Subject to Part 3.4:
(a) if the applicant fails to attend the hearing
in person or by a lawyer, the application may be dismissed; and
(b) if the respondent fails to attend the hearing
in person or by a lawyer, the applicant may proceed with the hearing as if the
application were undefended.
Part 3.4 Hearing
in absence of parties
3.09 Seeking
a hearing in absence of parties
If, in an Application for Divorce (other than a
case started by a joint Application):
(a) no Response has been filed;
(b) at the date fixed for the hearing, there are
no children of the marriage within the meaning of subsection 98A (3) of the
Act;
(c) the applicant has requested that the case be
heard in the absence of the parties; and
(d) the respondent has not requested the court
not to hear the case in the absence of the parties;
the court may determine the case in the absence of the parties.
3.10 Hearing
in absence of parties — joint application
If, in a joint Application for Divorce, the
applicants request that the case be heard in their absence, the court may so
determine the case.
Note The court must not determine the
Application in the absence of the parties if there are any children of the
marriage who are under 18 and the court is not satisfied that proper
arrangements have been made for their care, welfare and development (see
subsection 98A (2A) of the Act).
3.11 Request
not to hear case in parties’ absence
A respondent to an Application for Divorce who
objects to the case being heard in the absence of the parties must, at least
7 days before the date fixed for the hearing, file and serve a written
notice to that effect.
Note 1 If a respondent seeks that a
case not be heard in the absence of the parties, the court must not determine
the case in the absence of the parties (see subsection 98A (1) of the
Act).
Note 2 A notice under this rule must
comply with subrule 24.01 (1).
Part 3.5 Events
affecting divorce order
3.12 Application
for rescission of divorce order
A party may, before a divorce order nisi becomes
absolute, apply for the order to be rescinded by filing an Application in a
Case.
Note 1 Sections 57 and 58 of the Act set
out the circumstances in which the court may rescind a divorce order nisi.
Note 2 A party filing an Application in a
Case must file an affidavit (see rule 5.02).
3.13 Death
of party
If a party to an Application for Divorce dies after
the divorce order nisi is made but before the order becomes absolute, the
surviving party must inform the Registry Manager of the death of the other
party by filing:
(a) the death certificate of the deceased party;
or
(b) an affidavit stating the details of the
deceased party’s date and place of death.
Chapter 4 Application for Final Orders
Summary of
Chapter 4
Chapter 4 sets
out rules about:
· the general procedure
for starting a case by an Initiating Application (Family Law) seeking final
orders, for example, an Application for Property Settlement or Parenting
Orders; and
· the procedure for
starting specific applications such as an Application relying on cross‑vesting
laws, for a medical procedure, maintenance, child support or a declaration as
to validity of a marriage.
Before starting
a case, you must comply with the court’s pre‑action procedures (see
subrule 1.05 (1) and Schedule 1).
You may also
need to refer to other Chapters in these Rules when making an application, in
particular, Chapters 6, 7 and 24.
Note This
Chapter does not apply to:
(a) an
Application for Divorce (see Chapter 3);
(b) an
application for an interim, procedural or other incidental order about an
application seeking final orders whether made in an Initiating Application (Family
Law) or an Application in a Case (see Chapter 5);
(c) an
Application for Review of a Judicial Registrar’s or a Registrar’s Order (see
Chapter 18);
(d) an
Application to enforce an obligation to pay money (see Chapter 20);
(e) an
Application resulting from a contravention of an order or in relation to
contempt (see Chapter 21);
(f) an
Application relating to an appeal (see Chapter 22); or
(g) an
appeal (see Chapter 22).
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 4.1 Introduction
4.01 Contents
of Application for Final Orders
(1) In an Initiating Application (Family Law), the
applicant must:
(a) give full particulars of the orders sought;
and
(b) include all causes of action that can be
disposed of conveniently in the same case.
Note Under paragraph 1.08 (1) (a),
any orders sought must be reasonable in the circumstances of the case and
within the power of the court.
(2) A party seeking any of the following must not
include any other cause of action in the Application:
(a) an order that a marriage be annulled;
(b) a declaration as to the validity of a marriage,
divorce or annulment;
(c) an order authorising a medical procedure
under Division 4.2.3.
Note An application for an order
mentioned in subrule (2) may only be made in an Initiating Application (Family
Law) and must not be made in a Response to an Initiating Application (Family
Law) (see subrule 9.01 (4)).
(3) Despite subrule (2), a party may seek the following
orders in the same Application:
(a) an order that a marriage be annulled;
(b) a declaration as to the validity of a
marriage, divorce or annulment.
Note For amendment of an application, see
Division 11.2.2.
4.02 Filing
affidavits
A party must not file an affidavit with an Initiating
Application (Family Law) unless permitted or required to do so by this Chapter
or rule 2.02.
Example
A party only seeking final orders for property settlement
or parenting orders must not file an affidavit with an Initiating Application
(Family Law).
4.03 First
court date
On the filing of an Initiating Application (Family
Law), the Registry Manager must fix a date:
(a) in a parenting case — for a procedural
hearing that is as near as practicable to 28 days after the application was
filed;
(b) in a financial case — for a case
assessment conference that is as near as practicable to 28 days after the application
was filed;
(c) if the application includes both a financial
case and a parenting case — for a case assessment conference that is as
near as practicable to 28 days after the application was filed; or
(d) if an earlier date is fixed for the hearing of
that or another application so far as it concerns an interim, procedural or
other ancillary order in the case — for a procedural hearing on the same
day.
Note Under subrule 5.05 (4), a Registrar
may, in exceptional circumstances, allow an application for an interim, procedural, ancillary or other
incidental order to be listed for urgent hearing. Chapter 12 sets out
the requirements for case assessment conferences and procedural hearings.
Part 4.2 Specific
applications
Division 4.2.1 General
4.04 General provisions still apply
If a rule in this Part specifies particular
requirements for an application, those requirements are in addition to the
general requirements for an Initiating Application (Family Law).
4.05 Application by Attorney‑General for
transfer of case
If the Attorney‑General of the Commonwealth,
or of a State or Territory, applies for the transfer of a case under Division
4.2.2 (Cross‑vesting) or Chapter 25 (Corporations Act 2001), the
Attorney‑General does not, by that application, automatically become a
party to the case.
Division 4.2.2 Cross‑vesting
4.06 Cross‑vesting matters
(1) If a party filing an Initiating Application (Family
Law) or a Response to Initiating Application (Family Law) relies on a cross‑vesting
law, the party must specify, in the application or response, the particular
State or Territory law on which the party relies.
(2) A party relying on a cross‑vesting law after a
case has started must file an Application in a Case seeking procedural orders
in relation to the matter.
(3) A party to whom
subrule (1) or (2) applies must also file an affidavit stating:
(a) that the claim is based on the State or
Territory law and the reasons why the Family Court should deal with the claim;
(b) the rules of evidence and procedure (other
than those of the relevant Family Court) on which the party relies; and
(c) if the case involves a special federal
matter — the grounds for claiming the matter involves a special federal
matter.
4.07 Transfer
of case
A party to a case to which rule 4.06 applies may
apply to have the case transferred to another court by filing an Application in
a Case.
Note An application under this rule must
be listed for hearing by a Judge.
Division 4.2.3 Medical procedure
4.08 Application
for medical procedure
(1) Any of the following persons may make a Medical
Procedure Application in relation to a child:
(a) a parent of the child;
(b) a person who has a parenting order in
relation to the child;
(c) the child;
(d) the independent children’s lawyer;
(e) any other person concerned with the care,
welfare and development of the child.
(2) If a person mentioned in paragraph (1) (a) or
(b) is not an applicant, the person must be named as a respondent to the
application.
Note 1 Section 65C of the Act sets
out who may apply for a parenting order.
Note 2 Chapter 2 provides for the
form to be used to make an Initiating Application (Family Law) and the
documents to be filed with that application.
4.09 Evidence
supporting application
(1) If a Medical Procedure Application is filed,
evidence must be given to satisfy the court that the proposed medical procedure
is in the best interests of the child.
(2) The evidence must
include evidence from a medical, psychological or other relevant expert witness
that establishes the following:
(a) the exact nature and purpose of the proposed
medical procedure;
(b) the particular condition of the child for
which the procedure is required;
(c) the likely long‑term physical, social
and psychological effects on the child:
(i) if the procedure is carried out;
and
(ii) if the procedure is not carried
out;
(d) the nature and degree of any risk to the
child from the procedure;
(e) if alternative and less invasive treatment
is available — the reason the procedure is recommended instead of the
alternative treatments;
(f) that the procedure is necessary for the
welfare of the child;
(g) if the child is capable of making an informed
decision about the procedure — whether the child agrees to the procedure;
(h) if the child is incapable of making an
informed decision about the procedure — that the child:
(i) is currently incapable of making
an informed decision; and
(ii) is unlikely to develop
sufficiently to be able to make an informed decision within the time in which
the procedure should be carried out, or within the foreseeable future;
(i) whether the child’s parents or carer agree
to the procedure.
(3) The evidence may be given:
(a) in the form of an affidavit; or
(b) with the court’s permission, orally.
4.10 Service
of application
The persons on whom
a Medical Procedure Application and any document filed with it must be served
include the prescribed child welfare authority.
Note For service of an Initiating
Application (Family Law), see rules 7.03 and 7.04.
4.11 Fixing
of hearing date
(1) On the filing of a Medical Procedure Application,
the Registry Manager must fix a date for a hearing before a Judge of a Family
Court.
(2) The date fixed must be:
(a) as soon as possible after the date of
filing; and
(b) if practicable, within 14 days after the date
of filing.
Note Under subrule 9.08 (1), a
Response to an Initiating Application (Family
Law) must be filed at least 7 days before the date fixed for the hearing
of the application.
4.12 Procedure
on first court date
On the first court date for a Medical Procedure
Application, the court must:
(a) make procedural orders for the conduct of
the case and adjourn the case to a fixed date of hearing; or
(b) hear and determine the application.
Division 4.2.4 Spousal or
de facto maintenance
Note Applications should not be made under this Division
unless an associated matter is pending in the court or filing with the Federal
Magistrates Court is not available. Under section 33B of the Family Law Act
1975, the Family Court may transfer the proceeding to the Federal
Magistrates Court without notice to the parties.
4.14 Procedure
on first court date
(1) On the first court date for an Application for spousal
or de facto maintenance, the Registrar must, if practicable, conduct a case
assessment conference.
(2) If the case is not
resolved at the case assessment conference, the Registrar may make orders for
the conduct of the case, including the exchange of affidavits between the
parties and the listing of the case for hearing.
4.15 Evidence
to be provided
(1) On the first court date and the hearing date of an Application
for spousal or de facto maintenance, each party must bring to the court the
following documents:
(a) a copy of the party’s taxation returns for
the 3 most recent financial years;
(b) the party’s taxation assessments for the 3
most recent financial years;
(c) the party’s bank records for the period of 3
years ending on the date on which the application was filed;
(d) if the party receives wages or salary
payments — the party’s payslips for the past 12 months;
(e) if the party owns or controls a business,
either as sole trader, partnership or a company — the business activity
statements and the financial statements (including profit and loss statements
and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining
the income, needs and financial resources of the party.
Note 1 Documents that may need to be
produced under paragraph (f) include documents setting out the details
mentioned in rule 13.04.
Note 2 For modification of a spousal
maintenance order, see section 83 of the Act. For modification of a de facto
maintenance order, see section 90SI of the Act.
(2) Before the hearing date, a party must produce the documents
mentioned in subrule (1) for inspection, if the other party to the
proceedings makes a written request for their production.
(3) If a request is made under subrule (2), the
documents must be produced within 7 working days of the request being received.
Division 4.2.5 Child support and child maintenance
Overview of
proceedings to which this Division applies
Child support
Applications may be made under the following provisions of the Child
Support (Assessment) Act 1989:
· subsection 95 (6),
section 98 or 136 about a child support agreement that has been accepted by the
Registrar
· sections 106A and 107
about who is or who is not the parent of the child
· section 111 seeking a
departure from administrative assessment backdated over 18 months and up to 7
years
· section 118 for
departure from administrative assessment as follows:
· if the
Child Support Registrar has refused to determine the departure application
because the issues are too complex (sections 98E and 98R);
· if the
court has a discretion to determine the application because there is another
application pending before the court and the court is satisfied that special
circumstances exist to enable it to determine both applications (section 116);
· if there is
a minimum administrative assessment (paragraph 116 (1) (c))
· section 123 for lump
sum or non periodic payments of child support
· section 129 to vary a
prior order for lump sum or non periodic child support
· section 139 seeking
urgent maintenance after an application has been made for administrative
assessment of child support, but has yet to be determined
· section 143 for
recovery of child support paid when a person is not liable to pay child support
Note Applications should not be made under this Division
unless an associated matter is pending in the court or filing with the Federal
Magistrates Court is not available. Under section 33B of the Family Law Act
1975, the Family Court may transfer the proceeding to the Federal
Magistrates Court without notice to the parties.
Section 110B of
the Child Support (Registration and Collection) Act 1988 allows appeals
from the Social Security Appeals Tribunal on questions of law.
Applications may be made under the section 111C of the Child
Support (Registration and Collection) Act 1988 for an order staying
(suspending) the operation of the Act and the Child Support (Assessment) Act
1989, until the finalisation of court proceedings.
Child maintenance
Applications
may be made for child maintenance under Division 7 of Part VII of the
Family Law Act in relation to children to whom the child support scheme does
not apply. Applications may also be made under Parts III and IV of the
Family Law Regulations.
4.16 Application
of Division 4.2.5
This Division applies to:
(a) an application under the Assessment Act,
other than an application for leave to appeal from an order of a court
exercising jurisdiction under the Assessment Act;
(b) an appeal under the Registration Act, other
than an appeal from a court;
(ba) an application under section 111C of the
Registration Act;
(c) an application under
Division 7 of Part VII of the Family Law Act; and
(e) an application under Parts
III and IV of the Family Law Regulations.
Note 1 Chapter 2 provides for the
form to be used to make an Initiating Application (Family Law) and the
documents to be filed with that form.
Note 2 Chapter 22 sets out the
procedure for appealing from a decision of a court.
Note 3 The Assessment Act provides
that the parties to a child support application should be the liable parent and
the eligible carer. The Child Support Registrar does not need to be joined as a
party but, after being served with a copy of the application, may intervene in
the case.
4.17 Commencing proceedings
(1) An application under this Part must
be made in accordance with an Initiating
Application (Family Law).
(2) An appeal under this Part must be made in accordance with a
Notice of Appeal (Child Support).
4.18 Documents to be filed with applications
(1) A person must file with an application mentioned in
an item of Table 4.1, the documents mentioned in the item.
Table 4.1 Documents to file with
applications
|
Item
|
Application
|
Documents to be filed with application
|
|
1
|
All applications for child support
|
An affidavit setting out the facts relied on in support of
the application, attaching:
(a) a schedule setting out the section of the
Assessment Act or Registration Act under which the application is made;
(b) a copy of any decision, notice of decision or
assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision; and
(c) a copy of any document lodged by a party with the
Child Support Registrar, or received by a party from the Child Support
Registrar, relevant to the decision or assessment
|
|
2
|
Application under section 98,
111, 116, 123, 129, 136, 139 and 143 of the Assessment Act and 111C of the
Registration Act
|
An affidavit setting out the facts relied on in support of
the application, attaching:
(a) the
documents mentioned in this column in item 1;
(b) a completed Financial
Statement;
(c) a copy of any
relevant order or agreement
|
|
3
|
All applications for child
maintenance
|
A completed Financial Statement
|
Note The documents required to be filed
with an application under this rule are in addition to the documents required
to be filed under rule 2.02.
(2) For paragraph (c) of item 1 of Table 4.1, if the
applicant does not have a copy of a document lodged by the other party with the
Child Support Agency, the applicant may file the summary of the document
prepared by the Child Support Agency.
4.19 Child support agreements
A person who makes
an application in relation to a child support agreement must register a copy of
the agreement with the court by filing one of the following:
(a) an affidavit attaching the
original agreement;
(b) an affidavit attaching a
copy of the agreement and stating that the copy is a true copy of the original
agreement;
(c) an affidavit stating that
the original agreement has been lost and the steps taken to locate the
agreement, and attaching a copy of a document received from the Child Support
Registrar setting out the terms of the agreement as registered by the Child
Support Agency.
4.20 Time
limits for applications under Assessment Act
A person must file an application for
a declaration under subsection 106A (2) or 107 (1) of the Assessment Act
within 60 days after being served with a notice given under section 33 or 34 of that Act.
Note 1 A person may apply for an
extension of time to file after the time limit mentioned in this rule by filing
an Initiating Application (Family Law) or an
Application in a Case and an affidavit (see rules 1.14 and 5.01).
Note 2 For information about when a
document is taken to be served, see rule 7.17.
4.21 Appeals
on questions of law
(1) An appeal on a
question of law from the Social Security Appeals Tribunal may be made by filing
a Notice of Appeal (Child Support).
(2) A person must file
with a Notice of Appeal (Child Support) a copy of the Statement of Reasons of
the Social Security Appeals Tribunal.
4.22 Time
limit for appeals on questions of law
A party to a proceeding before the Social Security
Appeals Tribunal under Part VIIA of the Registration Act may file an appeal, on
a question of law, from any decision of the Social Security Appeals Tribunal in
that proceeding, within 28 days of the publication of the Statement of
Reasons.
4.23 Service
of application or notice of appeal
(1) The persons to be served with an application or
notice of appeal under this Part are:
(a) each respondent;
(b) a parent or eligible carer of the child in
relation to whom the application or appeal is made;
(c) the Child Support Registrar; and
(d) for appeals from the Social Security Appeals
Tribunal — the Executive Director of the Social Security Appeals Tribunal
and any other parties to the appeal.
(2) Except for an application
for an order staying a decision or an urgent order for child maintenance, an
application or notice of appeal must be served at least 28 days before the hearing
date.
(3) A person seeking to appeal a
decision of the Social Security Appeals Tribunal must serve a notice of the
appeal on the Executive Director of the Social Security Appeals Tribunal within
7 working days of the day of filing the appeal.
(4) Any documents on which the applicant or appellant intends
to rely must be served on the persons mentioned in subrule (1) at least 21 days
before the hearing date.
4.24 Service by Child Support Registrar
For rule 4.20, if the Child Support Registrar
serves a document on a person under the Assessment Act or Registration Act, the
document is taken to have been served on the person on the day specified in
rule 7.17.
4.25 Procedure on first court date
(1) On the first court date of a child maintenance
application or a child support application or appeal, the Registrar must, if
practicable, conduct a case assessment conference.
Note The Registry Manager fixes the first
court date (see rule 4.03).
(2) If the application or
appeal is not resolved on the first court date, the Registrar may make orders
for the future conduct of the case, including the exchange of affidavits
between the parties and the listing of the case for hearing.
4.26 Evidence to be provided
(1) This rule applies to a child support application under
section 98, 111, 116, 123, 129, 136, 139 or 143 of the Assessment Act or
section 111C of the Registration Act, or a child maintenance application.
(2) On the first court
date and the hearing date of the application, each party must bring to the court
the following documents:
(a) a copy of the party’s taxation returns for
the 3 most recent financial years;
(b) the party’s taxation assessments for the 3
most recent financial years;
(c) the party’s bank records for the period of 3
years ending on the date on which the application was filed;
(d) if the party receives wages or salary
payments — the party’s payslips for the past 12 months;
(e) if the party owns or controls a business,
either as sole trader, partnership or a company — the business activity
statements and the financial statements (including profit and loss statements
and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining
the income, needs and financial resources of the party.
Note 1 Documents that may need to be
produced under paragraph (f) include documents setting out the details
mentioned in rule 13.04.
Note 2 For variation of a
maintenance order, see subsection 66S (3) of the Act.
(3) Before the hearing date, a party must produce the
documents mentioned in subrule (2) for inspection, if the other party to
the proceedings makes a written request for their production.
(4) If a request is made under subrule (3), the
documents must be produced within 7 working days of the request being received.
Division 4.2.6 Nullity and validity of marriage and divorce
4.27 Application
of Division 4.2.6
This Division applies to the following
applications:
(a) an application for an order that a marriage
is a nullity;
(b) an application for a declaration as to the
validity of a marriage;
(c) an application for a declaration as to the
validity of a divorce or annulment of marriage.
Note Chapter 2 provides for the form to
be used to make an Initiating Application (Family Law) and the documents to be
filed with that application.
4.28 Fixing
hearing date
(1) On the filing of an application under this Division,
the Registry Manager must fix a date for the hearing of the application.
(2) The date fixed must be:
(a) if the respondent is in Australia — at
least 42 days after the application is filed; or
(b) if the respondent is outside Australia —
at least 56 days after the application is filed.
4.29 Affidavit
to be filed with application
An applicant must file with the application an
affidavit stating:
(a) the facts relied on;
(b) for an application for an order that a
marriage is a nullity or a declaration as to the validity of a marriage —
details of the type of marriage ceremony performed; and
(c) for an application for a declaration as to
the validity of a divorce or annulment of marriage:
(i) the date of the divorce or order
of nullity;
(ii) the name of the court that granted
the divorce or order of nullity; and
(iii) the grounds on which the divorce
or order of nullity was ordered.
Division 4.2.7 Applications relating to passports
4.30 Application
relating to passport
A party seeking only an order that relates to a
passport must file an Initiating Application (Family Law) and an affidavit
stating the facts relied on.
Note An application under this rule
includes an application under section 67ZD, 68B or 114 of the Act. See
also section 7A of the Passports Act 1938.
4.31 Fixing
hearing date
On the filing of an application referred to in rule
4.30, the Registry Manager must fix a date for hearing that is as soon as
practicable after the date when the application was filed.
Chapter 5 Applications for interim, procedural, ancillary or other
incidental orders
Summary of
Chapter 5
Chapter 5 sets
out the procedure for making an application for interim, procedural, ancillary,
or other incidental orders. You may also need to refer to other Chapters in
these Rules when making an Application, in particular, Chapters 2, 4, 7 and 24.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 5.1 General
5.01 Restrictions in relation to applications
(1) A party may apply for an interim, procedural,
ancillary or other incidental order in relation to a cause of action only if:
(a) the party has made an application for final
orders in that cause of action; and
(b) final orders have not been made on that
application.
Note A reference to application
includes a reference to cross‑application (see the dictionary).
(2) A party may apply for an interim, procedural,
ancillary or other incidental order only if the order sought relates to a
current case.
(3) Subrule (2) does not apply if the party is seeking:
(a) permission to start a case or extend a time
limit to start a case;
(b) to start a
case for a child or a person with a disability under rule 6.10; or
(c) an order for costs.
(4) This rule does not apply to restrict the filing of
an Application in a Case by:
(a) an independent children’s lawyer;
(b) the Director of Public Prosecutions, when
making an application under section 79C, 79D, 90N, 90P, 90VB or 90VC of the
Act, to stay or lift a stay of a property settlement or spousal or de facto
maintenance case;
(c) a bankruptcy trustee; or
(d) a trustee of a personal insolvency agreement.
(5) If a party applies for an interim, procedural,
ancillary or other order at the start of a case, the application must be in an
Initiating Application (Family Law).
(6) If a party applies for an interim, procedural,
ancillary or other order after a case has commenced, the application must be in
an Application in a Case.
Note 1 An Application in a Case is used to make:
(a) an Application for review of a Judicial Registrar’s or
Registrar’s order (see Chapter 18); and
(b) an Application to enforce an obligation to pay money or
to enforce a parenting order (see Chapter 20 and rule 21.01).
Note 2 A party may ask for a
procedural order orally (see paragraph (h) of item 3 of Table 11.1).
5.01A Filing
of applications seeking parenting orders during the Christmas school holiday
period
(1) This rule applies to an application for a parenting
order relating in whole or part to the school holiday period beginning in
December in a year (the application year) and extending to
January in the following year.
(2) The application must
be filed before 4.00 pm on the second Friday in November of the application
year.
Note Except in cases of urgency (where the usual
criteria for an urgent hearing will apply), an application filed after the
deadline under subrule (2) will be allocated the next available date in the
usual way. That date may be after Christmas. In other words, if the deadline
has passed, the fact that an application relates to the school holiday period
will not of itself justify a listing before Christmas. In urgent cases,
applications to abridge times and to list a matter on short notice can be made
to the Registry.
5.02 Evidence in applications to which Chapter 5 applies
(1) A party who applies for an interim,
procedural, ancillary or other incidental order in an Initiating Application
(Family Law), or who files an Application in a Case, must at the same time file
an affidavit stating the facts relied on in support of the orders sought.
(2) Subrule (1) does not apply to an Application in a
Case in which a review of the order of a Judicial Registrar or Registrar is
sought.
Note Some rules require that the affidavit
filed with the Application address specific factors
(see, for example, rule 5.12).
5.03 Procedure before filing
(1) Before filing an application seeking interim,
procedural, ancillary or other incidental orders, a party must make a
reasonable and genuine attempt to settle the issue to which the application
relates.
(2) An applicant does not
have to comply with subrule (1) if:
(a) compliance will cause undue delay or
expense;
(b) the applicant would be unduly prejudiced;
(c) the application is urgent; or
(d) there are
circumstances in which an application is necessary (for example, if there is an
allegation of child abuse, family violence or fraud).
Note The court may take into account a
party’s failure to comply with subrule (1) when considering any order for
costs (see subsections 117 (2) and (2A) of the Act).
5.05 Fixing
a date for hearing or case assessment conference
(1) On the filing of an Application in a Case, or an
Initiating Application (Family Law) in which application is made for interim,
procedural, ancillary or other orders, the Registry Manager must fix a
date for a hearing, procedural hearing or case assessment conference on a date
that is as near as practicable to 28 days after the application was filed.
(2) An application in which the only orders sought are
procedural orders must be listed for a hearing on the first court date.
(3) If an Application in
a Case is filed after another related application, the Application in a Case
may be listed for the same first court date as the related application if a
Registrar considers it to be reasonable in the circumstances.
Note If an Initiating Application (Family
Law) seeks interim, procedural, ancillary or other incidental orders, and an
earlier date is fixed for the hearing of the application under subrule 5.05 (4),
the Application to the extent that it concerns final orders must be dealt with
on the same court date (see subrule 4.03).
(4) The Registry Manager may fix an earlier date for the
hearing of an Application in a Case, or an Initiating Application (Family Law)
in which application is made for interim, procedural, ancillary or other
incidental orders, if a Registrar is satisfied that:
(a) the reason for the urgency is significant
and credible; and
(b) there is a
harm that will be avoided, remedied or mitigated by hearing the application
earlier.
Note The court may order costs against a
party who has unreasonably had a matter listed for urgent hearing.
(5) If a date for a hearing is fixed, the application
must, as far as practicable, be heard by the court on that day.
5.06 Attendance
by electronic communication
(1) A party may request permission to do any of the
following things by electronic communication at a hearing:
(a) attend;
(b) make a submission;
(c) give evidence;
(d) adduce evidence from a witness.
(2) Before making a request, the party must ask any
other party whether the other party agrees, or objects, to the use of
electronic communication for the purpose proposed by the party.
(3) A request must:
(a) be in writing;
(b) be made at least 7 days before the date fixed
for the hearing;
(c) set out the information required under
subrule 16.08 (3);
(d) set out details of the notice in relation to
the request that has been given to any other party;
(e) state whether any other party agrees or
objects to the request; and
(f) state the expense to be incurred by using
the electronic communication.
(4) A request may be considered in chambers, on the
documents.
(5) The court may take the following matters into account
when considering a request:
(a) the distance between the party’s residence
and the place where the court is to sit;
(b) any difficulty the party has in attending
because of illness or disability;
(c) the expense associated with attending;
(d) the expense to be incurred, or the savings to
be made, by using the electronic communication;
(e) any concerns about security, including
family violence and intimidation;
(f) whether any other party objects to the
request.
(6) If the court grants the request, the court may:
(a) order a party to pay the expense of using
the electronic communication; or
(b) apportion the expense between the parties.
(7) If a request is granted, the party who made the
request must immediately give written notice to the other parties.
5.07 Attendance
of party or witness in prison
(1) A party who is in prison must attend at a hearing by
electronic communication.
(2) A party who intends to adduce evidence from a
witness in prison must:
(a) arrange for the witness to attend and give
evidence at the hearing by electronic communication; and
(b) advise the court and the other parties about
that arrangement at least 2 days before the date fixed for the hearing.
(3) A party may seek permission from the court for a
party or witness who is in prison to attend the hearing in person.
Example
A party may apply for an order under subrule (3) if a
prison or court has no facilities for the hearing to proceed by electronic
communication.
(4) A request under subrule (3) must:
(a) be in writing;
(b) be made at least 7 days before the date fixed
for the hearing;
(c) set out the reasons why permission should be
granted; and
(d) inform the court whether the other party
objects to the request.
(5) Subrules 5.06 (4) and (7) apply to a request
under this rule.
Part 5.2 Hearing —
interim and procedural applications
5.08 Interim
orders — matters to be considered
When considering whether to make an interim order,
the court may take into account:
(a) in a parenting case — the best interests
of the child (see section 60CC of the Act);
(b) whether there are reasonable grounds for
making the order;
(c) whether, for reasons of hardship, family
violence, prejudice to the parties or the children, the order is necessary;
(d) the main purpose of these Rules (see rule
1.04); and
(e) whether the parties would benefit from
participating in one of the dispute resolution methods.
5.09 Affidavits
The following affidavits may be relied on as
evidence in chief at the hearing of an interim or procedural application:
(a) subject to rule 9.07, one affidavit by each
party;
(b) one affidavit by each witness, provided the
evidence is relevant and cannot be given by a party.
5.10 Hearing
time of interim or procedural application
(1) The hearing of an interim or procedural application
must be no longer than 2 hours.
(2) Cross‑examination will be allowed at a hearing
only in exceptional circumstances.
5.11 Party’s
failure to attend
(1) If a party does not attend when a hearing starts,
the other
party may seek the orders sought in that party’s application, including (if
necessary) adducing evidence to establish an entitlement to the orders sought
against the party not attending.
(2) If no party attends the hearing, the court may
dismiss the application and response, if any.
Note A reference to application
includes a reference to cross‑application (see the
dictionary).
Part 5.3 Application
without notice
5.12 Application
without notice
An applicant seeking that an interim order or
procedural order be made without notice to the respondent must:
(a) satisfy the court about why:
(i) shortening the time for service of
the application and the fixing of an early date for hearing after service would
not be more appropriate; and
(ii) an order should be made without
notice to the other party; and
(b) in an affidavit or orally, with the court’s
permission, make full and frank disclosure of all the facts relevant to the
application, including:
(i) whether there is a history or
allegation of child abuse or family violence between the parties;
(ii) whether there has been a previous
case between the parties and, if so, the nature of the case;
(iii) the particulars of any orders
currently in force between the parties;
(iv) whether there has been a breach of
a previous order by either party to the case;
(v) whether the respondent or the
respondent’s lawyer has been told of the intention to make the application;
(vi) whether there is likely to be any
hardship, danger or prejudice to the respondent, a child or a third party if
the order is made;
(vii) the capacity of the applicant to
give an undertaking as to damages;
(viii) the nature of the damage or harm
that may result if the order is not made;
(ix) why
the order must be urgently made; and
(x) the
last known address or address for service of the other party.
Note The applicant must file any existing
family violence order when filing the application (see rule 2.05).
5.13 Necessary
procedural orders
If the court makes
an order on application without notice, the order must be expressed to operate:
(a) until a time specified in the order; or
(b) if the hearing of the application is
adjourned — until the date of the hearing.
Part 5.4 Hearing
on papers in absence of parties
5.14 Request
for hearing in absence of parties
A party applying for an interim order, enforcement
order or procedural order may, in the application, ask the court to determine
the application in the absence of the parties.
Note This Part also applies to an
Application in an Appeal (see rule 22.45).
5.15 Objection
to hearing in absence of parties
If a respondent objects to an application being
determined by the court in the absence of the parties:
(a) the respondent must notify the court and the
other party, in writing, of the objection at least 7 days before the date fixed
for the hearing; and
(b) the parties must attend on the first court
date for the application.
Note A notice under this rule must comply
with rule 24.01.
5.16 Court
decision to not proceed in absence of parties
Despite parties consenting to a hearing being held
in their absence, the court may postpone or adjourn the application and direct
the Registry Manager:
(a) to fix a new date for hearing the
application; and
(b) to notify the parties that they are required
to attend court for the hearing.
5.17 Procedure
in hearing in absence of parties
(1) If the application is to be determined in the
absence of the parties, each party must file, at least 2 days before the date
fixed for hearing the application:
(a) a list of documents to be read by the court;
and
(b) a supporting submission.
(2) A supporting
submission must:
(a) state
the reasons why the orders sought by that party should be made;
(b) refer to
any material in a document filed with the application by the page number of the
document, and should not repeat the text of that material;
(c) not be
more than 5 pages;
(d) have all
paragraphs consecutively numbered;
(e) be
signed by the party or the lawyer who prepared the submission; and
(f) include
the signatory’s name, telephone number, facsimile number (if any) and e‑mail
address (if any) at which the signatory can be contacted.
Part 5.5 Postponement
of interim hearing
5.18 Administrative
postponement of interim hearing
(1) If the parties agree that the hearing of an interim
application should not proceed on the date fixed for the hearing, the parties
may request the Registry Manager to postpone it.
(2) A request must:
(a) be in writing;
(b) specify why it is appropriate to postpone the
hearing;
(c) specify the date to which the hearing is
sought to be postponed;
(d) be signed by each party or the party’s
lawyer; and
(e) be received by the Registry Manager no
later than 12 noon on the day before the date fixed for the hearing.
(3) If a request is made, the Registry Manager must
tell the parties:
(a) that the event has been postponed; and
(b) the date to which it has been postponed.
Chapter 6 Parties
Summary of
Chapter 6
Chapter 6 sets
out who are the necessary parties to a case and how a person becomes, or ceases
to be, a party or a case guardian.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 6.1 General
6.01 Parties
A party includes the following:
(a) an applicant in a case;
(b) an appellant in an appeal;
(c) a respondent to an application or appeal;
(d) an intervener in a case.
Note An independent children’s lawyer is
not a party to a case but must be treated as a party (see rule 8.02).
6.02 Necessary
parties
(1) A person whose rights may be directly affected by an
issue in a case, and whose participation as a party is necessary for the court
to determine all issues in dispute in the case, must be included as a party to
the case.
Example
If a party seeks an order
of a kind mentioned in section 90AE or 90AF of the Act, a third party who will
be bound by the order must be joined as a respondent to the case.
(2) If an application is made for a parenting order, the
following must be parties to the case:
(a) the parents of the child;
(b) any other person in whose favour a parenting
order is currently in force in relation to the child;
(c) any other person with whom the child lives
and who is responsible for the care, welfare and development of the child;
(d) if a State child order is currently in place
in relation to the child — the prescribed child welfare authority.
(3) If a person mentioned in subrule (2) is not an
applicant in a case involving the child, that person must be joined as a
respondent to the application.
Note The court may dispense with
compliance with a rule (see rule 1.12).
Part 6.2 Adding and removing a party
6.03 Adding a party
(1) A party may include another party as a respondent by
naming the party in the application.
(2) A party may add another party after a case has
started by amending the application or response to add the name of the party.
(3) A party who relies on subrule (1) or (2) must:
(a) file an affidavit setting out the facts
relied on to support the application, including a statement of the new party’s
relationship (if any) to the other parties; and
(b) serve on the new party:
(i) a copy of the application, amended
application, response or amended response; and
(ii) the affidavit mentioned in
paragraph (a); and
(iii) any other relevant document filed
in the case.
Note 1 For amendment of an
application, see Division 11.2.2.
Note 2 If a Form is amended after
the first court date, the Registry Manager will set a date for a further
procedural hearing (see subrule 11.10 (3)).
6.04 Removing a party
A party may apply to
be removed as a party to a case.
Note Rule 5.01 sets out the procedure for
making an Application in a Case.
6.05 Intervention by a person seeking to become
a party
If a person who is
not a party to a case (other than a person to whom rule 6.06 applies) seeks to
intervene in the case to become a party, the person must file:
(a) an Application in a Case; and
(b) an affidavit:
(i) setting out the facts relied on to
support the application, including a statement of the person’s relationship (if
any) to the parties; and
(ii) attaching a schedule setting out
any orders that
the person seeks if the court grants permission to intervene.
Note Part IX of the Act deals with
intervention in a case. Once a person has, by order or under rule 6.06,
intervened in a case, the person becomes a party with all the rights and
obligations of a party (see subsections 91 (2) and 91A (4), paragraph
91B (2) (b) and subsections 92 (3) and 92A (3) of the Act).
6.06 Intervention by a person entitled to
intervene
(1) This rule applies if the Attorney‑General, or
any other person who is entitled under the Act to do so without the court’s
permission, intervenes in a case.
(2) The person
intervening must file:
(a) a Notice of Intervention by Person Entitled
to Intervene; and
(b) an affidavit:
(i) stating the facts relied on in
support of the intervention; and
(ii) attaching a schedule setting out
the orders sought.
Note The following are examples of when a
person is entitled under the Act to intervene in a case without the court’s
permission:
(a) subsection 79 (10) authorises a creditor of a
party to a case who may not be able to recover his or her debt if an order is
made under section 79, and a person whose interests would be affected by an
order under section 79, to become a party to the case;
(aa) subsection 90SM (10) authorises a creditor of a
party to a case who would not be able to recover a debt if an order is made
under section 90SM of the Act, a party to a de facto relationship or
marriage with a party to a case, a party to certain financial agreements and a
person whose interests would be affected by the making of an order to become
parties to the case;
(b) section 91 of the Act and section 78A of the Judiciary
Act 1903 authorise the Attorney‑General to intervene in a case;
(c) section 92A of the Act authorises the people mentioned
in subsection 92A (2) to intervene in a case without the court’s
permission;
(d) section 145 of the Assessment Act authorises the
Child Support Registrar to intervene in a case.
(3) On the filing of a Notice of Intervention by Person
Entitled to Intervene, the Registry Manager must fix a date for a procedural
hearing.
(4) The person intervening must give each other party
written notice of the procedural hearing.
6.07 Notice
of constitutional matter
(1) If a party is, or becomes, aware that a case
involves a matter that:
(a) arises under the Constitution or involves
its interpretation, within the meaning of section 78B of the Judiciary Act
1903; and
(b) is a genuine issue in the case;
the party must give written notice of the matter to the Attorneys‑General
of the Commonwealth, and each State and Territory, and to each other party to
the case.
(2) The notice must state:
(a) the nature of the matter;
(b) the issues in the case;
(c) the constitutional issue to be raised; and
(d) the facts relied on to show that section 78B
of the Judiciary Act 1903 applies.
Note Section 78B of the Judiciary Act
1903 provides that once a court becomes aware that a case involves a matter
referred to in that section, it is the court’s duty not to proceed to determine
the case unless and until it is satisfied that notice of the case has been
given to the Attorneys‑General of the Commonwealth and of the States and
Territories.
Part 6.3 Case
guardian
6.08A Interpretation
In this Part:
a manager of the affairs of a party includes a
person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law.
6.08 Conducting
a case by case guardian
(1) A child or a person with a disability may start,
continue, respond to, or seek to intervene in, a case only by a case guardian.
(2) Subrule (1) does not apply if the court is satisfied
that a child understands the nature and possible consequences of the case and
is capable of conducting the case.
Note 1 For service on a person with
a disability, see rule 7.09.
Note 2 If a case is started by a
child or person with a disability without a case guardian, the court may
appoint a case guardian to continue the case.
6.09 Who
may be a case guardian
A person may be a case guardian if the person:
(a) is an adult;
(b) has no interest in the case that is adverse
to the interest of the person needing the case guardian;
(c) can fairly and competently conduct the case
for the person needing the case guardian; and
(d) has consented to act as the case guardian.
6.10 Appointment,
replacement or removal of case guardian
(1) A person may apply for the appointment, replacement
or removal of a person as the case guardian of a party.
Note 1 Chapter 5 sets out the procedure
for making an Application in a Case.
Note 2 An application in relation to a
case guardian may be made by a party or a person seeking to be made the case
guardian or by a person authorised to be a case guardian.
(2) A person who is a manager of the affairs of a party
is taken to be appointed as the case guardian of the party if the person has
filed:
(a) a notice of address for service; and
(b) an affidavit which:
(i) provides evidence that the person
has been appointed manager of the affairs of the party; and
(ii) states that the person consents to
being appointed as the case guardian of the party.
6.11 Attorney‑General
may nominate case guardian
(1) If in the opinion of the court a suitable person is
not available for appointment as a case guardian of a person with a disability,
the court may request that the Attorney‑General nominate, in writing, a
person to be a case guardian.
(2) A person nominated by the Attorney‑General to
be a case guardian of a person with a disability is taken to be appointed as
such if the person files:
(a) a consent to act in relation to the person
with a disability;
(b) a copy of the written nomination of the
person as a case guardian; and
(c) a Notice of Address for Service.
Note A consent to act must comply with
subrule 24.01 (1).
6.12 Notice
of becoming case guardian
A person appointed as a case guardian of a party
must give written notice of the appointment to each other party and any independent
children’s lawyer in the case.
Note The case guardian may also need to
file a Notice of Address for Service (see rules 8.05 and 8.06).
6.13 Conduct
of case by case guardian
(1) A person appointed as the case guardian of a party:
(a) is bound by these Rules;
(b) must do anything required by these Rules to
be done by the party;
(c) may, for the benefit of the party, do
anything permitted by these Rules to be done by the party; and
(d) if seeking a consent order (other than an
order relating to practice or procedure), must file an affidavit setting out
the facts relied on to satisfy the court that the order is in the party’s best
interests.
(2) The duty of disclosure applies to a case guardian
for a child and a person with a disability.
Note 1 The court may order a case
guardian to pay costs.
Note 2 Rule 13.01 sets out the elements
of the duty of disclosure.
6.14 Costs
of case guardian
The court may order the costs of a case guardian
to be paid:
(a) by a party; or
(b) from the income or property of the person for
whom the case guardian is appointed.
Part 6.4 Progress of case after death
6.15 Death of party
(1) This rule applies to a property case or an
application for the enforcement of a financial obligation.
(2) If a party dies, the other party or the legal
personal representative must ask the court for procedural orders in relation to
the future conduct of the case.
(3) The court may order
that the legal personal representative of the deceased person be substituted
for the deceased person as a party.
Note 1 The court may make other
procedural orders, including that a person has permission to intervene in the
case (see rules 1.12 and 6.05).
Note 2 For the effect of the death
of a party in certain cases, see subsections 79 (1A), 79 (8), 79A (1C),
90SM (2), 90SM (8), 90SN (5), 90UM (8) and 105 (3) of
the Act.
Part 6.5 Progress of a case after bankruptcy or personal insolvency
agreement
6.16 Interpretation
In this Part:
bankruptcy proceedings means proceedings
under the Bankruptcy Act, in the Federal Court or the Federal Magistrates
Court, in relation to:
(a) the bankruptcy of a relevant party; or
(b) a relevant party’s capacity as a debtor
subject to a personal insolvency agreement.
relevant case means any of the following:
(a) a pending case under section 66G, 66S, 74,
78, 79, 79A, 83, 90SE, 90SL, 90SM or 90SN of the Act;
(b) a pending case under Division 4 or 5 of Part
7 of the Assessment Act;
(c) a pending case for enforcement of an order
made under a provision mentioned in paragraph (a) or (b).
relevant party means a person who is:
(a) a party to a marriage or de facto relationship;
and
(b) a party to a relevant case in relation to
that marriage or de facto relationship.
Note The following terms are defined in
the Act:
· bankruptcy
trustee (subsection 4 (1))
· debtor subject
to a personal insolvency agreement (section 5)
· trustee, in
relation to a personal insolvency agreement (subsection 4 (1)).
6.17 Notice
of bankruptcy or personal insolvency agreement
(1) If a relevant party is also a bankrupt or a debtor
subject to a personal insolvency agreement, that party must notify:
(a) all other parties to the relevant case, in
writing, about the bankruptcy or personal insolvency agreement;
(b) the bankruptcy trustee or the trustee of the
personal insolvency agreement, as the case may be, about the relevant case in
accordance with rule 6.18; and
(c) the court in which the relevant case is
pending, in accordance with rule 6.19.
(2) A party may apply for procedural orders for the
future conduct of the case.
6.18 Notice
under paragraph 6.17 (1) (b)
For paragraph 6.17 (1) (b), notice to a
bankruptcy trustee or a trustee of a personal insolvency agreement must:
(a) be in writing;
(b) be given within 7 days, or as soon as
practicable, after the date on which the party becomes both:
(i) a relevant party; and
(ii) a bankrupt or debtor;
(c) attach a copy of the application starting
the relevant case, response (if any), and any other relevant documents; and
(d) state the date and place of the next court
event in the relevant case.
6.19 Notice
under paragraph 6.17 (1) (c)
For paragraph 6.17 (1) (c), notice to the
court must:
(a) be in writing;
(b) be given within 7 days, or as soon as
practicable, after the date on which the party becomes both:
(i) a relevant party; and
(ii) a bankrupt or debtor; and
(c) attach a copy of the notices given in
accordance with paragraphs 6.17 (1) (a) and (b).
6.20 Notice
of bankruptcy proceedings
(1) If a relevant party is a party to bankruptcy
proceedings the party must give notice of the bankruptcy proceedings, in
accordance with subrule (2), to:
(a) the court in which the relevant case is
pending; and
(b) the other party (or parties) to the case.
(2) The notice must:
(a) be in writing;
(b) be given within 7 days, or as soon as
practicable, after the date on which the party becomes a party to bankruptcy
proceedings; and
(c) state the date and place of the next court
event in the bankruptcy proceedings.
6.21 Notice
of application under section 139A of the Bankruptcy Act
(1) If the bankruptcy trustee of a bankrupt party to a
marriage or de facto relationship has applied under section 139A of the
Bankruptcy Act for an order under Division 4A of Part VI of that Act, and the
trustee knows that a relevant case in relation to the bankrupt party is pending
in a court exercising jurisdiction under the Act, the trustee must notify:
(a) the court exercising jurisdiction under the
Act in the relevant case, in accordance with subrule (2); and
(b) if the bankruptcy trustee’s application
relates to an entity other than the other party to the marriage or de facto
relationship — the other party to the marriage or de facto relationship,
in accordance with subrule (3).
(2) For paragraph (1) (a), notice to the court
must:
(a) be in writing;
(b) be given within 7 days, or as soon as
practicable, after the bankruptcy trustee makes the application under section 139A
of the Bankruptcy Act; and
(c) state the date and place of the next court
event in the proceedings under section 139A of the Bankruptcy Act.
(3) For paragraph (1) (b), notice to the other party
to the marriage or de facto relationship must:
(a) be in writing;
(b) be given within 7 days, or as soon as
practicable, after the bankruptcy trustee makes the application under section 139A
of the Bankruptcy Act;
(c) attach a copy of the application, other
initiating process and any other relevant documents in the application under
section 139A of the Bankruptcy Act; and
(d) state the date and place of the next court
event in the proceedings under section 139A of the Bankruptcy Act.
6.22 Official
name of trustee
(1) If a bankruptcy trustee or a trustee of a personal
insolvency agreement is added as a party to a relevant case, the trustee must
be added using the prescribed official name of the trustee.
(2) In subrule (1):
prescribed official name of the trustee has
the meaning given by:
(a) for a bankruptcy trustee — subsection
161 (2) of the Bankruptcy Act; and
(b) for a trustee of a personal insolvency
agreement — subsection 219 (2) of the Bankruptcy Act.
Chapter 7 Service
Summary of
Chapter 7
Chapter 7 sets
out the rules for serving documents and proving service. The rules in this
chapter apply only to the service of documents in Australia and non‑convention
countries. The Regulations deal with service in countries that are party to
certain conventions. If there is an inconsistency between the Regulations and
these Rules, the Regulations prevail (see subsection 125 (3) of the
Act).
When a court
determines a case, the judicial officer must be satisfied that all the
documents filed that are to be relied on in the case have been served or
otherwise brought to the attention of the other parties to the case.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 7.1 General
7.01A Application
This Chapter does not apply to service of a
document in a foreign country that is a party to a convention to which
Australia is also a party regarding legal proceedings in civil and commercial
matters.
Note Regulation 12 of the Regulations
deals with service of documents in convention countries.
7.01 Service
Service of a document may be carried out by special
service (see Part 7.2) or ordinary service (see Part 7.3) unless otherwise
required by a legislative provision.
Note Certain applications must have other
documents served with them. For example, an Initiating Application (Family Law),
when served, must be accompanied by the brochure
mentioned in rule 2.03; when a subpoena is served, the witness must
be paid conduct money.
7.02 Court’s
discretion regarding service
(1) A court may find that a document has been served or
that it has been served on a particular date, even though these Rules or an
order have not been complied with in relation to service.
Note Rule 7.17 also sets out when a
document is taken to have been served.
(2) The court may order a party, or a person applying to
intervene in a case under rule 6.05, to serve a document or give written notice
of a matter or case to a person specified in the order.
7.03 Service of documents
A person must serve a document in the manner set
out in Table 7.1.
Table 7.1 Service of documents
|
Item
|
Document
|
Form of service
|
|
1
|
Initiating Application (Family Law)
|
Special service
|
|
3
|
Application in a Case fixing an enforcement hearing
|
Special service
|
|
4
|
Application for Divorce
|
Special service
|
|
5
|
Subpoena
|
Special service by hand
|
|
6
|
Application — Contravention
|
Special service by hand
|
|
7
|
Application — Contempt
|
Special service by hand
|
|
8
|
Document mentioned in item 3, 4, 5 or 6 of Table 2.2 in
rule 2.02 that must be filed with a Form mentioned in this Table
|
The form of service set out in this Table for that Form
|
|
9
|
Brochure required by these Rules to be served with a Form
mentioned in this Table (see rules 2.03 and 4.13 and subrules 15.28 (1) and
20.11 (3))
|
The form of service set out in this Table for that Form
|
|
10
|
Order made on application without notice (see rule 5.12)
|
Special service
|
|
12
|
Document that is not required to be served by special
service. For example:
· an
Application in a Case (other than an Application in a Case mentioned in item
3) and any document filed with it
· a document
filed after a case is started
· a notice
required to be given under these Rules
|
Ordinary service
|
7.04 Service
of filed documents
(1) A document that is filed must be served on each
person to be served:
(a) as soon as possible after the date of filing
and within 12 months after that date; or
(b) if a provision elsewhere in these Rules
specifies a time for service — within the specified time.
Note If a document is not served within
the time required, service after that time is ineffective unless the court
otherwise orders (see rules 1.12, 7.02 and 11.02).
(1A) A person who serves a document filed by electronic
communication must:
(a) if the Registry Manager has sent the person
who filed the document a communication recording the date of filing —ensure
that a copy of the communication is served; or
(b) in any other case — write on the front
of the served copy of the document the date of filing.
(2) Despite subrule (1) and rule 7.03, the
following documents do not have to be served on any other party:
(a) a joint application;
(b) an application without notice;
(c) an Affidavit of Service;
(d) a document signed by all parties;
(e) an affidavit seeking the issue, without
notice, of an Enforcement Warrant under rule 20.16 or a Third Party Debt Notice
under rule 20.32.
Note A draft consent order signed by all
parties does not have to be served on the other parties to the application.
However, if an order is sought affecting a superannuation interest, it must be
served on the trustee of the superannuation fund in which that interest is held
(see rule 10.16).
(3) If a document or notice is served on or given to a
party under these Rules, a copy of the document or notice must also be served
on or given to any independent children’s lawyer.
(4) For subrule (1):
each person to be
served, for a case, includes:
(a) all parties to the case;
(b) any independent children’s lawyer; and
(c) any other person specifically required by a
legislative provision or order to be served in the case.
Part 7.2 Special
service
Note Special
service of a document may be performed by delivering the document:
· to the person to be
served by hand (see rule 7.06) or by post or electronic communication (see rule
7.07); or
· if a lawyer
representing the person undertakes, in writing, to accept service of the
document, by delivering it to the person’s lawyer (see rule 7.08).
7.05 Special service
A document that must be served by special service
must be personally received by the person served.
Note For proof of service, see Part 7.4.
7.06 Special service by hand
(1) A document to be served by hand must be given to the
person to be served (the receiver).
(2) If the receiver
refuses to take the document, service occurs if the person serving the
document:
(a) places it down in the presence of the
receiver; and
(b) tells the receiver what it is.
(3) A party must not serve another party by hand but may
be present when service by hand occurs.
7.07 Special service by post or electronic
communication
(1) A document may be served on a person in Australia by
sending a copy of it to the person’s last known address by post.
(2) A document may be served on a person in Australia by
sending it to the person by electronic communication.
(3) A person serving a document by post or electronic
communication must include with the document:
(a) an Acknowledgement of Service for the person
served to sign; and
(b) for service by post within Australia — a
stamped self‑addressed envelope.
Note Subrule 24.07 (3) does not
apply to an Acknowledgement of Service. If an applicant wants to prove service
by electronic communication (other than by facsimile), the applicant must still
produce a signed Acknowledgement of Service. This means that the person served
will need to print out and sign a hard copy of the Acknowledgement of Service and
arrange for the signed copy to be returned to the applicant in a form in which
the applicant is able to identify the signature on the signed copy as that of
the person served (see note to rule 7.14).
7.08 Special
service through a lawyer
A document is taken to be served by special
service on a person if:
(a) a lawyer representing the person agrees, in
writing, to accept service of the document for the person; and
(b) the document is served on the lawyer in
accordance with rule 7.06 or 7.07.
7.09 Special
service on person with a disability
(1) A document that is required to be served by special
service on a person with a disability, must be served:
(a) on the person’s case guardian;
(b) on the person’s guardian appointed under a
State or Territory law; or
(c) if there is no one under paragraph (a) or
(b) — on an adult who has the care of the person.
(2) For paragraph (1) (c), the person in
charge of a hospital, nursing home or other care facility is taken to have the
care of a person who is a patient in the hospital, nursing home or facility.
Note If a person with a disability wants
to start, continue or respond to, or seek to intervene in, a case, the person
may do so through a case guardian (see rule 6.08).
7.10 Special
service on a prisoner
(1) A document that is required to be served by special
service on a prisoner must be served by special service on the person in charge
of the prison.
(2) At the time of service of an Application, Subpoena
or Notice of Appeal on a prisoner, the prisoner must be informed, in writing,
about the requirement to attend by electronic communication under rule 5.07,
subrule 12.12 (4) or rule 22.40 (whichever is applicable).
7.11 Special service on a corporation
A document that is required to be served by special
service on a corporation must be served in accordance with section 109X of
the Corporations Act 2001.
Note A subpoena must be served on the
proper officer or other person entitled to accept service of a subpoena for a
corporation (see subrule 15.17 (4)).
Part 7.3 Ordinary
service
7.12 Ordinary
service
If special service of a document is not required,
the document may be served on a person:
(a) by any method of special service;
(b) if the person has given an address for
service:
(i) by delivering it to the address in
a sealed envelope addressed to the person;
(ii) by sending it to the address by
post in a sealed envelope addressed to the person; or
(iii) by sending it to the facsimile or
e‑mail address stated in the address for service by electronic
communication addressed to the person (see rule 7.16);
(c) if the person has not given an address for
service:
(i) by handing it to the person;
(ii) by delivering it to the person’s
last known address or place of business in a sealed envelope addressed to the
person; or
(iii) by sending it by post in a sealed
envelope addressed to the person at the person’s last known address or place of
business;
(d) if a lawyer representing the person agrees,
in writing, to accept service of the document, by sending it to the lawyer; or
(e) if the person’s address for service
includes the number of a lawyer’s document exchange box, by delivering it in a
sealed envelope, addressed to the lawyer at that box address, to:
(i) that box; or
(ii) a box provided at another branch
of the document exchange for delivery of documents to the box address.
Part 7.4 Proof of
service
7.13 Proof
of service
(1) Service of an application is proved:
(a) by filing an Affidavit of Service;
(b) by the respondent filing a Notice of Address
for Service or a Response; or
(c) if service was carried out by giving the
document to a lawyer — by filing an Acknowledgement of Service that has
been signed by the lawyer.
(2) Service of any other document is proved by filing an
Affidavit of Service.
7.14 Proof of special service
(1) This rule applies if a document is required to be
served by special service and the applicant seeks to prove service by way of
affidavit.
(2) If service was by
post or electronic communication, service is proved by:
(a) attaching to an Affidavit of Service, an
Acknowledgement of Service signed by the respondent; and
(b) evidence identifying the signature on the
Acknowledgement of Service as the respondent’s signature.
Note If a person serving a document seeks
to prove service under this
rule, an Acknowledgment of Service must be signed by the person
served with the document. However, if the Affidavit of Service with the Acknowledgement
of Service is filed by electronic communication, subrule 24.07 (4) applies
to the original affidavit and the signed acknowledgment.
7.15 Evidence
of identity
(1) A statement by a person of the person’s identity,
office or position is evidence of the identity, the holding of the office or
position.
(2) Another person may give evidence about the
identity, office or position of a person served.
Example
A person may give evidence about the identity of another
person by identifying:
(a) the signature of the person served on the
Acknowledgment of Service;
(b) the person served from a photograph; or
(c) the person when accompanying the process server.
Part 7.5 Other
matters about service
7.16 Service
by electronic communication
(1) Service of a document may be carried out by
facsimile only if the total number of pages (including the cover page) to be
transmitted:
(a) is not more than 25; or
(b) if the person on whom the document is to be
served has first agreed to receiving more than 25 pages — is not more than
the number of pages agreed to be transmitted.
(2) A document served by electronic communication must
include a cover page stating:
(a) the sender’s name and address;
(b) the name of the person to be served;
(c) the date and time of transmission;
(d) the total number of pages, including the
cover page, transmitted;
(e) that the transmission is for service of
court documents;
(f) the name and telephone number of a person to
contact if there is a problem with transmission; and
(g) a return electronic address.
7.17 When
service is taken to have been carried out
A document is taken to have been served:
(a) on the date when service is acknowledged;
(b) if served by post to an address in
Australia — on the third day after it was posted;
(c) if served by delivery to a document
exchange — on the next working day after the day when it was delivered; or
(d) on a date fixed by the court.
7.18 Service
with conditions or dispensing with service
(1) A party who is unable to serve a document may
apply, without notice, for an order:
(a) to serve the document in another way; or
(b) to dispense with service of the document,
with or without conditions.
(2) The factors the court may have regard to when
considering an application under subrule (1) include:
(a) the proposed method of bringing the document
to the attention of the person to be served;
(b) whether all reasonable steps have been taken
to serve the document or bring it to the notice of the person to be served;
(c) whether the person to be served could
reasonably become aware of the existence and nature of the document by
advertisement or another form of communication that is reasonably available;
(d) the likely cost of service; and
(e) the nature of the case.
(3) If the court orders that service of a document is:
(a) dispensed with unconditionally; or
(b) dispensed with on a condition that is
complied with;
the document is taken to have been served.
Note An application under this rule is
made by filing an Application in a Case and an affidavit (see rules 5.01 and
5.02).
Part 7.6 Service
in non‑convention country
7.19 Service
in non‑convention country
(1) A person may serve a document on a person in a non‑
convention country:
(a) in accordance with the law of the non‑convention
country; or
(b) if the non‑convention country permits
service of judicial documents through the diplomatic channel — through the
diplomatic channel.
(2) A person seeking to serve a document in a non‑convention
country through the diplomatic channel must:
(a) request the Registry Manager, in writing, to
arrange service of the document under this Part; and
(b) lodge 2 copies of each document to be served,
translated, if necessary, into an official language of that country.
(3) If the Registry Manager receives a request under
subrule (2), the Registry Manager must:
(a) seal the documents to be served; and
(b) send to the Secretary of the Department of
Foreign Affairs and Trade:
(i) the sealed documents; and
(ii) a written request that the
documents be sent to the government of the non‑convention country for
service.
7.20 Proof
of service in non‑convention country
(1) This rule applies if:
(a) a document is sent to the Secretary of the
Attorney‑ General’s Department for service on a person in a non‑ convention
country; and
(b) an official certificate or declaration by the
government or court of the country, stating that the document has been
personally served, or served in another way under the law of the country, is
sent to the court.
(2) The certificate or declaration is proof of service
of the document and, when filed, is a record of the service and has effect as
if it were an affidavit of service.
Note If service cannot be carried out
under this rule, the applicant may apply for an order dispensing with service
(see rule 7.18).
Chapter 8 Right to be heard and address for service
Summary of
Chapter 8
Chapter 8 sets
out rules about:
· the people who may be
heard by the court and the requirements for their address for service;
· the appointment of an independent
children’s lawyer; and
· lawyer’s conflict of interest and ceasing
to act.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 8.1 Right to
be heard and representation
8.01 Right
to be heard and representation
(1) A person (other than a corporation or authority) who
is entitled to be heard in a case may conduct the case on the person’s own
behalf or be represented by a lawyer.
(2) A corporation or authority that is entitled to be
heard in a
case may be represented by a lawyer, or an officer of the corporation or
authority.
Note 1 For the right of a lawyer to
appear in a court exercising jurisdiction under the Act, see Part VIIIA of the Judiciary
Act 1903.
Note 2 A party may apply to appear
at a hearing or trial by electronic communication (see rules 5.06 and 16.08).
Note 3 A party is not entitled to be
represented by a person who is
not a lawyer unless the court otherwise orders. The court will give permission
for representation by a person other than a lawyer only in special
circumstances.
8.02 Independent
children’s lawyer
(1) A party may apply for the appointment or removal of
an independent children’s lawyer by filing an Application in a Case.
Note A party may ask for a procedural
order orally (see paragraph (h) of item 3 of Table 11.1 in rule 11.01).
(2) If the court makes an
order for the appointment of an independent children’s lawyer:
(a) it may request that the representation be
arranged by a legal aid body that is a relevant authority within the meaning of
subsection 116C (5) of the Act; and
(b) it may order
that the costs of the independent children’s lawyer be met by a party.
Note Section 68L of the Act provides for
the independent representation of children.
(3) A person appointed as
an independent children’s lawyer:
(a) must file a Notice of Address for Service;
(b) must comply with these Rules and do anything
required to be done by a party; and
(c) may do anything permitted by these Rules to
be done by a party.
(4) If an independent children’s lawyer is appointed,
the parties must conduct the case as if the independent children’s lawyer were
a party.
(5) The appointment of an
independent children’s lawyer ceases:
(a) when the Initiating Application (Family Law)
is determined or withdrawn; or
(b) if there is an
appeal — when the appeal is determined or withdrawn.
Note 1 If a document or notice is
served on or given to a party under these Rules, the document or notice must
also be served on or given to any independent children’s lawyer (see subrule
7.04 (4)).
Note 2 This rule applies unless the
court orders otherwise (see rule 1.12).
8.03 Lawyer —
conflicting interests
A lawyer acting for a party in a case must not act
in the case for any other party who has a conflicting interest.
Note This rule does not purport to set
out all the situations in which a lawyer may not act for a party.
8.04 Lawyer — ceasing to act
(1) A lawyer may cease to
act for a party:
(a) by serving on
the party a Notice of Ceasing to Act and, no sooner than 7 days after serving
the notice, filing a copy of the notice; or
(b) with the court’s permission.
(2) If:
(a) a party’s address for service is the party’s
lawyer’s address; and
(b) the lawyer
ceases to act for the party;
the party’s last known residential address is the address for
service until the party files a Notice of Address for Service.
Part 8.2 Address
for service
8.05 Address
for service
(1) A party must give an
address for service if:
(a) the party files or responds to an
application; or
(b) the party seeks to be heard by the court.
(2) A party must give only one address for service for
each application filed.
(3) A party may give an
address for service:
(a) in the first document filed by the party; or
(b) by filing a Notice of Address for Service.
(4) An address for
service:
(a) must be an address in Australia where
documents may be left or received by post;
(aa) must include a telephone number at which the
party may be contacted; and
(b) may include a facsimile number and an address
for service by electronic communication.
(5) A party may include an address for service by
electronic communication only if documents sent to or from that address can be
read by the computer software of each party and the court.
Note If an address for service includes a
facsimile number or an address for service by electronic communication,
documents served on the person by that method are taken by the court to be
served on the person on the day when the documents were transmitted to that
address (see paragraph 7.17 (d)).
8.06 Change
of address for service
If a party’s address
for service changes during a case, the party must file a Notice of Address for
Service within 7 days after the change.
Note 1 A
new address for service will be needed if a party:
(a) acts in person and
changes address;
(b) initially acts in person
and later appoints a lawyer;
(c) initially appoints a lawyer and later acts in person;
or
(d) changes lawyers during the case.
Note 2 Until a Notice of Address for
Service is filed and served, the previous address remains on the court record
as the address for service and all documents will be served at that address
unless subrule 8.04 (2) applies.
Chapter 9 Response and reply
Summary of
Chapter 9
Chapter 9 sets
out the procedure for:
· responding to an
Initiating Application (Family Law) (known as a Response to Initiating
Application (Family Law);
· responding to an
Application in a Case (known as a Response to an Application in a Case); and
· replying to a Response
to Initiating Application (Family Law) seeking orders in a cause of action
other than one mentioned in the application (known as a Reply).
Note A
Response to Application for Divorce is used to respond to an Application for
Divorce (see rule 3.04).
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 9.1 Response
to an Initiating Application (Family Law)
9.01 Response
to an Initiating Application (Family Law)
(1) A respondent to an Initiating Application (Family
Law) who seeks to oppose the orders sought in the application or seeks
different orders must file a Response to an Initiating Application (Family Law).
(2) A Response to an Initiating Application (Family
Law) must:
(a) state the facts in the application with
which the respondent disagrees;
(b) state what the respondent believes the facts
to be; and
(c) give full particulars of the orders the
respondent wants the court to make.
(3) In addition to the matters in subrule (2), a
Response to an Initiating Application (Family Law) may:
(a) consent to an order sought by the applicant;
(b) ask that the application be dismissed; or
(c) ask for orders in another cause of action.
(4) A Response to an Initiating Application (Family
Law) must not include a request for any of the following orders:
(a) a divorce order;
(b) an order that a marriage be annulled;
(c) a declaration as to validity of a marriage,
divorce or annulment;
(d) an order under Division 4.2.3
authorising a medical procedure.
Note If:
(a) a Response to an Initiating Application (Family Law)
includes a request for orders in another cause of action; and
(b) documents would be required to be filed under rule 2.02
to support that cause of action;
the respondent must file with the Response
to an Initiating Application (Family Law) the document required under
rule 2.02 to be filed for that cause of action.
9.02 Filing
an affidavit with Response to Initiating Application (Family Law)
A respondent must
not file an affidavit with a Response to Initiating Application (Family Law)
unless:
(a) responding to interim, procedural, ancillary
or other incidental orders sought in the Initiating Application;
(b) seeking interim, procedural, ancillary or
other incidental orders in the Response; or
(c) required to do so by item 5 or 6 of Table
2.2.
9.03 Response
objecting to jurisdiction
(1) A respondent seeking
to object to the jurisdiction of the court:
(a) must file a Response to an Initiating
Application (Family Law); and
(b) is not taken to have submitted to the
jurisdiction of the court by seeking other orders in the Response to an Initiating
Application (Family Law).
(2) The objection to the jurisdiction must be determined
before any other orders sought in the Response to an Initiating Application
(Family Law).
Part 9.2 Reply to
Response to an Initiating Application (Family Law)
9.04 Applicant
reply to Response to an Initiating Application (Family Law) (Reply)
An applicant must
file a Reply if:
(a) in the Response to an Initiating Application
(Family Law), the respondent seeks orders in a cause of action other than a
cause of action mentioned in the application; and
(b) the applicant
seeks:
(i) to oppose the orders sought in the
Response to an Initiating Application (Family Law); or
(ii) different orders in the cause of
action mentioned in the Response to an Initiating Application (Family Law).
9.04A Additional party reply to Response to an Initiating
Application (Family Law), (Reply)
(1) This rule applies if, in a Response to an Initiating
Application (Family Law), a respondent seeks orders against a person other than
the applicant (an additional party).
(2) An additional party who seeks to oppose the orders
sought in the Response to an Initiating Application (Family Law), or who seeks
different orders, must file a Reply.
Part 9.3 Response
to Application in a Case
9.05 Response to Application in a Case
A respondent to an Application in a Case who seeks
to oppose the Application or seeks different orders must file a Response to an
Application in a Case.
9.06 Affidavit to be filed with Response to an
Application in a Case
(1) A respondent who files a Response to an Application
in a Case must, at the same time, file an affidavit stating the facts relied on
in support of the Response to an Application in a Case.
(2) Subrule (1) does not apply to a Response to an
Application in a Case filed in response to an application to review an order of
a Judicial Registrar or Registrar.
9.07 Affidavit in reply to Response to an
Application in a Case
If:
(a) a respondent files a Response to an
Application in a Case seeking orders in a cause of action other than a cause of
action mentioned in the Application in a Case; and
(b) the applicant opposes the orders sought in
the Response to an Application in a Case;
the applicant may file an affidavit setting out the facts relied
on.
Part 9.4 Filing
and service
9.08 Time
for filing and service of response or reply
(1) A party may respond to an application by filing and
serving a Response (and any affidavit filed with it) at least 7 days
before the date fixed for the case assessment conference, procedural hearing or
hearing to which the response relates.
(2) If a party wishes to file a Reply, the party must
file and serve the reply as soon as possible after the response is received.
(3) All affidavits in a case started by an Application
in a Case or a Response to an Application in a Case must be filed at least 2
days before the date fixed for the hearing.
Note The affidavits to which subrule (3)
applies include those affidavits that must be filed with the application or
response and any affidavit by the applicant responding to the orders sought in
a new cause of action in a Response to an Application in a Case.
Chapter 10 Ending a case without a trial
Summary of
Chapter 10
Chapter 10 sets
out how a party may resolve a case without a trial and the procedure to end a
case, if agreement is reached.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 10.1 Offers to
settle
Note Each
party is encouraged at all times to make an offer to settle to the other party
in an effort to resolve a case. This Part sets out the rules that apply to
offers to settle in the Family Court. Part 10.1 contains two Divisions.
Division 10.1.1
applies to all offers to settle and provides for:
(a) how an
offer is made;
(b) the
form an offer is to take;
(c) how an
offer is accepted or withdrawn;
(d) the
timing of acceptance or withdrawal; and
(e) what to
do when an offer is accepted and a case is resolved.
Division 10.1.2
applies only to offers to settle in property cases in which an offer to settle
must be made after a conciliation conference.
Division 10.1.1 General
10.01 How
to make an offer
(1) A
party may make an offer to another party to settle all or part of a case by
serving on the other party an offer to settle at any time before the court
makes an order disposing of the case.
Note See also paragraph
117 (2A) (f) and section 117C of the Act in relation to offers to
settle.
(2) A party may make an offer to settle all or part of
an appeal by serving on the other party an offer to settle at any time before
the court makes an order disposing of the appeal.
(3) An offer to settle:
(a) must be in writing; and
(b) must not be filed.
Note A later offer to settle has the
effect of withdrawing an earlier offer (see subrule 10.03 (3)).
10.02 Open and ‘without prejudice’ offer
(1) An offer to settle is made without prejudice (a without
prejudice offer) unless the offer states that it is an open offer.
(2) A party must not
mention the fact that a without prejudice offer has been made, or the terms of
the offer:
(a) in any document filed; or
(b) at a hearing or trial.
(3) If a party makes an open offer, any party may
disclose the facts and terms of the offer to other parties and the court.
(4) Subrule (2) does not apply to:
(a) an application relating to an offer; or
(b) an application for costs.
10.03 How to withdraw an offer
(1) A party may withdraw an offer to settle by serving a
written notice on the other party that the offer is withdrawn.
(2) A party may withdraw
an offer to settle at any time before:
(a) the offer is accepted; or
(b) the court makes an order disposing of the
application or appeal to which the offer relates.
(3) A second or later offer by a party has the effect of
withdrawing an earlier offer.
10.04 How
to accept an offer
(1) A party may accept an offer to settle by notice, in
writing, to the party making the offer.
(2) A party may accept an
offer to settle at any time before:
(a) the offer is withdrawn; or
(b) the
court makes an order disposing of the application or appeal.
(3) If an offer to settle is accepted, the parties must
lodge a draft consent order.
Note 1 The draft consent order
should set out the orders agreed to by
the parties and must be signed by both parties. Once lodged, it will be
considered by the court under rule 10.17. The parties may agree to the
dismissal of all applications.
Note 2 Paragraph 6.13 (1) (d)
requires that, if a party seeks a consent order and a case guardian has been
appointed for the party, the case guardian must file an affidavit stating why
the consent order is in the best interests of the party, and any other matter
the court may require.
10.05 Counter‑offer
A party may accept an offer to settle even though
the party has made a counter‑offer to settle.
Division 10.1.2 Offer to
settle — property cases
10.06 Compulsory offer to settle
(1) This rule applies to a property case.
(2) Each party must make a genuine offer to settle to
all other parties within:
(a) 28 days after the conciliation conference;
(b) if no conciliation conference has been held —
28 days after the procedural hearing at which the case was allocated the first
day before the Judge; or
(c) such further time as ordered by the court.
(3) The offer to settle must state that it is made
under this Division.
Example
The offer to settle must
include a statement along the following lines:
‘This offer to settle is made under Division 10.1.2 of the
Family Law Rules 2004.’.
Note 1 For rules about making,
withdrawing and accepting an offer, see Division 10.1.1.
Note 2 An offer to settle is a factor that must be taken into
account when the court exercises its discretion in relation to costs (see
paragraph 117 (2A) (f) of the Act).
Note 3 Rule 11.02 sets out the
consequences of failing to comply with these Rules.
10.07 Withdrawal
of offer
A party who withdraws an offer to settle made under
this Division must, at the same time, make another genuine offer to settle.
Part 10.2 Discontinuing
a case
10.10 Definition
In this Part:
case includes:
(a) part of a case;
(b) an order sought in an application; and
(c) an application for a consent order when
there is no current case (see Part 10.4).
10.11 Discontinuing a case
(1) A party may discontinue a case by filing a Notice of
Discontinuance .
(2) A party must apply to
the court for permission to discontinue a case if:
(a) the case relates to property of the parties,
or a party, and one of the parties dies before the case is determined; or
(b) in an application for divorce — there
are less than 7 days before the date of the hearing.
Note Under subsection 79 (8) of the
Act, a party may continue with an application for property even if one of the
parties has died.
(3) Discontinuance of a case by a party does not
discontinue any other party’s case.
Note If one or more joint applicants, but
not all, discontinue a case, any discontinuing applicant becomes a respondent.
(4) If a party discontinues a case, another party may
apply for costs within 28 days after the Notice of Discontinuance is filed.
(5) If:
(a) a party is required to pay the costs of another
party because of the discontinuance of a case; and
(b) the party required to pay the costs starts
another case on the same, or substantially the same, grounds before paying the
costs;
the other party may apply for the case to be stayed until the costs
are paid.
Part 10.3 Summary
orders and separate decisions
Note An
application under this Part is made by filing an Application in a Case and an
affidavit (see rules 5.01 and 5.02).
10.12 Application
for summary orders
A party may apply for summary orders after a
response has been filed if the party claims, in relation to the application or
response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to
apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of
process; or
(d) there is no reasonable likelihood of success.
10.13 Application
for separate decision
A party may apply for a decision on any issue, if
the decision may:
(a) dispose of all or part of the case;
(b) make a trial unnecessary;
(c) make a trial substantially shorter; or
(d) save substantial costs.
10.14 What
the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e) with the consent of the parties, order
arbitration about the case or part of the case.
Note This list does not limit the powers
of the court. The court may make orders on an application, or on its own
initiative (see rule 1.10).
Part 10.4 Consent
orders
10.15 How
to apply for a consent order
(1) A party may apply for a consent order:
(a) in a current case:
(i) orally, during a hearing or a
trial;
(ii) by lodging a draft consent order;
or
(iii) by tendering a draft consent order
to a judicial officer during a court event; or
(b) if there is no current case — by filing
an Application for Consent Orders.
Note A case guardian for a party seeking
a consent order (other than an order relating to practice or procedure), must
file an affidavit setting out the facts relied on to satisfy the court that the
consent order is in the party’s best interests (see paragraph
6.13 (1) (d)).
(1A) A party who files an Application for Consent Orders
if there is no current case must:
(a) lodge a draft consent order; or
(b) tender a draft consent order to a judicial
officer during a court event.
(2) A draft consent order must:
(a) set out clearly the orders that the parties
ask the court to make;
(b) state that it is made by consent;
(c) be signed by each of the parties; and
(d) be accompanied by additional copies of the
order:
(i) so that there is a copy for each
person to be served and an additional copy for the court; and
(ii) each of which is certified by the
applicant’s lawyer, or by each party to the application, as a true copy.
(3) Paragraph (1) (b) does not apply if a
party applies for a consent order:
(a) for step‑parent maintenance under section
66M of the Act;
(b) relying on a cross‑vesting law;
(c) approving a medical procedure;
(d) for a parenting order when section 65G of the
Act applies; or
(e) for an order under the Assessment Act or
Registration Act.
(4) A party applying for a consent order in a case
mentioned in subrule (3) must file an Initiating Application (Family Law)
as soon as the consent is received.
Note If an independent children’s lawyer
has been appointed in a case, the court will not make a consent order unless
the independent children’s lawyer has also signed the draft consent order (see
subrule 8.02 (4)).
10.15A Consent parenting orders and allegations of
abuse or family violence
(1) This rule applies if an application is made to the
court for a parenting order by consent.
(2) If the application is
made orally during a hearing or trial each party, or if represented by a
lawyer, the party’s lawyer:
(a) must advise
the court that no allegations of child sexual or other physical abuse or risk
of abuse (abuse) or family violence have been made in:
(i) any document filed or exhibited in
the proceedings;
(ii) any report prepared for the
proceedings; or
(iii) any document subpoenaed to the
court in the proceedings; or
(b) if allegations of abuse or family violence
have been made — must explain to the court how the order attempts to deal
with the allegations.
(3) For any other
application other than an application under paragraph 10.15 (1) (b),
each party, or if represented by a lawyer, the party’s lawyer:
(a) must certify
in an annexure to the draft consent order that no allegations of abuse or
family violence have been made in:
(i) any document filed or exhibited in
the proceedings;
(ii) any report prepared for the
proceedings; or
(iii) any document subpoenaed to the
court in the proceedings; or
(b) if allegations of abuse or family violence
have been made — must, in the annexure, identify each document containing
them and explain how the order attempts to deal with them.
10.16 Notice
to superannuation trustee
(1) This rule applies in a property case if a party
intends to apply for a consent order which is expressed to bind the trustee of
an eligible superannuation plan.
(2) The party must, not less than 28 days before lodging
the draft consent order or filing the Application for Consent Orders, notify
the trustee of the eligible superannuation plan in writing of the following:
(a) the terms of the order that will be sought
to bind the trustee;
(b) the next court event (if any);
(c) that the parties intend to apply for the
order sought if no objection to the order is received from the trustee within
the time mentioned in subrule (3);
(d) that if the trustee objects to the order
sought, the trustee must give the parties written notice of the objection
within the time mentioned in subrule (3).
(3) If the trustee does not object to the order sought
within 28 days after receiving notice under subrule (2), the party may file the
application or lodge the draft consent order.
(4) Despite subrule (3), if, after service of notice
under subrule (2) on the trustee, the trustee consents, in writing, to the
order being made, the parties may file the Application for Consent Orders or
lodge the draft consent order.
Note Eligible superannuation plan is
defined in section 90MD of the Act.
10.16A Order
or injunction binding a third party
(1) This rule applies if a party applies for a consent
order:
(a) in a case under section 79 or 90SM of the
Act, for an order of a kind mentioned in subsection 90AE (1) or (2) of the
Act; or
Note Section 90TA of the Act extends the
operation of Part VIIIAA of the Act for orders and injunctions binding third
parties made in de facto financial cases.
(b) in a case under section 114 of the Act:
(i) for an order of a kind mentioned
in paragraph 90AF (1) (a) or subsection 90AF (2) of the Act; or
(ii) for an injunction of a kind
mentioned in paragraph 90AF (1) (b) or subsection 90AF (2) of
the Act.
(2) The party must file with the draft consent order an
affidavit setting out the facts relied on to satisfy the court of the matters
mentioned in subsections 90AE (3) and (4), or subsections 90AF (3) and (4), of
the Act (whichever are applicable).
10.17 Dealing
with a consent order
If a party applies for a consent order, the court
may:
(a) make an order in accordance with the orders
sought;
(b) require a party to file additional
information;
(c) dismiss the application
Note A party applying for a consent order
must satisfy the court as to why the consent order should be made.
10.18 Lapsing
of respondent’s consent
A respondent’s consent to an application that an
order be made in the same terms as the draft consent order attached to a Application
for Consent Orders lapses if:
(a) 90 days have passed since the date of the
first affidavit in the Application for Consent Orders; and
(b) the Application for Consent Orders has not
been filed.
Chapter 11 Case management
Summary of
Chapter 11
Chapter 11 sets
out the ways the court may manage a case to achieve the main purpose of these
Rules (see rule 1.04), including:
· making procedural
orders;
· limiting the issues in
dispute;
· permitting amendment
of applications or documents to clarify the issues in dispute; and
· changing the venue of
a case.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and override
all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 11.1 Court’s
powers of case management
11.01 General
powers
The court may exercise any of the powers mentioned
in Table 11.1 to manage a case to achieve the main purpose of these Rules
(see rule 1.04).
Table 11.1 Court’s powers
|
Item
|
Subject
|
Power
|
|
1
|
Attendance
|
(a) order a party to attend:
(ii) a procedural hearing;
(iii) a family consultant;
(iv) family counselling or family dispute
resolution;
(v) a conference or other court event; or
(vi) a post‑separation parenting program;
|
|
|
|
(b) require a party, a party’s
lawyer or an independent children’s lawyer to attend court
|
|
2
|
Case development
|
(a) consolidate cases;
(b) order that part of a case
be dealt with separately;
(c) decide the sequence in
which issues are to be tried;
(d) specify the facts that are
in dispute, state the issues and make procedural orders about how and when
the case will be heard or tried;
(e) finalise the balance sheet
setting out all assets, liabilities and financial resources that either party
asserts are relevant to the determination of the case;
(f) with the consent of the
parties, order that a case or part of a case be submitted to arbitration;
(g) order a party to provide
particulars, or further and better particulars, of the orders sought by that party
and the basis on which the orders are sought;
|
|
|
|
(h) order a party to produce
any relevant document in a financial case to the court or to any other party
for the purpose of developing and finalising the balance sheet
|
|
3
|
Conduct of case
|
(a) hold a court event and
receive submissions and evidence by electronic communication;
(b) postpone, bring forward or cancel a court event;
(c) adjourn a court event;
(d) stay a case or part of a case;
(e) make orders in the absence of a party;
(f) deal with an application without an oral hearing;
(g) deal with an application with written or oral
evidence or, if the issue is a question of law, without evidence;
(h) allow an application to be made orally;
|
|
|
|
(i) determine an
application without requiring notice to be given;
(j) order that a case
lose listing priority;
(k) make a self‑executing
order;
(l) make an order granting
permission for a party to perform an action if a provision of the Rules
requires a party to obtain that permission;
(m) for a fee that is
required by law to be paid — order that the fee must be paid by a
specified date
|
Note 1 The powers mentioned in this
rule are in addition to any powers given to the court under a legislative
provision or that it may otherwise have.
Note 2 Rule 1.10 provides that a
court may make an order on its own initiative and sets out what other things
the court may do when making an order or giving a party permission to do
something.
11.02 Failure
to comply with a legislative provision or order
(1) If a step is taken after the time specified for
taking the step by these Rules, the Regulations or a procedural order, the step
is of no effect.
Note A defaulter may apply to the court
for relief from this rule (see rule 11.03).
(2) If a party does not comply with these Rules, the
Regulations or a procedural order, the court may:
(a) dismiss all or part of the case;
(b) set aside a step taken or an order made;
(c) determine the case as if it were undefended;
(d) make any of the orders mentioned in rule
11.01;
(e) order costs;
(f) prohibit the party from taking a further
step in the case until the occurrence of a specified event; or
(g) make any other order the court considers
necessary, having regard to the main purpose of these Rules (see
rule 1.04).
Note This list does not limit the powers
of the court. It is an expectation that a non‑defaulting party will
minimise any loss.
11.03 Relief
from orders
(1) A party may apply for relief from:
(a) the effect of subrule 11.02 (1); or
(b) an order under subrule 11.02 (2).
(2) In determining an application under subrule (1),
the court may consider:
(a) whether there is a good reason for the non‑compliance;
(b) the extent to which the party has complied
with orders, legislative provisions and the pre‑action procedures;
(c) whether the non‑compliance was caused
by the party or the party’s lawyer;
(d) the impact of the non‑compliance on the
management of the case;
(e) the effect of non‑compliance on each
other party;
(f) costs;
(g) whether the applicant should be stayed from
taking any further steps in the case until the costs are paid; and
(h) if the application is for relief from the
effect of subrule 11.02 (1) — whether all parties consent to the step
being taken after the specified time.
Note 1 This list does not limit the
powers of the court. See also subrule 1.12 (3).
Note 2 A party may make an
application under this rule by filing an Application in a Case or, with the
court’s permission, orally at a court event.
11.04 Frivolous
or vexatious case
(1) If the court is satisfied that a party has
frequently started a case or appeal that is frivolous, vexatious or an abuse of
process, it may:
(a) dismiss the party’s application; and
(b) order that the party may not, without the
court’s permission, file or continue an application.
(2) The court may make an order under subrule (1):
(a) on its own initiative; or
(b) on the application of:
(i) a party;
(ii) for the Family Court of
Australia — a Registry Manager; or
(iii) for the Family Court of a
State — the Executive Officer.
(3) The court must not make an order under
subrule (1) unless it has given the applicant a reasonable opportunity to
be heard.
Note Under section 118 of the Act, the
court may dismiss a case that is frivolous or vexatious and, on application,
may prevent the person who started the case from starting a further case.
Chapter 5 sets out the procedure for making an application under this rule.
11.05 Application for permission to start a case
(1) This rule applies if:
(a) the court has made an order under subsection
118 (1) of the Act or paragraph 11.04 (1) (b); and
(b) the person against whom the order was made
applies for permission to start or continue a case.
(2) The application must
be in an Application in a Case and must be made without notice to any other
party.
Note An applicant must file an affidavit
stating the facts relied on to establish the need for the orders sought (see
rule 5.02).
(3) On the first court date for the application:
(a) the court may dismiss the application; or
(b) the court may:
(i) order the person to:
(A) serve the application
and affidavit; and
(B) file and serve any
further affidavits in support of the application; and
(ii) list the application for hearing.
(4) The court must not grant permission to start or
continue a case unless it is satisfied that the case has a reasonable
likelihood of success.
11.06 Dismissal for want of prosecution
(1) If a party has not
taken a step in a case for one year, the court may:
(a) dismiss all or part of the case; or
(b) order an act to be done within a fixed time,
in default of which the party’s application will be dismissed.
(2) The court must not make an order under subrule (1)
unless, at least 14 days before making the order, the court has given the
parties written notice of the date and time when it will consider whether to
make the order.
(3) If:
(a) an application is dismissed under subrule
(1);
(b) a party is ordered to pay the costs of
another party; and
(c) before the costs are paid, the party ordered
to pay them starts another application on the same or substantially the same
grounds;
the other party may apply for the case to be stayed until the costs
are paid.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
Part 11.2 Limiting
issues
Division 11.2.1 Admissions
Note To
reduce cost and delay, parties are encouraged to make admissions in relation to
facts and documents. The admission is for the purposes of the case only, in
order to narrow the issues in dispute. A party should give the other party
written notice of any admissions as early as practicable in the case. For example,
if admissions are made before the disclosure process, disclosure may be able to
be limited and the costs of the case reduced.
11.07 Request
to admit
(1) A party may, by serving a Notice to Admit on another
party, ask the other party to admit, for the purposes of the case only, that a
fact is true or that a document is genuine.
(2) A Notice to Admit must include a note to the effect
that, under subrule 11.08 (2), failure to serve a Notice Disputing a Fact or
Document will result in the party being taken to have admitted that the fact is
true or the document is genuine.
(3) If a Notice to Admit
mentions a document, the party serving the Notice must attach a copy of the
document to the notice, unless:
(a) the other party has a copy of the document;
or
(b) it is not practicable to attach the copy to
the Notice.
(4) If paragraph (3) (b) applies, the party must:
(a) in the Notice:
(i) identify the document; and
(ii) specify a convenient place and
time at which the document may be inspected; and
(b) produce the document for inspection at the
specified place and time.
11.08 Notice
disputing fact or document
(1) If a party who is
served with a Notice to Admit seeks to dispute a fact or document specified in
the Notice, the party must serve on the party who served the Notice, within 14
days after it was served, a Notice Disputing the Fact or Document.
(2) If a party does not serve a notice in accordance
with subrule (1), the party is taken to admit, for the purposes of the case
only, that the fact is true or the document is genuine.
(3) If:
(a) a party serves a Notice Disputing a Fact or
Document; and
(b) the fact or the genuineness of the document
is later proved in the case;
the party who served the Notice may be ordered to pay the costs of
proof.
11.09 Withdrawing admission
(1) A party may withdraw
an admission that a fact is true or a document is genuine only with the court’s
permission or the consent of all parties.
(2) When allowing a party to withdraw an admission, the
court may order the party to pay any other party’s costs thrown away.
(3) In subrule (1):
admission includes an admission in a document
in the case or taken to be made under subrule 11.08 (2).
Note The court may, on application, order
that a party not pay costs (see rule 1.12).
Division 11.2.2 Amendment
11.10 Amendment by a party or court order
(1) A party who has filed an application or response
may amend the application or response:
(a) for a case started by an Initiating
Application (Family Law):
(i) at any time before the procedural
hearing at which the case is allocated the first day before the Judge; or
(ii) if the court gives permission —
at a later time;
(b) for an Application in a Case:
(i) at or before the first court date;
or
(ii) at any later time, with the consent
of the other parties or by order; and
(c) for all other
applications — at any time, with the consent of the other parties or by
order.
Note An amendment of an application may
be necessary to ensure that the court determines the real issues between the
parties or to avoid multiple cases.
(2) A party who:
(a) has filed an Initiating Application (Family
Law) or Response to an Initiating Application (Family Law); and
(b) seeks to add or substitute another cause of
action or another person as a party to the case;
must amend the Form in accordance with this Division.
(3) If an amendment
mentioned in subrule (2) is made after the first court date, the Registry
Manager must set a date for a further procedural hearing.
(4) If a date is set for a further procedural hearing,
the party amending the Initiating Application (Family Law) or Response to an Initiating
Application (Family Law) under subrule (2) must give each other party written
notice of the hearing.
11.11 Time
limit for amendment
A party who has been given permission by the court
to amend an application must do so within 7 days after the order is made.
Note The court may shorten or extend the
time for compliance with a rule (see rule 1.14).
11.12 Amending a document
(1) A party must amend a document by filing a copy of
the document:
(a) with the amendment clearly marked; and
(b) if the document is amended by order —
endorsed with the date when the order and amendment are made.
(2) If the court gives permission for a party to amend a
document, the permission is taken to be given by court order.
Example
An amendment may be made by:
(a) placing a line through the text to be changed; and
(b) underlining the new text or using a different type‑face
to indicate the new text.
Note Rule 13.06 sets out the requirements
for amending a Financial Statement.
11.13 Response to amended document
If an amended
document that has been served on a party affects a document (the affected
document) previously filed by the party, the party may amend the
affected document:
(a) in accordance with rule 11.12; and
(b) not more than
14 days after the amended document was served on the party.
11.14 Disallowance of
amendment
The court may disallow an amendment of a document.
Example
The court may disallow an amendment if it is frivolous,
vexatious or not in accordance with these Rules or an order.
Part 11.3 Venue
Division 11.3.1 Open court and chambers
11.16 Cases
in chambers
(1) Subject to subrule (2), a court may exercise its
jurisdiction in chambers.
(2) A trial must be heard in open court.
(3) A judicial officer who determines a case in
chambers must:
(a) record:
(i) the file number;
(ii) the names of the parties;
(iii) the date of the determination; and
(iv) the orders made; and
(b) sign the record.
Note 1 An order made in chambers has
the same effect as an order made in open court.
Note 2 The court may make orders
about who may be present in court during a case (see subsection 97 (2) of the
Act and section 126E of the Evidence Act 1995).
Division 11.3.2 Transferring a case
11.17 Transfer
to another court or registry
A party may apply to have a case:
(a) heard at another place; or
(b) transferred to another registry or court
exercising jurisdiction under the Act.
11.18 Factors
to be considered for transfer
(1) In making a decision under rule 11.17 or in deciding
whether to remove a case from another court under subsection 46 (3A) of the
Act, the court may consider:
(a) the public interest;
(b) whether the case, if transferred or removed,
is likely to be dealt with:
(i) at less cost to the parties;
(ii) at more convenience to the
parties; or
(iii) earlier;
(c) the availability of a judicial officer
specialising in the type of case to which the application relates;
(d) the availability of particular procedures
appropriate to the case;
(e) the financial value of the claim;
(f) the complexity of the facts, legal issues,
remedies and procedures involved;
(g) the adequacy of the available facilities,
having regard to any disability of a party or witness; and
(h) the wishes of the parties.
Note Subsection 33B (6) of the Act
provides that, in deciding whether a case should be transferred to the Federal
Magistrates Court, the court must have regard to:
(a) any rules of the court applying to the transfer of
cases;
(b) whether cases in respect of an associated matter are
pending in the Federal Magistrates Court;
(c) whether the resources of
the Federal Magistrates Court are sufficient to hear and determine the case;
and
(d) the interests of the administration of justice.
(2) Subrule (1) does not apply to:
(a) a case raising, or relying on, a cross‑vesting
law in which a party objecting to the case being heard in the Family Court
applies to have the case transferred to another court;
(b) the transfer of a case under the Corporations
Act 2001; or
(c) a case that
must be transferred in accordance with a legislative provision.
Note Division 4.2.2 deals with cross‑vesting
laws and Chapter 25 deals with cases under the Corporations Act 2001.
Division 11.3.3 Transfer of court file
11.20 Transfer
between courts
If an order is made to transfer a case from a
court to another court, the Registry Manager, after receiving the file, must:
(a) fix a date for a procedural hearing; and
(b) give each party notice of the date fixed.
Chapter 12 Court
events — Registrar managed
Summary of
Chapter 12
Chapter 12 sets
out rules about the events that parties to an Application for Final Orders may
be required to attend before the first day before the Judge is allocated. Depending on whether it is a parenting case or a financial
case, these include:
(a) a case assessment conference;
(b) an initial procedural hearing;
(c) the Child Responsive Program;
(d) a conciliation conference; and
(e) a procedural hearing where the case is set down for the
first day before the Judge
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 12.1 Application of Chapter 12
12.01 Application
of Chapter 12
This Chapter applies to all Initiating
Applications (Family Law), except:
(a) a Medical Procedure Application;
(b) a Maintenance Application;
(c) a child support application or appeal;
(d) an application for an order that a marriage
is a nullity or a declaration as to the validity of a marriage, divorce or
annulment;
(e) an application in which the only order
sought relates to a passport (see Division 4.2.7).
Part 12.2 Specific
court events
12.02 Property
case — exchange of documents before first court date
At least 2 days before the first court date in a
property case, each party must, as far as practicable, exchange with each other
party a copy of all of the following documents:
(a) a copy of the party’s 3 most recent taxation
returns and assessments;
(b) if relevant, documents about any
superannuation interest of the party, including:
(i) if not already filed, the
completed superannuation information form for the superannuation interest; and
(ii) if the party is a member of a self‑managed
superannuation fund — a copy of the trust deed and the 3 most recent
financial statements for the fund;
(c) for a corporation in relation to which a
party has a duty of disclosure under rule 13.04:
(i) a copy
of the financial statements for the 3 most recent financial years, including
balance sheets, profit and loss accounts, depreciation schedules and taxation
returns;
(ii) a copy of the corporation’s most
recent annual return that lists the directors and shareholders; and
(iii) if relevant, a copy of the
corporation’s constitution;
(d) for a trust in relation to which a party has
a duty of disclosure under rule 13.04:
(i) a copy of the
financial statements for the 3 most recent financial years, including balance
sheets, profit and loss accounts, depreciation schedules and taxation returns;
and
(ii) a copy of the trust deed;
(e) for a partnership in relation to which a
party has a duty of disclosure under rule 13.04:
(i) a copy of the
financial statements for the 3 most recent financial years, including balance
sheets, profit and loss accounts, depreciation schedules and taxation returns;
and
(ii) a copy of the partnership
agreement;
(f) for a person or entity mentioned in
paragraph (a), (c), (d) or (e) — any business activity statements for the
12 months ending immediately before the first court date;
(g) unless the value is agreed — a market
appraisal or an opinion as to value in relation to any item of property in
which a party has an interest.
Note All parties have a general duty of
disclosure (see Chapter 13). For examples of the type of property about which
disclosure must be made, see rule 13.04.
12.03 Case
assessment conference
(1) A case assessment conference must be held in the
presence of a Registrar.
(2) The purpose of a case assessment conference is:
(a) to enable the person conducting the
conference to assess and make any recommendations about the appropriate future
conduct of the case; and
(b) to enable the parties to attempt to resolve
the case, or any part of the case, by agreement; and
(c) to determine whether the case:
(i) is suitable to remain in the
Family Court; or
(ii) should be transferred to another
court exercising jurisdiction under the Act.
(3) At a case assessment conference, each party must,
as far as practicable, identify each of the following:
(a) any procedural orders sought;
(b) the agreed issues;
(c) the items to be included on the balance
sheet;
(d) any areas of controversy about the assets,
liabilities, superannuation and financial resources of the parties;
(e) any person who may be entitled to become a
party to the case;
(f) any other relevant matter related to the
main purpose of these Rules (see rule 1.04).
(4) If the case is not settled by the end of the
conference, the court will make procedural orders for the future conduct of the
matter, including:
(a) if appropriate — an order that the
parties attend a conciliation conference; or
(b) if the case is suitable to be allocated the
first day before the Judge — procedural orders under rule 12.08.
(5) If the proceedings also involve parenting issues and
the case is not settled by the end of the conference, the parties may be
ordered to attend the Child Responsive Program.
Note 1 A party and a party’s lawyer
must attend a case assessment conference (see subrule 1.08 (3) and rule
12.11).
Note 2 A party to a parenting case
must disclose a copy of an expert’s report no later than 2 days before a case
assessment conference (see paragraph 15.55 (1) (a)).
Note 3 Evidence of a communication
made at a case assessment conference may be excluded (see section 131 of
the Evidence Act 1995).
12.04 Initial
procedural hearing in a parenting case
(1) The purpose of an initial procedural hearing in a
parenting case is:
(a) to enable the person conducting the
hearing:
(i) to assess the case;
(ii) to make recommendations about the
future conduct of the case; and
(iii) to determine whether the case is suitable
to remain in the Family Court or should be transferred to another court
exercising jurisdiction under the Act; and
(b) to enable the parties to attempt to resolve
the case, or any part of the case, by agreement.
(2) If the case is not settled at the end of the
hearing, the person conducting the hearing:
(a) must make procedural orders for the future
conduct of the case; and
(b) may order the parties to attend the Child
Responsive Program.
Note A party to
a parenting case must disclose a copy of an expert’s report no later than 2
days before the first court event (see paragraph 15.55 (1) (a)).
12.05 Property
case — exchange of documents before conciliation conference
(1) This rule applies to a party to a property case in
which the parties are required to attend a conciliation conference.
(2) Within 28 days after the case assessment
conference, each party must, as far as practicable, exchange with each other
party:
(a) if not already exchanged, a copy of all the
documents mentioned in rule 12.02; and
(b) any other documents ordered at the case
assessment conference to be exchanged.
12.06 Financial
questionnaire and balance sheet
(1) Within 21 days after the case assessment conference,
each party must file a financial questionnaire in the form approved by the
Principal Registrar.
(2) Within 28 days after the case assessment
conference, the applicant must:
(a) prepare a balance sheet in the form approved
by the Principal Registrar by completing all items and values asserted by the
applicant; and
(b) send the balance sheet to the respondent.
(3) Within 21 days after receiving the balance sheet,
the respondent must:
(a) add the respondent’s estimated values for
all items on the balance sheet prepared by the applicant;
(b) add any items to the balance sheet the
respondent asserts have been omitted from the balance sheet and assert values
for those items;
(c) complete the notes relating to all disputed
items and all disputed values for items; and
(d) return the amended balance sheet to the applicant.
(4) Within 14 days after receiving the amended balance
sheet, the applicant must:
(a) add the applicant’s estimated values for all
items added to the balance sheet by the respondent;
(b) complete the notes relating to all disputed
items and all disputed values for items; and
(c) file the balance sheet with the court.
Note 1 For the service requirements
for a document filed with the court, see rule 7.04.
Note 2 Subsection 131 (1) of
the Evidence Act 1995 does not apply to the financial questionnaire or
balance sheet.
12.07 Conduct
of a conciliation conference
(1) A conciliation conference must be conducted by a
judicial officer.
(2) Each party at a conciliation conference must make a
genuine effort to reach agreement on the matters in issue between them.
Note 1 A party and a party’s lawyer
must attend a conciliation conference (see subrule 12.11 (1)).
Note 2 Evidence of a communication
made at a conciliation conference may be excluded (see section 131 of the Evidence
Act 1995).
12.08 Procedural
hearing in a financial case
(1) For a financial case:
(a) if a conciliation conference has been held —
a procedural hearing must take place immediately after the conciliation
conference ends; and
(b) if a conciliation conference is not scheduled
to be held before the first day before the Judge, the procedural hearing must
be held at the conclusion of the case assessment conference.
(2) The purpose of the procedural hearing in a
financial case is to enable the person conducting the hearing to make
procedural orders for the conduct of the case, including orders for any of the
following matters:
(a) if a conciliation conference has been held:
(i) the clarification of any disputed
items in the balance sheet; and
(ii) the clarification of any issue
arising out of a statement made by a party in a financial questionnaire;
(b) payment of the hearing fee;
(c) filing of undertakings as to disclosure;
(d) allocating a date for a compliance check as
close as practicable to 21 days before the first day before the Judge;
(e) allocating the first day before the Judge.
12.09 Procedural
hearing after the Child Responsive Program
(1) A procedural hearing must take place as soon as
practicable after the parties complete the Child Responsive Program.
(2) The purpose of the procedural hearing after the
Child Responsive Program is to enable the person conducting the hearing to make
procedural orders for the conduct of the case, including orders for any of the
following matters:
(a) referring parties to family counselling,
family dispute resolution and other family services;
(b) appointment of an independent children’s
lawyer;
(c) payment of the hearing fee;
(d) completion by each party of a parenting
questionnaire;
(e) filing of undertakings as to disclosure;
(f) allocating a date for a compliance check as
close as practicable to 21 days before the first day before the Judge;
(g) allocating the first day before the Judge.
Note The court would usually order that
the parties attend this event by electronic communication.
12.10 Procedural
hearing where the application includes both a financial case and a parenting
case
(1) This rule applies if:
(a) an application includes a financial case and
a parenting case;
(b) the financial case remains unresolved after
the conciliation conference; and
(c) the parenting case remains unresolved after
the parties complete the Child Responsive Program.
(2) A procedural hearing must be held as soon as
practicable after the later of:
(a) completion of the conciliation conference;
or
(b) completion of the Child Responsive Program.
(3) The purpose of the procedural hearing is to enable
the person conducting the hearing to take the actions mentioned in subrules
12.08 (2) and 12.09 (2).
Note The court would usually order that
the parties attend this event by electronic communication.
12.10A Expedition
(1) A party may apply to expedite the first day before
the Judge.
Note For the procedure for making an
application in a case, see Chapter 5.
(2) The court may take into account:
(a) whether the applicant has acted reasonably
and without delay in the conduct of the case;
(b) whether the application has been made without
delay;
(c) any prejudice to the respondent; and
(d) whether there is a relevant circumstance in
which the case should be given priority to the possible detriment of other
cases.
(3) If the court is satisfied of the matters in subrule (2),
the court may:
(a) set an early first day before the Judge; and
(b) make procedural orders for the further conduct
of the case.
(4) For paragraph (2) (d), a relevant
circumstance includes:
(a) whether the age, physical or mental health
of, or other circumstance (such as an imminent move interstate or overseas)
affecting, a party or witness would affect the availability or competence of
the party or witness;
(b) whether a party has been violent, harassing
or intimidating to another party, a witness or any child the subject of, or
affected by, the case;
(c) whether the applicant is suffering
financial hardship that:
(i) is not caused by the applicant;
and
(ii) cannot be rectified by an interim
order;
(d) whether the continuation of interim orders is
causing the applicant or a child hardship;
(e) whether the purpose of the case will be lost
if it is not heard quickly (for example, a job opportunity will be lost if not
taken; property will be destroyed; an occasion will have passed);
(f) whether the case involves allegations of
child sexual, or other, abuse; and
(g) whether an expedited trial would avoid
serious emotional or psychological trauma to a party or child who is the
subject of, or affected by, the case.
Part 12.4 Attendance
at court events
12.11 Party’s
attendance
(1) A party and the party’s lawyer (if any) must attend
each procedural hearing, case assessment conference or conciliation conference.
(2) Subrule (1) does not apply if the parties are
seeking a consent order that will finally dispose of the case.
Note 1 A request under rule 5.14 for
an application to be determined in the absence of the parties does not apply to
a court event mentioned in Chapter 12 because rule 5.14 applies only to
interim, procedural or enforcement orders.
Note 2 If, at a court event
mentioned in subrule (1), the parties intend to seek a consent order that will
finally dispose of the case, a party or the party’s lawyer may be excused from
attending the event.
Note 3 A lawyer attending a court
event for a party must be familiar with the case and authorised to deal with
any issue in the case (see subrule 1.08 (3)).
Note 4 Rule 16.02 deals with
compliance checks.
12.12 Attendance
by electronic communication
Rules 5.06 and 5.07 apply in relation to the use of
electronic communication to attend a court event (other than a trial) as if the
court event were a hearing.
Note Rule 16.05 sets out the requirements
in relation to attending a trial by electronic communication.
12.13 Failure
to attend court events
(1) If an applicant does not attend a case assessment
conference or procedural hearing, the court may:
(a) dismiss the application; or
(b) make an order for the future conduct of the
case.
(2) If a respondent does not attend a case assessment
conference or procedural hearing, the court may:
(a) if respondent has not filed a Response to an
Application for Final Orders — make the order sought in the application;
(b) list the case for dismissal or hearing on an
undefended basis; or
(c) make an order for the future conduct of the
case.
(3) If a party does not attend a conciliation
conference, the court may:
(a) list the case for dismissal or hearing on an
undefended basis; and
(b) make an order for the future conduct of the
case.
Note See rules 11.01 and 11.02 for the
court’s power to make orders for the conduct of a case.
Part 12.5 Adjournment
and postponement of court events
12.14 Administrative
postponement of conferences or procedural hearings
(1) If the applicant and any party served agree that a
case assessment conference or a procedural hearing should not proceed on the
date fixed for it, the applicant and any party served may request the Registry
Manager to postpone the conference or hearing.
(2) A request must:
(a) be in writing;
(b) specify why it is appropriate to postpone the
event;
(c) specify the date to which the event is
sought to be postponed;
(d) be signed by each party making the request or
the party’s lawyer; and
(e) be received by the Registry Manager no later
than 12 noon on the day before the date fixed for the conference or hearing.
(3) If a request is made, the Registry Manager must
tell the parties:
(a) that the event has been postponed; and
(b) the date to which it has been postponed.
(4) The Registry Manager must not postpone a
conference more than once or any procedural hearing more than twice.
(5) A court event mentioned in subrule (1) must not be
postponed to a date that is more than 8 weeks after the date fixed for the
event.
Chapter 13 Disclosure
Summary of Chapter 13
Chapter 13 sets out the rules about:
· a party’s duty to make
early, full and continuing disclosure of all information relevant to the case
to each other party and the court; and
· the timing, extent and
method of discharging the duty of disclosure and how the duty can be enforced.
The aim of
disclosure is to help parties to focus on genuine issues, reduce cost and
encourage settlement, of the case.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Disclosure between parties
(Parts 13.1, 13.2 and 13.3)
General duty of disclosure
(Division 13.1.1)
Disclosure of documents (Division 13.2.1)
|
By delivery
|
|
Exceptions
|
|
By inspection
|
|
(r 13.20)
|
|
(r 13.12)
|
|
(rr 13.10, 13.21)
|
Orders relating to disclosure
(Division 13.2.2)
Duty of disclosure — financial
cases (Division 13.1.2)
Answers to specific questions (Part
13.3)
Information from non‑parties
(Part 13.4)
|
Employment information (Division 13.4.1)
|
|
Production of documents (Division 13.4.2)
|
Part 13.1 Disclosure
between parties
Division 13.1.1 General duty of disclosure
13.01 General
duty of disclosure
(1) Subject to subrule (3), each party to a case has a
duty to the court and to each other party to give full and frank disclosure of
all information relevant to the case, in a timely manner.
Note Failure
to comply with the duty may result in the court excluding evidence that is not
disclosed or imposing a consequence, including punishment for contempt of
court. This Chapter sets out a number of ways that a party is either required,
or can be called upon, to discharge the party’s duty of disclosure, including:
(a) disclosure of financial circumstances (see Division
13.1.2);
(b) disclosure and production of documents (see Division
13.2.1); and
(c) disclosure by answering specific questions in certain
circumstances (see Part 13.3).
(2) The duty of disclosure starts with the pre‑action
procedure for a case and continues until the case is finalised.
Note The duty of disclosure applies to a
case guardian for a child and a person with a disability (see subrule
6.13 (2)).
(3) This rule does not apply to a respondent in an
application alleging contravention or contempt.
Division 13.1.2 Duty of
disclosure — financial cases
13.02 Purpose of Division 13.1.2
(1) This Division sets out the duty of disclosure
required by parties to a financial case.
(2) This Division does not apply to a party to a
property case who is not a party to the marriage or de facto relationship to
which the application relates, except to the extent that the party’s financial
circumstances are relevant to the issues in dispute.
13.03 Definition
In this Division:
party to a financial case includes a payee or
other respondent to an enforcement application.
13.04 Full
and frank disclosure
(1) A party to a financial case must make full and
frank disclosure of the party’s financial circumstances, including:
(a) the party’s earnings, including income that
is paid or assigned to another party, person or legal entity;
(b) any vested or contingent interest in
property;
(c) any vested or contingent interest in
property owned by a legal entity that is fully or partially owned or controlled
by a party;
(d) any income earned by a legal entity fully or
partially owned or controlled by a party, including income that is paid or
assigned to any other party, person or legal entity;
(e) the party’s other financial resources;
(f) any trust:
(i) of which the party is the
appointor or trustee;
(ii) of which the party, the party’s
child, spouse or de facto spouse is an eligible beneficiary as to capital or
income;
(iii) of which a corporation is an
eligible beneficiary as to capital or income if the party, or the party’s
child, spouse or de facto spouse is a shareholder or director of the
corporation;
(iv) over which the party has any direct
or indirect power or control;
(v) of which the party has the direct
or indirect power to remove or appoint a trustee;
(vi) of which the party has the power
(whether subject to the concurrence of another person or not) to amend the
terms;
(vii) of which the party has the power to
disapprove
a proposed amendment of the terms or the appointment or removal of a trustee;
or
(viii) over which a corporation has a
power mentioned in any of subparagraphs (iv) to (vii), if the party, the
party’s child, spouse or de facto spouse is a director or shareholder of the
corporation;
(g) any disposal of property (whether by sale,
transfer, assignment or gift) made by the party, a legal entity mentioned in
paragraph (c), a corporation or a trust mentioned in paragraph (f) that may
affect, defeat or deplete a claim:
(i) in the 12 months immediately
before the separation of the parties; or
(ii) since the final separation of the
parties; and
(h) liabilities and contingent liabilities.
(2) Paragraph (1) (g) does not apply to a disposal
of property made with the consent or knowledge of the other party or in the
ordinary course of business.
(3) In this rule:
legal entity means a corporation (other than a
public company), trust, partnership, joint venture business or other commercial
activity.
Note The requirements in this rule are in
addition to the requirements in rules 12.02 and 12.05 to exchange certain
documents before a conference in a property case.
13.05 Financial
statement
(1) A party starting, or filing a response or reply to,
a financial case (other than by an Application for Consent Orders) must file a
Financial Statement at the same time.
(2) If a party is aware that the completion of a Financial
Statement will not fully discharge the duty to make full and frank disclosure,
the party must also file an affidavit giving further particulars.
Note The court may order a party to file
an affidavit giving further particulars in relation to the party’s financial
affairs.
13.06 Amendment
of Financial Statement
If a party’s financial circumstances have changed
significantly from the information set out in the Financial Statement or the
affidavit filed under rule 13.05, the party must, within 21 days after the
change of circumstances, file:
(a) a new Financial Statement; or
(b) if the amendments can be set out clearly in
300 words or less — an affidavit containing details about the party’s
changed financial circumstances.
Part 13.2 Duty of
disclosure — documents
Division 13.2.1 Disclosure of documents — all cases
13.07 Duty
of disclosure — documents
The duty of disclosure applies to each document
that:
(a) is or has been in the possession, or under
the control, of the party disclosing the document; and
(b) is relevant to an issue in the case.
Note 1 For documents that parties
must produce to the court:
(a) on the first court date for a Maintenance Application,
see rule 4.15;
(b) on the first court date for a child support application
or appeal, see rule 4.26 (2);
(c) at a conference in a property case, see Part 12.2; and
(d) at a trial, see Chapters 15 and 16.
Note 2 Rule 13.15 provides that a
party must file a written notice about the party’s duty of disclosure.
Note 3 Rule 15.76 provides that a party
may give another party a notice to produce a specified document at a hearing or
trial.
Note 4 A document disclosed to a
party must be used for the purposes of the case only and must not be used for
any other purpose without the consent of the other party or an order.
13.08 Inspection
of documents
(1) A party may, by written notice, require another
party to provide a copy of, or produce for inspection, a document referred to:
(a) in a document filed or served by a party on
another party or independent children’s lawyer; or
(b) in correspondence prepared and sent by or to
another party or independent children’s lawyer.
(2) A party required to provide a copy of a document
must provide the copy within 21 days after receiving the written notice.
13.09 Production
of original documents
A party may, by written notice, require another
party to produce for inspection an original document if the document is a
document that must be produced under the duty of disclosure.
13.10 Disclosure
by inspection of documents
(1) If a party is required to produce a document for
inspection under rule 13.08 or 13.09, the party must:
(a) notify, in writing, the party requesting the
document of a convenient place and time to inspect the document;
(b) produce the document for inspection at that
place and time; and
(c) allow copies of the document to be made, at
the expense of the party requesting it.
(2) The time fixed under paragraph (1) (a) must be
within 21 days after the party receives a written notice under rule 13.08 or
13.09 or as otherwise agreed.
Note The court may shorten or extend the
time for compliance with a rule (see rule 1.14).
13.11 Costs
for inspection
A party who fails to inspect a document under a
notice
given under rule 13.08 or 13.09 or paragraph 13.20 (3) (a)
may not later do so unless the party tenders an amount
for the reasonable costs of providing another opportunity for inspection.
Note The court may, on application, order
that a party not pay costs (see rule 1.12).
13.12 Documents
that need not be produced
Subject to rule 15.55, a party must disclose, but
need not produce to the party requesting it:
(a) a document for which there is a claim for
privilege from disclosure; or
(b) a document a copy of which is already
disclosed, if the copy contains no change, obliteration or other mark or
feature that is likely to affect the outcome of the case.
Note Rule 13.13 sets out the requirements
for challenging a claim of privilege from disclosure.
13.13 Objection
to production
(1) This rule applies if:
(a) a party claims:
(i) privilege from production of a
document; or
(ii) that the party is unable to
produce a document; and
(b) another party, by written notice, challenges
the claim.
(2) The party making the claim must, within 7 days after
the other party challenges the claim, file an affidavit setting out details of
the claim.
Note If there is a dispute about
disclosure, an application may be made to the court (see rules 13.18 and
13.22).
13.14 Consequence
of non‑disclosure
If a party does not disclose a document as
required under these Rules:
(a) the party:
(i) must not offer the document, or
present evidence of its contents, at a hearing or trial without the other
party’s consent or the court’s permission;
(ii) may be guilty of contempt for not
disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of
the party’s case.
Note 1 Under rule 15.76, a party who
discloses a document under this Part must produce the document at the trial if
a notice to produce has been given.
Note 2 Section 112AP of the Act sets
out the court’s powers in relation to contempt of court.
13.15 Undertaking
by party
(1) A party (except an independent children’s lawyer)
must file a written notice:
(a) stating that the party:
(i) has read Parts 13.1 and 13.2 of
these Rules; and
(ii) is aware of the party’s duty to
the court and each other party (including any independent children’s lawyer) to
give full and frank disclosure of all information relevant to the issues in the
case, in a timely manner;
(b) undertaking to the court that, to the best of
the party’s knowledge and ability, the party has complied with, and will
continue to comply with, the duty of disclosure; and
(c) acknowledging that a breach of the
undertaking may be contempt of court.
(2) A party commits an offence if the party makes a
statement or signs an undertaking the party knows, or should reasonably have
known, is false or misleading in a material particular.
Penalty: 50 penalty
units.
Note Subrule (2) is in addition to the
court’s powers under section 112AP of the Act relating to contempt and the
court’s power to make an order for costs.
(3) If the court makes an order against a party under
section 112AP of the Act in respect of a false or misleading statement
mentioned in subrule (2), the party must not be charged with an offence against
subrule (2) in respect of that statement.
(4) A notice under subrule (1) must comply with subrule
24.01 (1) and be as follows:
‘This Notice is filed in accordance with rule 13.15
of the Family Law Rules 2004.
I [insert name]:
(a) have read Parts 13.1 and 13.2 of the Family
Law Rules 2004;
(b) am aware of my
duty to the court and to each other party (including any independent children’s
lawyer) to give full and frank disclosure of all information relevant to the
issues in the case, in a timely manner; and
(c) undertake to the court that, to the best of
my knowledge and ability, I have complied with, and will continue to comply
with, my duty of disclosure.
I understand the nature and terms of this
undertaking and that if I breach the undertaking, I may be guilty of contempt
of court.
|
………………………………
|
………………………………
|
|
(signature of person making
statement)
|
(full name of person making
statement)
|
|
………………………………
|
|
|
(date of signature)
|
|
|
………………………………
|
………………………………
|
|
(signature of witness)
|
(full name of witness)
|
|
………………………………
|
|
|
(date of signature)
|
|
Note 1 For the consequences of
failing to comply with this rule, see rule 11.02.
Note 2 A party who breaches an
undertaking may be found guilty of contempt of court and may be punished by
imprisonment (see section 112AP of the Act).
13.16 Time
for filing undertaking
A notice under rule 13.15 must be filed at least 28
days before the first day before the Judge.
Note The court may shorten or extend the
time for compliance with a rule (see rule 1.14).
Division 13.2.2 Disclosure
of documents — certain applications
13.17 Application
of Division 13.2.2
This Division applies to the following
applications:
(a) an application for divorce;
(b) an Application in a Case;
(c) an application for an order that a marriage
is a nullity or a declaration as to the validity of a marriage, divorce or
annulment;
(d) a Maintenance Application;
(e) a child support application or appeal;
(f) a Contravention Application;
(g) a Contempt Application.
13.18 Party
may seek order about disclosure
A party to an application to which this Division
applies may seek only the following orders about disclosure:
(a) that another party deliver a copy of a
document;
(b) that another party produce a document for
inspection by another party.
Division 13.2.3 Disclosure of documents — Initiating Applications
(Family Law)
13.19 Application
of Division 13.2.3
(1) This Division applies to all Initiating
Applications (Family Law), except:
(a) an application for an order that a marriage
is a nullity or a declaration as to the validity of a marriage, divorce or
annulment;
(b) a Maintenance Application;
(c) a child support application or appeal; or
(d) an Initiating Application (Family Law)
seeking an interim, procedural, ancillary or other incidental order.
(2) This Division does not affect:
(a) the right of a party to inspect a document,
if the party has a common interest in the document with the party who has
possession or control of the document;
(b) another right of access to a document other
than under this Division; or
(c) an agreement between the parties for
disclosure by a procedure that is not described in this Division.
13.20 Disclosure
by service of a list of documents
(1) After a case has been allocated to a first day
before the Judge, a party (the requesting party) may, by written
notice, ask another party (the disclosing party) to give the
requesting party a list of documents to which the duty of disclosure applies.
(2) The disclosing party must, within 21 days after
receiving the notice, serve on the requesting party a list of documents
identifying:
(a) the documents to which the duty of
disclosure applies;
(b) the documents no longer in the disclosing
party’s possession or control to which the duty would otherwise apply (with a
brief statement about the circumstances in which the documents left the party’s
possession or control); and
(c) the documents for which privilege from
production is claimed.
Note Rule 13.07 sets out the documents to
which the duty of disclosure applies.
(3) The requesting party may, by written notice, ask
the disclosing party to:
(a) produce a document for inspection; or
(b) provide a copy of a document.
(4) The disclosing party must, within 14 days after
receiving a notice under paragraph (3) (b), give the requesting
party, at the requesting party’s expense, the copies requested, other than
copies of documents:
(a) in relation to which privilege from
production is claimed; or
(b) that are no longer in the disclosing party’s
possession or control.
(5) If a document that must be disclosed is located by,
or comes into the possession or control of, a disclosing party after disclosure
under subrule (2), the party must disclose the document within 7 days
after it is located or comes into the party’s possession or control.
Note Rule 13.07 sets out the documents to
which the duty of disclosure applies.
13.21 Disclosure
by inspection of documents
(1) This rule applies if:
(a) a party has requested the production of a
document for inspection under paragraph 13.20 (3) (a); or
(b) it is not convenient for a disclosing party
to provide copies of documents under paragraph 13.20 (3) (b)
because of the number and size of the documents.
(2) The disclosing party must, within 14 days after
receiving the notice under subrule 13.20 (3):
(a) notify the requesting party, in writing, of
a convenient place and time at which the documents may be inspected;
(b) produce the documents for inspection at that
place and time; and
(c) allow copies of the documents to be made at
the requesting party’s expense.
13.22 Application
for order for disclosure
(1) A party may seek an order that:
(a) another party
comply with a request for a list of documents in accordance with rule 13.20;
(b) another party disclose a specified document,
or class of documents, by providing to the other party a copy of the document,
or each document in the class, for inspection by the other party;
(c) another party produce a document for
inspection;
(d) a party file an affidavit stating:
(i) that a specified document, or
class of documents, does not exist or has never existed; or
(ii) the circumstances in which a specified
document or class of documents ceased to exist or passed out of the possession
or control of that party; or
(e) the party be partly or fully relieved of the
duty of disclosure.
(2) A party making an application under subrule (1) must
satisfy the court that the order is necessary for disposing of the case or an
issue or reducing costs.
Note 1 Before making an application
under this Chapter, a party must make a reasonable and genuine attempt to
settle the issue to which the application relates (see rule 5.03).
Note 2 An application under this
Chapter is made by filing an Application in a Case and an affidavit (see rules
5.01 and 5.02). The court may allow an oral application at the conciliation
conference or another court event.
(3) In making an order under subrule (1), the
court may consider:
(a) whether the disclosure sought is relevant to
an issue in dispute;
(b) the relative importance of the issue to which
the document or class of documents relates;
(c) the likely time, cost and inconvenience
involved in disclosing a document or class of documents taking into account the
amount of the property, or complexity of the corporate, trust or partnership
interests (if any), involved in the case; and
(d) the likely effect on the outcome of the case
of disclosing, or not disclosing, the document or class of documents.
(4) If the disclosure of a document is necessary for the
purpose of resolving a case at the conciliation conference, a party (the requesting
party) may, at the first court event, seek an order that another party:
(a) provide a copy of the document to the
requesting party; or
(b) produce the document to the requesting party
for inspection and copying.
(5) The court may only make an order under subrule (4)
in exceptional circumstances.
(6) If a party objects to the production of a document
for inspection or copying, the court may inspect the document to decide the
objection.
13.23 Costs
of compliance
If the cost of
complying with the duty of disclosure would be oppressive to a party, the court
may order another party to:
(a) pay the costs;
(b) contribute to the costs; or
(c) give security for costs.
13.24 Electronic
disclosure
The court may make an order directing disclosure of
documents by electronic communication.
Part 13.3 Answers
to specific questions
13.25 Application
of Part 13.3
This Part applies to all applications seeking final
orders, except:
(a) an application for an order that a marriage
is a nullity or a declaration as to the validity of a marriage, divorce or annulment;
(b) a Maintenance Application;
(c) a child support application or appeal; or
(d) an Initiating Application (Family Law) seeking
an interim, procedural, ancillary or other incidental order.
13.26 Service of specific questions
(1) After a case has been allocated to a first day
before a Judge, a party (the requesting party) may serve on
another party (the answering party) a request to answer specific
questions.
(2) A party may only serve one set of specific questions
on another party.
(3) The specific
questions must:
(a) be in writing;
(b) be limited to 20 questions (with each
question taken to be one specific question); and
(c) not be vexatious or oppressive.
(4) If an answering party is required, by a written
notice served under rule 13.20 or an order, to give the requesting party a list
of documents, the answering party is not required to answer the questions until
the time for disclosure under Part 13.2 or an order has expired.
(5) The requesting party must serve a copy of any
request to answer specific questions on all other parties.
13.27 Answering
specific questions
(1) A party on whom a request to answer specific
questions is served must answer the questions in an affidavit that is filed and
served on each person to be served within 21 days after the request was served.
(2) The party must, in
the affidavit:
(a) answer, fully and frankly, each specific
question; or
(b) object to answering a specific question.
(3) An objection under
paragraph (2) (b) must:
(a) specify the grounds of the objection; and
(b) briefly state the facts in support of the
objection.
13.28 Orders in relation to specific questions
(1) A party may apply for
an order:
(a) that a party comply with rule 13.27 and
answer, or further answer, a specific question served on the party under rule 13.26;
(b) determining the extent to which a question
must be answered;
(c) requiring a party to state specific grounds
of objection;
(d) determining the validity of an objection; or
(e) that a party who has not answered, or who
has given an insufficient answer, to a specific question be required to attend
court to be examined.
(2) In considering
whether to make an order under subrule (1), the court may take into account
whether:
(a) the requesting party is unlikely, at the
trial, to have another reasonably simple and inexpensive way of proving the
matter sought to be obtained by the specific questions;
(b) answering the questions will cause
unacceptable delay or undue expense; and
(c) the specific questions are relevant to an
issue in the case.
Part 13.4 Information
from non‑parties
Division 13.4.1 Employment information
13.29 Purpose
of Division 13.4.1
This Division sets out the information a party may
require from an employer of a party to a financial case.
13.30 Employment
information
(1) The court may order a party to advise the court, in
writing, within a specified time, of:
(a) the name and address of the party’s employer
or, if the party has more than one employer, each of those employers; and
(b) other information the court considers
necessary to enable an employer to identify the party.
(2) Subrule (3) applies if:
(a) a party (the requesting party)
requests the employer of another party (the employee) to give
particulars about:
(i) the employer’s indebtedness to the
employee;
(ii) the employee’s present rate of
earnings, or of all the earnings of the employee that became payable during a
specified period; or
(iii) the employee’s conditions of
employment; and
(b) the employer refuses, or fails to respond to,
the requesting party’s request.
(3) The requesting party may apply for an order that the
employer advise the court, in writing, within a specified time, of the
particulars mentioned in paragraph (2) (a).
Note A document purporting to be a
statement within the meaning of subrule (1) or (2) may be admitted as evidence
of its contents (see section 48 of the Evidence Act 1995). However,
subject to sections 4 and 5 of the Evidence Act 1995, that Act does
not apply to the Family Court of Western Australia or any other court of a
State.
Chapter 14 Property orders
Summary of
Chapter 14
Chapter 14 sets
out the procedure to be taken in property cases to obtain orders for
inspection, detention, possession, valuation, insurance, preservation of
property and with respect to a superannuation interest.
An application
made under this Chapter must be in an Initiating Application (Family Law)
seeking interim, procedural, ancillary or incidental orders, or an Application
in a Case (see Chapter 5 for the procedure).
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
14.01 Orders
about property
(1) The court may make an order for the inspection,
detention, possession, valuation, insurance or preservation of property if:
(a) the order relates to the property of a
party, or a question may arise about the property in a case; and
(b) the order is necessary to allow the proper
determination of a case.
(2) The court may order a party:
(a) to sell or otherwise dispose of property
that will deteriorate, decay or spoil; and
(b) to deal with the proceeds of the sale or
disposal in a certain way.
(3) A party may ask the court to make an order in
relation to property authorising a person to:
(a) enter, or to do another thing to gain entry
or access to, the property;
(b) make observations, and take photographs, of
the property;
(c) observe or read images or information
contained in the property including, for example, playing a tape, film or disk,
or accessing computer files; or
(d) copy the property or information contained in
the property.
(4) If the court makes an order under this rule, it may
also order a party to pay the costs of a person who is not a party to the case
and who must comply with the order.
(5) The court may make an order under subrule (1)
binding on, or otherwise affecting, a person who is not a party to a case.
Note For the procedure for making an
application for interim, procedural, ancillary or
other incidental orders, see Chapter 5.
14.02 Service of application
(1) A party who has
applied for an order under rule 14.01 must:
(a) make a reasonable attempt to find out who
has, or claims to have, an interest in the property to which the application
relates; and
(b) serve the application and any supporting
affidavits on that person.
(2) The court may allow an application for an order
under this Part to be made without notice.
14.03 Inspection
A party may apply for an order that the court
inspect a place, process or thing, or witness a demonstration, about which a
question arises in a case.
Note For the procedure for making an
application in a case, see Chapter 5.
14.04 Application
for Anton Piller order
(1) A party may apply for an Anton Piller order:
(a) requiring a respondent to permit the
applicant, alone or with another person, to enter the respondent’s premises and
inspect or seize documents or other property;
(b) requiring the respondent to disclose specific
information relevant to the case; and
(c) restraining the respondent, for a specified
period of no more than 7 days, from informing anyone else (other than the
respondent’s lawyer) that the order has been made.
(2) The applicant may apply for an Anton Piller order
without notice to the respondent.
(3) An application for an Anton Piller order must be
supported by an affidavit that includes:
(a) a description of the document or property to
be seized or inspected;
(b) the address of the premises where the order
is to be carried out;
(c) the reason the applicant believes the
respondent may remove, destroy or alter the document or property unless the
order is made;
(d) a statement about the damage the applicant is
likely to suffer if the order is not made;
(e) a statement about the value of the property
to be seized; and
(f) if permission is granted, the name of the
person (if any) who the applicant wishes to accompany the applicant to the
respondent’s premises.
Note For the procedure for making an
application for interim, procedural, ancillary or
other incidental orders, see Chapter 5.
(4) If an Anton Piller order is made, the applicant must
serve a copy of it on the respondent when the order is acted on.
14.05 Application
for Mareva order
(1) A party may apply for a Mareva order restraining
another person from removing property from Australia, or dealing with property
in or outside Australia, if:
(a) the order will be incidental to an existing
or prospective order made in favour of the applicant; or
(b) the applicant has an existing or prospective
claim that is able to be decided in Australia.
(2) The applicant must file with the application an
affidavit that includes:
(a) a description of the nature and value of the
respondent’s property, so far as it is known to the applicant, in and outside
Australia;
(b) the reason why the applicant believes:
(i) property of the respondent may be
removed from Australia; and
(ii) dealing with the property should
be restrained by order;
(c) a statement about the damage the applicant
is likely to suffer if the order is not made;
(d) a statement about the identity of anyone,
other than the respondent, who may be affected by the order and how the person
may be affected; and
(e) if the application is made under paragraph
(1) (b), the following information about the claim:
(i) the basis of the claim;
(ii) the amount of the claim;
(iii) if the application is made without
notice to the respondent, a possible response to the claim.
Note For the procedure for making an
application for interim, procedural, ancillary or other incidental orders,
see Chapter 5.
14.06 Notice
to superannuation trustee
(1) This rule applies in a property case if:
(a) a party seeks an order to bind the trustee
of an eligible superannuation plan; and
(b) the case has been listed for the first day
before the Judge.
(2) The party must, not less than 28 days before the first
day before the Judge, notify the trustee of the eligible superannuation plan in
writing of the terms of the order that will be sought at the trial to bind the
trustee, and the date of the trial.
(3) If the court makes an order binding the trustee of
an eligible superannuation plan, the party that sought the order must serve a
copy of the order on the trustee of the eligible superannuation plan in which
the interest is held.
Note 1 Subrule 7.13 (2) sets
out how to prove service of a copy of an order.
Note 2 Eligible superannuation plan
is defined in section 90MD of the Act.
14.07 Notice
about intervention under Part VIII or VIIIAB of Act
(1) A person who applies for an order under Part VIII
of the Act must serve a written notice on each person mentioned in subsection
79 (10) of the Act.
(2) A person who applies for an order under Part VIIIAB
of the Act must serve a written notice on each person mentioned in subsection
90SM (10) of the Act.
(3) The notice must:
(a) state that the person to whom the notice is
addressed may be entitled to become a party to the case under the subsection of
the Act for which the notice is served;
(b) include a copy of the application for the
order sought; and
(c) state the date of the next relevant court
event.
Chapter 15 Evidence
Summary of Chapter 15
Chapter 15 sets
out rules about evidence generally and in relation to children, affidavits,
subpoenas, assessors and expert witnesses. Evidence adduced at a hearing or
trial must be admissible in accordance with the provisions of the Act, the Evidence
Act 1995 and these Rules. Note, though, that, subject to sections 4 and 5
of the Evidence Act 1995, that Act does not apply to the Family
Court of Western Australia or any other court of a State.
A person may be
prosecuted for knowingly making a false statement in evidence (see section 35
of the Crimes Act 1914).
Sections 69ZT to
69ZX of the Act apply to a case to which Division 12A of Part VII of the Act
applies.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
15.01 Definition
In this Chapter:
relevant date, for an affidavit, report or
document proposed to be entered into evidence, means the earlier of:
(a) the first day of the final stage of the
trial in which the affidavit, report or document is to be relied on in
evidence; or
(b) the first day when the affidavit, report or
document is to be relied on in evidence.
Part 15.1 Children
15.02 Restriction
on child’s evidence
(1) A party applying to adduce the evidence of a child
under section 100B of the Act must file an affidavit that:
(a) sets out the facts relied on in support of
the application;
(b) includes the name of a support person; and
(c) attaches a summary of the evidence to be
adduced from the child.
Note For the procedure for making an
application in a case, see Chapter 5.
(2) If the court makes an order in relation to an
application mentioned in subrule (1), it may order that:
(a) the child’s evidence be given by way of
affidavit, video conference, closed circuit television or other electronic
communication; and
(b) a person named
in the order as a support person be present with the child when the child gives
evidence.
Note Subsections 100B (1) and (2) of
the Act provide that a child (other than a child who is, or is seeking to
become, a party to a case) must not swear an affidavit and must not be called
as a witness or remain in court unless the court otherwise orders.
15.04 Family reports
If a family report is prepared in a case, the
court may:
(a) release copies of the report to each party,
or the party’s lawyer, and to an independent children’s lawyer;
(b) receive the report in evidence;
(c) permit oral examination of the person making
the report; and
(d) order that the report not be released to a
person or that access to the report be restricted.
Part 15.2 Affidavits
Note The
filing of an affidavit does not make it become evidence. It is only when the
affidavit is relied upon by a party at a hearing or trial that it becomes, for
that hearing or trial (subject to any rulings on admissibility), part of the
evidence.
15.05 No
general right to file affidavits
A party may file an affidavit without the leave of
the court only if a provision of the Rules or an order of the court allows the
affidavit to be filed in that way.
15.06 Reliance
on affidavits
An affidavit filed with an application may be
relied on in evidence only for the purpose of the application for which it was
filed.
Note The court may dispense with
compliance with a rule (see rule 1.12).
15.08 Form
of affidavit
An affidavit must:
(a) be divided into consecutively numbered
paragraphs, with each paragraph being, as far as possible, confined to a
distinct part of the subject matter;
(b) state, at the beginning of the first page:
(i) the file number of the case for
which the affidavit is sworn;
(ii) the full name of the party on
whose behalf the affidavit is filed; and
(iii) the full name of the deponent;
(c) have a statement at the end specifying:
(i) the name of the witness before
whom the affidavit is sworn and signed; and
(ii) the date when, and the place
where, the affidavit is sworn and signed; and
(d) bear the name
of the person who prepared the affidavit.
Note An affidavit must comply with
subrule 24.01 (1), including being legibly printed by machine.
15.09 Making an affidavit
(1) An affidavit must be:
(a) confined to facts about the issues in
dispute;
(b) confined to admissible evidence;
(c) sworn by the deponent, in the presence of a
witness;
(d) signed at the bottom of each page by the
deponent and the witness; and
(e) filed after it is sworn.
(2) Any insertion in, erasure or other alteration of, an
affidavit must be initialled by the deponent and the witness.
(3) A reference to a date (except the name of a month),
number or amount of money must be written in figures.
Examples
1. The
second of July, Nineteen Hundred and Sixty‑Four must be written as
‘2 July 1964’.
2. Twenty
dollars must be written as ‘$20.00’.
Note 1 Rule 24.07 sets out the
requirements for filing an affidavit by electronic communication.
15.10 Affidavit
of illiterate or blind person etc
(1) If a deponent is illiterate, blind, or physically
incapable of signing an affidavit, the witness before whom the affidavit is
made must certify, at the end of the affidavit, that:
(a) the affidavit was read to the deponent;
(b) the deponent seemed to understand the
affidavit; and
(c) for a deponent physically incapable of
signing — the deponent indicated that the contents were true.
(2) If a deponent does not have an adequate command of
English:
(a) a translation of the affidavit and oath must
be read or given in writing to the deponent in a language that the deponent
understands; and
(b) the translator must certify that the
affidavit has been translated.
15.11 Affidavit
outside Australia
A person may make an affidavit outside Australia
in accordance with:
(a) this Part; or
(b) the law of the place where the person makes
the affidavit.
15.12 Documents
attached
(1) A document to be used in conjunction with an
affidavit must:
(a) subject to subrules (2) and (5), be attached
to the affidavit;
(b) have its pages consecutively numbered
beginning on the first page of the document with:
(i) if the document is the first or
only document used in conjunction with the affidavit — the numeral ‘1’; or
(ii) if the document is not the first
document used in conjunction with the affidavit — the numeral following
the numeral appearing on the last page of the preceding document; and
(c) bear a statement, signed by the witness
before whom the affidavit is made,
identifying it as the document used in conjunction with the affidavit.
(2) A document to be used in conjunction with an
affidavit must not be attached to the affidavit if:
(a) the document is more than 2.5 cm in
thickness; or
(b) if the document is not more than 2.5 cm
in thickness — the document and the affidavit, including any other
documents to be used in conjunction with the affidavit, when combined are more
than 2.5 cm in thickness.
(3) If a document to be used in conjunction with an
affidavit must not be attached to the affidavit because of subrule (2), the
document must be filed:
(a) if the document is not more than 2.5 cm
in thickness — in a separate volume; or
(b) if the document is more than 2.5 cm in
thickness — in as many separately indexed volumes, each not more than
2.5cm in thickness, as are required to contain the document.
(4) An index of contents
must be included at the beginning of:
(a) if more than 1 document is attached to an
affidavit in accordance with paragraph (1) (a) — the documents attached to
the affidavit; or
(b) if more than 1 volume is filed in accordance
with paragraph (3) (b) — each volume.
(5) If a document to be used in conjunction with an
affidavit is unable to be attached to the affidavit, the document must be
identified in the affidavit and filed.
(6) Paragraph (1) (c) does not apply to
an attachment to an Affidavit of Service .
15.13 Striking out objectionable material
(1) The court may order
material to be struck out of an affidavit if the material:
(a) is inadmissible, unnecessary, irrelevant,
unreasonably long, scandalous or argumentative; or
(b) sets out the opinion of a person who is not
qualified to give it.
(2) If the court orders material to be struck out of an
affidavit, the party who filed the affidavit may be ordered to pay the costs
thrown away of any other party because of the material struck out.
15.14 Notice
to attend for cross‑examination
(1) This rule applies
only to a trial.
(2) A party seeking to
cross‑examine a deponent must, at least 14 days before the relevant
date, give to the party who filed the affidavit a written notice stating the
name of the deponent who is required to attend court for cross‑examination.
(3) If a deponent fails to attend court in response to
a notice under subrule (2), the court may:
(a) refuse to allow the deponent’s affidavit to
be relied on;
(b) allow the affidavit to be relied on only on
the terms ordered by the court; or
(c) order the deponent to attend for cross‑examination.
(4) If:
(a) a deponent attends court in response to a
notice under subrule (2); and
(b) the deponent is not cross‑examined, or
the cross‑examination is of little or no evidentiary value;
the party who required the deponent’s attendance may be ordered to
pay the deponent’s costs for attending and any costs incurred by the other
party because of the notice.
15.15 Deponent’s
attendance and expenses
The court may make orders for the attendance, and
the payment of expenses, of a deponent who attends court for cross‑examination
under rule 15.14.
Part 15.3 Subpoenas
Division 15.3.1 General
15.16 Interpretation
(1) In this Part:
court date means the date specified in a subpoena
for attending court to give the evidence or produce the document mentioned in
the subpoena.
issuing party means the party for whom a
subpoena is issued.
named person means a person required by a
subpoena to produce a document or give evidence.
(2) In this Part, a reference to a document includes a
reference to an object.
Note See section 25 of the Acts
Interpretation Act 1901 for the definition of document.
15.17 Issuing
a subpoena
(1) Subject to rule 22.34, the court may issue:
(a) a subpoena for production;
(b) a subpoena to give evidence; or
(c) a subpoena for production and to give
evidence.
(2) Subject to rule 15.21, the court will issue a
subpoena mentioned in subrule (1) at the request of a party only if:
(a) the party has requested permission from the
court; and
(b) the court has granted permission.
Note A request for permission should
generally be made at a court event.
(3) For subrule (2), a request for the
court’s permission:
(a) may be made orally or in
writing;
(b) may be made without giving
notice to any other parties; and
(c) may be determined in
chambers in the absence of the other parties.
(4) A subpoena must identify the person to whom it is
directed by name or description of office.
(5) A subpoena may be directed to 2 or more persons if:
(a) the subpoena is to give evidence only; or
(b) the subpoena requires the production of the
same documents from each named person.
(6) A subpoena for production:
(a) must identify the document to be produced
and the time and place for production; and
(b) may require the named person to produce the
document before the date of the trial.
15.18 Subpoena
not to issue in certain circumstances
The court must not issue a subpoena:
(a) at the request of a self‑represented
party, unless the party has first obtained the Registrar’s permission to make
the request; or
(b) for production of a document in the custody
of the court or another court.
Note 1 Rule 15.34 sets out the procedure
to be followed when a party seeks to produce to the court a document from
another court.
Note 2 A prisoner required to give
evidence at a hearing must do so by electronic communication, if practicable.
Otherwise the party requiring the prisoner’s attendance must seek an order for
the prisoner’s personal attendance (see rule 5.07).
15.20 Amendment
of subpoena
A subpoena that has been issued but not served may
be amended by the issuing party filing the amended subpoena with the amendments
clearly marked.
15.21 Subpoenas
to produce documents
A party or an
independent children’s lawyer may seek the issue of a subpoena to produce
documents for the hearing of an application seeking interim, procedural, ancillary
or other incidental orders without permission from the court.
15.22 Service
(1) A subpoena must be served on the named person by
hand.
(2) A subpoena must not be served on a child without the
court’s permission.
Note For service generally, see Chapter
7. For particular requirements in relation to service of a subpoena to produce
documents, see rule 15.28.
15.23 Conduct
money and witness fees
(1) A named person is entitled to be paid conduct money
by the issuing party at the time of service of the subpoena, of an amount that
is:
(a) sufficient to meet the reasonable expenses
of complying with the subpoena; and
(b) at least equal to the minimum amount
mentioned in Part 1 of Schedule 4.
(2) A named person served with a subpoena to give
evidence and a subpoena to give evidence and produce documents is entitled to
be paid a witness fee by the issuing party in accordance with Part 2 of
Schedule 4, immediately after attending court in compliance with the subpoena.
(3) A named person may apply to be reimbursed if the
named person incurs a substantial loss or expense that is greater than the
amount of the conduct money or witness fee payable under this rule.
15.24 When compliance is not required
(1) A named person does
not have to comply with the subpoena if:
(a) the named person was not served in
accordance with these Rules (see rule 15.22 and subrule 15.28 (1));
or
(b) conduct money was not tendered to the person
at the time of service or within a reasonable time before the court date.
(2) If a named person is not to be called to
give evidence or produce a document to the court in compliance with the
subpoena, the issuing party may excuse the named person from complying with the
subpoena.
15.25 Discharge of subpoena obligation
(1) A subpoena remains in
force until the earliest of the following events:
(a) the subpoena is complied with;
(b) the issuing party or the court releases the
named person from the obligation to comply with the subpoena;
(c) the hearing or trial is concluded.
(2) For paragraph (1) (c), a trial or hearing is
concluded when all parties have finished presenting their case.
15.26 Objection
to subpoena
If a named person or a person having sufficient
interest in a subpoena:
(a) seeks an order that the subpoena be set
aside in whole or in part;
(b) objects to the production of a document
required by the subpoena;
(c) seeks to be paid for any loss or expense
relating to the person’s attendance, or the production of a document, in
compliance with the subpoena; or
(d) seeks any other relief in relation to the
subpoena;
the person must attend court on the court date to apply for the
order.
Note An application to set aside a
subpoena issued in an appeal will be listed for determination before the court
hearing the appeal.
Division 15.3.2 Production of documents and access by parties
15.27 Application
of Division 15.3.2
(1) This Division applies to a subpoena for production.
(2) A person who inspects or copies a document under
these Rules or an order must:
(a) use the document for the purpose of the case
only; and
(b) not disclose the contents of the document or
give a copy of it to any other person without the court’s permission.
15.28 Service
of subpoena for production
(1) A party who requests the issue of a subpoena for
production must, at least 7 days before the court date:
(a) serve the named person, by hand, with:
(i) the subpoena;
(ii) a brochure called Subpoena
(Information for Named Person), approved by the Principal Registrar giving
information about subpoenas; and
(iii) if the party intends to rely on
rule 15.30 — the written notice mentioned in subrule 15.30 (2); and
(b) serve all other parties and the independent
children’s lawyer (if any), by ordinary service, with a copy of the subpoena
for production and, if applicable, the notice mentioned in subparagraph
(a) (iii).
(2) At the time of service of the subpoena, the named
person must be paid conduct money under subrule 15.23 (1).
Note 1 A person may ask permission
to serve a subpoena at a later time than that set out in subrule (1) (see
rule 1.14).
Note 2 Paragraph
15.17 (5) (b) provides that a subpoena for production may require the
named person to produce a document before the date of the trial.
15.29 Compliance
with subpoena
(1) A named person may comply with a subpoena for
production by:
(a) attending, on the court date, at the place
specified in the subpoena and providing the documents to the court; or
(b) no later than 2 days before the court date:
(i) producing the documents to the
Registry Manager together with a copy of the subpoena; or
(ii) producing copies of the documents
attached to an affidavit.
(2) For subparagraph (1) (b) (ii), the affidavit must:
(a) state that is it an affidavit under rule
15.29;
(b) have attached to it a copy of the subpoena
for production;
(c) verify the attached copies as accurate
copies of the original documents mentioned in the subpoena; and
(d) be sworn by the named person.
(3) The named person, when complying with the subpoena
for production, must inform the Registry Manager in writing about whether:
(a) the documents referred to in the subpoena
are to be returned to the named person; or
(b) the Registry Manager is authorised to dispose
of the documents when they are no longer required by the court.
(4) In this rule:
copy includes:
(a) a photocopy; or
(b) a PDF copy on a CD-ROM.
15.30 Right
to inspect and copy
(1) This rule applies if:
(a) the issuing party serves the named person
and the other parties, including the independent children’s lawyer (if any), in
accordance with rule 15.28 at least 21 days before the court date; and
(b) the named person complies with the subpoena
at least 7 days before the court date.
(2) The written notice mentioned in subparagraph
15.28 (1) (a) (iii) must state that:
(a) if the named person:
(i) complies with the subpoena at
least 7 days before the court date; and
(ii) does not object to a party or any
independent children’s lawyer inspecting or copying the document; and
(b) if no other party or person objects to the
document being inspected and copied by the parties or any independent
children’s lawyer;
each party and any independent children’s lawyer is entitled,
without an order, to inspect and take copies of the document from 7 days
before the court date.
(3) The issuing party must file an Affidavit of Service,
setting out the details of the party’s compliance with paragraph (1) (a).
(4) If the named person, a party or an independent
children’s lawyer has not made an objection under rule 15.31 by the seventh day
before the court date, each party and any independent children’s lawyer is
entitled, after the seventh day and without an order, to inspect and take
copies of the document.
Note Some legislative provisions prohibit
government departments from communicating certain information; for example, see
section 150 of the Assessment Act and section 16 of the Registration Act.
15.31 Objection
to inspection or copying of document
(1) This rule applies if the named person, or a person
having sufficient interest in a subpoena for production:
(a) objects to the production of a document
identified in the subpoena; or
(b) objects to a document identified in the
subpoena being inspected or copied by any of the parties.
(2) The person must, as soon as practicable after being
served with the subpoena and at least 10 days before the court date, give
written notice of the objection, or other order sought, in accordance with Part
F of the Subpoena, to:
(a) the Registry Manager;
(b) the named person, if applicable;
(c) the other parties; and
(d) any independent children’s lawyer.
(3) A notice under this rule operates as a stay on the
operation of the parties’ and independent children’s lawyer’s right, under
subrule 15.30 (4), to inspect and copy a document produced under a
subpoena.
15.32 Court
permission to inspect documents
A person may not inspect or copy a document produced
in compliance with a subpoena for production, but not yet admitted into
evidence, unless:
(a) rule 15.30 applies; or
(b) the court gives permission.
15.33 Claim
for privilege
The court may compel a person to produce a document
to the court for the purpose of ruling on an objection to the production of the
document under a subpoena for production.
15.34 Production
of document from another court
(1) A party who seeks to produce to the court a
document in the possession of another court must give the Registry Manager a
written notice setting out:
(a) the name and address of the court having
possession of the document;
(b) a description of the document to be produced;
(c) the date when the document is to be
produced; and
(d) the reason for seeking production.
(2) On receiving a notice under subrule (1), a
Registrar may ask the other court, in writing, to send the document to the
Registry Manager of the filing registry by a specified date.
(3) A party may apply for permission to inspect and copy
a document produced to the court.
15.35 Return of documents produced
(1) This rule applies to a document produced in
compliance with a subpoena that is to be returned to the named person.
(2) If the document is tendered as an exhibit at a
hearing or trial, the Registry Manager must return it at least 28 days, and no
later than 42 days, after the final determination of the application or appeal.
(3) If:
(a) a document is not tendered as an exhibit at
a hearing or trial; and
(b) the party who filed the subpoena has been
given 7 days written notice of the Registry Manager’s intention to return it;
the Registry Manager may return the document to the named person at
a time that is earlier than the time mentioned in subrule (2).
(4) If the Registry Manager has received written
permission from the named person to destroy the document:
(a) subrules (2) and (3) do not apply; and
(b) the Registry Manager may destroy the
document, in an appropriate way, not earlier than 42 days after the final
determination of the application or appeal.
Note A document:
(a) tendered into evidence by a party; and
(b) not produced in compliance with a subpoena;
must be collected by the party who tendered it (see subrule
16.10 (4)).
Division 15.3.3 Non‑compliance with subpoena
15.36 Non‑compliance
with subpoena
If:
(a) a named person does not comply with a
subpoena; and
(b) the court is satisfied that the named person
was served with the subpoena and given conduct money (see rule 15.23);
the court may issue a warrant for the named person’s arrest
and order the person to pay any costs caused by the non‑compliance.
Note A person who does not comply with a
subpoena may be guilty of contempt (see section 112AP of the Act).
Division 15.3.4 Subpoenas in Trans-Tasman Cases
15.36A Application
of Division 15.3.4
This Division applies to a subpoena:
(a) that is issued by the court;
(b) to which Part 2 of the Evidence and Procedure
Act applies; and
(c) that is to be served in New Zealand.
15.36B General
rules to apply
These Rules, including Divisions 15.3.1 and 15.3.2,
apply to a subpoena to which this Division applies to the extent that they are
not inconsistent with this Division.
15.36C Definition
for Division 15.3.4
(1) In this Division:
Evidence and Procedure Act means the Evidence
and Procedure (New Zealand) Act 1994.
(2) Expressions used in this Division and in the
Evidence and Procedure Act have the same meaning in this Division as in that
Act.
15.36D Subpoenas
not to be served without leave
A subpoena may be served in New Zealand only with
the leave of a Judge.
Note See subsection 9 (1) of the
Evidence and Procedure Act.
15.36E Application
for leave to serve subpoena in New Zealand
(1) An application for leave to serve a subpoena in New
Zealand must be made as an application for ancillary orders in an Initiating
Application (Family Law) or in an Application in a Case.
(2) An application for the person named to give evidence
by telephone or video link must be made and heard at the same time as the
application for leave.
Note The court may, of its own motion,
direct that evidence sought in a subpoena be taken by electronic means whether
or not such an application is made.
(3) The affidavit accompanying the application for
leave must include each subpoena for which leave is sought and state the
following matters:
(a) the name, designation or occupation and
address of each person named in a subpoena;
(b) the name of any person named who is under 18
years;
(c) the nature and significance of the evidence
to be given, or the document or thing to be produced, by each person named;
(d) details of the steps taken to ascertain
whether the evidence, document or thing could be obtained by other means
without significantly greater expense, and with less inconvenience to the person
named;
(e) the date by which it is intended to serve
each subpoena in New Zealand;
(f) an undertaking to pay:
(i) all of the reasonable expenses of
each person named complying with the subpoena; and
(ii) when required by a Registrar, a sum sufficient to send each document or thing sought by each
subpoena, and produced to a Registry of the High Court of New Zealand, to the Registry
that issued the subpoena by a means that will ensure it is received by the court
before the date when it is required to be produced;
(g) details of the amounts to be paid or tendered
to each person named to meet the person’s reasonable expenses of complying with
the subpoena;
(h) details of the way in which these amounts are
to be paid or tendered to each person named;
(i) if a subpoena requires a person named to
give evidence:
(i) an estimate of the time that the
person will be required to give evidence; and
(ii) details of the facilities
available and costs to be incurred to enable the person to give evidence by electronic
means;
(j) any facts or matters known to the applicant
that may be grounds for an application by a person named to have the subpoena
set aside under subsection 14 (2) or (3) of the Evidence and Procedure
Act;
(k) details of any hardship or inconvenience to a
person named known to the applicant.
15.36F Hearing
of application
(1) The application:
(a) may be heard in the absence of a party or of
the person named; and
(b) need not be served on a person named unless
the court otherwise orders.
(2) In giving leave, the Judge may give directions about
service of the subpoena.
15.36G Setting
aside subpoena
(1) A person seeking an order mentioned in rule 15.26
for a subpoena to which this Division applies may do so by filing an
Application in a Case.
(2) The affidavit accompanying the application must:
(a) include a copy of the subpoena;
(b) state the grounds on which the application is
based;
(c) include an address for service in Australia
or New Zealand of the person named; and
(d) state whether the person named requests that
the hearing be heard by video link or telephone.
(3) A document in relation to the application may be
served on the person named in a manner mentioned in subsection 13 (4) of
the Evidence and Procedure Act.
Note This is in addition to, not in
derogation from, any other method of service permitted under the Rules —
see subsection 13 (7) of the Evidence and Procedure Act.
(4) The Registry Manager must serve a copy of the
application and the accompanying affidavit on the person who obtained leave to
serve the subpoena in New Zealand.
15.36H Service
of subpoena
A subpoena must be served in accordance with
section 10 of the Evidence and Procedure Act and accompanied by an information
sheet in a form approved by the Principal Registrar.
Note 1 Subsection 10 (3) of the
Evidence and Procedure Act requires the subpoena to be accompanied by a copy of
the order giving leave for service and a notice in the form set out in Schedule
2 to the Evidence and Procedure (New Zealand) Regulations 1995.
Note 2 Section 11 of the Evidence
and Procedure Act requires payment for the reasonable expenses of complying
with the subpoena to be paid or tendered at the time of service.
15.36I Compliance
If a Registrar is
told that a document or thing has been produced to a Registry of the High Court
of New Zealand in compliance with a subpoena, the Registrar may:
(a) ask that Registry if the document or thing
is able to be delivered to the court before the date mentioned in the subpoena
for production; and
(b) subject to payment of costs by the person who
obtained leave — arrange for the document or thing to be delivered to the
court.
15.36J Non-compliance
If a person named fails to comply with a subpoena,
the court may issue a certificate under section 16 of the Evidence and
Procedure Act.
Note This certificate empowers the High
Court of New Zealand, under section 165 of the Evidence Act 2006 (NZ),
to take action to enforce the subpoena.
Part 15.4 Assessors
15.37 Application
of Part 15.4
This Part applies to all applications except:
(a) an application for divorce;
(b) an application for an order that a marriage
is a nullity; or
(c) an application for a declaration as to the
validity of a marriage, divorce or annulment.
15.38 Appointing
an assessor
(1) A party may apply for the appointment of an
assessor by filing:
(a) an Initiating Application (Family Law) and
an affidavit; or
(b) after a case has commenced — an
Application in a Case and an affidavit.
(2) The affidavit filed with the application must:
(a) state:
(i) the name of the proposed assessor;
(ii) the issue about which the
assessor’s assistance will be sought; and
(iii) the assessor’s qualifications,
skill and experience to give the assistance; and
(b) attach the written consent of the proposed
assessor.
(3) The court may appoint an assessor on its own
initiative only if the court has:
(a) notified the parties of the matters
mentioned in subrule (2); and
(b) given the parties a reasonable opportunity to
be heard in relation to the appointment.
15.39 Assessor’s
report
(1) The court may direct an assessor to prepare a
report.
(2) A copy of the report must be given to each party and
any independent children’s lawyer.
(3) An assessor must not be required to give evidence.
(4) The court is not bound by any opinion or finding of
the assessor.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
15.40 Remuneration
of assessor
(1) An assessor may:
(a) be remunerated as determined by the court;
and
(b) be paid by the court, or a party or other
person, as ordered by the court.
(2) The court may order a party or other person to pay,
or give security for payment of, the assessor’s remuneration before the
assessor is appointed to assist the court.
Part 15.5 Expert
evidence
Division 15.5.1 General
15.41 Application
of Part 15.5
(1) This Part (other than rule 15.55) does not apply to
any of the following:
(a) evidence from a medical practitioner or
other person who has provided, or is providing, treatment for a party or child
if the evidence relates only to any or all of the following:
(i) the results of an examination,
investigation or observation made;
(ii) a description of any treatment
carried out or recommended;
(iii) expressions of opinion limited to
the reasons for carrying out or recommending treatment and
the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been
retained for a purpose other than the giving of advice or evidence, or the
preparation of a report for a case or anticipated case, being evidence:
(i) about that expert’s involvement
with a party, child or subject matter of a case; and
(ii) describing the reasons for the
expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been
associated, involved or had contact with a party, child or subject matter of a
case for a purpose other than the giving of advice or evidence, or the
preparation of a report for a case or anticipated case, being evidence about
that expert’s association, involvement or contact with that party, child or
subject matter;
(d) evidence from family consultant employed by a
Family Court (including evidence from a person appointed under regulation 8 of
the Regulations).
Example
An example of evidence excluded from the requirements of
this Part (other than rule 15.55) is evidence from a treating doctor or a
teacher in relation to the doctor’s or teacher’s involvement with a party or
child.
(2) Nothing in this Part prevents an independent children’s
lawyer communicating with a single expert witness.
15.42 Purpose
of Part 15.5
The purpose of this Part is:
(a) to ensure that parties obtain expert
evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is
necessary to resolve or determine a case;
(c) to ensure that, if practicable and without
compromising the interests of justice, expert evidence is given on an issue by
a single expert witness;
(d) to avoid unnecessary costs arising from the appointment
of more than one expert witness; and
(e) to enable a party to apply for permission to
tender a report or adduce evidence from an expert witness appointed by that
party, if necessary in the interests of justice.
15.43 Definitions
In this Part:
expert means an independent person who has
relevant specialised knowledge, based on the person’s training, study or
experience.
expert’s report means a report by an expert
witness, including a notice under subrule 15.59 (5).
expert witness means an expert who has been
instructed to give or prepare independent evidence for the purpose of a case.
single expert witness means an expert witness
who is appointed by agreement between the parties or by the court to give
evidence or prepare a report on an issue.
Division 15.5.2 Single
expert witness
15.44 Appointment
of single expert witness by parties
(1) If the parties agree that expert evidence may help
to resolve a substantial issue in a case, they may agree to jointly appoint a
single expert witness to prepare a report in relation to the issue.
Note Subrule 15.54 (3) sets out the
requirements that apply to instructions to a single expert witness appointed by
agreement between the parties.
(2) A party does not need the court’s permission to
tender a report or adduce evidence from a single expert witness appointed under
subrule (1).
15.45 Order for single expert witness
(1) The court may, on application or on its own
initiative, order that expert evidence be given by a single expert witness.
(2) When considering
whether to make an order under subrule (1), the court may take into account
factors relevant to making the order, including:
(a) the main purpose of these Rules (see rule
1.04) and the purpose of this Part (see rule 15.42);
(b) whether expert evidence on a particular issue
is necessary;
(c) the nature of the issue in dispute;
(d) whether the issue falls within a
substantially established area of knowledge; and
(e) whether it is necessary for the court to
have a range of opinion.
(3) The court may appoint a person as a single expert
witness only if the person consents to the appointment.
(4) A party does not need the court’s permission to
tender a report or adduce evidence from a single expert witness appointed under
subrule (1).
15.46 Orders
the court may make
The court may, in relation to the appointment of,
instruction of, or conduct of a case involving, a single expert witness make an
order, including an order:
(a) requiring the parties to confer for the
purpose of agreeing on the person to be appointed as a single expert witness;
(b) that, if the parties cannot agree on who
should be the single expert witness, the parties give the court a list stating:
(i) the names of people who are
experts on the relevant issue and have consented to being appointed as an
expert witness; and
(ii) the fee each expert will accept
for preparing a report and attending court to give evidence;
(c) appointing
a single expert witness from the list prepared by the parties or in some other
way;
(d) determining
any issue in dispute between the parties to ensure that clear instructions are
given to the expert;
(e) that
the parties:
(i) confer
for the purpose of preparing an agreed letter of instructions to the expert;
and
(ii) submit
a draft letter of instructions for settling by the court;
(f) settling
the instructions to be given to the expert;
(g) authorising
and giving instructions about any inspection, test or experiment to be
carried out for the purposes of the report; or
(h) that a report not be released to a person or
that access to the report be restricted.
15.47 Single expert witness’s fees and expenses
(1) The parties are equally liable to pay a single
expert witness’s reasonable fees and expenses incurred in preparing a report.
(2) A single expert
witness is not required to undertake any work in relation to his or her
appointment until the fees and expenses are paid or secured.
Note This rule applies
unless the court orders otherwise (see rule 1.12).
15.48 Single expert witness’s report
(1) A single expert witness must prepare a written
report.
(2) If the single expert witness was appointed by the
parties, the expert witness must give each party a copy of the report at the
same time.
(3) If the single
expert witness was appointed by the court, the expert witness must give the
report to the Registry Manager.
Note An expert witness may seek procedural orders from
the court under rule 15.60 if the expert witness considers that it would not be
in the best interests of a child or a party to give a copy of a report to each
party.
(4) An applicant who has been given a copy of a report
must file the copy but does not need to serve it.
15.49 Appointing
another expert witness
(1) If a single
expert witness has been appointed to
prepare a report or give evidence in relation to an issue, a party must not
tender a report or adduce evidence from another expert witness on the same
issue without the court’s permission.
(2) The court may allow a party to tender a report or
adduce evidence from another expert witness on the same issue if it is
satisfied that:
(a) there is a substantial body of opinion
contrary to any opinion given by the single expert witness and that the
contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not
known to
the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing
evidence from another expert witness.
15.50 Cross‑examination
of single expert witness
(1) A party wanting
to cross‑examine a single expert witness at a hearing or trial must
inform the expert witness, in writing at least 14 days before the date fixed
for the hearing or trial, that the expert witness is required to attend.
(2) The court may
limit the nature and length of cross‑examination of a single expert
witness.
Division 15.5.3 Permission
for expert’s evidence
15.51 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to
tender a report or adduce evidence at a hearing or trial from an expert
witness, except a single expert witness.
(2) An independent children’s lawyer may tender a report
or adduce evidence at a hearing or trial from one expert witness on an issue
without the court’s permission.
15.52 Application for permission for expert
witness
(1) A party may seek permission to tender a report or
adduce evidence from an expert witness by filing an Application in a Case.
Note 1 A party who files an
Application in a Case must, at the same time, file an affidavit stating the
facts relied on in support of the orders sought (see
subrule 5.02 (1)).
Note 2 The court may allow a party
to make an oral application (see paragraph (h) in item 3 of Table 11.1 in rule
11.01).
(2) The affidavit filed with the application must state:
(a) whether the party has attempted to agree on
the appointment of a single expert witness with the other party and, if not,
why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness’s
evidence is to be given;
(d) the reason the expert evidence is necessary
in relation to that issue;
(e) the field in which the expert witness is
expert;
(f) the expert witness’s training, study or
experience that qualifies the expert witness as having specialised knowledge on
the issue; and
(g) whether there is any previous connection
between the expert witness and the party.
(3) When considering whether to permit a party to tender
a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert
witness on the costs of the case;
(c) the likelihood of the appointment expediting
or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a
single expert witness rather than an expert witness appointed by one party
only; and
(f) whether the expert witness has specialised
knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which
evidence is to be given; and
(ii) appropriate to the value,
complexity and importance of the case.
(4) If the court grants a party permission to tender a
report or adduce evidence from an expert witness, the permission is limited to
the expert witness named, and the field of expertise stated, in the order.
Note Despite an order under this rule, a
party is not entitle to adduce evidence from an expert witness if the expert’s
report has not been disclosed or a copy has not been given to the other party
(see rule 15.58).
Division 15.5.4 Instructions
and disclosure of expert’s report
15.53 Application
of Division 15.5.4
This Division does not apply to a market appraisal
or an opinion as to value in relation to property obtained by a party for the
purposes of a procedural hearing or conference under paragraph 12.02 (g)
or subrule 12.05 (2).
15.54 Instructions
to expert witness
(1) A party who instructs an expert witness to give an
opinion for a case or an anticipated case must:
(a) ensure the
expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these
Rules; and
(b) obtain a written report from the expert
witness.
(2) All instructions to an expert witness must be in
writing and must include:
(a) a request for a written report;
(b) advice that the report may be used in an
anticipated or actual case;
(c) the issues about which the opinion is
sought;
(d) a description of any matter to be
investigated, or any experiment to be undertaken or issue to be reported on;
and
(e) full and frank disclosure of information and
documents that will help the expert witness to perform the expert witness’s
function.
(3) The parties must give the expert an agreed statement
of facts on which to base the report.
(4) However, if the parties do not agree on a statement
of facts:
(a) unless the court directs otherwise —
each of the parties must give to the expert a statement of facts on which to
base the report; and
(b) the court may give directions about the form
and content of the statement of facts to be given to the expert.
15.55 Mandatory
disclosure of expert’s report
(1) A party
who has obtained an expert’s report for a parenting case, whether before or
after the start of the case, must give each other party a copy of the report:
(a) if the report is obtained before the case
starts — at least 2 days before the first court event; or
(b) if the report is obtained after the case
starts — within 7 days after the party receives the report.
(2) The party who discloses an expert’s report must
disclose any supplementary report and any notice amending the report under
subrule 15.59 (5).
(3) If an expert’s report has been disclosed under this
rule, any party may seek to tender the report as evidence.
(4) Legal professional privilege does not apply in
relation to an expert’s report that must be disclosed under this rule.
15.56 Provision of information about fees
A party who has instructed an expert witness must,
if requested by another party, give each other party details of any fee or benefit received, or receivable, by or for the
expert witness, for the preparation of the report and for services provided, or
to be provided, by or for the expert witness in connection with the expert
witness giving evidence for the party in the case.
15.57 Application for provision of information
(1) This rule applies if the court is satisfied that:
(a) a party (the disclosing party)
has access to information or a document that is not reasonably available to the
other party (the requesting party); and
(b) the provision of the information or a copy of
the document is necessary to allow an expert witness to carry out the expert
witness’s function properly.
(2) The requesting party
may apply for an order that the disclosing party:
(a) file and serve a document specifying the
information in enough detail to allow the expert witness to properly assess its
value and significance; and
(b) give a copy of the document to the expert
witness.
Note An expert witness may request the
court to make an order under this rule (see rule 15.60).
15.58 Failure
to disclose report
A party who fails to give a copy of an expert’s
report to another party or the independent children’s lawyer (if any) must not
use the report or call the expert witness to give evidence at a hearing or
trial, unless the other party and independent children’s lawyer consent to the
report being used or the expert witness being called, or the court orders
otherwise.
Division 15.5.5 Expert witness’s duties and
rights
15.59 Expert
witness’s duty to the court
(1) An expert witness has a duty to help the court with
matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over
the obligation of the expert witness to the person instructing, or paying the
fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that
is also independent and impartial on matters that are within the expert
witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a
timely way;
(c) avoid acting on an instruction or request to
withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those
that may detract from the expert witness’s opinion;
(e) tell the
court:
(i) if a particular question or issue
falls outside the expert witness’s expertise; and
(ii) if the expert witness believes
that the report prepared by the expert witness:
(A) is based on incomplete
research or inaccurate or incomplete information; or
(B) is incomplete or may be
inaccurate, for any reason; and
(f) produce a written report that complies with
rules 15.62 and 15.63.
(4) The expert witness’s duty to the court arises when
the expert witness:
(a) receives instructions under rule 15.54; or
(b) is informed by a party that the expert
witness may be called to give evidence in a case.
(5) An expert witness who changes an opinion after the
preparation of a report must give written notice to that effect:
(a) if appointed by a party — to the
instructing party; or
(b) if appointed by the court — to the
Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of
the expert’s report.
15.60 Expert
witness’s right to seek orders
(1) Before final orders are made, a single expert
witness may, by written request to the court, seek a procedural order to assist
in carrying out the expert witness’s function.
Note The written request may be by letter
and may, for example:
(a) ask for clarification of instructions;
(b) relate to the questions mentioned in Division 15.5.6;
or
(c) relate to a dispute about fees.
(2) The request must:
(a) comply with subrule 24.01 (1); and
(b) set out the procedural orders sought and the
reason the orders are sought.
(3) The expert witness must serve a copy of the request
on each party and satisfy the court that the copy has been served.
(4) The court may determine the request in chambers
unless:
(a) within 7 days of being served with the
request, a party makes a written objection to the request being determined in
chambers; or
(b) the court decides that an oral hearing is
necessary.
15.61 Expert
witness’s evidence in chief
(1) An expert
witness’s evidence in chief comprises the expert’s report, any changes to that
report in a notice under subrule 15.59 (5) and any answers to questions under
rule 15.66.
(2) An expert
witness has the same protection and immunity in relation to the contents of a
report disclosed under these Rules or an order as the expert witness could
claim if the contents of the report were given by the expert witness orally at
a hearing or trial.
15.62 Form
of expert’s report
(1) An expert’s report must:
(a) be addressed to the court and the party
instructing the expert witness;
(b) have attached to it a summary of the
instructions given to the expert witness and a list of any documents relied on
in preparing the report; and
(c) be verified by an affidavit of the expert
witness.
(2) The affidavit verifying the expert’s report must
state the following:
‘I have made all the inquiries I believe
are necessary
and appropriate and to my knowledge there have not been any relevant matters
omitted from this report, except as otherwise specifically stated in this
report.
I believe that the facts within my
knowledge that have been stated in this report are true.
The opinions I have expressed in this
report are independent and impartial.
I have read and understand Divisions
15.5.4, 15.5.5 and 15.5.6 of the Family Law Rules 2004 and have used my
best endeavours to comply with them.
I have complied with the requirements of
the following professional codes of conduct or protocol, being [state the
name of the code or protocol].
I
understand my duty to the court and I have complied with it and will
continue to do so.’.
15.63 Contents
of expert’s report
An expert’s report must:
(a) state the reasons for the expert witness’s
conclusions;
(b) include a statement about the methodology
used in the production of the report; and
(c) include the following in support of the
expert witness’s conclusions:
(i) the expert witness’s
qualifications;
(ii) the literature or other material
used in making the report;
(iii) the relevant facts, matters and
assumptions on which the opinions in the report are based;
(iv) a statement about the facts in the
report that are within the expert witness’s knowledge;
(v) details about any tests,
experiments, examinations or investigations relied on by the expert witness
and, if they were carried out by another person, details of that person’s
qualifications and experience;
(vi) if there is a range of opinion on
the matters dealt with in the report — a summary of the range of opinion
and the basis for the expert witness’s opinion;
(vii) a summary of the conclusions
reached;
(viii) if necessary, a disclosure that:
(A) a particular question or
issue falls outside the expert witness’s expertise;
(B) the report may be
incomplete or inaccurate without some qualification and the details of any
qualification; or
(C) the expert witness’s
opinion is not a concluded opinion because further research or data is required
or because of any other reason.
15.64 Consequences
of non‑compliance
If an expert witness does not comply with these
Rules, the court may:
(a) order the expert witness to attend court;
(b) refuse to allow the expert’s report or any
answers to questions to be relied on;
(c) allow the report to be relied on but take
the non‑compliance into account when considering the weight to be given
to the expert witness’s evidence; and
(d) take the non‑compliance into account
when making orders for:
(i) an extension or abridgment of a
time limit;
(ii) a stay of the case;
(iii) interest payable on a sum ordered
to be paid; or
(iv) costs.
Note For the court’s power to order
costs, see subsection 117 (2) of the Act.
Division 15.5.6 Clarification of single expert witness reports
15.64A Purpose
(1) The purpose of this Division is to provide ways of
clarifying a report prepared by a single expert witness.
(2) Clarification about a report may be obtained at a
conference under rule 15.64B or by means of questions under rule 15.65.
15.64B Conference
(1) Within 21 days after receipt of the report of a
single expert witness, the parties may enter into an agreement about conferring
with the expert witness for the purpose of clarifying the report.
(2) The agreement may provide for the parties, or for
one or more of them, to confer with the expert witness.
(3) Without limiting the scope of the conference, the
parties must agree on arrangements for the conference.
(4) It is intended that the parties should be free to
make any arrangements for the conference that are consistent with this
Division.
Note For example, arrangements for a
conference might include the attendance of another expert, or the provision of
a supplementary report.
(5) Before participating in the conference, the expert
witness must be advised of arrangements for the conference.
(6) In seeking to clarify the report of the expert witness,
the parties must not interrogate the expert witness.
(7) If the parties do not agree about conferring with a
single expert witness, the court, on application by a party, may order that a
conference be held in accordance with any conditions the court determines.
15.65 Questions
to single expert witness
(1) A party seeking
to clarify the report of a single expert witness may ask questions of the single
expert witness under this rule:
(a) within 7 days after the conference under
rule 15.64B; or
(b) if no conference is held, within 21 days after
receipt of the single expert witness’s report by the party.
(2) The questions must:
(a) be in writing and be put once only;
(b) be only for the purpose of clarifying the
single expert witness’s report; and
(c) not be vexatious or oppressive, or require
the single expert witness to undertake an unreasonable amount of work to
answer.
(3) The party must give a copy of any questions to each
other party.
Note A party may cross‑examine a
single expert witness (see rule 15.50).
15.66 Single expert witness’s answers
(1) A single expert witness must answer a question
received under rule 15.65 within 21 days after receiving it.
(2) An answer to a
question:
(a) must be in writing;
(b) must specifically refer to the question; and
(c) must:
(i) answer the substance of the
question; or
(ii) object to answering the question.
(3) If the single expert witness objects to answering a
question or is unable to answer a question, the single expert witness must
state the reason for the objection or inability in the document containing the
answers.
(4) The single expert
witness’s answers:
(a) must be:
(i) attached to the affidavit under
subrule 15.62 (2);
(ii) sent by the single expert witness
to all parties at the same time; and
(iii) filed by the party asking the
questions; and
(b) are taken to be part of the expert’s report.
15.67 Single expert witness’s costs
(1) The reasonable fees and expenses of a single expert
witness incurred in relation to a conference are to be paid as follows:
(a) if only one of the parties attends the
conference — by that party; or
(b) if more than one of the parties attends the
conference — by those parties jointly.
(2) If a single expert witness answers questions under
rule 15.66, his or her reasonable fees and expenses incurred in answering any
questions are to be paid by the party asking the questions.
(3) A single expert witness is not required to undertake
any work in relation to a conference or answer any questions until the fees and
expenses for that work or those answers are paid or secured.
(4) Subrule (3) is not affected by subrule
15.66 (1).
Note This rule applies unless the court
orders otherwise (see rule 1.12).
(5) In this rule:
attend includes attendance by electronic
communication.
15.67A Application for directions
A party may apply to the court for directions relating
to a conference with a single expert witness or the asking or answering of
questions under this Division.
Division 15.5.7 Evidence from 2 or more expert witnesses
15.68 Application of Division 15.5.7
This Division
applies to a case in which 2 or more parties intend to tender an expert’s
report or adduce evidence from different expert witnesses about the same, or a
similar, question.
15.69 Conference
of expert witnesses
(1) In a case to which this Division applies:
(a) the parties must arrange for the expert
witnesses to confer at least 28 days before the relevant date; and
(b) each party must give to the expert witness
the party
has instructed a copy of the document entitled Experts’ Conferences —
Guidelines for expert witnesses and those instructing them in cases in the
Family Court of Australia, the text of which is set out in Schedule 5.
(2) The court may, in relation to the conference, make
an order, including an order about:
(a) which expert witnesses are to attend;
(b) where and when the conference is to occur;
(c) which issues the expert witnesses must
discuss;
(d) the questions to be answered by the expert witnesses;
or
(e) the documents to be given to the expert
witnesses, including:
(i) Divisions 15.5.4, 15.5.5 and
15.5.6 of these Rules;
(ii) relevant affidavits;
(iii) a joint statement of the
assumptions to be relied on by the expert witnesses during the conference,
including any competing assumptions; and
(iv) all expert’s reports already
disclosed by the parties.
(3) At the conference, the expert witnesses must:
(a) identify the issues that are agreed and not
agreed;
(b) if practicable, reach agreement on any
outstanding issue;
(c) identify the reason for disagreement on any
issue;
(d) identify what action (if any) may be taken to
resolve any outstanding issues; and
(e) prepare a joint statement specifying the
matters mentioned in paragraphs (a) to (d) and deliver a copy of the statement
to each party.
(4) If the expert witnesses reach agreement on an issue,
the agreement does not bind the parties unless the parties expressly agree to
be bound by it.
(5) The joint statement may be tendered as evidence of
matters agreed on and to identify the issues on which evidence will be called.
15.70 Conduct
of trial with expert witnesses
At a trial, the court may make an order, including
an order that:
(a) an expert witness clarify the expert
witness’s evidence after cross‑examination;
(b) the expert witness give evidence only after
all or certain factual evidence relevant to the question has been led;
(c) each party intending to call an expert
witness is to close that party’s case, subject only to adducing the evidence of
the expert witness;
(d) each expert witness is to be sworn and
available to give evidence in the presence of each other;
(e) each expert witness give evidence about the
opinion given by another expert witness; or
(f) cross‑examination, or re‑examination,
of an expert witness is to be conducted:
(i) by completing the cross‑examination
or re‑examination of the expert witness before another expert witness; or
(ii) by putting to each expert witness,
in turn, each question relevant to one subject or issue at a time, until the
cross‑examination or re‑examination of all witnesses is completed.
Part 15.6 Other matters about evidence
15.71 Court
may call evidence
(1) The court may, on its
own initiative:
(a) call any person as a witness; and
(b) make any orders relating to examination and
cross‑ examination of that witness.
(2) The court may order a party to pay conduct money for
the attendance of the witness.
15.72 Order for examination of witness
(1) A court may, at any
stage in a case:
(a) request that a person be examined on oath
before a court, or an officer of that court, at any place in Australia; or
(b) order a commission to be issued to a person
in Australia authorising that person to take the evidence of any person on oath.
(2) The court receiving the request, or the person to
whom the commission is issued, may make procedural orders about the time, place
and manner of the examination or taking of evidence, including that the
evidence be recorded in writing or by electronic communication.
(3) The court making the request or ordering the
commission may receive in evidence the record taken.
15.73 Letters of request
(1) If, under the Foreign
Evidence Act 1994, a court orders a letter to be issued to the judicial
authorities of a foreign country requesting that the evidence of a person be
taken, the party obtaining the order must file:
(a) 2 copies of the appropriate letter of
request and any questions to accompany the request;
(b) if English is not an official language of the
country to whose judicial authorities the letter of request is to be
sent — 2 copies of a translation of each document mentioned in paragraph
(a) in a language appropriate to the place where the evidence is to be taken;
and
(c) an undertaking:
(i) to be responsible for all expenses
incurred by the court, or by the person at the request of the court, in respect
of the letter of request; and
(ii) to pay the amount to the Registry
Manager of the filing registry, after being given notice of the amount of the
expenses.
(2) A translation filed under paragraph (1) (b) must be
accompanied by an affidavit of the person making the translation:
(a) verifying that it is a correct translation;
and
(b) setting out the translator’s full name,
address and qualifications for making the translation.
(3) If, after receiving the documents mentioned in
subrules (1)
and (2) (if applicable), the Registrar is satisfied that the documents are
appropriate, the Registry Manager must send them to the Secretary of the Attorney‑General’s
Department for transmission to the judicial authorities of the other country.
Note Rules 5.06 and 16.08 set out the
procedure for arranging for a party or a witness to attend a hearing or trial
by electronic communication.
15.74 Hearsay
evidence — notice under section 67 of the Evidence Act 1995
A Notice of Previous Representation for subsection
67 (1) of the Evidence Act 1995 must be attached to an affidavit
that sets out evidence of the previous representation.
15.75 Transcript
receivable in evidence
A transcript of a hearing or trial may be received
in evidence as a true record of the hearing or trial.
15.76 Notice
to produce
(1) A party may, no later than 7 days before a hearing
or 28 days before a trial, by written notice, require another party to produce,
at the hearing or trial, a specified document that is in the possession or
control of the other party.
(2) A party receiving a notice under subrule (1) must
produce the document at the hearing or trial.
15.77 Parenting questionnaire
(1) This rule applies to a parenting
case.
(2) Each party to the case must file a
completed questionnaire at least 28 days before the first day before the Judge.
(3) The questionnaire must be in the
form approved by the Principal Registrar.
Note For the service requirements for a document filed with the court,
see rule 7.04.
Chapter 16 Court
events — Judge managed
Summary of
Chapter 16
Chapter 16 sets
out the trial process after the case has been allocated to the first day before
the Judge. Further specific provisions in Chapter 16A apply to a trial to which
Division 12A of Part VII of the Act applies.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 16.1 Preliminary
16.01 Application
This Chapter applies to all Applications for final
orders, except:
(a) a Medical Procedure Application;
(b) a Maintenance Application;
(c) a child support application or appeal;
(d) an application for an order that a marriage
is a nullity or a declaration as to the validity of a marriage, divorce or
annulment; and
(e) an application in which the only order
sought relates to a passport (see Division 4.2.7).
16.02 Compliance
check
(1) The purpose of a compliance check is:
(a) to check that all procedural orders have
been complied with;
(b) to consider any new issues that may have
arisen since the last court event and their effect on the listing of the matter
for the first day before the Judge; and
(c) in a financial case — to check the
completeness of the balance sheet.
(2) At the compliance check, the court may make orders
about the further conduct of the case.
Note The court would usually order that
the parties attend this event by electronic communication.
16.03 Vacating
dates that are Judge managed
(1) A party seeking to vacate the first day before the
Judge, or any subsequent date when the case has been set down before the Judge,
must apply to do so at the earliest possible time before the allocated date.
(2) The first day before the Judge or any subsequent
date will only be vacated for substantial and significant reason.
(3) If final agreement has been reached between the
parties, the applicant must:
(a) immediately tell the court in writing after
agreement is reached; and
(b) arrange for the case to be finalised by
consent order, or discontinuance or dismissal.
Part 16.2 Proceedings before the Judge — general
Note Before
the first day before the Judge, the Judge should have available to read:
· in a parenting case –
the application and response and each parties parenting questionnaire;
· in a financial case –
the application and response, each parties financial statement, each parties
financial questionnaire and the balance sheet; and
· any other documents
ordered to be filed before the first day before the Judge.
16.04 Trial
management
(1) For rules 16.08 to 16.13, the court may make any
order about the conduct of the trial, including an order:
(a) related to the issues on which the court
requires evidence, including:
(i) the nature of the evidence
(including expert evidence) required to decide the issues;
(ii) which witnesses a party may call
on a particular issue;
(iii) how the evidence is to be adduced;
(iv) granting permission to issue
subpoenas to produce documents or to attend, or both;
(v) preparation by a family consultant
of a family report, or requiring the family consultant to undertake other
investigations or carry out other tasks having regard to the functions of
family consultants set out in section 11A of the Act;
(vi) determining any evidentiary
questions that arise;
(vii) the time to be taken for evidence
in chief, cross examination or re‑examination of witnesses to give
evidence, and submissions; or
(viii) the sequence of evidence and
addresses;
(b) limiting the
time for the presentation of a parties case; or
(c) allocating a date or series of dates for the
continuation of trial.
(2) If the parties have both consented to a financial
case being dealt with under Division 12A of Part VII of the Act, rules 16.08,
16.09 and 16.10 apply to the financial case.
16.05 Attendance,
submissions and evidence by electronic communication
Note The issue of whether a party wishes
to attend, make a submission, give evidence or adduce evidence from a witness
at any court event that is Judge managed by electronic communication will be
discussed at the appropriate court event, and any application in that respect
will be referred to a Judge without formal application or affidavit material.
In other cases, an application should be made under rule 16.05.
(1) A party may apply for permission to do any of the
following things by electronic communication at any court event that is Judge
managed:
(a) attend;
(b) make a submission;
(c) give evidence;
(d) adduce evidence from a witness.
Note For the procedure for making an
application in a case, see Chapter 5.
(2) The application must be:
(a) filed at least 28 days before the event; and
(b) listed before the Judge.
Note The court may shorten or extend the
time for compliance with a rule (see rule 1.14).
(3) The affidavit filed with the application must set
out the facts relied on in support of the application, including the following:
(a) what the applicant seeks permission to do by
electronic communication;
(b) the kind of electronic communication to be
used;
(c) if the party proposes to give evidence, make
a submission or adduce evidence from a witness by electronic communication —
the place from which the party proposes to give or adduce the evidence, or make
the submission;
(d) the facilities at the place mentioned in
paragraph (c) that will enable all eligible persons present in that place
to see or hear each eligible person in the place where the court is sitting;
(e) if the applicant seeks to adduce evidence
from a witness by electronic communication:
(i) whether an affidavit by the
witness has been filed;
(ii) whether the applicant seeks permission
for the witness to give oral evidence;
(iii) the relevance of the evidence to
the issues;
(iv) whether the witness is an expert
witness;
(v) the name, address and occupation of
any person who is to be present when the evidence is given;
(vi) if the applicant proposes to refer
the witness to a document, whether:
(A) the document has been
filed; and
(B) the witness will have a
copy of the document; and
(vii) whether an interpreter is required
and, if so, what arrangements are to be made;
(f) the expense of using the electronic
communication, including any expense to the court, and the applicant’s
proposals for paying those expenses;
(g) whether the other parties object to the use
of electronic communication for the purpose specified in the application and,
if so, the reason for the objection;
(h) if the application relates to evidence to be
adduced from a witness in a foreign country — the matters required to be
addressed under rule 16.06;
(i) if the application relates to making a
submission, giving evidence or adducing evidence from New Zealand — the
facilities that enable evidence to be given or a submission to be made, as
required by Part 4 of the Evidence and Procedure (New Zealand) Act 1994.
Note Part 4 of the Evidence and
Procedure (New Zealand) Act 1994 (the EP Act) applies to
proceedings in a federal court, or a court specified in regulations made under
the EP Act, in which a direction is made for the use of video link or telephone
to take evidence or make a submission from New Zealand.
Subsection 25 (2) of the EP Act sets out the matters of
which a court must be satisfied before it may make a direction under subsection
25 (1) of that Act. The EP Act also provides that evidence is not to be
given, or a submission made, from New Zealand unless the place where the court
is sitting and the place where the evidence is to be given or a submission made
are equipped with facilities enabling the persons at each place to see and hear
each other in the case of video link (see section 26), or to hear each other in
the case of a telephone conference (see section 27).
(4) The application may be decided in chambers on the
documents filed.
(5) The court may order:
(a) a party to pay the expenses of the
attendance by electronic communication; or
(b) that the expenses are to be apportioned
between the parties.
(6) For paragraph (3) (h):
foreign country has the meaning given by
subrule 16.06 (2).
16.06 Foreign
evidence by electronic communication
(1) In addition to the requirements of rule 16.05, a
party who proposes to adduce evidence by electronic communication from a
witness in a foreign country must satisfy the court:
(a) that the party has read the information
published by the Attorney‑General’s Department about its arrangements
with other countries for the taking of evidence, to determine the attitude of
the foreign country’s government to the taking of evidence by electronic
communication;
(b) if the attitude of the foreign country’s
government to the taking of evidence by electronic communication cannot be
ascertained from sources within Australia — that the party has made
appropriate inquiries through diplomatic channels, a lawyer or a provider of
technical facilities in the foreign country to determine that attitude;
(c) whether permission is needed from the
foreign country’s government to adduce evidence from a witness in that country
by electronic communication;
(d) if permission is needed, whether permission
has been granted or refused;
(e) if permission has been refused, the reason
for refusal; and
(f) whether there are any special requirements
for the adducing of evidence, including:
(i) the administration of an oath; and
(ii) the form of the oath.
Note Chapter 5 sets out the procedure for
making an application for interim, procedural, ancillary or other incidental
orders.
(2) In this rule:
foreign country means a country other than
Canada, New Zealand, the United Kingdom or the United States of America.
Note 1 A party seeking to adduce
evidence from a witness in Canada, New Zealand, the United Kingdom or the
United States of America does not have to comply with subrule (1) because these
countries do not object to the taking of evidence by electronic communication.
Note 2 The court, instead of
granting permission for a party to adduce evidence by electronic communication
from a witness in a foreign country, may direct the Registry Manager to send a
letter of request to the judicial authorities in the foreign country,
requesting the court to take evidence from the witness in accordance with the
law of the foreign country. For the requirements for a letter of request to the
judicial authorities of a foreign country, see rule 15.73.
16.07 Parties’
participation
(1) Each party to an application set down for hearing on
the first day before the Judge must attend in person and, if legally
represented, with their legal representatives.
Note The court may dispense with
compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before
the Judge, the other party may seek the orders sought in that party’s
application by, if necessary, adducing evidence to establish an entitlement to
those orders in a manner ordered by the court.
(3) If no party attends the first day before the Judge,
the court may dismiss all applications before it.
Part 16.3 Proceedings
before the Judge — parenting case
16.08 First
day of trial
(1) The first day of trial will be conducted by the
Judge who will:
(a) if evidence is taken at the first day of
trial — preside at the entire trial; and
(b) usually preside at the entire trial even if
evidence is not taken at the first day of trial.
(2) For these Rules, the trial is taken to have started
on the first day of trial, whether or not any evidence is taken or submitted at
the trial.
Note Subrules (1) and (2) apply unless
the court orders otherwise (see rule 1.12).
(3) The purpose of the first day of trial is:
(a) for the presiding Judge, with the assistance
of the parties and their legal representatives, to discuss and identify the
orders sought and issues in dispute between the parties arising from the
applications before the court;
(b) in the ordinary course, to hear and determine
any interlocutory issues or interim applications that are outstanding on the
first day of trial, or to make appropriate arrangements for the determination
of those applications;
(c) in a children’s case — to receive
evidence, including from the family consultant in the case;
(d) if this rule applies because subrule 16.04 (2)
applies — to consider the balance sheet; and
(e) to consider and determine a plan for the
remainder of the trial.
16.09 Continuation
of trial
(1) A trial will continue on the day or dates allocated.
(2) The purpose of the continuation of trial is:
(a) to further identify the issues for which
evidence is required;
(b) to make procedural orders about filing and
exchange of all remaining evidence; and
(c) to allocate dates for the continuation of
the trial and the final stage of the trial.
16.10 Final
stage of trial
(1) The final stage of the trial takes place on the day
or dates allocated.
(2) At the final stage of the trial the Judge will hear
the remainder of the evidence and receive submissions.
Part 16.4 Proceedings
before the Judge — financial case
Note If
the parties have consented to Division 12A of Part VII of the Act applying to
the financial case, Part 16.3 applies (see subrule 16.04 (2)).
16.11 The
first procedural hearing before the Judge
The purpose of the first procedural hearing before
the Judge is:
(a) for the presiding judicial officer, with the
assistance of the parties and their legal representatives, to discuss and
identify the orders sought and issues in dispute between the parties arising
from the applications before the court;
(b) in the ordinary course, to hear and determine
any interlocutory issues or interim applications that are outstanding on the
first day before the Judge, or to make appropriate arrangements for the
determination of those applications;
(c) to consider the balance sheet; and
(d) to consider and determine a plan for the
trial.
16.12 Further
days before the Judge
The purpose of any further days before the Judge
is:
(a) to further identify the issues for which
evidence is required;
(b) to make procedural orders about filing and
exchange of all remaining evidence; and
(c) to allocate dates for any further days
before the Judge and the trial.
16.13 The
trial
(1) The trial takes place on the day or dates allocated.
(2) At the trial the Judge will hear the evidence and receive
submissions.
Part 16.5 Proceedings
before the Judge — combined parenting and financial cases
16.14 Conduct
of combined cases
For a combined parenting case and financial case:
(a) rules 16.08, 16.09 and 16.10 apply to the
parenting case; and
(b) subject to subrule 16.04 (2), rules
16.11, 16.12 and 16.13 apply to the financial case.
Chapter 16A Division 12A of
Part VII of the Act
Summary of
Chapter 16A
Chapter 16A sets
out the requirements for consent to the application of Division 12A of Part VII
of the Act to a case and the additional procedures for certain trials to which
Division 12A of Part VII of the Act applies.
Division 12A of
Part VII of the Act applies to proceedings:
· that come wholly or
partly under Part VII of the Act, or any other proceedings which involve the
court’s jurisdiction under the Act if the parties in those proceedings consent
to Division 12A applying to those proceedings; and
· that were commenced by
application:
(a) on or after 1 July 2006; or
(b) before 1 July 2006 if the parties to the proceedings
consent, and the court grants permission (the court’s permission may be
sought in accordance with rule 12.04 of these Rules).
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
If a rule
in another Chapter (other than Chapter 1) conflicts with a rule in this
Chapter, the rule in this Chapter applies.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 16A.1 Consent
for Division 12A of Part VII of the Act to apply to a case
16A.01 Definition
In this Part:
the prescribed form means a form authorised
by the Principal Registrar for the purposes of a party in a case giving consent
to the application of Division 12A of Part VII of the Act to the case.
16A.02 Application
of Part 16A.1
This Part applies if the consent of the parties to
a case is necessary before Division 12A of Part VII of the Act can apply to the
case.
16A.03 Consent
for Division 12A of Part VII of the Act to apply
If a party to a case seeks to consent to the
application of Division 12A of Part VII of the Act to the case, or part of the
case, the party must:
(a) give consent in accordance with the
prescribed form; and
(b) file a copy of the form.
16A.04 Application
for Division 12A of Part VII of the Act to apply for case commenced by
application before 1 July 2006
For the purposes of seeking the leave of the court
for Division 12A of Part VII of the Act to apply to a case commenced by an
application filed before 1 July 2006, an application for permission may be made
to the court at a procedural hearing.
Part 16A.2 Trials of certain cases to which Division 12A of Part VII of
the Act applies
16A.05 Definitions
In this Part:
trial Judge means the Judge to whom a trial, in a case to which
Division 12A of Part VII of the Act applies, is allocated.
trial Judicial Registrar means the Judicial Registrar to whom a trial, in a
case to which Division 12A of Part VII of the Act applies, is allocated.
16A.06 Application
(1) Subject to subrules (2) and (3), this Part applies
to the trial of a case:
(a) that is pending in the Family Court; and
(b) to which Division 12A of Part VII of the Act
applies.
(2) This Part does not apply to the trial of a case
which involves 1 or more of the following applications only:
(a) a Medical Procedure Application referred to
in Division 4.2.3 of these Rules;
(b) a Maintenance Application referred to in
Division 4.2.4 of these Rules;
(c) a child support application referred to in
Division 4.2.5 of these Rules;
(d) an application relating to a passport
referred to in Division 4.2.7 of these Rules.
(4) To the extent to which a rule in this Part applies
to the trial of a case mentioned in subrule (1), and does not conflict with a
rule in Chapter 1, the rule in this Part applies to the case and overrides all
other provisions in these Rules.
16A.10 Parties
to be sworn etc
(1) On the first day of a trial, all parties, and any
family consultant, may be administered an oath or affirmation.
(2) A person is bound by the oath or affirmation
administered under subrule (1) until the end of the trial.
Chapter 17 Orders
Summary of
Chapter 17
Chapter 17 sets
out when an order is made, how errors in orders are corrected, the rate of
interest and other requirements in relation to certain monetary orders.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
17.01 When
an order is made
(1) An order is made:
(a) in a hearing or trial — when it is
pronounced in court by the judicial officer; or
(b) in any other case — when the judicial
officer signs the order (see paragraph 11.16 (3) (b)).
(2) An order takes effect on the date when it is made,
unless otherwise stated.
Note After an order is made, it is issued
by the court. The issued order embodies the terms of the order in a document
that is signed and sealed.
(3) A party is entitled to receive:
(a) a sealed copy of an order;
(b) if the order is rectified by the court —
a sealed copy of the rectified order; and
(c) a copy of any published reasons for
judgment.
(4) Subrule (3) does not apply to a procedural order.
(5) The judicial officer may direct who is to be
responsible for engrossing an order and how it is to be engrossed.
17.02 Errors
in orders
(1) If a party claims that there is an error in an order
issued by the court, the party must give written notice of the error to the
Registry Manager and all parties.
(2) A Registrar may rectify an error that appears
obvious on reading the order.
Example
A kind of amendment that a Registrar may make under
subrule (2) is the correction of a typographical error.
(3) If the Registrar:
(a) is in doubt about whether there is an error
in an order; or
(b) believes that an error in an order has, or
may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
(4) If subrule (1) or (3) applies, the party or
Registrar may, after giving reasonable notice to each party, refer the order to
the judicial officer who made it.
Note If the judicial officer who made the
order is unavailable, it may be referred to another judicial officer (see rule
1.13).
(5) A judicial officer may, after giving each party a
reasonable opportunity to be heard, rectify a suspected error referred to the
judicial officer.
Note An amendment of an order may be made
under this rule only if it is an error obvious when reading the order. Any
other amendment must be remedied by appeal or consent.
17.03 Rate
of interest
The prescribed rate at which interest is payable
under paragraphs 87 (11) (b) and 90KA (b) and subsection 117B (1)
of the Act is:
(a) in respect of the period from 1 January to
30 June in any year — the rate that is 6% above the cash rate last
published by the Reserve Bank of Australia before that period commenced; and
(b) in respect of the period from 1 July to 31
December in any year — the rate that is 6% above the cash rate last
published by the Reserve Bank of Australia before that period commenced.
Note For the date from which interest is
payable, see paragraphs 87 (11) (b) and 90KA (b) and subsection
117B (1) of the Act.
17.04 Order
for payment of money
(1) This rule applies if a person is ordered by the
court (other than by way of consent) to pay money and:
(a) the person is not present, or represented by
a lawyer, in court when the order is made; or
(b) the order is made in chambers.
(2) The person must be served with a sealed copy of the
order:
(a) if the order imposes a fine — by the
Marshal or other officer of the court; or
(b) in any other case — by the person who
benefits from the order.
Note A party must not personally serve
another party by hand but may be present when service takes place (see subrule
7.06 (3)). For service of documents generally, see Chapter 7.
17.05 Order
for payment of fine
If a court orders the payment of a fine or the
forfeiture of a bond, the fine or forfeited amount must be paid immediately
into the filing registry.
Note 1 A person may apply to the
court for more time to pay a fine (see rule 1.14).
Note 2 If the court makes an order
on an application without notice to the respondent, the order will operate
until a time specified in the order (see rule 5.13).
Chapter 18 Powers of Judicial Registrars, Registrars and Deputy
Registrars
Summary of
Chapter 18
Chapter 18 sets
out:
· the powers of the
court that are delegated to Judicial Registrars, Registrars and Deputy
Registrars of the Family Court of Australia; and
· the process for
reviewing an order made by a Judicial Registrar or Registrar.
Note A
power or function expressed by these Rules to be conferred on a Registrar may
also be exercised in the Family Court by a Judge or a Judicial Registrar.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 18.1 Delegation
of powers to Judicial Registrars and Registrars
Division 18.1.1 General
18.01A Definitions
In this Chapter:
Deputy Registrar means a Deputy Registrar of
the Family Court of Australia.
Registrar means the Principal Registrar of
the Family Court of Australia or a Registrar of the Family Court of Australia.
18.01 Exercise
of powers and functions
(1) A power or function expressed by these Rules to be
conferred on a Deputy Registrar may also be exercised by a Judicial Registrar
or a Registrar.
(2) A power or function expressed by these Rules to be
conferred on a Registrar may also be exercised by a Judicial Registrar.
(3) A Judicial Registrar, Registrar or Deputy Registrar
exercising a power of the court or performing any function in connection with a
power of the court has the same protection and immunity as a Judge or
Magistrate.
Division 18.1.2 Delegation to Judicial Registrars
18.02 Delegation
of powers to Judicial Registrars
(1) All of the powers vested in the Family Court by
legislative provisions in relation to a case in which the court is exercising
original jurisdiction are delegated to each Judicial Registrar except the power
to make:
(a) an
excluded child order;
(b) an order
setting aside a registered award under section 13K of the Act;
(c) an order
or declaration under section 78, 79 or 79A, subsection 87 (8), 90J (3) or 90K
(1), section 90SL, 90SM or 90SN or subsection 90UL (3) or 90UM (1) of the Act, if the gross value of the property
is more than $2 000 000;
(d) an order
under section 70NFD of the Act to
vary or discharge an order under paragraph 70NFB (2) (a) of the Act that was not made by a Judicial
Registrar;
(e) an order
under section 112AK of the Act to vary or discharge an order under section
112AD of the Act that was not made by a Judicial Registrar;
(ea) an order
under section 118 of the Act;
(f) an order
under the Marriage Act 1961;
(g) an order
reviewing the exercise of a power by a Judicial Registrar, Registrar or Deputy
Registrar; and
(h) any of
the orders under these Rules mentioned in Table 18.1.
Table
18.1 Powers not delegated to Judicial Registrars
|
Item
|
Provision of these Rules
|
|
1
|
rule 4.07
|
|
2
|
Division 4.2.3
|
|
3
|
Part 10.3
|
|
4
|
rule 11.04
|
|
5
|
rule 11.05
|
Note The powers of the court in its
appellate jurisdiction, set out in Part X of the Act, are not delegated to
Judicial Registrars.
(2) Despite
paragraph (1) (f), the power to make an order under subsection 92 (1) of the Marriage
Act 1961 is delegated to a Judicial Registrar.
(3) Paragraphs
(1) (c), (d) and (e) do not apply to an
order that is:
(a) an order
until further order;
(b) an order
made in an undefended case; or
(c) an order
made with the consent of all the parties to the case.
(4) Paragraph
(1) (c) does not apply if:
(a) the
order is a flagging order; or
(b) the
parties consent to the exercise of the power by a Judicial Registrar.
(5) For paragraph
(1) (c), the value of any superannuation interest must be included in the
calculation of the gross value of the property.
Note Under section 90MC of the Act, a
superannuation interest is to be treated as property for the purposes of
paragraph (ca) of the definition of matrimonial cause in section
4 of the Act.
18.03 Property
value exceeding limit — power to determine case
If, in a case:
(a) a Judicial Registrar exercises the power of
the court mentioned in paragraph 18.02 (1) (c); and
(b) it becomes apparent during the trial that
the gross value
of the property to be dealt with in the case exceeds $2 000 000;
the Judicial Registrar may continue to hear and determine the case.
Note Under section 90MC of the Act, a
superannuation interest is to be treated as property for the purposes of
paragraph (ca) of the definition of matrimonial cause in section
4 of the Act.
Division 18.1.3 Delegation of powers to Registrars and Deputy Registrars
18.04 Application
of Division 18.1.3
This Division applies:
(a) to a Registrar or Deputy Registrar who is
enrolled as
a lawyer of the High Court or of the Supreme Court of a State or Territory; and
(b) subject to any arrangement made under
subsection 37B (2) of the Act.
Note Under subsection 37B (2) of the
Act, the Principal Registrar may direct which Registrars or Deputy Registrars
are to perform any functions or exercise any power under the Act, Regulations
or these Rules in particular matters or classes of matters.
18.05 Registrars
(1) Each power of the court mentioned in an item of
Table 18.2 is delegated to each Registrar who is approved, or is in a class of
Registrars approved, by a majority of the Judges to exercise the power.
Table
18.2 Powers delegated to Registrars
|
Item
|
Legislative provision
|
|
|
Family Law Act
|
|
|
1
|
subsection 46 (3A)
|
|
|
2
|
section 63H
|
|
|
3
|
section 65D (except an excluded order)
|
|
|
5
|
section 65L
|
|
|
6
|
sections 66G, 66M, 66P and 66Q
|
|
|
7
|
section 66S
|
|
|
8
|
section 66W
|
|
|
9
|
subsection 67D (1) and section 67E
|
|
|
10
|
subsection 67M (2)
|
|
|
11
|
subsection 67N (2)
|
|
|
11A
|
section 67U
|
|
|
12
|
section 67ZD
|
|
|
13
|
subsections 68B (1) and (2)
|
|
|
15
|
sections 69V and 69VA, subsection 69W (1),
section 69X and subsection 69ZC (2)
|
|
|
16
|
sections 74 and 77
|
|
|
17
|
subsection 83 (1)
|
|
|
18
|
subsection 87 (3)
|
|
|
18A
|
sections 90SE and 90SG
|
|
|
18B
|
section 90SI
|
|
|
19
|
section 100B
|
|
|
20
|
section 102A
|
|
|
21
|
section 106A
|
|
|
21A
|
subsection 117 (2)
|
|
|
Assessment Act
|
|
|
22
|
section 139
|
|
|
Registration Act
|
|
23
|
subsection 105 (2)
|
|
|
|
|
|
(2) Each power vested in the court by these Rules and
mentioned in an item of Table 18.3 is delegated to each Registrar.
Table
18.3 Powers under Rules delegated to Registrars
|
Item
|
Provision of Family Law Rules
|
|
2
|
Part 6.3
|
|
3
|
subrule 10.11 (5)
|
|
4
|
rule 13.14
|
|
5
|
rule 15.02
|
|
6
|
Part 15.4
|
|
8
|
Division 20.3.2
|
|
9
|
rule 20.37
|
|
9A
|
rule 20.39
|
|
10
|
Part 20.5
|
|
11
|
Part 20.6
|
|
12
|
Part 20.7
|
|
13
|
Part 21.4
|
18.06 Deputy
Registrars
(1) Each power of the court mentioned in an item of
Table 18.4 is delegated to each Deputy Registrar.
Table
18.4 Powers delegated to Deputy Registrarss
|
Item
|
Legislative provision
|
|
Family
Law Act
|
|
|
1
|
section 11F
|
|
2
|
section 11G
|
|
3
|
section 13B
|
|
4
|
section 13C
|
|
5
|
section 13D
|
|
6
|
sections 13E and 13F
|
|
7
|
section 27A
|
|
8
|
sections 33B and 33C
|
|
9
|
subsection 37A (1) (except subparagraph (e) (iv) and
paragraph (f) and subject to subsection 37A (6))
|
|
10
|
subsection 44 (1C)
|
|
11
|
subsection 45 (2)
|
|
12
|
section 48 (if the case is undefended)
|
|
13
|
subsection 55 (2)
|
|
14
|
section 55A
|
|
15
|
section 57
|
|
16
|
subsection 60I (9)
|
|
16A
|
subsection 60I (10)
|
|
16B
|
subsection 60J (1)
|
|
16C
|
paragraphs 60K (2) (a), (b) and (c) (procedural
orders only)
|
|
17
|
section 62G
|
|
18
|
subsection 63E (3)
|
|
18A
|
paragraph 65G (2) (b)
|
|
19
|
section 68L
|
|
19A
|
subsection 68M (2)
|
|
20
|
section 69ZW
|
|
21
|
paragraphs 79 (9) (c) and 90SM (9) (c)
|
|
22
|
subsection 91B (1)
|
|
23
|
subsections 92 (1) and (2)
|
|
24
|
subsection 97 (1A)
|
|
25
|
subsection 97 (2)
|
|
26
|
section 98A
|
|
27
|
section 101
|
|
30
|
subsection 117 (2) (except an order as to security
for costs)
|
|
Family Law Regulations
|
|
|
31
|
subregulation 4 (1)
|
|
32
|
regulation 5
|
|
33
|
paragraph 6 (1) (a)
|
|
Bankruptcy
Act
|
|
|
34
|
section 33
|
|
35
|
section 81
|
|
36
|
section 264B
|
|
37
|
subsection 309 (2)
|
|
|
|
(2) Each power vested in the court by these Rules and
mentioned in an item of Table 18.5 is delegated to each Deputy Registrar.
Table
18.5 Powers under Rules delegated to
Deputy Registrars
|
Item
|
Provision of Rules
|
|
1
|
Part 1.2
|
|
2
|
Part 1.3
|
|
3
|
rule 5.06
|
|
4
|
rule 5.07
|
|
5
|
Part 5.4
|
|
6
|
rule 6.04
|
|
6A
|
rule 6.05
|
|
7
|
rule 6.15
|
|
8
|
Chapter 7
|
|
9
|
rule 8.02
|
|
10
|
rule 10.11 (except subrule (5))
|
|
11
|
Part 10.4
|
|
12
|
rule 11.01 (except paragraphs 3 (d) and (k) of Table 11.1)
|
|
13
|
paragraph 11.02 (2) (d) (except the reference,
by incorporation, in that paragraph to paragraphs 3 (d) and (k) of Table
11.1), and paragraphs 11.02 (2) (e) and (g)
|
|
14
|
paragraph 11.03 (1) (a)
|
|
15
|
subrule 11.10 (1)
|
|
16
|
rule 11.14
|
|
18
|
Part 11.3
|
|
19
|
Chapter 12
|
|
20
|
Chapter 13 (except paragraph 13.14 (b))
|
|
21
|
rule 14.01 (except subrules (2) and (5))
|
|
22
|
rule 15.04
|
|
24
|
rule 15.13
|
|
24A
|
rule 15.17
|
|
25
|
rule 15.18
|
|
27
|
subrule 15.22 (2)
|
|
28
|
rule 15.26
|
|
29
|
rule 15.32
|
|
29A
|
rule 15.33
|
|
30
|
subrule 15.34 (3)
|
|
31
|
Part 15.5
|
|
31A
|
Rule 16A.04
|
|
32
|
Chapter 19 (except Parts 19.3
and 19.8) and Schedule 6 (except Parts 6.2 and 6.8 and clauses 6.17 and 6.18)
|
|
33
|
Chapter 20 (except paragraph 20.07 (c) in so far as
that paragraph incorporates paragraphs 20.05 (c) and (d), Division
20.3.2, rules 20.37 and 20.39, and Parts 20.5, 20.6 and 20.7)
|
|
36
|
Chapter 23
|
|
37
|
Chapter 24 (except rule 24.13)
|
|
38
|
rule 26.05
|
|
39
|
paragraph
26.12 (a)
|
|
40
|
rule 26.13
|
|
41
|
paragraph
26.18 (a)
|
|
42
|
rule 26.29
|
|
43
|
rule 26.30
|
Note Under subsection 37B (2) of the
Act, the Principal Registrar may direct which Registrars or Deputy Registrars
are to perform any function or exercise any power under the Act, the
regulations or these Rules in particular matters or classes of matters.
Part 18.2 Review of
decisions
18.07 Application
of Part 18.2
This Part:
(a) applies to an application for the review of
an order of a Judicial Registrar, Registrar or Deputy Registrar; and
(b) does not apply to an application for a review
of an order made by an Appeal Registrar.
Note 1 Subsection 37A (9) of
the Act provides that a party may apply for the review of a Registrar’s order.
Note 2 A party seeking a review of
an Appeal Registrar’s order relating to the conduct of an appeal may file an
Application in an Appeal in the Regional Appeal Registry within 14 days after
the order is made (see rule 22.40).
18.08 Review
of order
A party may apply for a review of an order
mentioned in an item of Table 18.6 by filing an Application in a Case and a
copy of the order appealed from in the filing registry within the time
mentioned in the item.
Note Chapter 5 sets out the procedure for
filing an application in a case. The application for review will be listed for
hearing by a Judge within 28 days after the date of filing of the
application.
Table
18.6 Orders that may be reviewed
|
Item
|
Order
|
Time within which application must be made
|
|
1
|
Order made by a Judicial Registrar exercising a power
delegated under rules 18.02 and 18.03 and subrule 18.05 (1)
|
within 28 days after the Judicial Registrar makes the
order
|
|
2
|
Order made by a Registrar exercising a power mentioned in
subrule 18.05 (1)
|
within 28 days after the Registrar makes the order
|
|
3
|
Order made by a Judicial Registrar or Registrar exercising
a power delegated under subrule 18.05 (2)
|
within 7 days after the Judicial Registrar or Registrar
makes the order
|
|
4
|
Order made by a Judicial Registrar, Registrar or Deputy
Registrar exercising a power delegated under rule 18.06
|
within 7 days after the Judicial Registrar, Registrar or
Deputy Registrar makes the order
|
|
5
|
Order made by a Judicial Registrar, Registrar or Deputy
Registrar in a bankruptcy case
|
within 21 days after the Judicial Registrar, Registrar or
Deputy Registrar makes the order
|
Note A person may apply for an extension
of a time mentioned in Table 18.6 (see rule 1.14).
18.09 Stay
(1) Subject to subrule (3), the filing of an application
for a review of an order does not operate as a stay of the order.
(2) A party may apply for a stay of an order in whole or
in part.
Note Chapter 5 sets out the procedure for
making an application in a case.
(3) If a divorce order has been granted by a
Judicial Registrar, Registrar or Deputy Registrar, an application for review of
the order is taken to be an appeal within the meaning of subsection 55 (3) of
the Act.
18.10 Power of court on review
(1) A court must hear an application for review of an
order of a Judicial Registrar, Registrar or Deputy Registrar as an original
hearing.
Note In an original hearing, the court
rehears the whole matter and does not simply review the decision of the
original court.
(2) The court may receive
as evidence:
(a) any affidavit or exhibit tendered in the
first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first
hearing; or
(d) if a transcript is not available, an
affidavit about the evidence that was adduced at the first hearing, sworn by a
person who was present at the first hearing.
Chapter 19 Party/party costs
Summary of Chapter 19
Chapter
19 regulates the costs between parties for fresh applications in family law
cases, except any part of a case in which a Family Court is exercising its
bankruptcy jurisdiction. Chapter 26 contains provisions which regulate
the charges of lawyers for a part of a case involving bankruptcy matters.
For a dispute
between a lawyer and a client about the costs charged by the lawyer:
(a) for
a fresh application commenced after 30 June 2008;
(b) under
a new agreement between the lawyer and the client entered into after 30 June
2008; or
(c) under
a new retainer entered into by a client in the client’s case after 30 June
2008, if the client instructs a new lawyer in a new firm;
see the State or
Territory legislation governing the legal profession in the State or Territory
where the lawyer practices.
For the meaning
of fresh application, see the Dictionary.
Schedule 6 Costs —
rules before 1 July 2008 sets out the rules that apply to cases not
covered by this Chapter.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 19.1 General
19.01 Application
of Chapter 19
(1) Subject to subrule (3), this Chapter:
(a) applies to costs for work done for a case,
or in complying with pre‑action procedures, in relation to a fresh
application, paid or payable by one party to another; and
(b) creates a duty for lawyers to give
information about costs to their clients.
(2) A party may
only recover costs from another party in accordance with these Rules or an
order.
Note A self‑represented party is
not entitled to recover costs for work done for a case (except work done by a
lawyer) but, if so ordered, may be entitled to recover some payments.
(3) This Chapter does not apply to costs in any part of
a case in which a Family Court is exercising its jurisdiction under section 35
or 35B of the Bankruptcy Act.
19.02 Interest
on outstanding costs
Interest is payable on outstanding costs at the
rate mentioned in rule 17.03.
Part 19.2 Obligations of a lawyer about costs
19.03 Duty
to inform about costs
(1) If an offer to settle is made during a property
case, the lawyer for each party must tell the party:
(a) the party’s actual costs, both paid and
owing, up to the date of the offer to settle; and
(b) the estimated future costs to complete the
case;
to enable the party to estimate the amount the party will receive
if the case is settled in accordance with the offer to settle, after taking
into account costs.
(2) In this rule:
lawyer does not include counsel instructed by
another lawyer.
19.04 Notification
of costs
(1) This rule applies to the following court events:
(a) conciliation conference;
(b) the first day of the allocated dates
mentioned in rules 16.10 and 16.13;
(c) any other court events that the court
orders.
(2) Immediately before each court event, the lawyer for
a party must give the party a written notice of:
(a) the party’s actual costs, both paid and
owing, up to and including the court event;
(b) the estimated future costs of the party up to
and including each future court event; and
(c) any expenses paid or payable to an expert
witness or, if those expenses are not known, an estimate of the expenses.
(3) At each court event:
(a) a party’s lawyer must give to the court and
each
other party a copy of the notice given to the party under subrule (2); and
(b) an unrepresented party must give to the court
and each other party a written statement of:
(i) the actual costs incurred by the
party up to and including the event; and
(ii) the estimated future costs of the
party up to and including each future court event.
(4) Immediately before the first day of the final stage
of the trial, an independent children’s lawyer must give to the court and each
party a written statement of the actual costs incurred by the independent
children’s lawyer up to and including the trial.
(5) In a financial case, a notice under subrule (2) or a
statement under paragraph (3) (b) must specify the source of the funds for
the costs paid or to be paid unless the court orders otherwise.
Note The court may relieve a party from
being required to disclose the source of the funds if, for example, the source
is a third party (see rule 1.12).
(6) At the end of a court event, the court must return
the copy of the notice or statement given under this rule to the person who
gave it.
(7) In this rule:
lawyer does not include counsel instructed by
another lawyer.
Part 19.3 Security for costs
19.05 Application
for security for costs
(1) A respondent may apply for an order that the
applicant in the case give security for the respondent’s costs.
Note Chapter 5 sets out the procedure for
making an application for interim, procedural,
ancillary or other incidental orders.
(2) In deciding whether to make an order, the court may
consider any of the following matters:
(a) the applicant’s financial means;
(b) the prospects of success or merits of the
application;
(c) the genuineness of the application;
(d) whether the applicant’s lack of financial
means was caused by the respondent’s conduct;
(e) whether an order for security for costs
would be oppressive or would stifle the case;
(f) whether the case involves a matter of public
importance;
(g) whether a party has an order, in the same or
another case (including a case in another court), against the other party for
costs that remains unpaid;
(h) whether the applicant ordinarily resides
outside Australia;
(i) the likely costs of the case;
(j) whether the applicant is a corporation;
(k) whether a party is receiving legal aid.
(3) In subrule (1):
respondent includes an applicant who has
filed a reply because orders in a new cause of action have been sought in the
response.
19.06 Order for security for costs
If the court orders
a party to give security for costs, the court may also order that, if the
security is not given in accordance with the order, the case of the party be
stayed.
Note The court may, on application or on
its own initiative, dismiss a case for want of prosecution.
19.07 Finalising security
(1) Security for costs may be applied in satisfaction of
any costs ordered to be paid.
(2) Security for costs may be discharged by order.
(3) If security for costs is paid into court, the court
may order that it be paid out of court.
Part 19.4 Costs
orders
19.08 Order
for costs
(1) A party may apply for an order that another person
pay costs.
(2) An application for costs may be made:
(a) at any stage during a case; or
(b) by filing an Application in a Case within 28
days after the final order is made.
(3) A party applying for an order for costs on an
indemnity basis must inform the court if the party is bound by a costs
agreement in relation to those costs and, if so, the terms of the costs
agreement.
Note 1 The court may make an order
for costs on its own initiative (see rule 1.10).
Note 2 A party may apply for an
order for costs within 28 days after the filing of a notice of discontinuance
by the other party (see subrule 10.11 (4)).
Note 3 A party may apply for an extension
of time to make an application (see rule 1.14).
(4) In making an order for costs, the court may set a
time for payment of the costs that may be before the case is finished.
19.09 Costs order for cases in other courts
(1) This rule applies to a case in the Family Court
that:
(a) has been transferred from another court; or
(b) is on appeal from a decision of another
court.
(2) The Family Court may make an order for costs in
relation to the case before the other court.
(3) The order may specify:
(a) the amount to be allowed for the whole or
part of the costs; or
(b) that the whole or part of the costs is to be
calculated in accordance with these Rules or the rules of the other court.
19.10 Costs
orders against lawyers
(1) A person may apply for an order under subrule (2)
against a lawyer for costs thrown away during a case, for a reason including:
(a) the lawyer’s failure to comply with these
Rules or an order;
(b) the lawyer’s failure to comply with a pre‑action
procedure;
(c) the lawyer’s improper or unreasonable
conduct; and
(d) undue delay or default by the lawyer.
(2) The court may make an order, including an order that
the lawyer:
(a) not charge the client for work specified in
the order;
(b) repay money that the client has already paid
towards those costs;
(c) repay to the client any costs that the
client has been ordered to pay to another party;
(d) pay the costs of a party; or
(e) repay another person’s costs found to be
incurred or wasted.
19.11 Notice of costs order
(1) Before making an order for costs against a lawyer or
other person who is not a party to a case, the court must give the lawyer or
other person a reasonable opportunity to be heard.
(2) If a party who is represented by a lawyer is not
present when an order is made that costs are to be paid by the party or the
party’s lawyer, the party’s lawyer must give the party written notice of the
order and an explanation of the reason for the order.
Part 19.5 Calculation
of costs
19.18 Method
of calculation of costs
(1) The court may order that a party is entitled to
costs:
(a) of a specific amount;
(b) as assessed on a particular basis (eg lawyer
and client, party/party or indemnity);
(c) to be calculated in accordance with the
method stated in the order; or
(d) for part of
the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in
accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules,
or the court orders that costs be paid and does not specify the method for
their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the
court may consider:
(a) the importance, complexity or difficulty of
the issues;
(b) the reasonableness of each party’s behaviour
in the case;
(c) the rates ordinarily payable to lawyers in
comparable cases;
(d) whether a lawyer’s conduct has been improper
or unreasonable;
(e) the time properly spent on the case, or in
complying with pre‑action procedures; and
(f) expenses properly paid or payable.
19.19 Maximum
amount of party/party costs recoverable
(1) This rule sets out the maximum amount of party/party
costs a person may recover:
(a) if the court orders that costs are to be
paid and does not fix the amount; and
(b) if a person is entitled to costs under these
Rules.
(2) The maximum amount of costs that a person may
recover under this rule is as follows:
(a) for fees — an amount calculated in
accordance with Schedules 3 and 4;
(b) for an expense mentioned in Schedule 4 (other
than item 101) — the amount specified in Schedule 4 for that expense;
(c) for any other expenses — a reasonable
amount.
Part 19.6 Claiming
and disputing costs
Division 19.6.1 Itemised costs account
Note This Division provides that, if an
account payable by a person is not in an itemised form, the person has the
right to request an itemised account (an itemised costs account).
The person may then dispute the itemised costs account by following the
procedures set out in this Division. A person may apply to extend the time for
taking any action required under these Rules (see rule 1.14).
19.20 Request for itemised costs account
A person who has received an account (except an
itemised costs account) and wants to dispute the account, or any part of it,
must, within 28 days after receiving the account, request the lawyer who sent
it to serve an itemised costs account for the whole or part of the account
disputed.
19.21 Service of lawyer’s itemised costs account
(1) A person entitled to
party and party costs must serve an itemised costs account on the person liable
to pay the costs within 28 days after the end of the case.
Note A person entitled to costs may serve
an itemised costs account even if the person liable to pay the costs has not
requested it.
(2) For party and party costs, the person entitled to
costs must serve a costs notice at the same time as the itemised costs account
is served under subrule (1).
19.22 Lawyer’s itemised costs account
(1) An itemised costs account (the account)
must specify each item of costs and expense claimed.
(2) Each item specified in the account must be numbered
and described in sufficient detail to enable the account to be assessed.
(3) The account must set
out, in columns across the page, the following information:
(a) in relation to each item for which costs are
payable:
(i) the date when the item occurred;
(ii) a description of the item,
including whether the work was done by a lawyer or an employee or agent of a
lawyer;
(iii) the amount payable for the item;
(b) at the end of the column setting out the
amount payable — the total amount payable for the items.
(4) For each expense claimed, the account must include:
(a) the date when the expense was incurred;
(b) the name of the person to whom the expense
was paid;
(c) the nature of the expense; and
(d) the amount paid.
19.23 Disputing
itemised costs account
A person served with an itemised costs account may
dispute
it by serving on the person entitled to the costs a Notice Disputing Itemised
Costs Account within 28 days after the account was served.
Note 1 A person may apply for an
extension of time to dispute an account (see rule 1.14).
Note 2 If no Notice Disputing
Itemised Costs Account is received and the costs are not paid, the person
entitled to the costs may seek a costs assessment order (see rule 19.37).
Note 3 If the parties agree on the
amount to be paid for costs, they may file a draft consent order (see Part 10.4
for consent orders).
19.24 Assessment
of disputed costs
(1) This rule applies if a Notice Disputing Itemised
Costs Account has been served under rule 19.23.
(2) The parties to a dispute in relation to costs must
make a reasonable and genuine attempt to resolve the dispute.
(3) If the parties are unable to resolve the dispute,
either party may ask the court to determine the dispute by filing in the filing
registry of the court where the case was conducted the itemised costs account
and the Notice Disputing Itemised Costs Account no later than 42 days after the
Notice Disputing Itemised Costs Account was served.
(4) The court may take into account a failure to comply
with subrule (2) when considering any order for costs.
Note 1 A party may apply for an
extension of the time mentioned in subrule (3) (see rule 1.14).
Note 2 A person filing a document must
serve the document on each person to be served (see subrule 7.04 (4)).
19.25 Amendment
of itemised costs account and Notice Disputing Itemised Costs Account
A party may amend an itemised costs account or a
Notice Disputing Itemised Costs Account by filing the amended document with the
amendments clearly marked:
(a) at least 14 days before the date fixed for
the assessment hearing; or
(b) after that time with the consent of the other
party.
Note 1 A party amending an itemised
costs account or Notice Disputing Itemised Costs Account may apply for an
extension of the time mentioned in paragraph (a) (see rule 1.14).
Note 2 The only items that may be
raised at an assessment hearing are those items included in the itemised costs
account or Notice Disputing Itemised Costs Account (see
subrule 19.32 (2)).
Division 19.6.2 Assessment process
19.26 Fixing date for first court event
(1) On the filing of an itemised costs account and a
Notice Disputing Itemised Costs Account under subrule 19.24 (3), the
Registrar must fix a date for:
(a) a settlement conference (see rule 19.28);
(b) a preliminary assessment (see rule 19.29); or
(c) an assessment hearing (see rule 19.32).
(2) The date fixed must be at least 21 days after the
Notice Disputing Itemised Costs Account is filed.
19.27 Notification
of hearing
A party filing a Notice Disputing Itemised Costs
Account must give the party who served the itemised costs account at least 14
days notice of the court event and the date fixed for the event under rule
19.26.
19.28 Settlement
conference
At a settlement conference for an itemised costs
account, the Registrar:
(a) must:
(i) give the parties an opportunity to
agree about the amount for which a costs assessment order should be made; or
(ii) identify the issues in dispute;
and
(b) must make procedural orders for the future
conduct of the assessment process.
19.29 Preliminary assessment
(1) At a preliminary assessment of an itemised costs
account, the Registrar must, in the absence of the parties, calculate the
amount (the preliminary assessment amount) for which, if the
costs were to be assessed, the costs assessment order would be likely to be
made.
(2) The Registrar must give each party written notice of
the preliminary assessment amount.
19.30 Objection to preliminary assessment amount
(1) A party may object to the preliminary assessment
amount by:
(a) giving written notice of the objection to
the Registrar and the other party; and
(b) paying into
court a sum equal to 5% of the total amount claimed in the itemised costs
account as security for the cost of any assessment of the account;
within 21 days after receiving written notice of the preliminary
assessment amount.
(2) On receiving a notice and security, the Registrar
must fix a date for an assessment hearing for the itemised costs account.
(3) The party objecting may be ordered to pay the other
party’s costs of the assessment from the date of giving notice under paragraph
(1) (a) unless the itemised costs account is assessed with a variation in the
objecting party’s favour of at least 20% of the preliminary assessment amount.
Note The court may order that a party is
not required to pay security under paragraph (1) (b).
19.31 If no objection to preliminary assessment
If:
(a) a Registrar does not receive a notice of
objection under paragraph 19.30 (1) (a); and
(b) an amount as security for costs is not paid
under paragraph 19.30 (1) (b);
the Registrar may make a costs assessment order for the amount of
the preliminary assessment amount.
19.32 Assessment
hearing
(1) The Registrar conducting an assessment hearing for a
disputed itemised costs account must:
(a) determine the amount (if any) to be deducted
from each item included in the Notice Disputing Itemised Costs Account;
(b) determine the total amount payable for the
costs of the assessment (if any);
(c) calculate the total amount payable for the
costs allowed;
(d) deduct the total amount (if any) of costs paid
or credited; and
(e) calculate the total amount payable for
costs.
(2) At the assessment hearing, a party may only raise as
an issue a disputed item included in the Notice Disputing Itemised Costs
Account.
(3) At the end of the
assessment hearing, the Registrar must:
(a) make a costs assessment order; and
(b) give a copy of the order to each party.
Note At an assessment hearing, the onus
of proof is on the person entitled to costs. That person should bring to the
hearing all documents supporting the items claimed.
(4) Within 14 days after the costs assessment order is
made, a party may ask the Registrar to give reasons for the Registrar’s
decision about a disputed item.
19.33 Powers
of Registrars
(1) A Registrar may do any of the following at an
assessment hearing:
(a) summon a witness to attend;
(b) examine a witness;
(c) require a person to file an affidavit;
(d) administer an oath;
(e) order that a document be produced;
(f) make an interim or final costs assessment
order;
(g) adjourn the assessment hearing;
(h) if satisfied that there has been a gross or
consistent breach of a lawyer’s obligations under this Chapter — refer an
issue to the appropriate professional regulatory body;
(i) refer to the court any question arising from
the assessment;
(j) determine whether costs were reasonably
incurred, were of a reasonable amount and were proportionate to the matters in
issue;
(k) make a consent order fixing the amount of
costs to be paid;
(l) dismiss an account if:
(i) it does not comply with these
Rules or an order; or
(ii) the person entitled to costs does
not attend the assessment hearing;
(m) order costs;
(n) do, or order another person to do, any other
act that is required to be done under these Rules or an order.
Example for paragraph 19.33 (1) (h)
An example of the kind of issue that may be referred to a
professional regulatory body for a lawyer is if the lawyer grossly overcharged
a client or failed to disclose an important issue.
(2) On being satisfied that the time for reviewing a
costs assessment order has passed, the Registrar must:
(a) determine how any amount paid as security
for the costs of assessment is to be distributed or refunded; and
(b) order that the payment be made out of court.
19.34 Assessment principles
(1) A Registrar must not allow costs that, in the
opinion of the Registrar:
(a) are not reasonably necessary for the
attainment of justice; and
(b) are not proportionate to the issues in the
case.
(2) If the court has ordered costs on an indemnity
basis, the Registrar must allow all costs reasonably incurred and of a
reasonable amount, having regard to, among other things:
(a) the scale of costs in Schedule 3;
(b) any costs agreement between the party to whom
costs are payable and the party’s lawyer; and
(c) charges ordinarily payable by a client to a
lawyer for the work.
(3) When assessing costs as between party and party, a
Registrar must not allow:
(a) costs incurred because of improper,
unnecessary or unreasonable conduct by a party or a party’s lawyer;
(b) costs for work (in type or amount) that was
not reasonably required to be done for the case; or
(c) unusual expenses.
19.35 Allowance
for matters not specified
(1) A Registrar may allow a reasonable sum for work
properly performed that is not specifically provided for in Schedule 3.
(2) When considering whether to allow an amount for
costs or an expense, the Registrar may consider:
(a) any other fees paid or payable to the lawyer
and counsel for work to which a fee or allowance applies;
(b) the complexity of the case;
(c) the amount or value of the property or
financial resource involved;
(d) the nature and importance of the case to the
party concerned;
(e) the difficulty or novelty of the matters
raised in the case;
(f) the special skill, knowledge or
responsibility required, or the demands made, of the lawyer by the case;
(g) the conduct of all the parties and the time
spent on the case;
(h) the place where, and the circumstances in
which, work or any part of it was done;
(i) the quality of work done and whether the
level of expertise was appropriate to the nature of the work; and
(j) the time in which the work was required to
be done.
19.36 Neglect
or delay before Registrar
(1) This rule applies if, after a Notice Disputing
Itemised Costs Account disputing an itemised costs account has been filed under
subrule 19.24 (3), a party or a party’s lawyer:
(a) fails to comply with these Rules or an
order; or
(b) puts another party to unnecessary or improper
expense or inconvenience.
(2) The Registrar may:
(a) order the party to pay costs; or
(b) disallow all or part of the costs in the
account.
19.37 Costs
assessment order — costs account not disputed
(1) This rule applies to a person entitled to costs who:
(a) has served an itemised costs account under
rule 19.21; and
(b) has not received a Notice Disputing Itemised
Costs Account under rule 19.23.
(2) A Registrar may make a costs assessment order if the
person has filed:
(a) a copy of the itemised costs account; and
(b) an affidavit stating:
(i) when the itemised costs account
was served on the person liable to pay the costs;
(ii) the amount (if any) that has been
received or credited for the costs;
(iii) that the person liable to pay the
costs has not served a Notice Disputing Itemised Costs Account under rule
19.23; and
(iv) that the time for serving a Notice
Disputing Itemised Costs Account has passed.
(3) If a costs
assessment order is made under subrule (2), the person entitled to costs must
serve a copy of the order on the person liable to pay costs.
19.38 Setting
aside a costs assessment order
(1) This rule applies to a party who is liable to pay
costs and receives a costs assessment order under rule 19.31 or subrule 19.37 (3).
(2) The party may, within 14 days after receiving the
costs assessment order, apply to have it set aside.
Note If a party wishes to object to a
costs assessment order after an assessment hearing has taken place, the party
must do so in accordance with Part 19.8.
Part 19.7 Specific
costs matters
19.40 Costs
in court of summary jurisdiction
A party cannot recover from another party costs,
for work done by a lawyer in a court of summary jurisdiction, that are more
than 80% of the amount mentioned in Schedule 3 that may be charged for the
work.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
19.41 Charge for each page
(1) A lawyer may charge the amount specified in Schedule
3 for a document only if it complies with the requirements for documents
specified in rule 24.01.
(2) For Schedule 3, the
calculation of the number of words in a document excludes words that are part
of:
(a) an approved form;
(b) a Form in Schedule 2; or
(c) a document in a form approved by the
Principal Registrar.
19.42 Proportion of costs
If the scale in Schedule 3 provides for an amount
to be charged that is based on time or number of words, the amount to be
charged is an amount that is proportionate to the time or number of words
actually taken or written.
19.43 Costs for reading
If it is reasonable for a lawyer to read more than
50 pages for a case, the amount to be charged under item 104 in Schedule 3 is
at the discretion of the Registrar.
19.44 Postage
within Australia
The charge mentioned in Schedule 3 for producing a
document (including a letter) includes an allowance for:
(a) preparing one file copy of the document; and
(b) postage of the document in Australia.
19.45 Waiting
and travelling time
(1) Subrule (2) applies if:
(a) a lawyer has travelled less than 100
kilometres from the lawyer’s place of business to attend court; and
(b) it is not appropriate or proper for an agent
to attend court instead of the lawyer.
(2) The lawyer may charge an amount for time reasonably
spent attending a court event if the lawyer was:
(a) at court waiting for the court event to
start or resume after the time allocated; or
(b) travelling to or from court.
(3) A lawyer who attends court for the hearing of 2 or
more cases may charge, for each case, an amount that is reasonable, having
regard to the time spent at each hearing:
(a) travelling to or from court; or
(b) waiting for each hearing to start or resume.
(4) The total amount that may be charged under this rule
for all cases must not be more than the amount that may be charged under Part 1
of Schedule 3 for one case.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
19.46 Agent’s
fees
The costs claimed by a lawyer for work done by
another lawyer as agent of the lawyer must not be more than the amount the
lawyer would have been entitled to charge under Schedule 3 if the lawyer had
personally done the work.
Note This rule applies unless the court
orders otherwise (see rule 1.12). An agent may claim for an amount that is
specifically authorised by a client (see subrule 19.12 (3)).
19.49 Costs
of cases not started together
(1) This rule applies if:
(a) a lawyer starts a case for a client that
could reasonably have been started at the same time, and in the same court, as
another case between the same parties; and
(b) the case was not started at that time in that
court.
(2) The lawyer may charge for work done for all the
cases only the amount the lawyer could have charged if the lawyer had started
all the cases at the same time in the same court.
19.50 Certificate as to counsel
The judicial officer hearing a case may certify
that it was reasonable to engage a lawyer (including Queen’s Counsel and Senior
Counsel) as counsel to attend for a party.
19.51 Lawyer as counsel — party and party
costs
(1) This rule applies to party and party costs for fees
paid or to be paid to a lawyer engaged as counsel.
(2) The fees are a necessary expense for a case if:
(a) either:
(i) the case was heard by the Full
Court; or
(ii) in any other case — it was
reasonable to engage counsel to attend in the case;
(b) for a hearing or trial, counsel:
(i) was present for a considerable
part of the hearing or trial; and
(ii) gave substantial assistance during
the period to which the fees relate in the conduct of the case; and
(c) the fees are not more than the amount
otherwise payable under these Rules for counsel engaged to attend in a case.
19.52 Lawyer
as counsel — assessment of fees
(1) This rule applies to party and party costs for fees
paid or to be paid to a lawyer engaged as counsel.
(2) The Registrar may allow the costs of engaging more
than
one counsel, including counsel who is not Queen’s Counsel or Senior Counsel.
(3) If:
(a) counsel is engaged to attend at a trial; and
(b) the trial takes more than one day;
the Registrar may allow a fee in accordance with Part 2 of Schedule
3 for each further day or part of a day.
(4) The Registrar must not allow:
(a) a fee paid to counsel as a retainer;
(b) a reading fee, unless:
(i) the case is unusually complex; or
(ii) the amount of material involved is
particularly large;
(c) for a case before a court of summary
jurisdiction — an amount for counsel’s fees, other than in accordance with
item 203 or 204 of Schedule 3; or
(d) if a daily fee for counsel’s attendance is
payable in accordance with Part 2 of Schedule 3 — an additional amount for
work done for the case by counsel on any day for which the daily fee applies.
Part 19.8 Review of
assessment
19.54 Application
for review
(1) A party may apply to the court to review the decision
of a Registrar under rule 19.32 by filing an Application in a Case.
(2) A party must include in the affidavit filed with the
application:
(a) the number of each item in the itemised
costs account to which the party objects to the Registrar’s decision;
(b) the reasons for objecting to the decision;
and
(c) the decision sought from the court for each
objection.
19.55 Time
for filing an application for review
An application for review must be filed within 14
days after the applicant receives the Registrar’s reasons given after a request
made under subrule 19.32 (4).
19.56 Hearing
of application
(1) An application for review must be heard by a Judge.
(2) At the hearing of the application:
(a) the court must not receive any new evidence;
(b) the court may:
(i) exercise all the powers of the
Registrar;
(ii) set aside or vary the Registrar’s
decision; and
(iii) return any item to the Registrar
for reconsideration; and
(c) a party may raise an issue only if it:
(i) was identified as a disputed item
in the Notice Disputing Itemised Costs Account;
(ii) concerns the costs of assessing
the itemised costs account;
(iii) concerns an alleged error of
calculation in, or omission from, the assessment of the itemised costs account;
or
(iv) concerns an alleged error of law or
fact by the Registrar, and the party has made a request under
subrule 19.32 (4).
(3) A hearing of an application for review does not
operate as a stay of the decision reviewed.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
Chapter 20 Enforcement of financial orders and obligations
Summary of
Chapter 20
Chapter 20 sets
out the processes for enforcing obligations in financial cases.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 20.1 General
20.01 Enforceable obligations
(1) The following obligations may be enforced
under this Chapter:
(a) an
obligation to pay money;
(b) an
obligation to sign a document under section 106A of the Act (see Part
20.7);
(c) an order
entitling a person to the possession of real property (see Part 20.7);
(d) an order
entitling a person to the transfer or delivery of
personal property (see Part 20.7).
(2) For paragraph (1) (a), an obligation to pay money
includes:
(a) a provision requiring a payer to pay money
under:
(i) an order made under the Act, the
Assessment Act or the Registration Act;
(ii) a registered parenting plan;
(iii) an award made in arbitration and
registered under section 13H of the Act;
(iv) a maintenance agreement registered
under subsection 86 (1) of the Act;
(v) a
maintenance agreement approved under section 87 of the Act;
(vi) a financial agreement or
termination agreement under Part VIIIA of the Act;
(via) a financial agreement under
Part VIIIAB of the Act or a termination agreement under Part VIIIAB of the Act;
(vii) an agreement varying or revoking an
original agreement dealing with the maintenance of a child under
section 66SA of the Act; or
(viii) an overseas maintenance order or
agreement that, under the Regulations, is enforceable in Australia;
(b) a liability to pay arrears accrued under an
order or agreement;
(c) a debt due to the Commonwealth under
section 30 or 67 of the Registration Act;
(d) a child support liability;
(e) a fine or the forfeiture of a bond; and
(f) costs, including the costs of enforcement.
(2A) For paragraph (1) (a), an obligation to pay money
does not include an obligation arising out of costs for work done for a fresh
application payable by a person to the person’s lawyer.
Note For enforcement of lawyer-client
costs for a fresh application, see the State or Territory legislation governing
the legal profession in the State or Territory where the lawyer practices.
(3) This Chapter applies to an agreement mentioned in
paragraph (2) (a) as if it were an order of the court in which it is
registered or taken to be registered.
20.02 When
an agreement may be enforced
A person seeking to enforce an agreement must first
obtain an order:
(a) for an agreement approved under
section 87 of the Act — under paragraph 87 (11) (c) of
the Act; or
(b) for a
financial agreement — under paragraph 90KA (c) of the Act.
Note A party seeking to enforce an order
made in another court or registry, must first register a copy of the order (see
subsection 105 (2) of the Act). A payee must obtain the court’s
permission to enforce an order against a deceased payer’s estate (see
subsection 105 (3) of the Act).
20.03 When
a child support liability may be enforced
(1) This rule applies to a person seeking to enforce
payment of a child support liability that is not an order and is not taken to
be an order.
(2) Before an enforcement order is made, the person
must first obtain an order for payment of the amount owed by filing:
(a) an Application in a Case and an affidavit
setting out the facts relied on in support of the Application; and
(b) if the payee is the Child Support Agency or
is seeking to recover a liability under section 113A of the Registration
Act — a certificate under section 116 of the Registration Act.
(3) A payee who seeks to recover a child support
liability in his or her own name under section 113A of the Registration Act
must attach to the affidavit filed with the application a copy of the copy
notice, given to the Child Support Agency, of his or her intention to institute
proceedings to recover the debt due.
Note 1 After the court has ordered
payment of the amount owed, it may immediately make an enforcement order (see
rule 20.05).
Note 2 A payee who is enforcing a child
support liability must notify the Registrar in writing of his or her intention
to institute proceedings to recover the debt due (see subsection 113A (1)
of the Registration Act).
20.04 Who
may enforce an obligation
The following persons may enforce an obligation:
(a) if the obligation arises under an order
(except an order mentioned in paragraph (c)) — a party;
(b) if the obligation arises under an order to
pay money for the benefit of a party or child:
(i) the party or child; or
(ii) a person entitled, under the Act
or Regulations, to enforce the obligation for the party or child;
(c) if the obligation is a fine or an order that
a bond be forfeited — the Marshal or an officer of the court;
(d) if the
obligation is a child support liability — a person entitled to do so under
the Registration Act.
Note The payee of a liability may enforce
an obligation — see section 113 of the Registration Act.
20.05 Enforcing
an obligation to pay money
An obligation to pay money may be enforced by one
or more of the following enforcement orders:
(a) an order for seizure and sale of real or
personal property, including under an Enforcement Warrant (see Part 20.3);
(b) an order for the attachment of earnings and
debts, including under a Third Party Debt Notice (see Part 20.4);
(c) an order for sequestration of property (see
Part 20.5);
(d) an order
appointing a receiver (or a receiver and manager) (see Part 20.6).
Note The court may imprison a person for
failure to comply with an order (see section 112AD of the Act).
Chapter 21 sets out the relevant procedure.
20.06 Affidavit to be filed for enforcement order
If these Rules
require a person seeking an enforcement order to file an affidavit, the
affidavit must:
(a) if it is not required to be filed with an
application — state the orders sought;
(b) have
attached to it a copy of the order or agreement to be enforced;
(c) set out
the facts relied on, including:
(i) the name and address of the payee;
(ii) the name and address of the payer;
(iii) that the payee is entitled to
proceed to enforce the obligation;
(iv) that the payer is aware of the
obligation and is liable to satisfy it;
(v) that any condition has been
fulfilled;
(vi) details of any dispute about the
amount of money owed;
(vii) the total amount of money currently
owed and
any details showing how the amount is calculated, including:
(A) interest, if any; and
(B) the date and amount of
any payments already made;
(viii) what other legal action has been
taken in an effort to enforce the obligation;
(ix) details of any other current
applications to enforce the obligation; and
(x) the amount claimed for costs,
including costs of any proposed enforcement; and
(d) be sworn no
more than 2 days before it is filed.
Examples for paragraph (a)
An Enforcement Warrant; a Third Party Debt Notice; an
order for filing and service of Financial Statement; an order for production of
documents.
20.07 General enforcement powers of court
The court may
make an order:
(a) declaring
the total amount owing under an obligation;
(b) that the
total amount owing must be paid in full or by instalments and when the amount
must be paid;
(c) for
enforcement (see rule 20.05);
(d) in
aid of the enforcement of an obligation;
(e) to prevent the dissipation or wasting of
property;
(f) for
costs;
(g) staying
the enforcement of an obligation (including an enforcement order);
(h) requiring
the payer to attend an enforcement hearing;
(i) requiring
a party to give further information or evidence;
(j) that a
payer must file a Financial Statement;
(k) that a
payer must produce documents for inspection by the court;
(l) dismissing
an application; or
(m) varying,
suspending or discharging an enforcement order.
Note For the collection of child support,
the court has general powers set out in section 111B of the
Registration Act.
20.08 Enforcement order
(1) An enforcement
order must state:
(a) the kind
of enforcement order it is (see rule 20.05);
(b) the full
name and address for service of the payee;
(d) the full
name and address of the payer; and
(e) the
total amount to be paid.
Note A document filed in or issued
by a court must meet the general requirements set out in rule 24.01.
(2) For
paragraph (1) (e), a statement about the total amount to be paid must include:
(a) the
amount owing under the obligation to pay money;
(b) the
amount of interest owing, if any; and
(c) any
costs of enforcing the order.
20.09 Discharging,
suspending or varying enforcement order
(1) A party to an
enforcement order may apply to the court at any time to discharge, suspend or
vary the order.
Note An application under subrule (1)
must be in an Application in a Case (see rule 5.01).
(2) An application
under subrule (1) does not stay the operation of the enforcement order.
Part 20.2 Information
for aiding enforcement
Note The
duty of disclosure set out in Division 13.1.2 applies to a party to an
enforcement application.
Division 20.2.1 Processes for aiding enforcement
20.10 Processes
for obtaining financial information
(1) Before applying for an enforcement order, a payee
may:
(a) give a payer a written notice requiring the
payer to complete and serve a Financial Statement) within 14 days after
receiving the notice; or
(b) by filing an Application in a Case and an
affidavit that complies with rule 20.06, apply for an order, without notice to
the respondent:
(i) requiring the payer to complete
and file a Financial Statement; or
(ii) requiring the payer to disclose
information or produce to the payee copies of documents relevant to the payer’s
financial affairs.
(2) A Registrar may hear an application under subrule
(1), in chambers, in the absence of the parties, on the documents filed.
Division 20.2.2 Enforcement
hearings
Note An
enforcement hearing does not have to be held before the court makes an
enforcement order. The purpose of an enforcement hearing is to obtain
information to help the enforcement of an order or other obligation and, if
applicable, to help the court to determine a dispute or issue an enforcement
order.
20.11 Enforcement hearing
(1) A payee may, by filing an Application in a Case and
an affidavit that complies with rule 20.06, require:
(a) the payer; or
(b) if the
payer is a corporation — an officer of the corporation;
to attend an enforcement hearing.
Note An application for an enforcement
hearing will be listed for a hearing (not a case conference) within 28 days
after the application is filed (see rule 5.05).
(2) The payee may
require the payer to produce documents at the enforcement hearing that are in
the payer’s possession or control and relevant to the enforcement application
by serving with the application mentioned in subrule (1):
(a) a list
of the documents required; and
(b) a written
notice requiring that the documents be produced.
(3) A payee must
serve, by special service on a payer at least 14 days before an
enforcement hearing:
(a) the
documents mentioned in subrules (1) and (2); and
(b) a
brochure called Enforcement Hearings, approved by the Principal
Registrar, giving information about enforcement hearings and the consequences
of failing to comply with an obligation.
Note Rule 20.07 sets out the orders that
the court may make at an enforcement hearing.
20.12 Obligations of payer
(1) A payer served
with the documents mentioned in rule 20.11 must:
(a) attend
the enforcement hearing:
(i) to
answer questions; and
(ii) to
produce any documents required; and
(b) at least
7 days before the enforcement hearing, serve on the payee a Financial
Statement setting out the payer’s financial
circumstances.
(2) Before the day
of the enforcement hearing, the payer may produce any documents required to the
payee at a mutually convenient time and place.
20.13 Subpoena of witness
A party may request the court to issue a subpoena
to a witness for an enforcement hearing.
Note Part 15.3 sets out the
requirements for issuing subpoenas.
20.14 Failure concerning Financial Statement or enforcement hearing
(1) A person commits
an offence if the person does not:
(a) comply
with a notice under paragraph 20.10 (1) (a) requiring the person to
complete and serve a Financial Statement;
(b) comply
with an order that the person complete and file a Financial Statement or
produce copies of documents to the payee (see
paragraph 20.10 (1) (b));
(c) if the person is served with an enforcement
hearing application:
(i) comply with subparagraph 20.12 (1)
(a) (ii) and paragraph 20.12 (1) (b); and
(ii) attend the enforcement hearing in
accordance with the application or an order; or
(d) on attending an enforcement hearing in
accordance with an enforcement hearing application or order, answer a question
put to the person to the court’s satisfaction.
Penalty: 50 penalty
units.
(2) An offence against subrule (1) is an offence of
strict liability.
Note A court may issue a warrant for the
arrest of a payer if it is satisfied that the payer has received an enforcement
hearing application and did not attend the enforcement hearing (see rule
21.16).
(3) If a person is prosecuted under section 112AP of the
Act for an act or omission mentioned in subrule (1), an application must not be
made under subrule (1) in respect of that act or omission.
Part 20.3 Enforcement
warrants
Division 20.3.1 General
20.15 Definitions
In this Part:
affected person means a person claiming to be
affected by the seizure of property by an enforcement officer under an
Enforcement Warrant.
20.16 Request
for Enforcement Warrant
(1) A payee may, without notice to the payer, ask a
Family Court to issue an Enforcement Warrant by filing:
(a) an affidavit; and
(b) the Enforcement Warrant sought and a copy of
it for service.
(2) The affidavit
must:
(a) comply
with rule 20.06; and
(b) include
the following details of the property owned by the payer:
(i) for any real property:
(A) evidence that the payer
is the registered owner; and
(B) details of registered
encumbrances and of any other person with an interest in the property;
(ii) for any personal property:
(A) the location of the
property; and
(B) whether there is any
other person who may have an interest in the property, including as a part
owner or under a hire purchase agreement, lease or lien.
Note A
person seeking to enforce the payment of a child support liability must first
apply for an order for the amount owed (see rule 20.03).
(3) If an Enforcement Warrant is issued, the payee must
give the enforcement officer:
(a) the Warrant; and
(b) either or both of the following:
(i) a written undertaking to pay all
reasonable fees and expenses associated with the enforcement if they
are greater than the amount recovered on the enforcement;
(ii) the amount (if any) required by
the enforcement officer to be paid on account for the reasonable fees and
expenses of the enforcement.
Note Although the payee is liable to pay
the enforcement officer any reasonable fees and expenses relating to the
enforcement, the payee is entitled to recover those fees and expenses under the
Enforcement Warrant (see subrule 20.23 (2)).
20.17 Period during which Enforcement Warrant is
in force
An Enforcement
Warrant remains in force for 12 months from the date when it was issued.
20.18 Enforcement
officer’s responsibilities
(1) An enforcement officer must:
(a) seize or sell property of the respondent in
the sequence that the enforcement officer considers is best for:
(i) promptly enforcing the Warrant;
(ii) avoiding undue expense or delay;
and
(iii) minimising hardship to the payer
and any other person affected;
(b) on enforcing the Warrant:
(i) serve a copy of the Warrant on the
payer; or
(ii) leave the Warrant at the place
where it was enforced;
(c) give the payer an inventory of any property
seized under the Warrant;
(d) advertise the property in accordance with
rule 20.21; and
(e) sell the
seized property:
(i) quickly, having regard to the
parties’ interests and the desirability of a beneficial sale of the property;
(ii) at the place where it seems best
for a beneficial sale of the property; and
(iii) by auction, tender or private
sale.
Note For the powers an enforcement
officer has in relation to the enforcement of a warrant, see rule 20.60.
(2) The enforcement officer may:
(a) postpone
the sale of the property;
(b) refuse to
proceed with the sale of the property;
(c) seek
further information or documents from a payee;
(d) defer enforcement until a fee or expense is
paid or an undertaking to pay the fee or expense is given;
(e) require the payee to indemnify the
enforcement officer against any claims arising from the enforcement;
(f) sign any documents relating to the transfer
of ownership of the property, and any other documents necessary to give title
of the property to the purchaser of the property; and
(g) recover reasonable fees and expenses
associated with the enforcement.
(3) For paragraph
(2) (g), fees and expenses recovered by an enforcement officer for enforcing a
Warrant are taken to be reasonable if the fees and expenses are in accordance
with a legislative provision of the Commonwealth, or the State or Territory in
which the warrant was enforced.
20.19 Directions
for enforcement
(1) An enforcement officer may seek, by written request
to the court, procedural orders to assist in carrying out the enforcement
officer’s functions.
(2) A request under subrule (1) must:
(a) comply with subrule 24.01 (1);
(b) set out the procedural orders sought and the
reason for the orders; and
(c) have attached to it a copy of the order
appointing the enforcement officer.
(3) The enforcement officer must give a copy of the
request to all parties.
(4) The court may determine the request in chambers
unless:
(a) within 7 days of the request being served on
a party, the party makes a written objection to the request being determined in
chambers; or
(b) the court decides that an oral hearing is
necessary.
20.20 Effect of Enforcement Warrant
(1) Property seized
under an Enforcement Warrant remains the subject of the Enforcement Warrant
until it is released by:
(a) full
payment of the total amount owing under the Enforcement Warrant;
(b) sale;
(c) order;
or
(d) consent
of the payee.
(2) If the payer
pays the payee the total amount owed under the Enforcement Warrant:
(a) the
payee must immediately give the enforcement officer written notice of the
payment; and
(b) the
enforcement officer must release any seized property to the payer.
(3) In this rule:
total amount owed includes the enforcement officer’s fees and
expenses incurred in enforcing the Warrant.
20.21 Advertising before sale
(1) Before selling
property seized under an Enforcement Warrant, an enforcement officer must
advertise a notice of the sale:
(a) at least
once before the sale;
(b) stating:
(i) the
time and place of the sale; and
(ii) the
details of the property to be sold; and
(c) in a
newspaper circulating in the town or district in which the sale is to take
place.
(2) Subrule (1) does not apply if the property
seized is perishable.
(3) For a sale of
real property, the notice of sale must include the following details:
(a) a concise description of the real property,
including its location, that would enable an interested person to identify it;
(b) a general statement about any improvements of
the real property;
(c) a statement of the payer’s last known
address;
(d) a statement of the payer’s interest, and any
entries in the land titles register, that affect or may affect the real
property as at the date of the advertisement;
(e) a statement about where a copy of the contract
for sale of the property can be obtained.
(4) A copy of the
advertisement must be served on the payer at least 14 days before the
intended date of sale.
20.21A Sale of property at reasonable price
(1) An enforcement
officer must, in good faith and with reasonable care having regard to all
circumstances relevant to the sale of property seized under an Enforcement
Warrant, fix a reasonable price for the property.
(2) For subrule (1),
circumstances relevant to the sale price of real property seized under an
Enforcement Warrant include:
(a) the
current value of the property, as provided to the enforcement officer under
subparagraph 20.23 (1) (b) (vi); and
(b) the
amount of the highest bid received for the property at any auction of the
property.
Note The enforcement officer or payee may apply, after
giving notice to the payer, for an order entitling the enforcement officer to
sell the property for the best price obtainable (see rule 20.24).
20.21B Conditions of sale of property
(1) This rule
applies in relation to the sale by an enforcement officer of property seized
under an Enforcement Warrant.
(2) The enforcement
officer must specify as a condition of the sale of the property that the buyer:
(a) must
pay:
(i) a
deposit of at least 10% of the price fixed for the property when the buyer’s
offer for the property is accepted by the enforcement officer; and
(ii) the
balance of that price within the period determined by the enforcement officer;
or
(b) must pay
the whole of the price fixed for the property when the enforcement officer
accepts the buyer’s offer for the property.
(3) The period
mentioned in subparagraph (2) (a) (ii) must:
(a) be
determined before the property is offered for sale; and
(b) be a
period of no longer than 42 days.
20.22 Result of sale of property under Enforcement Warrant
(1) An enforcement
officer must, within 7 days after the day of settlement of a sale of
property, file a notice in the court stating the details of the result of the
sale and the reasonable fees and expenses of the enforcement.
(2) The enforcement
officer must pay out of the money received from the enforcement:
(a) any
amount still owing to the enforcement officer for the reasonable fees and
expenses of the enforcement;
(b) the
balance of any amount owed to the payee under the Enforcement Warrant; and
(c) the
remaining amount, if any, to the payer.
Note This rule applies unless the court
orders otherwise (see rule 1.12).
20.23 Payee’s responsibilities
(1) At least
28 days before an enforcement officer sells
real property under an Enforcement Warrant, the payee must:
(a) send to
the payer, at the payer’s last known address, and to any mortgagee or other person who has an encumbrance
registered on the title to the property that has priority over the Enforcement
Warrant, written notice stating:
(i) that
the Warrant has been registered on the title to the property;
(ii) that
the enforcement officer intends to sell the property to satisfy the obligation
if:
(A) the
total amount owing is not paid; or
(B) arrangements
considered satisfactory to the payee have not been made by a date specified in
the notice; and
(iii) the
enforcement officer’s name and address; and
(b) provide
the enforcement officer with evidence of the following:
(i) proof
of compliance with paragraph (a);
(ii) that
the Warrant has been registered on the land titles register;
(iii) details
of the real property proposed to be sold including the address and description
of the land title of the property;
(iv) details
of all encumbrances registered against the real property on the date of
registration of the Enforcement Warrant;
(v) the
costs incurred to register the Enforcement Warrant;
(vi) the
current value of the real property, as stated in a real estate agent’s market
appraisal.
(1A) The payee is liable to pay to the enforcement officer
the reasonable fees and expenses of the enforcement.
(2) The costs mentioned in subparagraph
(1) (b) (v) and the fees and expenses mentioned in subrule (1A) may:
(a) be added to, and form part of, the costs of
the Enforcement Warrant; and
(b) be recovered under the Warrant.
Note A person affected by an Enforcement
Warrant may serve a notice of claim on the enforcement officer (see rule
20.25).
20.24 Orders
for real property
(1A) This rule applies to real property in relation to
which:
(a) an Enforcement Warrant has been requested or
issued; or
(b) an enforcement order for seizure and sale has
been applied for or made.
(1) A payee, payer or enforcement officer may apply for
an order:
(a) that the real property be transferred or
assigned to a trustee;
(b) that a party sign all documents necessary for
the transfer or assignment;
(c) in aid of or relating to the sale of the
real property, including an order:
(i) about the possession or occupancy
of the real property until its sale;
(ii) specifying
the kind of sale, whether by contract conditional on approval of the court,
private sale, tender or auction;
(iii) setting
a minimum price;
(iv) requiring
payment of the purchase price to a trustee;
(v) settling
the particulars and conditions of sale;
(vi) for
obtaining evidence of value; and
(vii) specifying
the remuneration to be allowed to an auctioneer, estate agent, trustee or other
person;
(d) about the disposition of the proceeds of the
sale of the real property; or
(e) in relation to the reasonable fees and
expenses of the enforcement.
Note An application under subrule (1)
must be in an Application in a Case (see rule 5.01).
(2) The court may
hear an application under subrule (1) in chambers, in the absence of the
parties, on the documents filed.
Division 20.3.2 Claims by person affected by an Enforcement Warrant
20.25 Notice
of claim
(1) If an enforcement officer seizes, or intends to
seize, property under an Enforcement Warrant, an affected person may serve a
notice of claim on the enforcement officer.
(2) A notice of claim must:
(a) be in writing;
(b) state the name and address of the affected
person;
(c) identify each item of property that is the
subject of the claim; and
(d) state the grounds of the claim.
(3) The enforcement officer must serve a copy of the
notice of claim on the payee.
(4) The Enforcement Warrant must not be executed until
at least 7 days after the notice of claim was served on the payee.
20.26 Payee to admit or dispute claim
A payee who is served with a notice of claim under
subrule 20.25 (3) must give the enforcement officer written notice about
whether the payee admits or disputes the claim, within 7 days after the
notice of claim was served.
20.27 Admitting claim
If a payee admits an affected person’s claim, the
enforcement officer must return the property to its lawful owner in a way that
is consistent with the affected person’s claim.
20.28 Denial
or no response to claim
(1) This rule applies if:
(a) an enforcement officer has served an
affected person’s notice of claim on a payee; and
(b) within 7 days after the notice was
served, the payee:
(i) disputes or does not admit the
claim; or
(ii) fails to respond to the claim in
accordance with rule 20.26.
(2) The following people may apply for an order to
determine the claim:
(a) each party to the Enforcement Warrant;
(b) the affected person;
(c) the enforcement officer.
Note An application under subrule (2)
must be in an Application in a Case (see rule 5.01).
(3) The Registry Manager must fix a date for hearing an
application under this rule that is as close as practicable to
14 days after the date of filing.
(4) The application must be served on the following
people at least 7 days before the hearing of the application:
(a) each party to the Enforcement Warrant;
(b) the affected person;
(c) the enforcement officer.
20.29 Hearing
of application
On the hearing of an application under rule 20.28,
the court may:
(a) allow the claim; and
(b) order that the affected person and anyone
claiming under the affected person be barred from prosecuting the claim against
the enforcement officer or payee.
Note Rules 20.07 and 20.24 set out
the orders the court may make on the hearing of the application.
Part 20.4 Third
Party Debt Notice
20.30 Application
of Part 20.4
This Part applies to:
(a) money deposited in a financial institution
that is payable to a payer on call or on notice;
(b) money payable to a payer by a third party on the date when the enforcement order is served
on the third party; and
(c) earnings payable to a payer.
20.31 Money
deposited in a financial institution
(1) Money deposited in an account in a financial
institution that is payable on call is a debt due to the payer even if a
condition relating to the account is unsatisfied.
(2) Money deposited in an account in a financial
institution that is payable on notice is a debt due to the payer at the end of
the notice period required, starting on the date of service of the Third Party
Debt Notice on the third party debtor.
Note Some legislative provisions provide
that payments under the legislation are exempt from payment: for example, some
pensions.
20.32 Request
for Third Party Debt Notice
(1) A payee may, without notice to the payer or third
party, ask a Family Court to issue a Third Party Debt Notice requiring the
payment to the payee of any money to which this Part applies by filing:
(a) 3 copies of the Third Party Debt Notice; and
(b) an affidavit.
(2) The affidavit
must:
(a) comply with rule 20.06; and
(b) include the following information:
(i) the
name and address of the third party;
(ii) details of the debt to be attached
to satisfy the obligation, including its nature and amount;
(iii) the information relied on to show
that the debt is payable by the third party to the payer;
(iv) if it is sought to attach the
payer’s earnings:
(A) details of the payer’s
earnings;
(B) details of the payer’s
living arrangements, including dependants;
(C) the protected earnings
rate;
(D) the amount sought to be
deducted from the earnings each payday; and
(E) any information that
should be included in the Third Party Debt Notice to enable the employer to
identify the payer.
Note A
person seeking to enforce the payment of a child support liability must first
apply for an order for the amount owed (see rule 20.03).
20.33 Service
of Third Party Debt Notice
A payee must serve on a payer and third party
debtor:
(a) a copy of the Third Party Debt Notice issued
under rule 20.32; and
(b) a brochure
called Third Party Debt Notices, approved by the Principal Registrar and
setting out the effect of the Third Party Debt Notice and the third party debtor’s obligations.
20.34 Effect
of Third Party Debt Notice — general
(1) If a
Third Party Debt Notice is served on a third party debtor, a debt due or
accruing to the payer from the third party debtor is attached and bound in the
hands of the third party debtor to the extent specified in the Notice.
(2) A Third
Party Debt Notice to bind earnings or a
regular payment comes into force at the end of 7 days after the order is
served on the third party debtor.
20.35 Employer’s
obligations
(1) Under a Third
Party Debt Notice directed to earnings, the
payer’s employer:
(a) must:
(i) deduct
from the payer’s earnings the amount specified in the notice;
(ii) pay
it to the person specified in the notice; and
(iii) give
to the payer a notice specifying the deductions; and
(b) may:
(i) deduct
from the payer’s earnings an administrative charge of $5 per deduction; and
(ii) keep
the charge as a contribution towards the administrative cost of making payments
under the notice.
(2) The employer must ensure that an amount deducted
under subrule (1) does not reduce the payer’s earnings to less than the
protected earnings rate.
(3) A deduction paid
or kept by an employer under subrule (1)
is a valid discharge, to the extent of the deduction, of the employer’s
liability to pay earnings.
20.36 Duration of Third Party Debt Notice
A Third Party Debt Notice continues in force until:
(a) the total amount mentioned in the Notice is
paid; or
(b) the Notice is set aside.
20.37 Response to Third Party Debt Notice
(1) A third party debtor
who has been served with a Third Party Debt Notice or an order discharging,
varying or suspending the Notice, may apply:
(a) to dispute liability to make payments under
the Notice; or
(b) for procedural orders.
Note An application under subrule (1)
must be in an Application in a Case and filed with an affidavit (see rules 5.01
and 5.02).
(2) The court may
hear an application under subrule (1) in chambers, in the absence of the
parties, on the documents filed.
(3) The court may:
(a) order that any money that has been paid to
the payee in error:
(i) be paid into and held in court;
(ii) be returned to the third party
debtor; or
(iii) be sent to the payer; and
(b) if the third party debtor has not paid the
amount specified in the Notice or order mentioned in subrule (1) — order
the third party debtor to pay all or part of what was required under the Notice
or order.
Note Rule 20.07 sets out the orders that
the court may make on an application under this Part.
20.38 Discharge of Third Party Debt Notice
If a third party debtor pays an amount mentioned in
a Third Party Debt Notice to the payee, the debt is discharged to the extent of
the payment.
20.39 Claim by affected person
A person other than the payee
claiming to be entitled to the debt mentioned in a Third Party Debt
Notice, or to any charge or lien on, or other interest in, the
debt may apply for an order determining the claim.
Note An application under this rule must
be in an Application in a Case and filed with an affidavit stating the facts
and circumstances relied on (see rules 5.01 and 5.02).
20.40 Cessation of employment
(1) This rule applies if:
(a) a Third Party Debt Notice is in force; and
(b) the payer’s employer is required by the
Notice to redirect part of the payer’s earnings to the payee.
(2) If the payer ceases to be employed by the employer,
the payer must, within 21 days after the payer ceases to be so employed, give
the court written notice stating:
(a) that the payer has ceased employment with
the employer;
(b) the date on which the employment ceased; and
(c) if the payer has a new employer:
(i) the name and address of the new
employer;
(ii) the place of the payer’s
employment by the new employer; and
(iii) the amount of the payer’s earnings
from employment by the new employer.
(3) If the payer ceases to be employed by the employer,
the employer must, within 21 days after the payer ceases to be so employed,
give the court written notice of the date on which the payer’s employment
ceased.
(4) If the Registry Manager does not receive a written
objection from the payee or the payer within 21 days after a notice under
subrule (2) or (3) is given, a new Third Party Debt Notice naming the new
employer as the third party debtor will be issued.
20.41 Compliance with Third Party Debt Notice
(1) A third party
debtor commits an offence if the third party debtor:
(a) does not comply with a Third Party Debt
Notice or an order varying, suspending or discharging a Notice; or
(b) unfairly treats a payer in respect of
employment because of a Notice or an order made under this Chapter.
Penalty: 50 penalty
units.
(2) An offence against subrule (1) is an offence of
strict liability.
(3) A penalty imposed under subrule (1) does not
affect:
(a) an obligation that the third party debtor
may have in relation to the payer; or
(b) a right or
remedy that the payer may have against the third party debtor under another
legislative provision.
Note See Chapter 21 for how to make
an application against a third party debtor who does not comply with an
enforcement order.
(4) If the court makes an order against a third party
debtor under section 112AP of the Act in respect of an act or omission
mentioned in subrule (1), the third party debtor must not be charged with an
offence against subrule (1) in respect of that act or omission.
Part 20.5 Sequestration
of property
20.42 Application
for sequestration of property
(1) A payee may apply to the court for an enforcement
order appointing a sequestrator of the property of a payer by filing an
Application in a Case, setting out the details of the property to be
sequestered, and an affidavit.
(2) The affidavit must:
(a) comply with rule 20.06;
(b) include the full name and address of the
proposed sequestrator;
(c) include details of the sequestrator’s fees;
and
(d) have attached to it a consent to the
appointment of the sequestrator, signed by the proposed sequestrator.
(3) The court may:
(a) hear an urgent application under subrule (1)
without notice; and
(b) make an order that is expressed to operate
only until a date fixed by the order.
(4) The court may
hear an application under this rule in chambers, in the absence of the parties,
on the documents filed.
Note For the hearing of an application in
the absence of the parties, see Part 5.4.
20.43 Order
for sequestration
(1) In considering an application for sequestration,
the court must be satisfied that:
(a) if the obligation to be enforced arises
under an order — the payer has been served with the order to be enforced;
(b) the payer has refused or failed to comply
with the obligation; and
(c) an order for sequestration is the most
appropriate method of enforcing the obligation.
(2) On appointing a sequestrator, the court may:
(a) authorise and direct the sequestrator:
(i) to enter and take possession of
the payer’s property or part of the property;
(ii) to collect and receive the income
of the property, including rent, profits and takings of a business; and
(iii) to keep the property and income
under sequestration until the payer complies with the obligation or until
further order; and
(b) fix the remuneration of the sequestrator.
Note For rules relating to the
enforcement of obligations other than an obligation to pay money, see Part
20.7.
20.44 Order
relating to sequestration
(1) This rule applies if any of the following people apply
to the court for an order relating to a sequestration order:
(a) a party to the sequestration order;
(b) a creditor of the payer;
(c) the Marshal;
(d) a person whose interests are affected by an
act or omission of, or decision made by, the sequestrator.
(2) The court may order:
(a) the sequestrator, or any other person
associated with the sequestration, to attend to be orally examined;
(b) the sequestrator to do or not do something;
or
(c) the sequestrator to be removed from office.
Note An application under subrule (1)
must be in an Application in a Case and filed with an affidavit (see rules 5.01
and 5.02).
20.45 Procedural
orders for sequestration
(1) A sequestrator may seek, by written request to the
court, procedural orders about the sequestrator’s functions.
(2) A request under subrule (1) must:
(a) comply with subrule 24.01 (1);
(b) set out the procedural orders sought and the
reason for the orders; and
(c) have attached to it a copy of the order
appointing the sequestrator.
(3) The sequestrator must give a copy of the request to
all parties.
(4) The court may determine the request in chambers
unless:
(a) within 7 days of the request being served on
a party, the party makes a written objection to the request being determined in
chambers; or
(b) the court decides that an oral hearing is
necessary.
Part 20.6 Receivership
20.46 Application for appointment of receiver
(1) A payee may
apply for an enforcement order appointing a receiver of the payer’s income or
property by filing an Application in a Case and an affidavit.
(2) The affidavit
must:
(a) comply
with rule 20.06;
(b) include
the full name and address of the proposed receiver;
(c) include
details of the receiver’s fees; and
(d) have
attached to it the consent to the appointment of receiver, signed by the
proposed receiver.
(3) The court may
hear an application under subrule (1) in chambers, in the absence of the
parties, on the documents filed.
Note For the hearing of an application in
the absence of the parties, see Part 5.4.
20.47 Appointment and powers of receiver
(1) In considering
an application under subrule 20.46 (1), the court must have regard to:
(a) the
amount of the debt;
(b) the
amount likely to be obtained by the receiver; and
(c) the
probable costs of appointing and paying a receiver.
(2) When appointing
a receiver, the court must make orders about:
(a) the
receiver’s remuneration, if any;
(b) the
security to be given by the receiver;
(c) the
powers of the receiver; and
(d) the
parties to whom, and the intervals or dates at which, the receiver is to submit
accounts.
(3) The court may
authorise a receiver to do (in the receiver’s name or otherwise) anything the
payer may do.
(4) The receiver’s powers operate to the
exclusion of a payer’s powers during the receivership.
(5) The court may,
on application by an interested person, make procedural orders about the powers
of the receiver.
Note For rules relating to the
enforcement of obligations other than an obligation to pay money, see Part 20.7.
20.48 Security
A receiver’s appointment by the court starts
when:
(a) the
order appointing the receiver is made; and
(b) the
receiver files any security ordered that is acceptable to the court for the
performance of the receiver’s duties.
20.49 Accounts
A party to whom
a receiver must submit accounts may, on giving reasonable written notice to the
receiver, inspect, either personally or by an agent, the documents and things
on which the accounts are based.
20.50 Objection to accounts
(1) A party who
objects to the accounts submitted by a receiver may serve written notice on the
receiver:
(a) specifying
the items to which objection is taken; and
(b) requiring
the receiver to file the receiver’s accounts with the court within a specified
period that is at least 14 days after the notice is served.
(2) The court may
examine the items to which objection is taken.
(3) The court:
(a) must, by
order, declare the result of an examination under subrule (2); and
(b) may make
an order for the costs and expenses of a party or the receiver.
20.51 Removal of receiver
The court may:
(a) set
aside the appointment of a receiver at any time; and
(b) make
orders about the receivership and the receiver’s remuneration.
20.52 Compliance with orders and Rules
If a receiver
contravenes an order or these Rules, the court may:
(a) set
aside the receiver’s appointment;
(b) appoint
another receiver;
(c) order
the receiver to pay the costs of an application under this rule; and
(d) deprive
the receiver of remuneration and order the repayment of remuneration already
paid to the receiver.
Note This rule does not limit the court’s powers
relating to contempt or the enforcement of orders.
Part 20.7 Enforcement
of obligations other than an obligation to pay money
Note For
the powers an enforcement officer has in relation to the enforcement of a
warrant, see rule 20.60.
20.53 Application for other enforcement orders
A person may
apply, without notice to the respondent, for any of the following orders by
filing an Application in a Case and an affidavit:
(a) an order
requiring a person to sign documents under section 106A of the Act;
(b) an order to
enforce possession of real property;
(c) an order
for the transfer or delivery of property.
Note Chapter 5 sets out the
process for making an application in a case, that is, by filing an
Application in a Case and an affidavit.
Chapter 21 sets out the procedure for making an application in relation to
the contravention of an order when a penalty is sought to be imposed.
20.54 Warrant for possession of real property
(1) An order for the
possession of real property may be enforced by a warrant for possession only if
the respondent has had
at least 7 days notice of the order to be enforced before the warrant is
issued.
(2) A court may
issue a warrant for possession authorising an enforcement officer to enter the
real property described in the warrant and give possession of the real property
to the person entitled to possession.
(3) If a person
other than the respondent occupies land under a lease or written tenancy
agreement, a warrant for possession may be issued only if the court gives
permission.
20.55 Warrant for delivery
A person
entitled under an order for the delivery of personal property specified in the
order may apply for that order to be enforced by a warrant authorising an
enforcement officer to seize the property and deliver it to the person who is
entitled to it under the order.
20.56 Warrant for seizure and detention of property
(1) If an order
specifies a time for compliance and that time has passed without compliance, a
person entitled to enforce the order may seek a warrant authorising an
enforcement officer to seize and detain all real and personal property (other
than prescribed property) in which the respondent has a legal or beneficial interest.
(2) If the
respondent complies with the order or is released from compliance, the court
may order that the property be returned to the respondent, after the costs of enforcement have been
deducted.
Part 20.8 Other provisions about enforcement
20.57 Service
of order
An order may be enforced against a person only if:
(a) a sealed copy of the order is served on the
person; or
(b) the court is otherwise satisfied that the
person has received notice of the terms of the order.
20.58 Certificate for payments under maintenance
order
(1) This rule applies if an order
specifies that maintenance must be paid to a Registrar of a court or an
authority.
(2) The Registrar or authority must, at the request of
the court or a party to the order, give the court or party a certificate
stating the amounts that, according to the records of the court or authority,
have been paid and remain unpaid.
(3) A certificate given in accordance with
subrule (2) may be received by the court in evidence.
20.59 Enforcement by or against a non‑party
(1) If an order is
made in favour of a person who is not a party to a case, the person may enforce
the order as if the person were a party.
(2) If an order is
made against a person who is not a party to a case, the order may be enforced
against the person as if the person were a party.
20.60 Powers of enforcement officer
An enforcement officer may, when enforcing a warrant (with such
assistance as the enforcement officer requires and, if necessary, by force) do
any of the following:
(a) enter
and search any real property:
(i) that
is the subject of the warrant; or
(ii) for
the purpose of seizing any property the subject of the warrant;
(b) if the
warrant is for the seizure and sale of real property — enter and eject
from the property any person who is not lawfully entitled to be on the
property;
(c) take
possession of or secure against interference any property the subject of the
warrant;
(d) remove
any property the subject of the warrant from the place where it is found, place
it in storage or deliver it to another person or place for a purpose authorised
by the warrant.
Note The powers specified in this rule are in addition
to, and do not derogate from, any other powers conferred by law on the
enforcement officer.
Chapter 21 Enforcement of
parenting orders, contravention of orders and contempt
Summary of
Chapter 21
Chapter 21 sets
out how a party may seek:
· an order to enforce a
parenting order;
· an order that a person
be punished for contravening an order, bond or sentence, or for contempt of
court; or
· an order to locate or
recover children Application should not be made
under this Chapter unless an associated matter is pending in the court or
filing with the Federal Magistrates Court is not available. Under section 33B
of the Family Law Act 1975, the Family Court may transfer the proceeding
to the Federal Magistrates Court without notice to the parties.
Before filing an
application, a party should consider the result that the party wants to
achieve. The remedies available from the court range from the enforcement of a
bond or order to the punishment of a person for failure to comply with an
order, bond or sentence. For example, the court may make an order that:
· ensures the resumption of the
arrangements set out in an earlier order;
· compensates a person for time lost with a
child;
· compensates a person
for expenses incurred in attempting to spend time with a child;
· varies an existing order;
· puts a person on
notice that, if the person does not comply with an order, the person will be
punished; or
· punishes a person by way of a fine or
imprisonment.
Contempt of court
should be alleged only if the conduct complained of is serious enough to
warrant such a serious charge, for example, if it is alleged that the
contravention of an order involves a flagrant challenge to the court’s
authority (see subsection 112AP (1) of the Act). A person found to be in
contempt of the court may be imprisoned.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 21.1 Applications
for enforcement of orders, contravention of orders and contempt of court
21.01 Application
of Part 21.1
This Part applies to an application for an order:
(a) to enforce a parenting order;
(b) under Division 13A of Part VII or Part XIIIA
of the Act; or
(d) that another person be punished for contempt
of court.
Note 1 Subsection 69C (2) of the Act
specifies who may apply for an order in relation to a child. Division 13A of
Part VII of the Act sets out the consequences of failing to comply with an
order or other obligation that affects children. Part XIIIA of the Act sets out
the sanctions the court may impose on a person who fails to comply with an
order or other obligation that does not affect children. Part XIIIB of the Act
sets out the punishment the court may impose on a person found to be in
contempt of court.
Note 2 If a maintenance order is
complied with before an Application for Contempt is heard by the court, the
failure to comply with the order that led to the Application for Contempt being
filed does not constitute a contempt of court (see subsection 112AP (1A)
of the Act).
Note 3 The court:
(a) must not impose a sentence of imprisonment:
(i) for non‑compliance
with a maintenance order unless it is satisfied that the contravention was
intentional or fraudulent (see subsections 70NFB (4) and 112AD (2A)
of the Act); or
(ii) if it considers that
another consequence is more appropriate (see subsections 70NFG (2)and
112AE (2) of the Act); and
(b) cannot enforce an order of another court unless the
order is registered in the first‑mentioned court (see section 105 of the
Act and regulation 17 of the Regulations).
21.02 How to apply for an order
(1) A person seeking to
apply for an order under this Part must file an application as set out in Table
21.1.
Table
21.1 Applications
|
Item
|
Kind of application
|
Application form to be filed
|
|
1
|
Enforcement of parenting order
|
Application in a Case
|
|
1A
|
Contravention of subsection 67X (2) of the Act in
relation to a recovery order
|
Application — Contravention
|
|
2
|
Contravention of an order (of a kind included in the
definition of an order under this Act affecting children under
section 70NB of the Act) under Division 13A of Part VII of the Act affecting
children, for example, a breach of a parenting order
|
Application — Contravention
|
|
3
|
Contravention of an order (of a kind included in the
definition of an order under this Act under section 112AA of
the Act) under Part XIIIA of the Act not affecting children, for example, a
breach of a property order
|
Application — Contravention
|
|
4
|
An order that another person be punished for contempt of
court
|
Application — Contempt
|
|
5
|
Failure to comply with a bond entered into in accordance
with the Act
|
Application — Contravention
|
Example for item 1 of Table 21.1
A party may use an Application in a Case if:
(a) the party does not want
the other party to a parenting order to be punished for a failure to comply
with the order but wants to be compensated for time not spent with a child as a
result of the failure to comply; or
(b) before the time due to be spent with a child, the other
party refuses to comply with the handover arrangements.
(2) A person filing an application mentioned in Table
21.1 must file with it an affidavit that:
(a) states the facts necessary to enable the
court to make the orders sought in the application; and
(b) for an application mentioned in item 1 of
Table 21.1 — has attached to it a copy of any order, bond, agreement or
undertaking that the court is asked to enforce or that is alleged to have been
contravened.
Example for paragraph (2) (a)
If a person alleges, in an Application for Contempt, that
a party is in contempt because of a contravention of an order that involved a
flagrant challenge to the court’s authority (see subsection 112AP (1) of the
Act), or alleges in an Application for Contravention that a person has behaved
in a way that showed a serious disregard of his or her obligations under a
parenting order (see paragraph 70NFA (2) (b) of the Act), the
affidavit must set out the alleged facts necessary to prove this.
Note An application and affidavit must be
served by hand on the respondent (see Table 7.1).
(3) If the application is for an order mentioned in item
2 of Table 21.1, the affidavit must also state:
(a) whether a court has previously found that
the respondent contravened the primary order without reasonable excuse; and
(b) the details of any finding made under
paragraph (a), including:
(i) the date and place of the finding;
(ii) the court that made the finding;
and
(iii) the terms of the finding in
sufficient detail to show that the finding related to a previous contravention
by the respondent of the primary order.
21.03 Application
made or continued by Marshal
The Family Court may direct the Marshal to make or
continue an application under this Chapter.
21.04 Contempt
in the court room
(1) This rule applies if
it appears to the court that a person is guilty of contempt in the court room.
(2) The court may:
(a) order the person to attend before the court;
or
(b) issue a warrant for the person’s arrest.
Note 1 The procedure in this rule is
in addition to the procedure mentioned in rule 21.02.
Note 2 Contempt in the court room
interferes with the administration of justice. Examples of actions that may be
contempt include:
(a) assaulting or threatening a Judge or another person;
(b) insulting the court;
(c) disrupting court proceedings; and
(d) disrespect or other misbehaviour in court.
21.05 Fixing
of hearing date
On the filing of an application under subrule
21.02 (1), the Registry Manager must fix a date for a hearing that
is as near as practicable to 14 days after the date of filing.
Note When an application is filed, the
court may order the parties to attend family
counselling, family dispute resolution or a specified parenting program
(see section 65F of the Act).
21.06 Response
to an application
A respondent to an application mentioned in item
1A, 2, 3, 4 or 5 of Table 21.1 may file an affidavit but is not required to do
so.
21.07 Failure
of respondent to attend
If a respondent
fails to attend the hearing in person or by a lawyer, the court may:
(a) determine the case;
(b) for a
respondent to an application mentioned in item 1A, 2, 3, 4 or 5 of Table
21.1 — issue a warrant for the respondent’s arrest to bring the respondent
before a court; or
(c) adjourn the application.
21.08 Procedure
at hearing
At the hearing of an application mentioned in item
1A, 2, 3, 4 or 5 in Table 21.1, the court must:
(a) inform the respondent of the allegation;
(b) ask the respondent whether the respondent
wishes to admit or deny the allegation;
(c) hear any evidence supporting the allegation;
(d) ask the respondent to state the response to
the allegation;
(e) hear any evidence for the respondent; and
(f) determine the case.
Note For the orders that may be made by
the court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF,
112AD, 112AH and 112AP of the Act.
Part 21.2 Parenting
orders — compliance
21.09 Duties
of program provider
(1) The provider of a post‑separation parenting
program required to inform the court of a matter under section 70NED of the Act
must do so by notice in accordance with subrule (2).
(a) if the order is made under subparagraph
70NG (1) (a) (i) of the Act — if the person:
(i) fails to attend the provider for
the initial assessment; or
(ii) is considered unsuitable to attend
a program; or
(b) if the order is made under
subparagraph 70NG (1) (a) (ii) of the Act:
(i) if the person fails to attend the
program, or part of the program; or
(ii) the program provider considers that
the person is unsuitable to continue attending all or part of the program.
(2) The notice must:
(a) be in writing and addressed to the Registry
Manager of the filing registry; and
(b) comply with subrule 24.01 (1).
21.10 Relisting
for hearing
If the Registry Manager receives a notice under
subrule 21.09 (1), the Registry Manager may list the case for further orders
under section 70NEG of the Act.
Part 21.3 Location
and recovery orders
21.11 Application
of Part 21.3
This Part applies to the following orders:
(a) a location order;
(b) a Commonwealth information order;
(c) a recovery order.
Note See sections 67J to 67W of the Act.
21.12 Application for order under Part 21.3
A person may apply
for an order to which this Part applies by filing an Application in a Case.
Note 1 For the requirements for
making a Commonwealth information order, see subsection 67N (3) of the
Act.
Note 2 An affidavit must be filed
with an Application in a Case (see rule 5.02)
21.13 Fixing of hearing date
The Registry Manager must fix a date for a hearing
that is within 14 days after the application was filed, if practicable.
21.14 Service of recovery order
(1) This rule applies to a person who is ordered or
authorised by a recovery order to take the action mentioned in paragraph 67Q (b),
(c) or (d) of the Act.
(2) If the person:
(a) is ordered to find and recover a child; and
(b) finds and recovers the child;
the person must serve the recovery order on the person from whom
the child is recovered at the time the child is recovered.
(3) For the enforcement of a recovery order:
(a) the original recovery order is not
necessary; and
(b) a copy of the sealed recovery order is
sufficient.
21.15 Application
for directions for execution of recovery order
(1) The following people may, by written request to the
court, seek procedural orders in relation to a recovery order:
(a) a party;
(b) a person who is ordered or authorised by a
recovery order to take the action mentioned in paragraph 67Q (b), (c) or (d) of
the Act.
(2) A request under subrule (1) must:
(a) comply with subrule 24.01 (1);
(b) set out the procedural orders sought; and
(c) be accompanied by an affidavit setting out
the facts relied on and the reason for the orders.
(3) The court may determine the request in chambers.
Part 21.4 Warrants
for arrest
21.16 Application
for warrant
(1) A party may apply, without notice, for a warrant to
be issued for the arrest of a respondent if:
(a) the respondent is required to attend court
on being served with:
(i) an application for an enforcement
hearing under rule 20.11;
(ii) a subpoena or order directing the
respondent to attend court; or
(iii) an application mentioned in item
1A, 2, 3, 4 or 5 of Table 21.1; and
(b) the respondent does not attend at court on
the date fixed for attendance.
(2) If a warrant is issued, it must have attached to it
a copy of the application, subpoena or order mentioned in paragraph (1) (a).
Note The court may issue a warrant on an
oral application.
21.17 Execution
of warrant
(1) A warrant may authorise:
(a) a member of the Australian Federal Police;
(b) a member of the police service of a State or
Territory;
(c) the Marshal; or
(d) any other person appointed by the court;
to proceed to enforce the warrant.
(2) A person authorised to enforce a warrant may act on
the original warrant or a copy.
(3) When the warrant is enforced, the person arrested
must be served with a copy.
21.18 Duration
of warrant
A warrant (except a warrant issued under subsection
65Q (2) of the Act) ceases to be in force 12 months after the date when it
is issued.
21.19 Procedure
after arrest
(1) If the court issues a warrant for a person’s
arrest, it may order that the person arrested:
(a) be held in custody until the hearing of the
case; or
(b) be released from custody on compliance with a
condition, including a condition that the person enter into a bond.
(2) A person who arrests another person under a warrant
must:
(a) arrange for the person to be brought before
the court that issued the warrant or another court having jurisdiction under
the Act, before the end of the holding period; and
(b) take all reasonable steps to ensure that,
before the person is brought before a court, the person on whose application
the warrant was issued is advised about:
(i) the arrest;
(ii) the court before which the person
arrested will be brought; and
(iii) the date and time when the person
arrested will be brought before the court.
(3) When a person arrested under a warrant is brought
before a court, the court may:
(a) if the court issued the warrant:
(i) make any of the orders mentioned
in subrule (1);
(ii) adjourn the case and direct the
Registry Manager to take all reasonable steps to ensure that the person on
whose application the warrant was issued is advised about the arrest and the
date and time when the person must attend before the court if the person wishes
to bring or continue an application;
(iii) if the application for which the
warrant was issued is before the court or the court allows another
application — hear and determine the application; or
(iv) if there is no application before
the court — order the person’s release from custody; and
(b) if the court did not issue the warrant:
(i) order that the person be held in
custody until the person is brought before the court specified in the warrant;
(ii) make any of the orders mentioned
in subrule (1); and
(iii) make inquiries of the court that
issued the warrant, (for example, inquiries about current applications and
hearing dates).
(4) A person arrested under this rule who is still in
custody at the end of the holding period must be released from custody unless
otherwise ordered.
(5) This rule does not apply to a person who is
arrested:
(a) under a warrant issued under subsection 65Q (2)
of the Act;
(b) without a warrant, under a recovery order; or
(c) without a warrant, under sections 68C and
114AA of the Act.
Note The provisions mentioned in subrule
(5) are excluded because the procedure on arrest is set out in the Act.
21.20 Application
for release or setting aside warrant
A person arrested in accordance with a warrant may
apply:
(a) for the warrant to be set aside; or
(b) to be released from custody.
Chapter 22 Appeals
Summary of
Chapter 22
Chapter 22 sets
out the procedures to appeal an order including where leave to appeal is
required.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 22.1 Introduction
22.01 Application
of Chapter 22
(1) This Chapter applies to the following appeals:
(a) an appeal to the Full Court from an order of
a Judge or Judges of the Family Court, a Family Court of a State or a Supreme
Court of a State or Territory;
(b) an appeal to the Family Court from an order
of a Federal Magistrates Court (whether heard by the Full Court or a single
Judge);
(c) an appeal to the Family Court from an order
of a Family Law Magistrate of Western Australia (whether heard by the Full
Court or a single Judge);
(d) an appeal to a single Judge of the Family
Court from an order of a court of summary jurisdiction.
(2) This Chapter does not apply to the following
appeals:
(a) an appeal from an assessment or decision
under the Assessment Act or the Registration Act that was not made by a court
(see Division 4.2.5);
(b) a review of an order of a Judicial Registrar
or Registrar to a Judge of a Family Court (see Chapter 18).
Part 22.2 Starting
an appeal
Note A
person needs the court’s permission to appeal from:
(a) an
interlocutory order, other than an interlocutory order relating to a child
welfare matter, of a Family Court, the Federal Magistrates Court or a Family
Law Magistrate of Western Australia (see subsection 94AA (1) of the Act
and regulation 15A of the Regulations); or
(b) an
order, made by a court, mentioned in section 102, 102A or 105 of the Assessment
Act or section 107, 107A or 110 of the Registration Act.
22.02 Starting
an appeal
(1) A person may start an appeal by filing a Notice of
Appeal:
(a) for an appeal from a court of summary
jurisdiction other than a Family Law Magistrate of Western Australia — in
the registry of a Family Court that is closest to the court of summary
jurisdiction that made the order appealed from; and
(b) in any other case — in the Regional
Appeal Registry.
(2) If an appeal cannot be started without the leave of
the court, leave must be sought in the Notice of Appeal.
Note 1 A filing fee may be payable
(see regulation 16 of the Regulations).
Note 2 At the hearing of the appeal,
only the grounds stated in the Notice of Appeal may be argued except with the
court’s permission. A Notice of Appeal may be amended only in accordance with
rule 22.09.
Note 3 Chapter 24 sets out the
requirements for documents and filing. For the number of copies of a document
to file, see rule 24.08.
Note 4 A document that is filed must
be served on each party to be served (see subrule 7.04 (1)).
22.03 Time
for appeal
A Notice of Appeal, including a Notice of Appeal in
which leave to appeal is sought, must be filed within 28 days after the date
the order appealed from was made.
Note 1 Rule 17.01 sets out when an order
is made.
Note 2 A person may apply for an
extension of time to appeal or to make an application for leave to appeal (see rule
1.14).
22.04 Parties
to an appeal
Each person who is directly affected by the orders
sought in the Notice of Appeal, or who is likely to be interested in maintaining
the order under appeal, must be made a respondent to the appeal or the
application for leave to appeal.
Note An application may be made to have a
person added or removed as a party to an appeal (see paragraphs
94 (2B) (a) and 94AAA (8) (a) of the Act, paragraphs
102 (6) (a) and 102A (7) (a) of the Assessment Act and
paragraphs 107 (5) (a) and 107A (7) (a) of the Registration
Act). See Division 22.7.1 for how to make an application relating to an appeal.
22.05 Service
A copy of a Notice of Appeal must be served on each
party to the appeal, in accordance with rule 22.04, within 14 days after it is
filed.
Note A party may apply for an extension
of time to serve a copy of a Notice of Appeal (see rule 1.14).
22.06 Notice
about appeal to other courts
(1) If an appeal is from an order of a court other than
a Family Court, the appellant must give a copy of the Notice of Appeal to the
Registrar of that court within 14 days after filing the Notice of Appeal.
(2) A party seeking leave to appeal
from an order of another court must give a copy of the Notice of Appeal in
which leave to appeal is sought to:
(a) the Registrar of the other
court; and
(b) for an appeal from a court
exercising jurisdiction under the child support legislation — the Child Support
Registrar.
22.07 Cross‑appeal
A respondent to an appeal or an independent children’s
lawyer who intends to argue that an order under appeal should be varied
or set aside must cross‑appeal by filing a Notice of Appeal endorsed as a
cross‑appeal.
22.08 Time
for cross‑appeal
A
Notice of Appeal for a cross‑appeal must be filed within the later of:
(a) 14 days after the Notice of Appeal for
the appeal is served on the cross‑appellant; or
(b) 28 days after the date the order appealed
from was made.
Note 1 A document that is
filed must also be served on each person to be served (see subrule 7.04 (1)).
Note 2 A person may apply for an extension of time to cross‑appeal
(see rule 1.14).
22.09 Amendment
of Notice of Appeal
(1) The grounds of
appeal and the orders sought in a Notice of Appeal may be amended
without permission, at any time up to and including the date fixed for filing
of the summary of argument by the appellant.
(2) If a Notice of Appeal is amended, the grounds of appeal and the orders sought in a
Notice of Appeal endorsed as a cross‑appeal
may be amended without permission, at any time within 7 days after service of
the amended Notice of Appeal.
Note 1 A party may apply for
permission to amend a Notice of Appeal at a later time. See Division 22.7.1 for
how to apply for permission to amend grounds of appeal.
Note 2 Rule 11.12 provides for how
to amend a document.
22.10 Documents
filed in a current appeal
If an appeal has been started, a document filed in
the appeal must be filed in the same Registry in which the appeal was filed.
22.11 Stay
(1) The filing of a Notice of Appeal does not stay the
operation or enforcement of the order appealed from, unless otherwise provided
by a legislative provision.
(2) If an appeal has been started, or a party has
applied for leave to appeal against an order, any party may apply for an order
staying the operation or enforcement of all, or part, of the order to which the
appeal or application relates.
(3) An application for a stay must be filed in the Registry
in which the order under appeal was made and be heard by the Judge, Federal
Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3)
of the Act, a divorce order is stayed until after an appeal against it is
determined or discontinued.
Note 2 An application for a stay may
be listed before another judicial officer if the judicial officer who made the
order under appeal is unavailable (see rule 1.13).
22.12 Application
for leave to appeal
In considering an application for leave to appeal
from an order, a Judge, a Regional Appeal
Registrar or other Registrar may make procedural orders, including:
(a) an order requiring the applicant to file a
written undertaking to pay any filing fee;
(b) an order that the proposed appeal be argued
at the same time as the application for leave to appeal; or
(c) an order that the application be dealt with
by the court without an oral hearing and orders in relation to the conduct of
the application, including the filing of written submissions.
Note The court has the power to determine
some applications relating to an appeal without an oral hearing (see
subsections 94 (2C) and (2E), 94AAA (9) and (11), and 94AA (3)
of the Act, subsections 102 (7) and (9), and 102A (8) and (10) of the
Assessment Act and subsections 107 (6) and (8), and 107A (8) and (10)
of the Registration Act). The court may decide to deal with an application
without an oral hearing on its own initiative or on application.
22.13 Filing
draft index to appeal books
(1) This rule applies to an appeal that is not an appeal
from a court of summary jurisdiction other than a Family Law Magistrate of
Western Australia.
(2) The appellant must file a draft index to the appeal
book within:
(a) 28 days after:
(i) filing the Notice of Appeal; or
(ii) the date when the reasons for
judgment that relate to the order the subject of the appeal are issued (being
the date of the certificate of the Associate to the Judicial Officer that
appears on the published reasons for judgment); or
(b) if the court extends the period mentioned in
paragraph (a) — the period ordered by the court.
(3) If the appellant fails to comply with subrule (2),
the appeal is taken to be abandoned.
Note 1 A party may apply for an extension of time (see rule 1.14).
Note 2 See rules 22.19 and 22.20 for what must be included in the
appeal books.
Note 3 A document that is
filed must also be served on each party to the appeal (see rule 22.04).
Part 22.3 Appeal to
Full Court
22.14 Application
of Part 22.3
This Part applies to the following appeals:
(a) an appeal to the Full Court:
(i) from an order of a Judge or Judges
of a Family Court exercising the original jurisdiction of the court; or
(ii) under subsection 94 (1AA) of
the Act;
(b) an appeal to the Full Court from an order of
the Federal Magistrates Court or a Family Law Magistrate of Western Australia,
when the jurisdiction of the court in relation to the appeal is to be exercised
by the Full Court;
(c) an appeal to
the Full Court from a single Judge of a Supreme Court of a State or Territory.
Note On the filing of an appeal from an
order of the Federal Magistrates Court or a Family Law Magistrate of Western
Australia, the Chief Justice must decide whether the jurisdiction of the Family
Court is to be exercised by the Full Court or a single Judge. There is no right
to an appeal against this decision.
If the appeal is to be heard by:
(a) a Full Court — Part 22.3 applies; and
(b) a single Judge — Part 22.4 applies.
The Regional Appeal Registrar will give the parties to the appeal
written notice of which Part of these Rules apply.
22.15 Procedural
hearing
As
soon as reasonably practical after the filing of a draft index the Regional
Appeal Registrar must:
(a) fix a date for a procedural hearing for the
appeal before a Regional Appeal Registrar or other Registrar or, if the
Regional Appeal Registrar considers it appropriate, a Judge of the Appeal
Division or other Judge (if a Judge of the
Appeal Division is unavailable); and
(b) give the parties to the appeal written notice
of the date fixed for the procedural hearing.
Note An application or appeal will usually be listed before
a Regional Appeal Registrar, but may be listed before a Judge of the Appeal
Division or another Judge if there is no Judge of the Appeal Division available
(see rule 1.13).
22.16 Attendance
at first procedural hearing
(1) The appellant or the appellant’s lawyer must attend
on the first procedural hearing for the appellant’s appeal.
(2) Any of the following persons may also attend on the
first procedural hearing:
(a) a respondent in the appeal;
(b) a lawyer for a respondent in the appeal;
(c) an
independent children’s lawyer in the appeal.
Note A party may request permission to
attend the procedural hearing by electronic communication (see rule 22.31) or
be excused from attending the procedural hearing (see rule 1.12).
22.17 Orders
to be made at procedural hearing
(1) A Regional Appeal
Registrar or Registrar conducting a procedural hearing may, if the
Registrar considers it appropriate, adjourn the hearing to a Judge at any time.
(2) Orders about the following matters may be made at a
procedural hearing:
(a) the documents that are to be included in the
appeal books;
(b) the part or parts of the transcript of the
hearing relevant to the appeal that are to be included in the appeal books;
(c) the preparation of the appeal books and the
number of copies;
(d) the date by which the appeal books must be
filed and served;
(e) the conduct of the appeal (including the
likely duration of the appeal);
(f) any other matter which the Registrar or
Judge considers necessary.
22.18 Preparation
of appeal books
(1) The appellant or, if so ordered, the cross‑appellant
is responsible for preparing and filing the appeal books, including arranging
to obtain any transcript required to be included in the appeal books.
(2) If a Judge or Regional Appeal Registrar is satisfied
that preparing the appeal books would impose exceptional hardship on the
appellant, the Judge or Regional Appeal Registrar may order either of the
following to prepare and file the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar
prepares the appeal books, the appellant or cross‑appellant (if so
ordered) is still responsible for obtaining the transcript (see rule 22.27).
(3) When making an order under subrule (2), the court
may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal
books must file and serve the number of copies ordered to be filed (see
paragraph 22.17 (2) (c)). The number to be filed will include enough
copies for each member of the Full Court. In addition, the number required to
be served will be 2 copies for each other party.
Note 2 A party may apply for an
extension of time (see rule 1.14).
Note 3 If a party fails to comply
with the requirements for filing and serving the appeal books, the appeal is
taken to be abandoned (see rule 22.21).
22.19 Contents
of appeal books
(1) Unless otherwise ordered under paragraph
22.17 (2) (a), the appeal books must contain only the following
documents:
(a) documents put in evidence at the hearing or
trial to which the appeal relates and which are relevant to the grounds of
appeal and necessary to enable the court hearing the appeal to reach its
decision;
(b) if the appeal involves a challenge to the
exclusion of evidence, the document:
(i) that is the subject of the
challenge; and
(ii) that was tendered, but not
admitted as evidence, at the hearing or trial to which the appeal relates.
(2) The appeal books must not mention any offer to
settle that has been made or the terms of the offer unless the terms of the
offer are relevant to the appeal.
22.20 Form
of appeal books
(1) Each volume of the appeal books must have:
(a) a title page stating:
(i) the names of the parties to the
appeal;
(ii) the court where the order appealed
from was made; and
(iii) the address for service of each
party; and
(b) an index stating the documents included in
the appeal books, and the date and page number of each document.
(2) The appeal books must include a certificate signed
by the person who prepared them, certifying that the books have been prepared
in accordance with these Rules and the orders made at the procedural hearing.
(3) The documents in the appeal books must be arranged
in the following order:
(a) the Notice of Appeal;
(b) the order appealed from;
(c) reasons for judgment;
(d) any relevant previous or subsequent order;
(e) each relevant application;
(f) any relevant response;
(g) relevant affidavits;
(h) any family or expert report received in
evidence in the case that is relevant to the appeal;
(i) a list of exhibits and each relevant exhibit
(if practicable);
(j) the relevant parts of the transcript;
(k) if the appeal involves a challenge to the
exclusion of evidence — the document that is the subject of the challenge.
(4) The pages of the appeal books, including the
transcript, must be numbered consecutively.
(5) The appeal books must be securely fastened to make 1
or more volumes, each of which is no more than 25 mm thick.
(6) Each page in an appeal book must comply with the
requirements for documents mentioned in subrule 24.01 (1).
Note The Regional Appeal Registrar may
refuse to accept the books for filing if they do not comply with these Rules or
an order.
22.21 Failure
to file appeal books by due date
If the appellant fails to file the appeal books by
the date ordered, the appeal is taken to be abandoned.
Note A party may apply for an extension
of time to file the appeal books (see rule 1.14).
22.22 Summary
of argument and list of authorities
(1) Each party must file and serve a summary of
argument and a list of authorities to be relied on:
(a) for the appellant — at least 28 days
before the first day of the sittings in which the appeal is listed for hearing;
and
(b) for the respondent and any independent
children’s lawyer — at least 7 days before the first day of the sittings
in which the appeal is listed for hearing.
Note The Court may shorten or extend the
time for compliance with a rule (see rule 1.14).
(2) For subrule (1), a summary of argument must:
(a) set out
each ground of appeal and, for each ground of appeal, a statement of the
arguments setting out the points of law or fact and the authorities relied on;
(b) set out the orders sought;
(c) not exceed 10 pages;
(d) have all
paragraphs numbered consecutively;
(e) be signed
by the lawyer who prepared the summary or by the party; and
(f) include
the signatory’s name, telephone number, facsimile number and email address (if
any) or document exchange number (if any) at which the signatory may be
contacted.
Note For the number of copies of a
document to file, see rule 24.08.
Part 22.4 Appeal
from Federal Magistrates Court or a Family Law Magistrate of Western Australia
heard by single Judge
22.23 Application
of Part 22.4
This Part applies to an appeal from an order of the
Federal Magistrates Court or a Family Law Magistrate of Western Australia for
which the Chief Justice has determined that the jurisdiction of the court is to
be exercised by a single Judge.
Note On the filing of an appeal from an
order of the Federal Magistrates Court or a Family Law Magistrate of Western
Australia, the Chief Justice must decide whether it is appropriate for the
jurisdiction of the Full Court to be exercised by a single Judge. There is no
right to appeal against this decision.
If the appeal is to be heard by:
(a) a Full Court — Part
22.3 applies; and
(b) a single Judge — Part 22.4 applies.
The Regional Appeal Registrar will give the parties to the appeal
written notice of which Part of these Rules applies.
22.24 Procedural
hearing
(1) The single Judge who is to hear the appeal may
direct that the appeal be listed before that Judge, or another Judge or
Regional Appeal Registrar, for a procedural hearing
(2) The Judge or Regional Appeal Registrar may make
procedural orders in chambers, in the absence of the parties, on the documents
filed.
22.25 Attendance
at procedural hearing
(1) The appellant or the appellant’s lawyer must attend
on the first procedural hearing for the appellant’s appeal.
(2) Any of the following persons may also attend on the
first procedural hearing:
(a) a respondent in the appeal;
(b) a lawyer for a respondent in the appeal;
(c) an independent children’s lawyer in the
appeal.
Note A party may request permission to
attend the procedural hearing by electronic communication (see rule 22.31) or
be excused from attending the procedural hearing (see rule 1.12).
22.26 Procedural
orders for conduct of appeal
(1) The procedural orders made by a Judge or Regional
Appeal Registrar in chambers under subrule 22.24 (2) or at a procedural
hearing may include orders about the following:
(a) whether an
appeal book is required for the hearing of the appeal and, if so, whether rules
22.18, 22.19 and 22.20 are to apply with or without any variation;
(b) if an appeal
book is not required, the arrangements for ensuring that the documents
mentioned in rule 22.27 are before the court at the hearing of the appeal;
(c) a
timetable for the party responsible to file and serve:
(i) the reasons for judgment of the Federal Magistrate or
of the Family Law Magistrate of Western Australia and those parts of the
transcript of the hearing likely to be relevant to the appeal;
(ii) a
list of documents to be relied on, or an appeal book;
(iii) a summary of argument; and
(iv) a list of authorities to be relied
on;
(d) a date for the hearing of the appeal.
(2) A summary of argument filed by a party as required
by an order made under subparagraph (1) (c) (iii) must comply with
subrule 22.22 (2).
22.27 Documents
for appeal hearing if appeal book not required
(1) The documents that must be before the Judge on the
hearing of the appeal are:
(a) the Notice of Appeal;
(b) the order of
the Federal Magistrate or of the Family Law Magistrate of Western Australia;
(c) reasons for
judgment of the Federal Magistrate or of the Family Law Magistrate of Western
Australia;
(d) any relevant
previous or subsequent order;
(e) the
application relied on before the Federal Magistrate or the Family Law
Magistrate of Western Australia;
(f) any response
relied on before the Federal Magistrate or the Family Law Magistrate of Western
Australia;
(g) relevant
affidavits relied on before the Federal Magistrate or the Family Law Magistrate
of Western Australia;
(h) any family
report received in evidence;
(i) relevant
exhibits tendered before the Federal Magistrate or the Family Law Magistrate of
Western Australia;
(j) the relevant
part or parts of the transcript of the hearing before the Federal Magistrate or
the Family Law Magistrate of Western Australia; and
(k) if the appeal
involves a challenge to the exclusion of evidence — the document that is
the subject of the challenge.
(2) The documents to be relied on in the appeal must not
mention any offer to settle that has been made or the terms of the offer unless
the terms of the offer are relevant to the appeal.
Part 22.5 Appeal
from court of summary jurisdiction other than a Family Law Magistrate of
Western Australia
22.28 Application
of Part 22.5
This Part applies to an appeal from an order of a
court of summary jurisdiction other than a Family Law Magistrate of Western
Australia.
22.29 Fixing
of hearing date
On the filing of a Notice of Appeal, the Registry
Manager must fix a date for the hearing of the appeal that is as near as
practicable to 56 days after the Notice of Appeal was filed.
Note The appellant must give a copy of
the Notice of Appeal to the Registrar of the court of summary jurisdiction
within 14 days after filing the Notice of Appeal (see rule 22.06).
Part 22.6 Powers of
appeal courts and conduct of appeal
Note 1 The
following provisions set out the powers of the appeal court:
(a) subsections
93A (2), 94 (2) and 94AAA (6) and section 96 of the Act;
(b) subsections
102 (4), 102A (5) and 105 (6) of the Assessment Act;
(c) subsections
107 (3), 107A (5) and 110 (8) of the Registration Act.
Note 2 Oral
argument will ordinarily be restricted to issues raised by the Notice of Appeal
and the summary of argument. The appeal court may restrict the time allowed for
oral argument.
22.30 Non‑attendance
by party
If a party does not attend, in person or by
lawyer, when an appeal is called on for the hearing of the appeal, the court
may:
(a) if the appellant does not attend —
dismiss the appeal; or
(b) if the respondent does not attend —
proceed with the appeal.
22.31 Attendance
by electronic communication
(1) A party may request permission from the court to
attend the hearing of an appeal or an application for leave to appeal or an
application in relation to an appeal or a procedural hearing by electronic
communication.
(2) The request must:
(a) be in writing;
(b) for an application in
relation to an appeal or a procedural hearing — be made at least 14 days
before the date fixed for the hearing of the application or the procedural
hearing;
(c) for an application for leave to appeal or an
appeal — be made at least 14 days before the date fixed for the
sitting of the Full Court during which application for leave to appeal or the
appeal will be heard;
(d) address all of the matters mentioned in subrule
16.05 (3), if applicable; and
(e) set out the notice given of the request to
any other party and whether there is any objection to the request.
(3) The request may be determined, in chambers, in the
absence of the parties by:
(a) for an appeal or application to be heard by
the Full Court — a Judge of the Appeal Division;
(b) for an appeal or application to be heard by a
single Judge — the Judge hearing the appeal or application; or
(c) for a procedural hearing — the
Registrar or Judge who is to conduct the procedural hearing.
(4) The court may take the following matters into
account when considering the request:
(a) the party’s distance from the place where
the event is to be held;
(b) any physical difficulty the party has in
attending because of illness, disability or concerns about security.
(5) The court may order a party to pay the expenses of
attending by electronic communication, apportion the expenses between the
parties, or make no order about the expenses.
(6) This rule does not apply if the
court of its own motion decides to hear an appeal, or an application for leave
to an appeal or procedural hearing, by electronic communication.
22.32 Attendance
of party in prison
(1) A party who is in prison must
attend a procedural hearing, the hearing of an appeal, an application in
relation to an appeal or an application for leave to appeal, by electronic
communication, if practicable.
(2) A party may seek permission
from the court to attend a procedural hearing, the hearing of an appeal, an
application for leave to appeal or an application in relation to an appeal, in
person.
(3) A request under subrule (2) must:
(a) be in writing;
(b) be made at least 14 days before the date
fixed for the procedural hearing or the hearing of the appeal, the application
for leave to appeal or the application in relation to the appeal;
(c) set out the reasons why
permission should be granted; and
(d) set out the notice given of the request to
any other party and whether there is any objection to the request.
22.33 Short
reasons for decision
The court, in exercising its power under
subsection 94 (2A) or 94AAA (7) of the Family Law Act, subsection
102 (5) or 102A (6) of the Assessment Act or subsection 107 (4)
or 107A (6) of the Registration Act, to give reasons in short form for its
decision to dismiss an appeal, must do so by stating them in the following form:
Short reasons for decision
|
File number
|
Applicant(s)
|
|
At
|
Respondent(s)
|
The Court/Full Court is of the opinion that the appeal does not
raise any question of general principle.
The Court’s reasons in short form are: [set out short reasons]
The appeal is dismissed [insert particulars of any costs order]
Date:
22.34 Subpoenas
(1) A
subpoena may be issued in an appeal only if leave to issue the subpoena has
been given by:
(a) the Full Court; or
(b) for an appeal heard by a single Judge —
that Judge.
(2) A
document produced in compliance with a subpoena issued in accordance with
subrule (1) may be inspected only with the leave of the Full Court or the Judge
mentioned in paragraph (1) (b).
Part 22.7 Applications
in relation to appeals
Division 22.7.1 How to make an application
22.35 Application
of Part 22.7
This Part applies if a party seeks to make an
application in relation to an appeal (other than
an application for leave to appeal).
22.36 Application
in relation to appeal
A party may make an application in relation to an
appeal by filing an Application in an Appeal together with an affidavit stating
the facts relied on in support of the application.
Note 1 See rule 22.10 for where to
file an application.
Note 2 The applicant must file
enough copies of the documents to provide 1 copy for each member of the appeal
court and to enable service on all parties and any independent children’s lawyer (see rule 24.08).
Note 3 A document that is filed must
be served (see subrule 7.04 (1)). If a time limit is given for an action,
service must also be effected within that time.
22.37 Hearing
date for application
On the filing of an Application in an Appeal, the
Regional Appeal Registrar must:
(a) fix a date for a hearing of the application;
or
(b) refer the application to a Judge in chambers
if:
(i) the applicant has asked the court,
in the application, to determine it without an oral hearing and the respondent
has not objected to the request (see Part 5.4); or
(ii) the Regional Appeal Registrar
considers it appropriate.
22.38 Decision
without an oral hearing
(1) Part 5.4 applies to an application in relation to
an appeal as if a reference in that Part:
(a) to an application for an interim or
procedural order were a reference to an application in relation to an appeal;
and
(b) to ‘in the absence of the parties’ were a
reference to ‘without an oral hearing’.
(2) If an application is referred to a Judge in
chambers in accordance with paragraph 22.37 (b), the Judge may:
(a) order that the application be dealt with by
the court without an oral hearing and:
(i) make procedural orders in relation
to the conduct of the application, including the filing of written submissions;
or
(ii) determine the application; or
(b) direct that a date for hearing be fixed for
the application and require the parties to attend.
Note 1 The court has the power to
determine some applications relating to an appeal without an oral hearing (see
subsections 94 (2C) and (2E), 94AAA (9) and (11), and 94AA (3)
of the Act, subsections 102 (7) and (9), and 102A (8) and (10) of the
Assessment Act and subsections 107 (6) and (8), and 107A (8) and (10)
of the Registration Act). The court may decide to deal with an application
without an oral hearing on its own initiative or on application.
Note 2 For the requirements for
withdrawing or discontinuing an application, see Part 10.2.
Division 22.7.2 Specific applications relating to appeals
22.39 Further
evidence on appeal
(1) A party to an appeal, other than an appeal that is a
hearing de novo, who seeks to apply for an order that the court
receive further evidence on the hearing of the appeal, must file the
application at least 14 days before the date of commencement of the sittings in
which the appeal is listed for hearing.
(2) The affidavit filed with the
application must either describe the nature of the further evidence or include
the further evidence that the applicant wants the court to admit at the hearing
of the appeal.
(3) Any other party to
the appeal may file an affidavit in response to the application at least 7 days
before the date of commencement of the sittings in which the appeal is listed
for hearing.
(4) The hearing date for an application to adduce further
evidence will be the same as the date fixed for hearing of the appeal or
application for leave to appeal.
Note 1 For the rules on how to make
an application, the procedure and by whom the application will be heard, see
Division 22.7.1.
Note 2 Documents relating to further
evidence should not be included in the appeal books.
22.40 Review
of Regional Appeal Registrar’s order
A party may apply for a review of a Regional Appeal
Registrar’s order relating to the conduct of an appeal by filing an Application
in an Appeal in the Regional Appeal Registry, within 14 days after the
order is made.
Note 1 The Regional Appeal Registrar
must list the application for review for hearing by a Judge of the Appeal
Division (or, if no Judge of the Appeal Division is available, another Judge).
Note 2 The court may shorten or extend
the time for compliance with a rule (see rule 1.14).
Part 22.8 Concluding
an appeal, an application for leave to appeal or an application in relation to
an appeal
22.41 Consent
orders on appeal
(1) This rule applies if the parties to an appeal agree
about the orders the court will be asked to make on appeal.
(2) The parties may file a draft consent
order, setting out the terms of their agreement.
(3) If the parties:
(a) agree about the orders the court will be
asked to make on appeal; and
(b) disagree about the order for costs;
the Regional Appeal Registrar may fix a date for hearing for the
argument about costs, without requiring appeal books to be prepared or a
procedural hearing to be held.
22.42 Discontinuance
of appeal or application
(1) A party may discontinue an appeal, an application
for leave to appeal or an application in relation to an appeal by filing a
notice of discontinuance.
(2) The party may be
ordered to pay the costs of all other parties.
(3) An application for
costs must be filed within 28 days after the filing of the notice of
discontinuance.
22.43 Abandoning
an appeal
(1) If the appeal is taken to be abandoned, the
appellant may be ordered to pay the costs of all other parties.
(2) An application for
costs of an abandoned appeal must be filed within 28 days after the date the
appeal became abandoned.
22.44 Application
for reinstatement of appeal
A party may apply to have an appeal taken to be
abandoned under this Chapter reinstated.
22.45 Dismissal
of appeal and applications for non‑compliance or delay
(1) This rule applies if:
(a) the appeal is
not taken to have been abandoned; and
(b) a party (the defaulting party)
has not:
(i) met a requirement under these
Rules or the Regulations;
(ii) complied with an order in relation
to the appeal (including an application for
leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in
proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or
application may:
(a) if the defaulting party is the appellant or
the applicant:
(i) dismiss the appeal or application;
or
(ii) fix a time by which a requirement
is to be met and order that the appeal or application will be dismissed if the
order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement
is to be met and order that the appeal or application will proceed if the order
imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or
application.
(3) The court may make an order under subrule (2)
on its own initiative if, at least 14 days before making the order, written
notice has been given to the parties about the date and time when the court
will consider whether to make the order.
(4) An application for costs in relation to an appeal or
application dismissed under this rule must be made within 28 days after the
dismissal.
Part 22.9 Case
stated
22.46 Application
of Part 22.9
This Part applies to a case (a case stated)
under the Act, the Assessment Act or the Registration Act in relation to which
the court and a party want a Full Court to determine a question of law arising
in the case.
22.47 Case
stated
(1) If a Judge orders a party to prepare a case stated
to the Full Court, the party must:
(a) confer with each other party about the terms
of a draft case stated; and
(b) prepare the draft case stated based on the
agreed terms.
(2) The draft case stated must concisely state the facts
and the question of law to be determined.
(3) When the draft of the case stated is completed, the
party who prepared it must:
(a) ask the Regional Appeal Registrar to list
the case for a procedural hearing to have the draft case stated settled by the
Judge; and
(b) serve a copy of the draft case stated and a
notice of the date fixed for the procedural hearing on each other party and any
other person the Judge directs.
22.48 Objection
to draft case stated
(1) A party served with a copy of a draft case stated
under paragraph 22.47 (3) (b) may object to its terms, or seek an
amendment of it, by giving written notice to the party who prepared the draft
of:
(a) any objections; or
(b) any amendments sought to be made when the
draft is settled by the Judge.
(2) The party must give the notice within 7 days
after the copy of the draft case stated was served on the party.
22.49 Settlement
and signing
(1) The party who prepared the draft case stated must
lodge:
(a) the draft case stated;
(b) any objections or amendments sought by the
other party; and
(c) a request that the Judge settle the draft
case stated.
(2) The party who prepared the draft case stated must,
within 3 days after it has been settled, file a copy of the case stated,
as settled, for signature by the Judge.
22.50 Filing
of copies of case stated
A party who prepares a draft case stated must,
within 7 days after it has been signed under rule 22.49:
(a) file 5 copies of the case stated in the
Regional Appeal Registry; and
(b) serve 2 copies of the case stated on each
other party and any other person the Judge directs.
22.51 Fixing
of hearing date
On the filing of copies of the signed case stated
under rule 22.50, the Regional Appeal Registrar must:
(a) fix a date for the hearing of the case
stated during a sitting of the Full Court; and
(b) give each party written notice about the
hearing.
22.52 Summary
of argument and list of authorities
(1) A summary of argument to be presented and a list of
cases to be relied on at the hearing of a case stated must be filed and served:
(a) by the party who prepares the draft case
stated — at least 21 days before the commencement of the sittings at which
the case stated is listed for hearing;
(b) by each other party — at least 14 days
before the commencement of the sittings at which the case stated is listed for
hearing; and
(c) by a child representative (if any) — at
least 7 days before the commencement of the sittings at which the case stated
is listed for hearing.
(2) The summary of argument must be in accordance with
subrule 22.22 (2).
Chapter 23 Registration of documents
Summary of Chapter 23
Chapter 23 sets out the procedure for:
· registration of
agreements, orders and child support debts;
· registration of
maintenance agreements; and
· revoking registered
parenting plans.
The rules in Chapter 1 relating to the court’s general
powers apply in all cases and override all other provisions in these Rules.
A word or expression used in this Chapter may be defined in
the dictionary at the end of these Rules.
Part 23.1 Registration
of agreements, orders and child support debts
23.01 Registration
of agreements
(1) This rule applies to an agreement that:
(a) may be registered in a court having
jurisdiction under the Act; and
(b) is not a parenting plan or an agreement
revoking a parenting plan.
Note Paragraph (1) (a) includes
provisions of a child support agreement that may be registered in the court
under the Assessment Act.
(2) A party to an agreement mentioned in subrule (1) may
register the agreement by filing an affidavit to which a copy of the agreement
is attached.
Note 1 An agreement made under
section 86 or 87 of the Act after 27 December 2000 cannot be registered
(see subsections 86 (1A) and 87 (1A) of the Act).
Note 2 For requirements relating to the registration
of orders (other than in divorce or validity of marriage cases), see regulation
17 of the Regulations.
23.01A Registration of State child orders under
section 70C or 70D of the Act
(1) For section 70C of the Act, a State child order made
under a law of a prescribed State may be registered in a court having
jurisdiction under Part VII of the Act by filing a sealed copy of the order in
a registry of the court.
(2) For section 70D of the Act, a State child order made
by a court of a State may be registered in another State, in a court having
jurisdiction under the Act, by filing a sealed copy of the order in a registry
of the court of the other State.
(3) In this rule:
State includes a Territory.
23.01B Registration
of de facto maintenance orders under section 90SI of the Act
For subsection 90SI (1) of the Act, an order
with respect to the maintenance of a party to a de facto relationship may be
registered in a court exercising jurisdiction under the Act by filing a sealed
copy of the order in a registry of the court.
23.02 Registration of debt due to the Commonwealth
under child support legislation
A debt due to the Commonwealth under section 30 of
the Registration Act may be registered in a court by filing a
certificate issued under subsection 116 (2) of that Act.
Part 23.2 Parenting
plans
23.03 Requirements
for registration of an agreement revoking a registered parenting plan
(1) This rule applies to an agreement to revoke a
registered parenting plan (a revocation agreement).
(2) A revocation agreement must:
(a) be signed by each party to the parenting
plan; and
(b) be a single document that complies with rule
24.01.
(3) A party may register a revocation agreement by
filing:
(a) an affidavit, to which a copy of the
revocation agreement is attached; and
(b) a written statement, by each party to the
revocation agreement:
(i) specifying that the party has been
given independent legal advice about the meaning and effect of the agreement;
and
(ii) counter‑signed by the lawyer
who gave the advice.
Note See subparagraph
63E (2) (b) (i) of the Act.
(4) The affidavit must state:
(a) the name, age and place of residence of each
child to whom the revocation agreement relates; and
(b) why the parties propose to revoke the
registered parenting plan.
23.04 Court
may require service or additional information
Before deciding whether to register a revocation
agreement, the court may:
(a) order that a copy of the affidavit filed
under subrule 23.03 (3) be served on a specified person; or
(b) require a party to file additional
information.
23.05 Application
may be dealt with in chambers
An application for registration of a revocation
agreement may be dealt with in chambers, in the absence of the parties and
their lawyers (if any).
Note Section 63E of the Act provides that
the court may register an agreement revoking a registered parenting plan if it
considers it appropriate to do so, having regard to the best interests of the
child to which the plan relates.
Chapter 24 Documents, filing, registry
Summary of
Chapter 24
Chapter 24 sets
out:
· the general requirements for documents
and their filing; and
· procedures relating to
registry records, including the removal of a document from a registry, and
searching, inspecting and copying court documents.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 24.1 Requirements
for documents
24.01 General
requirements
(1) A document for filing must:
(a) appear on one or both sides of white A4
paper;
(b) be legibly printed:
(i) by machine; or
(ii) if it is not an affidavit —
in ink, by hand;
(c) have left and right margins:
(i) sufficient to enable the page to
be read when bound; and
(ii) no wider than 2.5 cm;
(d) have line spacing not exceeding 1.5 lines;
(e) have each page consecutively numbered;
(f) have all pages securely fastened;
(g) for a document
that is not included in Schedule 2 — include the following on the first
page:
(i) on the right side of the
page — a space that is at least 5 cm wide and 5 cm long,
containing the following information:
(A) the full name of the
court and registry where the document will be filed;
(B) the court file number;
(C) the client
identification number;
(D) a blank space for the
court’s use only to insert the date of filing;
(ii) the name of the document and the
rule number under which the document is filed;
(iii) the full name of each party to the
case and of any independent children’s lawyer appointed;
(iv) if not already provided, the full
name, address for service, telephone number, facsimile number and
e‑mail address (if any) of the person filing the document; and
(h) for a document to which subrule 2.02 (1)
or (2) or rule 2.05 applies, that must be filed in accordance with paragraph
(g) — include the information specified in paragraph (g) on a separate
page as an attached document.
(2) Subrule (1) does not need to be strictly
complied with if the nature of the document, or the manner of filing, means
that strict compliance would be impracticable.
(3) A document that is filed electronically has the same
status as a document in paper form.
(4) A document filed or served under these Rules (other
than an affidavit) may be signed or given by a party or by the lawyer for the
party.
Note The rules relating to filing by
electronic communication apply only if the court has the facility to accept
documents by electronic communication.
24.02 Corporation
as a party
If a document (including an application for
permission to intervene) names a corporation as a party, the document must
include the corporation’s full name, registered office and Australian Business
Number (ABN).
24.03 Change of name of party
(1) If a party’s name is changed after the start of a
case, the party must give written notice of the change of name to the court and
each other party.
(2) The new name must be used in all documents later
filed.
24.04 Forms
(1) The Chief Justice, in consultation with the other
judges, may approve a form for the purposes of these Rules.
(2) A reference in these Rules to Form 4 is taken to be
a reference to Form 4 in Schedule 2.
(3) Strict compliance with an approved form or Form 4 is
not required, and substantial compliance is sufficient.
Note A form must be completed in
accordance with any directions specified in the form, but the directions may be
omitted from the completed document.
(4) A document in a form approved for the Federal
Magistrates Court is taken to be in substantial compliance with the form
approved for the same purpose under these Rules.
Part 24.2 Filing
documents
24.05 How
a document is filed
(1) A document is filed if:
(a) the document is:
(i) delivered to and received by the
registry;
(ii) posted to and received by the
registry;
(iii) sent to the court by electronic
communication under rule 24.06 (facsimile) and received by the registry;
(iv) sent to the court by electronic
communication under rule 24.07 (e-mail and Internet) and received by the court;
or
(v) accepted for filing by a judicial
officer in court during a court event; and
(b) the filing fee (if any) is paid.
(2) A document that is sent for filing by electronic
communication after 4.30 pm according to legal time in the Australian
Capital Territory is taken to have been received by the filing registry on the
next day when the filing registry is open.
(3) Except as otherwise required by these Rules or an
order, a document to be relied on in a court event must be filed at least 1 day
before the date fixed for that event.
Note 1 For information about filing
fees, see regulation 11 of the Regulations.
Note 2 A person sending a document
by electronic communication is responsible for ensuring that the document is
received by the court. The Court’s procedures and facilities for electronic
filing through the Internet are set out on the Commonwealth Courts Portal: see http://www.familycourt.gov.au.
Note 3 A judicial officer may require
a party to give an undertaking to pay a filing fee before accepting a document
for filing.
Note 4 The rules relating to filing
by electronic communication apply only if the court has the facility to accept
documents by electronic communication: see http://www.familycourt.gov.au.
24.06 Filing
a document by facsimile
(1) A document may be filed by facsimile if:
(a) the matter is urgent;
(b) the total number of pages, including the
cover page, is not more than 25; and
(c) it is not practicable to lodge the document
in the filing registry in any other way because:
(i) the filing party is unrepresented,
and lives more than 20 kilometres from the registry; or
(ii) the filing party is represented by
a lawyer whose principal office is more than 20 kilometres from the
registry.
(2) The document must be:
(a) sent to an approved facsimile number; and
(b) accompanied by:
(i) a letter to the Registry Manager,
setting out the facts relied on under subrule (1) for filing the document by
facsimile; and
(ii) a cover page in accordance with
subrule 7.16 (2).
Note 1 For service by facsimile and
restrictions relating to the number of pages that may be faxed, see rule 7.16.
Note 2 For the number of copies of a
document to be provided for service, see rule 24.08.
24.07 Filing
by e‑mail and Internet
(1) If a document is sent for filing by e‑mail,
the sender must:
(a) send the document:
(i) to an approved e‑mail
address;
(ii) in the approved electronic format;
and
(iii) in a current case, to the filing registry;
and
(b) include a cover page in accordance with
subrule 7.16 (2).
(2) If a document is sent for filing through the
Internet, the sender must comply with the court’s electronic filing procedures.
(3) If a document (other than an Acknowledgement of
Service):
(a) is filed by electronic communication; and
(b) is required to be signed, but not sworn;
the document is taken to be signed, before it is transmitted, by
the party or lawyer who filed it.
(4) If a document that is required to be sworn is filed
by electronic communication, the document:
(a) is taken to have been sworn by the deponent
before it is transmitted; and
(b) must bear the name of the deponent, witness
and date of swearing.
(5) If a party or a party’s lawyer files a sworn
document by electronic communication, the party or lawyer must:
(a) keep the printed form of the document
bearing the original signature until the end of the case or appeal; and
(b) make the document available for inspection on
request.
(6) When receiving a document
for filing by email or through the Internet, the Registry Manager may send to
the person filing the document an electronic communication recording the date
of receipt or the date and time of receipt.
Note 1 The rules relating to filing
by electronic communication apply only if the court has the facility to accept
documents by electronic communication: see http://www.familycourt.gov.au.
Note 2 An Acknowledgment of Service
must be signed by the person served with the documents if the party serving the
documents wants to prove service by affidavit in accordance with rule 7.13. If
the affidavit is filed by electronic communication, the party who served it
must keep, and make available if necessary, the original of the affidavit and
the Acknowledgment of Service.
If an Acknowledgement of Service is required to be signed to
prove service, the person served will need to sign the acknowledgment and
return it so that the other party can identify the signature.
24.08 Additional
copies for filing
(1) A person filing a document must at the time of
filing, unless the document is filed by electronic communication, give the
Registry Manager:
(a) sufficient additional copies to ensure that
there is a copy for each person to be served (see subrule 7.04 (4)); and
(b) for a Full Court appeal — 3 additional
copies for the members of the Full Court.
(2) A person who files a document by fax must, within
7 days after filing unless excused by the Registry Manager, give to the
Registry Manager:
(a) for a Full Court matter — 3 additional
copies for the members of the Full Court; and
(b) in any other case — 1 additional copy
for the court.
Note For examples of specific rules
setting out special requirements for persons to be served, see rules 2.04,
4.10, 4.23, 7.04, 22.05 and 22.06.
24.09 Documents
filed during a case
(1) A document filed in a case that has started, other
than a document filed by electronic communication through the Internet, must be
filed in the filing registry.
(2) A document filed by
electronic communication through the Internet in a case that has started must
bear the file number of the case.
Note 1 In urgent circumstances, the
court may order that an application be listed for hearing in another registry,
or that a hearing or conference take place by electronic communication.
Note 2 For where to file documents
in an appeal, see rule 22.10.
24.10 Rejection
of documents
(1) A Registrar or judicial officer may reject a
document filed or received for filing if the document:
(a) is not in the proper form in accordance with
these Rules;
(b) is not executed in the way required by these
Rules;
(c) does not otherwise comply with a requirement
of these Rules;
(d) is tendered for filing after the time
specified in these Rules or an order for filing the document;
(e) on its face, appears to the Registrar to be
an abuse of process, frivolous, scandalous or vexatious;
(f) is tendered for filing in connection with a
current case in a registry that is not the filing registry (see rules 22.10 and
24.09); or
(g) is sent for filing through the Internet and
the person sending the document has not complied with the court’s electronic
filing procedures.
(2) If a judicial officer rejects a document filed or
received for filing under subrule (1), the judicial officer may give directions
about any step already taken on the document, including a direction about
costs.
(3) A person may apply
for review of a Registrar’s decision under subrule (1) or directions given by a
judicial officer under subrule (2) by filing an Application in a Case without
notice.
Note When a document sent for filing by
electronic communication through the Internet is rejected, the court may notify
each party to the case and each person to whom the document is directed.
24.11 Filing
a notice of payment into court
A person who pays money into court must file a
Notice of Payment into Court, stating the amount and purpose for which the
money is paid into court.
Note See
paragraphs 66P (1) (f), 67D (2) (e) and 80 (1)
(f) of the Act.
Part 24.3 Registry
records
24.12 Removal
of document from registry
A document may be removed from a registry only if:
(a) it is necessary to transmit the document
between registries; or
(b) the court permits the removal.
24.13 Searching
court record and copying documents
(1) The following persons may search the court record
relating to a case, and inspect and copy a document forming part of the court
record:
(a) the Attorney‑General;
(b) a party, a lawyer for a party, or an
independent children’s lawyer, in the case;
(c) with the permission of the court, a person
with a proper interest:
(i) in the case; or
(ii) in information obtainable from the
court record in the case;
(d) with the permission of the court, a person
researching the court record relating to the case.
(2) The parts of the court record that may be searched,
inspected and copied are:
(a) court documents; and
(b) with the permission of the court — any
other part of the court record.
(2A) A permission:
(a) for paragraphs (1) (c) and (d) and
(2) (b) — may include conditions, including a requirement for consent from
a person, or a person in a class of persons, mentioned in the court record; and
(b) for paragraph (1) (d) — must
specify the research to which it applies.
(3) In considering whether to give permission under this
rule, the court must consider the following matters:
(a) the purpose for which access is sought;
(b) whether the access sought is reasonable for
that purpose;
(c) the need for security of court personnel,
parties, children and witnesses;
(d) any limits or conditions that should be
imposed on access to, or use of, the court record.
(4) In this rule:
court document includes a document filed in a
case, but does not include correspondence or a transcript forming part of the
court record.
Note 1 Section 121 of the Act
restricts the publication of court proceedings.
Note 2 Access to court records may
be affected by the National Security Information (Criminal and Civil
Proceedings) Act 2004.
24.14 Exhibits
(1) The Registry Manager must take charge of every
exhibit.
(2) The list of exhibits is part of the court record.
(3) A court may direct that an exhibit be:
(a) kept in the court;
(b) returned to the person who produced it; or
(c) disposed of in an appropriate manner.
(4) A party who tenders an exhibit into evidence must
collect the exhibit from the Registry Manager at least 28 days, and no later
than 42 days, after the final determination of the application or appeal (if
any).
(5) Subrule (4) does not apply to a document produced by
a person as required by a subpoena for production.
Note For the return of a document
produced in compliance with a subpoena, see rule 15.35.
Chapter 25 Applications under the Corporations Act 2001 and the Corporations
(Aboriginal and Torres Strait Islander) Act 2006
Summary of
Chapter 25
Chapter 25 sets
out the procedure for a case started in or transferred to a Family Court under
the Corporations Act 2001 or the Corporations (Aboriginal and Torres Strait
Islander) Act 2006.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
25.01 Application
of Chapter 25
This Chapter applies to a case started in, or
transferred to, a Family Court under the Corporations Act 2001 or the Corporations
(Aboriginal and Torres Strait Islander) Act 2006.
25.02 Application
of Corporations Rules
The Corporations Rules, as modified by rule 25.03
or an order, apply to an application under the Corporations Act 2001 or
the Corporations (Aboriginal and Torres Strait Islander) Act 2006 in a
Family Court as if those rules were provisions of these Rules.
25.03 Modification
of Corporations Rules
The Corporations Rules, in their application under
rule 25.02, are modified in accordance with Table 25.1.
Table
25.1 Modification of Corporations Rules
|
Provision
|
omit each mention of
|
insert
|
|
Rule 5.9
|
the Registrar
|
the Registrar or Judicial Registrar
|
|
Rule 15.1
|
Order 50
|
Part 22.10 of the Family Law Rules 2004
|
|
Division 16, heading, and rule 16.1, heading
|
Registrars
|
Registrars and Judicial Registrars
|
|
Rule 16.1
|
paragraph 35A (1) (h) of the Federal Court of
Australia Act 1976,
|
subsections 26B (1) and 37A (1) of the Family
Law Act 1975,
|
|
Rules 16.1 and 16.2
|
a Registrar
|
a Registrar or Judicial Registrar
|
|
Schedule 2, heading
|
Registrar
|
Registrar or Judicial Registrar
|
25.04 Application
under Corporations Act 2001 or Corporations (Aboriginal and Torres
Strait Islander) Act 2006
An application under the Corporations Act 2001
or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 must
not be dismissed only because it has been made in the wrong form.
25.05 Transfer of cases under Corporations Act
2001 or Corporations (Aboriginal and Torres Strait Islander) Act 2006
A person seeking:
(a) to have a case under the Corporations Act
2001 or the Corporations (Aboriginal and Torres Strait Islander) Act
2006 transferred from a Family Court to another court; or
(b) procedural
orders under subsection 1337P (1) of the Corporations Act 2001 or
the Corporations (Aboriginal and Torres Strait Islander) Act 2006;
must do so by filing an Application in a Case and an affidavit.
Note Rule 11.20 sets out the procedure to
be followed if a case is transferred to another court.
25.06 Fixing
a date for hearing
On the filing of an Application in a Case under
rule 25.05, the Registry Manager must fix a date for hearing that is as near as
practicable to 28 days after the date of filing or the date fixed for the
hearing of the application starting the case, if possible.
Chapter 26 Cases to which the Bankruptcy Act 1966 applies
Summary of
Chapter 26
Chapter 26 sets
out the rules about a case in which a Family Court has jurisdiction in
bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.
Delegation of the Family Court’s power in such cases is set out in Chapter 18
of these Rules.
The rules
in Chapter 1 relating to the court’s general powers apply in all cases and
override all other provisions in these Rules.
A word or
expression used in this Chapter may be defined in the dictionary at the end of
these Rules.
Part 26.1 Introduction
26.01 Application
of Chapter 26
(1) In a bankruptcy case, the rules in Chapter 1 apply
to the case and override all other provisions in these Rules.
(2) To the extent to which a rule in this Chapter
applies to a bankruptcy case, and does not conflict with a rule in Chapter 1,
the rule in this Chapter applies to the case and overrides all other provisions
in these Rules.
(3) A rule in Chapter 25 of these Rules does not apply
to a bankruptcy case.
Note The Rules of Court made under the Federal
Court of Australia Act 1976 apply to a case transferred to a Family
Court under section 35A of the Bankruptcy Act.
26.02 Expressions
used in the Bankruptcy Act
Unless the contrary
intention appears, an expression used in this Chapter and in the Bankruptcy Act
has the same meaning in this Chapter as it has in the Bankruptcy Act.
Note The following expressions are used
in this Chapter and defined in section 5 of the Bankruptcy Act:
· bankrupt
· books
· creditor
· District
· examinable
affairs
· examinable
person
· Official
Receiver
· property
· the trustee.
Part 26.2 General
26.04 Bankruptcy
Application and Bankruptcy Application in a Case
(1) Unless this Chapter otherwise provides, a person
must make an application required or permitted by the Bankruptcy Act to be made
to the court:
(a) if the application is not made in a bankruptcy
case
already commenced in the court — by filing a Bankruptcy Application in the form Bankruptcy – Application; and
(b) otherwise — by filing a Bankruptcy
Application in a Case in the form Bankruptcy
– Application in a Case.
(2) A person may make an application to the court in
relation to a bankruptcy case in respect of which final relief has been granted
by filing a Bankruptcy Application in a Case in the
form Bankruptcy – Application in a Case.
(3) The form Bankruptcy
– Application in a Case must state:
(a) each section of the Bankruptcy Act, or each
regulation of the Bankruptcy Regulations 1996, under which the case is
brought; and
(b) the relief sought.
(4) The form Bankruptcy
– Application in a Case must state:
(a) if appropriate, each section of the
Bankruptcy Act, or each regulation of the Bankruptcy Regulations 1996,
or each rule of court under which the application is made; and
(b) the relief sought.
Note Each
application and appeal mentioned below must be commenced by filing the form Bankruptcy – Application.
The list is not exhaustive:
(a) an application, under section 78 of the Bankruptcy Act,
for the issue of a warrant for the arrest of a debtor or bankrupt;
(b) an appeal, under subsection 82 (5) of the
Bankruptcy Act, against an estimate by the trustee of the value of a debt or
liability provable in a bankruptcy;
(c) an application, under section 153B of the Bankruptcy
Act, for the annulment of a bankruptcy;
(d) an application, under subsection 157 (6) of the
Bankruptcy Act, objecting to the appointment of a person as a trustee;
(e) an application, under section 180 of the Bankruptcy
Act, for acceptance of a trustee’s resignation from the office of trustee of an
estate;
(f) an application, under section 183 of the Bankruptcy
Act, for release of a trustee from the trusteeship of an estate;
(g) an appeal from a decision of a taxing officer,
appointed under subsection 167 (8) of the Bankruptcy Act, allowing or
disallowing a bill of costs or charges, or an item in such a bill.
26.05 Leave
to be heard
(1) The court may grant leave to be heard in a
bankruptcy case to a person who is not a party to the case.
(2) The court may grant the leave on conditions and may
revoke the leave at any time.
(3) The court may order
the person to pay costs if:
(a) the granting of leave to the person causes
additional costs for a party to the case; and
(b) the court considers that the costs should be
paid by the person.
(4) The court may also order that the person is not to
be further heard in the case until the costs are paid or secured to the court’s
satisfaction.
(5) The court may grant leave or make an order under
this rule on the court’s own initiative or on the application of a party or
another person having an interest in the case.
(6) An application for leave or for an order must be
made by filing the form Bankruptcy –
Application in a case.
26.06 Appearance
at application or examination
A person who intends to appear at the hearing of an
application, or take part in an examination, must file the form Bankruptcy – Notice of Appearance.
26.07 Opposition to
Bankruptcy Application or a Bankruptcy Application in a Case
(1) In this rule:
application includes the forms Bankruptcy – Application and Bankruptcy –
Application in a Case.
(2) A person who intends to oppose an application must,
at least 3 days before the date fixed for the hearing of the application:
(a) file the form
Bankruptcy – Notice of
Appearance;
(b) file the form Bankruptcy –
Notice stating grounds of opposition to an Application or Application in a Case;
(c) file an affidavit in support of the grounds
of opposition; and
(d) serve the notices and supporting affidavit on
the applicant.
Part 26.3 Examinations
Division 26.3.1 Interpretation
26.08 Definition for
Part 26.3
In this Part:
relevant person means a relevant person
within the meaning of section 81 of the Bankruptcy Act.
Note Examinable person is
defined in subsection 5 (1) of the Bankruptcy Act.
Division 26.3.2 Examination of relevant person
26.09 Application for
summons (Bankruptcy Act s 81)
(1) An application to the court for a relevant person to
be summoned for examination in relation to the person’s bankruptcy must be in
accordance with the form Bankruptcy –
Application for summons to examine relevant person or examinable person.
(2) The application must be accompanied by:
(a) a draft of
each summons applied for; and
(b) an affidavit identifying:
(i) each relevant person to be
summoned; and
(ii) if the summons is to require the
relevant person to produce books at the examination, the books that are to be
produced.
Note A relevant person may be required to
produce books at an examination that are in the possession of the person and
relate to the person or to any of the person’s examinable affairs — see
subsection 81 (1B) of the Bankruptcy Act.
26.10 Hearing
of application
The application may be heard in the absence
of a party or in chambers.
26.11 Requirements
of summons
(1) A summons must be in accordance with the form Bankruptcy – Summons for Examination.
(2) A Registry Manager
must:
(a) sign and seal the summons; and
(b) give it to the applicant for service on the
relevant person.
(3) If the summons requires the relevant person to
produce books at the examination, the summons must identify the books that are
to be produced.
26.12 Service
of summons
At least 8 days
before the date fixed for the examination, the applicant must:
(a) serve the summons on the relevant person by
special service, or in another way directed by the court; and
(b) give written notice of the date, time and
place fixed for the examination to each creditor of the relevant person of whom
the applicant has knowledge.
Note Part 7.2 of the Rules deals with
special service.
26.13 Failure to
attend examination
If the relevant person does not attend the
examination in accordance with the summons, the court may:
(a) adjourn the examination generally or to
another day, time or place; or
(b) discharge the summons.
26.14 Application for
discharge of summons
(1) A relevant person who is served with a summons and
wishes to apply for an order to discharge the summons may do so by filing:
(a) the form Bankruptcy
– Application in a Case in the proceeding in which the summons was
issued; and
(b) an affidavit setting out the grounds in
support of the application.
(2) As soon as possible after filing the form Bankruptcy – Application in a Case
and supporting affidavit, the relevant person must serve a copy of each
document:
(a) on the person who applied for the summons;
and
(b) if the person who applied for the summons is
not the Official Receiver, on the Official Receiver.
Division 26.3.3 Examination
of examinable person
26.15 Application
for summons (Bankruptcy Act s 81)
(1) An application to the
court for an examinable person to be summoned for examination in relation to
the bankruptcy
of a relevant person must be in accordance with the
form Bankruptcy – Application for summons to examine relevant person or
examinable person.
(2) A single application may be made for the summons of
2 or more examinable persons in relation to a relevant person’s bankruptcy.
(3) The application must be accompanied by:
(a) a draft of each summons applied for; and
(b) an affidavit (the supporting affidavit)
that complies with subrule (4).
(4) The supporting
affidavit must:
(a) state whether
the applicant is:
(i) a creditor who has a debt provable
in the bankruptcy;
(ii) the trustee of the relevant
person’s estate; or
(iii) the Official Receiver;
(b) state the facts relied on by the applicant to
establish that each person to be summoned is an examinable person; and
(c) if the summons is to require an examinable
person to produce books at the examination:
(i) identify the books that are to be
produced; and
(ii) give details of:
(A) any inquiry by the applicant
about the books to be produced; and
(B) any refusal by the
examinable person to cooperate with the inquiry.
Note An examinable person may be required
to produce books at an examination that are in the possession of the person and
relate to the relevant person or to any of the relevant person’s examinable
affairs — see subsection 81 (1B) of the Bankruptcy Act.
(5) The supporting affidavit may be filed in a sealed
envelope marked ‘Affidavit supporting application for summons for examination
under subsection 81 (1) of the Bankruptcy Act 1966’.
(6) If the supporting affidavit is filed in a sealed
envelope in accordance with subrule (5), the Registry Manager must not make it
available for public inspection.
26.16 Hearing
of application
The application may be heard in the absence
of a party or in chambers.
26.17 Requirements
of summons
(1) A summons must be in
accordance with the form Bankruptcy –
Summons for Examination.
(2) A Registry Manager must:
(a) sign and seal the summons; and
(b) send it to the applicant for service on each
examinable person to be summoned for examination.
(3) If the summons requires an examinable person to
produce books at the examination, the summons must identify the books that are
to be produced.
26.18 Service of summons
At least 8 days before the date fixed for the
examination, the applicant must:
(a) serve the summons on each examinable person
by special service or in another way directed by the court; and
(b) give written notice of the date, time and
place fixed for the examination to each creditor of the relevant person of whom
the applicant has knowledge.
Note Part 7.2 of the Rules deals with
special service.
26.19 Application for
discharge of summons
(1) An examinable person who is served with a summons and
wishes to apply for an order to discharge the summons may do so by filing:
(a) the form Bankruptcy
– Application in a Case in the case in which the summons was issued;
and
(b) an affidavit setting out the grounds in
support of the application.
(2) As soon as possible after filing the form Bankruptcy – Application in a Case
and supporting affidavit, the examinable person must serve a copy of each
document:
(a) on the person who applied for the summons;
and
(b) if the person who applied for the summons is
not the Official Receiver, on the Official Receiver.
26.20 Conduct money
and witnesses expenses
(1) A person (other than a relevant
person) who, in accordance with a summons, attends an examination to give
evidence or produce documents is entitled to be paid:
(a) enough conduct money to cover the reasonable
expenses of travelling from and to the place where the person lives, and any
reasonable accommodation expenses; and
(b) reasonable expenses for the person’s
attendance as a witness.
(2) The expenses must be
paid by the applicant for the summons.
(3) The expenses mentioned in paragraph (1) (a)
must be paid a reasonable time before the person is to attend the examination.
(4) In this rule:
conduct money means a sum of money or its
equivalent, such as pre‑paid travel, sufficient to meet a person’s
reasonable expenses of attending an examination and returning after so
attending.
Part 26.4 Annulment
of bankruptcy
26.21 Application
of Part 26.4
This Part applies to an application under section 153B
of the Bankruptcy Act for the annulment of a bankruptcy.
26.22 Requirements
of application
(1) The application must be accompanied by an affidavit
(the supporting affidavit) setting out the grounds on which the
annulment is sought.
(2) The application and the supporting affidavit must be
served on the trustee at least 7 days before the date fixed for the procedural
hearing of the application.
26.23 Notice
to creditors
(1) The applicant must give notice of the application to
each person known to the applicant to be a creditor of the bankrupt.
(2) The notice must be in accordance with the form Bankruptcy – Notice to creditors of
annulment application.
(3) The applicant must serve the notice on each creditor
at least 7 days before the date fixed for the procedural hearing of the
application.
26.24 Procedural hearing — report by trustee
(1) When the application and the supporting affidavit
are filed, the Registry Manager must fix a date for a
procedural hearing.
(2) At the procedural hearing, the court may make:
(a) an order requiring the trustee to prepare a
report for the periods before and after the bankruptcy;
(b) orders for the future conduct of the case;
and
(c) an order allocating a date or dates for the
hearing of the case.
(3) A report required under paragraph (2) (a) must include information about:
(a) the bankrupt’s conduct;
(b) the bankrupt’s examinable affairs; and
(c) the administration of the bankrupt’s estate.
(4) The report must:
(a) be in the form of an affidavit; and
(b) be filed at least 5 days before the first date
allocated under paragraph (2) (c).
26.25 Service of
annulment order
If the court orders an annulment, the applicant
must serve a sealed copy of the order on the trustee and the Official Receiver
for the District in which the order was made, within 2 days after the
applicant receives the sealed order.
Part 26.5 Trustees
26.26 Objection to
appointment of trustee (Bankruptcy Act s 157 (6))
(1) An application objecting to the appointment of a
person as
a trustee must be accompanied by an affidavit stating the grounds in support of
the application.
(2) At least 28 days before the date fixed for the
hearing of the application, the application and supporting affidavit must be
served on the trustee and any petitioning creditor.
(3) At least 14 days before the date fixed for the
hearing of the application, the application and supporting affidavit must be
served on each other person known to the applicant to be a creditor of the
bankrupt or a creditor of the estate of the deceased person.
26.27 Resignation
or release of trustee (Bankruptcy Act ss 180 and 183)
(1) An application for
acceptance of a trustee’s resignation from the office of trustee of an estate,
or release of a trustee from the trusteeship of an estate, must be accompanied
by:
(a) an affidavit stating the grounds in support
of the application; and
(b) if the
application is for release of a trustee from the trusteeship of an estate:
(i) a statement giving details of the
realisation of the bankrupt’s property and the distribution of the estate by
the trustee; and
(ii) a copy of the most recent of the
accounts required under subsection 173 (1) of the Bankruptcy Act.
(2) The application and
supporting documents must be served on:
(a) the Official Receiver;
(b) the bankrupt; and
(c) anyone else (including a creditor) as
ordered by the court.
(3) If the court makes the order sought, the applicant
must serve a copy of the sealed order on the Official Receiver for the District
in which the order was made, within 2 days after the applicant receives the
sealed order.
Part 26.6 Warrants
26.28 Arrest
of bankrupt (Bankruptcy Act s 78)
(1) An application for the issue of a warrant for the
arrest of a bankrupt must state the grounds for the issue of the warrant.
(2) The application must be accompanied by an affidavit
stating the facts in support of the application.
(3) The warrant must be in accordance with the form Bankruptcy – Arrest Warrant.
(4) If a bankrupt is arrested under the warrant, the
person who carried out the arrest must immediately give notice of the arrest to
the Registry Manager in the Registry from which the warrant was issued.
26.29 Apprehension
of person failing to attend Court (Bankruptcy Act s 264B (1))
(1) A warrant for the apprehension of a person who fails
to comply with a summons must be in accordance with
the form Bankruptcy –Apprehension Warrant.
(2) The court may order
that the warrant be kept in the Registry:
(a) for a stated time; and
(b) on any conditions that the court considers
appropriate.
(3) If a person is arrested under the warrant, the
person who carried out the arrest must immediately give notice of the arrest to
a Registry Manager in the Registry from which the warrant was issued.
Note For the procedure to be followed if
a person is apprehended under a warrant and it is not practicable to bring the
person before the Court or a Registrar on the day the person is apprehended,
see Part 14 of the Bankruptcy Regulations.
Part 26.7 Costs
26.30 Order
for costs
(1) Unless the court otherwise orders, a person who is
entitled
to costs in a case to which the Bankruptcy Act applies is entitled to costs in
accordance with Order 62 of the Federal Court Rules.
(2) In making an order for costs, the court may fix the
amount of the costs.
(3) If the court fixes the amount of the costs, Order 62
of the Federal Court Rules does not apply to a bill of costs submitted for the
costs, except for the issue of a certificate of taxation.
26.31 Application
of Order 62 of Federal Court Rules
(1) For the purposes of applying a provision of Order 62
of the Federal Court Rules to this Part, a reference in the Federal Court Rules
to:
(a) ‘the Court’ or ‘Court’ is taken to be a
reference to a Family Court;
(b) ‘a motion’ or ‘motion’ (except in subrule 39 (3)
and paragraph 46 (6) (a) of Order 62) is taken to include a reference
to an application in a Family Court started by the
form Bankruptcy – Application in a Case;
(c) a Registrar, Deputy Registrar, District
Registrar or Deputy District Registrar is taken to be a reference to a
Registrar of a Family Court; and
(d) the entry of orders is taken to be:
(i) if the reference relates to a
party seeking to enter an order — a reference to the application of the
party for an order in relation to costs in a Family Court; and
(ii) if
the reference relates to a judicial officer who signs and seals an order to
authenticate the order — a reference to the making of an order by a
judicial officer in relation to costs in a Family Court.