Part I Preliminary
1 Name of regulations [see Note 1]
These regulations are the Family Law
Regulations 1984.
2 Commencement
Subject to section 111 of the Act, these
Regulations shall come into operation on 2 January 1985.
3 Interpretation
(1) In these Regulations, unless the
contrary intention appears:
Act means the Family Law Act 1975.
applicant means a person who institutes or
has instituted proceedings under the Act or is an applicant in pending
proceedings under the repealed Act.
application means an application to a court
for the purpose of instituting proceedings under the Act or an application to a
registrar made under these Regulations.
authorised officer, for a power or function
under these Regulations, means an officer of the Court who is authorised by the
Registrar to exercise the power or carry out the function.
certified copy means a copy of an order,
decree or document certified to be a true copy by an officer of the court that
made the order or by which the order has been registered or confirmed or, in
the case of an overseas order, by the Secretary.
Child Support Registrar means the Child
Support Registrar mentioned in section 10 of the Child Support (Registration
and Collection) Act 1988.
conference, in relation to proceedings,
includes any attendance in connection with the proceedings, whether in person
or by telephone, by a solicitor who is acting for a party to the proceedings
on:
(a) that party;
(b) a witness, or a person who may be a witness,
in the proceedings;
(c) another party to the proceedings or, where
another solicitor is acting for that other party in the proceedings, that other
solicitor;
(d) counsel for any party to the proceedings;
(e) a Judge;
(f) a registrar;
(g) a marriage counsellor, an approved marriage
counselling organisation or a family counsellor;
(h) a family consultant; or
(j) any other person on whom the attendance is
reasonable.
eligible financial or parenting proceedings
means:
(a) financial or Part VII proceedings; or
(b) any of the proceedings mentioned in
paragraphs (a) to (f) of the definition of de facto financial cause
in subsection 4 (1) of the Act.
Note The term financial or Part VII
proceedings is defined in subsection 4 (1) of the Act.
filed has the same meaning as in the
applicable Rules of Court.
Hague Service Convention means the Convention
on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters, done at The Hague on 15 November 1965.
filing fee means a fee mentioned in item 1,
2, 5, 8, 14 or 16 of Schedule 1AA.
full fee means a fee (other than a fee
mentioned in item 14 or 15 of Schedule 1AA) that has not been reduced or
waived.
hearing fee means a fee mentioned in item 4,
7, 11 or 13 of Schedule 1AA.
intervener means, in relation to proceedings,
the Attorney‑General or any other person when intervening or applying to
intervene under Part IX of the Act, or a child independently represented under
subsection 68L (2) of the Act.
legal practitioner means
a person enrolled as a barrister, a solicitor, a barrister and solicitor, or a
legal practitioner, of the High Court of Australia, or of the Supreme Court of
a State or Territory.
party to proceedings means an applicant,
respondent or intervener in proceedings under the Act.
Principal Registrar means the Principal
Registrar of the Family Court.
reduced fee means the fee mentioned in item
15 of Schedule 1AA.
registrar includes the Principal Registrar, a
Registrar within the meaning of section 4 of the Act, a Deputy Registrar and,
in relation to a court of summary jurisdiction, the clerk of the court, clerk
of petty sessions or other person holding or performing the duties of a similar
office in the court.
respondent means, in relation to proceedings,
a party to the proceedings other than an applicant or an intervener.
sealed means sealed with the seal of the
court or otherwise endorsed by an officer of the court.
Secretary means:
(a) the Secretary of the Attorney‑General’s
Department; or
(b) a person authorised by the Secretary to
perform a function in relation to which the expression is used.
setting-down fee means a fee mentioned in
item 3, 6, 10 or 12 of Schedule 1AA.
Shared Parental Responsibility Act means the Family
Law Amendment (Shared Parental Responsibility) Act 2006.
State Family Court means a court to which
section 41 of the Act applies.
the former Regulations means Statutory Rules
1975 No. 210 as amended by the other Statutory Rules repealed by
regulation 78.
transitional family dispute resolution practitioner
means a person taken, under item 124 of Schedule 4 to the Shared Parental
Responsibility Act, to be a family dispute resolution practitioner.
working day, for a hearing, means a day that
is not:
(a) a Saturday or
Sunday; or
(b) a public holiday in the place where the
hearing is to take place.
Note The following expressions used in
these Regulations are defined in subsection 4 (1) of the Act:
·
applicable Rules of Court
·
related Federal Magistrates Rules
·
standard Rules of Court.
(2) A reference in these Regulations, other than
in regulation 10, to the Family Court shall be read as including a reference to
a State Family Court.
3A Prescribed contract limit
For subsection 38A (4) of the Act, a higher
amount of $1,000,000 is prescribed.
Part II General
4 Directions
as to practice and procedure
(1) Where a court is satisfied in the
circumstances of a particular case that:
(a) the provisions of the Act, these Regulations
and the applicable Rules of Court do not make adequate provision for practice
and procedure; or
(b) a difficulty arises or doubt exists as to
practice and procedure;
the court may give such directions with respect to the practice and
procedure to be followed in the case as the court considers necessary.
(2) In proceedings to which section 9 of
the Act applies, the court or a registrar may give directions in all matters of
practice and procedure.
(3) Directions under this regulation shall
be directed to providing a speedy and inexpensive hearing of the matters in
issue between the parties and shall be consistent with these Regulations and
the applicable Rules of Court.
5 Non‑compliance with Regulations
(1) Non‑compliance with these Regulations,
or with a rule of practice or procedure in a court exercising jurisdiction
under the Act, does not render proceedings in that court void unless the court
so directs.
(2) In exercising its discretion under
this regulation, the court shall have regard to the real merits of the case,
the minimizing of expense, and whether any party to the proceedings has
suffered injustice or has been prejudicially affected by non‑compliance with
these Regulations.
(3) In relation to proceedings that
commenced before the commencement of these Regulations, a reference, in
subregulation (1), to these Regulations shall be read as including a reference
to the former Regulations in their application to those proceedings.
6 Court or registrar may relieve from
consequences of non‑compliance
(1) Subject to the Act and these
Regulations:
(a) the court or a registrar may, at any time,
upon such terms as the court or registrar thinks fit, relieve a party from the
consequences of non‑compliance with these Regulations, a rule of practice and
procedure of the court applicable to the proceedings or an order made by a
registrar;
(b) the court may at any time, upon such terms as
the court thinks fit, relieve a party from the consequences of non‑compliance
with an order made by a court; and
(c) the court may, upon such terms as the court
thinks fit, dispense with the need for compliance by a party with any provision
of these Regulations.
(2) Where these Regulations fail to make
provision on any matter, the court is empowered to give, and shall give, such
directions as to practice and procedure as the court thinks fit.
(3) In relation to proceedings that commenced
before the commencement of these Regulations, a reference, in subregulation (1)
or (2), to these Regulations shall be read as including a reference to the
former Regulations in their application to those proceedings.
7 Appointment of family consultants (Act s
11B)
For paragraph
11B (c) of the Act, a family consultant may be appointed in writing by:
(a) the Chief Executive Officer of the Family
Court of Australia; or
(b) the Chief Executive Officer of the Federal
Magistrates Court.
8 Prescribed
information about non‑court based family services and court’s processes and
services (Act s 12B)
For section 12B of the Act, the information that must
be included in documents provided to persons under Part IIIA of the Act in
relation to non‑court based family services and court’s processes and services is
information about:
(a) the legal and possible social effects of the
proposed proceedings (including the consequences for children whose care,
welfare or development is likely to be affected by the proceedings); and
(b) the services provided by family counsellors
and family dispute resolution practitioners to help people affected by
separation or divorce; and
(c) the steps involved in the proposed
proceedings; and
(d) the role of family consultants; and
(e) the arbitration facilities available to
arbitrate disputes in relation to separation and divorce.
8A Prescribed
information about reconciliation (Act s 12C)
For section 12C of the Act, the information that
must be included in documents provided to persons under Part IIIA of the
Act is information about family counselling and family dispute resolution services.
Note Section 13B of the Act allows a
court to adjourn proceedings to give the parties the opportunity to consider a
reconciliation. The parties will be advised in such circumstances to attend
family counselling or other appropriate services.
8B Prescribed
information about Part VII proceedings (Act s 12D)
For section 12D of the Act, the information that must
be included in documents provided under Part IIIA of the Act to persons
involved in Part VII proceedings, is information about family counselling
services available to assist the parties and the child or children concerned in
the proceedings to adjust to the consequences of orders made under Part VII of
the Act.
Note Part VII deals with issues including
parental responsibility, parenting orders and maintenance orders in relation to
a child or children concerned in the proceedings.
10 Record of proceedings
(1) Wherever practicable, all proceedings
in the Family Court shall be fully recorded.
(2) Proceedings in the Family Court need
be transcribed only where a Judge or registrar so orders.
10A Proceedings for divorce order not to be
instituted in a court of summary jurisdiction other than a prescribed court
(Act s 44A)
For section 44A
of the Act, proceedings for a divorce order in relation to a marriage may not
be instituted in, or transferred to, a court of summary jurisdiction other than
the following prescribed courts:
(a) a court constituted by a stipendiary
magistrate who is the Principal Registrar, or a Registrar, of the Family Court
of Western Australia;
(b) the Magistrates Court constituted by section
4 of the Magistrates Court Act 1930 of the Australian Capital Territory;
(c) the Court of Petty Sessions of Norfolk
Island.
11 Fees
in respect of proceedings
Imposition of fees
(1) Subject to subregulation (7), Schedule 1AA sets out
the fees payable in proceedings under the Act, other than proceedings in the
Federal Magistrates Court.
Note The fees mentioned in Schedule 1AA
are subject to increase under Part IIAA.
Liability to pay
(2) The
person liable to pay a fee is:
(a) the person initiating the proceedings or
lodging the appeal in respect of which the fee is payable; or
(b) if the court,
a Judge or a registrar so orders:
(i) another party to the proceedings;
or
(ii) each of 2 or more of the parties
to the proceedings, including the person initiating the proceedings, in the
proportions ordered.
When must fees be paid?
(3) A filing fee is payable at the time when the
application or appeal is filed.
(3A) A setting-down fee is payable:
(a) if the Court or a registrar directs a time
within which the fee must be paid — within that time; or
(b) in any other case — when a date is fixed
for the hearing of the proceedings.
(4) A
hearing fee is payable:
(a) if the Court or a registrar directs a time
within which the fee must be paid — within that time; or
(b) in any other case — at the time when a
date is fixed for the hearing of the proceedings.
What happens if fees are unpaid?
(5) Subject to subregulation (7), a registrar must not
accept an application or appeal for filing in the office of a court unless any
filing fee for the application or appeal mentioned in Schedule 1AA has been
paid.
(6) Subject to subregulation (7), if, in relation to a
proceeding, a hearing fee mentioned in Schedule 1AA is unpaid:
(a) the court, a Judge, or a registrar may order
that no proceedings, or no proceedings other than specified proceedings, are to
take place, except by leave, in the matter to which the application relates;
and
(b) a person other than the person liable to pay
the fee may pay the fee without affecting any power of the court, a Judge, or a
registrar to make an order for costs for the fee; and
(c) the court, a Judge, or a registrar may
vacate the date fixed for hearing.
(6A) If a fee remains unpaid after the time mentioned in
subregulation (3) or (4) or the end of a period mentioned in subregulation 16 (3), the
unpaid fee is recoverable by the Commonwealth as a debt due to the
Commonwealth.
When fees are not payable
(7) A fee mentioned in Schedule 1AA is not payable if
the fee has already been paid in relation to the proceedings by a person other
than the person liable to pay the fee.
Note For circumstances when a person will
be liable to pay a reduced fee, see regulations 11A and 11B.
Refund of fees
(8) If:
(a) a fee mentioned in Schedule 1AA has been
paid; and
(b) the fee is not payable under subregulation
(7);
a registrar must refund to the applicant, or other person who paid
the fee, an amount equal to the amount of the fee.
(8A) A person is entitled to a refund of the whole or part
of a fee mentioned in Schedule 1AA (the refund amount) if the
person pays more than the person is required to pay for the fee under these
Regulations.
(8B) The refund amount is the difference between the fee
paid by the person and the amount the person is required to pay for the fee.
(9) Upon written notice to a Registrar, a person
who has paid a setting-down fee is entitled to a refund of the fee if:
(a) notice that the hearing for which the fee
was paid will not proceed is given to the Registrar:
(i) if the hearing date was fixed less
than 10 working days before that date — at least 2 working days
before that date; or
(ii) in any other case — at least 10
working days before the hearing date; and
(b) the hearing:
(i) does not proceed; or
(ii) is conducted only to formalise the
making of final orders.
(10) A person who has paid a hearing fee for the whole or
part of a hearing is entitled to a refund of:
(a) if the hearing is conducted only to
formalise the making of final orders — the hearing fee; or
(b) if the hearing does not proceed on a
particular hearing day — the hearing fee for that day.
(11) In this regulation, appeal includes
cross-appeal.
11A Reduction
of fees — general
(1) This regulation applies to a person if:
(a) the person has been granted legal aid (under
a legal aid scheme or service established under Commonwealth, State or
Territory law, or approved by the Attorney-General) for the proceeding; or
(b) the person is:
(i) the holder of any of the
following cards issued by the Department of Families, Housing, Community
Services and Indigenous Affairs:
(A) a health care card;
(B) a pensioner concession
card;
(C) a Commonwealth seniors
health card; or
(ii) the holder of any other card
issued by the Department of Families, Housing, Community Services and
Indigenous Affairs, or the Department of Veterans’ Affairs, that certifies the
holder’s entitlement to Commonwealth health concessions; or
(iii) serving a sentence of imprisonment,
or otherwise lawfully detained in a public institution; or
(iv) aged less than 18 years; or
(v) receiving youth allowance or
Austudy payment, within the meaning of the Social Security Act 1991; or
(vi) receiving benefit under ABSTUDY,
within the meaning of the Social Security Act 1991.
(2) In paragraph (1) (b), holder, of
a card, does not include a dependant of the holder.
(3) The reduced fee is payable, instead of the full fee,
on the first occasion the full fee would otherwise be payable by the person in
a proceeding.
(4) However, if the full fee for the proceeding
mentioned in subregulation (3) is less than the reduced fee, the full fee is
payable by the person.
(5) If a fee mentioned in subregulation (3) or (4) is
paid by the person in a proceeding, or if a fee is waived under subregulation
(6), no other fees mentioned in Schedule 1AA (other than a fee mentioned in
item 14) are payable by the person in connection with the proceeding.
(6) A registrar or an authorised officer may waive
payment of a fee (other than a fee mentioned in item 14 of Schedule 1AA or a
fee for an appeal), payable by a person in a proceeding related to a proceeding
mentioned in subregulation (3), if the registrar or authorised officer
considers that the proceedings are closely connected and that the waiver of the
fee is appropriate.
Note If the registrar or authorised
officer decides not to waive the fee in the related proceeding, the fee is
payable by the person in accordance with subregulations (3), (4) and (5).
(7) In considering whether to waive payment of a fee in
a related proceeding, the registrar or authorised officer must take into
account the following factors:
(a) whether the dispute is between the same
parties;
(b) whether the dispute arises from the same
circumstances;
(c) the length of time since the first
proceeding was commenced;
(d) whether the manner in which the proceedings
have been brought is an efficient use of the court’s resources;
(e) whether the litigation would be in the
public interest;
(f) the capacity of the person to pay the fee.
(8) In this regulation, an appeal is to be treated as a
new proceeding.
Note Regulation 16A provides for the
review of a decision of a registrar or an authorised officer.
11B Reduction
of fees — hardship
(1) If a registrar or an authorised officer, having
regard to the income, day-to-day living expenses, liabilities and assets of a
person liable to pay a fee mentioned in Schedule 1AA (other than a fee
mentioned in item 14), considers that payment of the fee would cause financial
hardship to the person, the registrar or authorised officer may impose the
reduced fee on each occasion the fee is payable instead of the fee for which
the person would otherwise be liable.
Note Regulation 16A provides for the
review of a decision of a registrar.
(2) However, if subregulation (1) applies, the reduced
fee is payable only once for setting down, and no fee is payable for a hearing,
regardless of the number of hearing days.
11C Change
in circumstances
(1) Subregulation 11A (5) applies to a person as
if the person had paid a fee under subregulation 11A (3) or (4) if:
(a) the person pays a full fee, or a reduced fee
under regulation 11B, in a proceeding; and
(b) after the fee has been paid, the person
becomes eligible under subregulation 11A (1) to pay the reduced fee.
(2) However, if a person’s circumstances change so that
subregulation 11A (1) no longer applies to the person, the person is
liable to pay all fees that become payable after the change in circumstances.
12A Prescribed
pensions, allowances or benefits — subsection 4 (1) of the Act
For the purposes of the definition of income
tested pension, allowance or benefit in subsection 4 (1) of the Act,
each of the following pensions, allowances or benefits is prescribed:
(a) the following
entitlements under the Veterans’ Entitlements Act 1986:
(i) a service pension within the
meaning given by subsection 5Q (1) of that Act;
(ii) a Defence Force Income Support
Allowance (DFISA) within the meaning given by subsection 5Q (1) of that
Act;
(iii) income support supplement under
Part IIIA of that Act;
(b) a social security pension or a social
security benefit within the meaning given by subsection 23 (1) of the Social
Security Act 1991;
(c) a family tax benefit within the meaning
given by subsection 3 (1) of the A New Tax System (Family Assistance) Act
1999, the Part A rate of which is higher than the base rate under clause 4
of Schedule 1 to that Act;
(ca) so much of an allowance under the Aboriginal
study assistance scheme, within the meaning given by subsection 23 (1) of the Social
Security Act 1991, as is means tested;
(d) the amount of a boarding allowance under the
Assistance for Isolated Children Scheme, referred to in paragraph (a) of the
definition of current special educational assistance scheme in
subsection 3 (1) of the Student Assistance Act 1973, that is
greater than the non means tested amount of the allowance;
(e) a payment under the scheme known as the New
Enterprise Incentive Scheme;
(f) an AUSTUDY benefit under Part 2 of the Student
and Youth Assistance Act 1973 as in force immediately before 1 July 1998.
12AB Appeal division — prescribed number of
members (Act s 22 (2AC))
For subsection 22 (2AC) of the Act, the
prescribed number of members is 9.
12AC Transfer of proceedings from court of summary
jurisdiction — ceiling amount
For paragraph 46 (1AA) (a) of the Act, the amount
of
$5 000 000 is specified.
12B Child
welfare law — prescribed law of a State or Territory
(1) For the purposes of the definition of child
welfare law in subsection 4 (1) of the Act, each of the following
classes of laws is prescribed, namely, any law of:
(a) the State of New South Wales;
(b) the State of Victoria;
(c) the State of Queensland;
(d) the State of Western Australia;
(e) the State of South Australia;
(f) the State of Tasmania;
(g) the Australian Capital Territory;
(h) the Northern Territory; or
(i) the Territory of Norfolk Island;
that relates to the imprisonment, detention or residence of a child
upon being dealt with for a criminal offence.
(2) For the purposes of the definition of child
welfare law in subsection 4 (1) of the Act, each law specified in
Column 2 of an item in Schedule 5, being a law of the State or Territory
specified in Column 3 of that item, is prescribed.
12BA Child
welfare officer — prescribed office of a State or Territory
For paragraph (a) of the definition of child
welfare officer in subsection 4 (1) of the Act, each of the following
is a prescribed office:
(a) for New South
Wales — the offices of:
(i) Minister for Community Services,
in relation to
the Adoption Act 2000 (NSW) and the Children
and Young Persons (Care and Protection) Act 1998 (NSW); and
(ii) Minister for Disability Services,
in relation to the Guardianship Act 1987 (NSW);
(b) for Tasmania — the office of Secretary
to the Department of Health and Human Services;
(c) for Victoria — the office of Secretary
to the Department of Human Services;
(d) for Queensland — the office of the Chief
Executive of the Department of Communities;
(e) for the Australian Capital Territory —
the offices of:
(i) Chief Executive of the Department
of Education Youth and Family Services; and
(ii) Chief Psychiatrist appointed under section 112 of the Mental Health
(Treatment and Care) Act 1994 (ACT);
(f) for the Northern Territory — the office
of the Minister for Health and Community Services.
12BB Family violence order — prescribed laws
of State or Territory
For the purposes of the definition of family
violence order in subsection 4 (1) of the Act, each of the laws
specified in column 2 of an item in Schedule 8 is a prescribed law of the State
or Territory set out in column 3 of that item.
12BC De
facto relationships — prescribed laws and relationships
For
paragraph 4AA (2) (g) of the Act, the following are prescribed:
(a) a law mentioned in an item of the following
table;
(b) a kind of
relationship, mentioned in the item, that is or was registered under the law.
|
Item
|
Law
|
Kind of relationship
|
|
1
|
Relationships Register Act 2010 (NSW)
|
A registered relationship as defined in section 4 of
that Act
|
|
2
|
Relationships Act 2008 (Vic)
|
A registered domestic relationship as defined in
section 3 of that Act
|
|
3
|
Relationships Act 2003 (Tas)
|
A significant relationship as defined in section 4 of
that Act
|
|
4
|
Civil Partnerships Act 2008 (ACT)
|
A relationship as a couple
between 2 adult persons who meet the eligibility criteria in section 6
of that Act for entry into a civil partnership
|
12C Artificial
conception procedures: child of woman and other intended parent —
prescribed laws
For
subparagraph 60H (1) (b) (ii) of the Act, the laws
mentioned in the following table are prescribed.
|
Item
|
Law
|
|
1
|
Status of Children
Act 1996 (NSW)
|
|
2
|
Status of Children
Act 1974 (Vic), sections 10A, 10B,
10C, 10D, 10E, 13 and 14
|
|
3
|
Status of Children
Act 1978 (Qld), sections 17,
18, 19, 19C, 19D and 19E
|
|
4
|
Artificial
Conception Act 1985 (WA)
|
|
5
|
Family
Relationships Act 1975 (SA),
sections 10A, 10B, 10C, 10D and 10E
|
|
6
|
Status of Children
Act 1974 (Tas), Part III
|
|
7
|
Parentage Act 2004 (ACT), section 11
|
|
8
|
Status of Children
Act (NT), sections 5A, 5B, 5C, 5D,
5DA, 5E and 5F
|
12CA Artificial
conception procedures: child of woman — prescribed laws
For
paragraph 60H (2) (b) of the Act, the laws mentioned in the following
table are prescribed.
|
Item
|
Law
|
|
1
|
Status of Children Act 1996 (NSW), section 14
|
|
1A
|
Status of Children Act 1974 (Vic), section 15 and
16
|
|
2
|
Status of Children Act 1978 (Qld), section 23
|
|
3
|
Artificial Conception Act 1985 (WA)
|
|
4
|
Family Relationships Act 1975 (SA), sections 10B
and 10C
|
|
5
|
Status of Children
Act 1974 (Tas), Part III
|
|
6
|
Parentage Act 2004 (ACT), subsections 11 (2)
and (3)
|
|
7
|
Status of Children Act 1978 (NT), sections 5B, 5C
and 5E
|
12CAA Children
born under surrogacy arrangements — prescribed laws
For
subsection 60HB (1) of the Act, the laws mentioned in the following
table are prescribed.
|
Item
|
Law
|
|
1
|
Status of Children Act 1974 (Vic), section 22
|
|
2
|
Surrogacy Act 2010 (Qld), section 22
|
|
3
|
Surrogacy Act 2008 (WA), section 21
|
|
4
|
Parentage Act 2004 (ACT), section 26
|
|
5
|
Family Relationships Act 1975 (SA),
section 10HB
|
|
6
|
Surrogacy Act 2010 (NSW), section 12
|
12CAB Other
circumstances in which court may hear application for Part VII order (Act
s 60I (9) (f))
For paragraph 60I (9) (f) of the Act,
the circumstance that an application has been made to the court for any other
order in proceedings in which a certificate under subsection 60I (8) of
the Act has been filed is specified.
12CB Commonwealth
information orders — prescribed Departments and Commonwealth
instrumentalities
For the purposes of paragraph 67N (3) (b) of the
Act, the following Departments and Commonwealth instrumentalities are
prescribed:
(a) Department of Employment, Education,
Training and Youth Affairs;
(b) Department of Foreign Affairs and Trade;
(c) Department of Health and Family Services;
(d) Department of Immigration and Multicultural
Affairs;
(e) Department of Human Services;
(f) Department of Veterans’ Affairs;
(g) Australian Institute of Family Studies.
12CC Registration of court decision (Act
s 68R (6))
(1) For subsection
68R (6) of the Act, if, in relation to family violence proceedings before a
court, the court:
(a) makes a final family violence order or a
final order varying a family violence order; and
(b) revives, varies, discharges or suspends an
order, injunction or arrangement mentioned in subsection 68R (1) of
the Act;
the registrar of the court must send a sealed copy of the decision
mentioned in paragraph (b) to the registrar of the Family Court, as soon as
practicable.
(2) On
receiving the sealed copy of the decision, the registrar must register the
decision by:
(a) filing the sealed copy; and
(b) noting on the sealed copy the fact and date
of registration.
Note For the definition of family
violence order, see subsection 4 (1) of the Act and
regulation 12BB.
12CD Evidence relating to child abuse or family
violence — prescribed State or Territory agencies (Act
s 69ZW (1))
For subsection 69ZW (1) of the Act, an agency
mentioned in column 2 of an item in Schedule 9 is a prescribed agency for
the State or Territory mentioned in column 3 of the item.
12CE Evidence relating to professional
confidential relationship privilege — prescribed laws
For paragraph 69ZX (4) (b) of the Act, each law
mentioned in an item in Schedule 9A, being a law of the State or Territory
mentioned in the item, is prescribed.
12D Registration of State child orders —
prescribed States
For the purposes of section 70C of the Act, each of
the following States and Territories is a prescribed State:
(a) the State of New South Wales;
(b) the State of Victoria;
(ba) the State of Queensland;
(bb) the State of Western Australia;
(c) the State of South Australia;
(d) the State of Tasmania;
(e) the
Australian Capital Territory;
(f) the Northern
Territory;
(g) the Territory of Norfolk Island.
13 Authentication of consent in
writing
For paragraphs 65Y (2) (a), 65Z (2) (a), 65ZA (3) (a)
and 65ZB (3) (a) of the Act, a consent in writing must be authenticated by a
person mentioned in section 8 of the Statutory Declarations Act 1959
endorsing on the consent a statement that:
(a) the person is satisfied about the identity
of the person signing the consent; and
(b) the consent was signed in the person’s
presence.
14 Meaning
of prescribed overseas jurisdiction
For the purposes of the definition of prescribed
overseas jurisdiction in subsection 4 (1) of the Act:
(a) each country or part of a country, set out
in column 2 of an item in Schedule 1A is declared to be a prescribed overseas
jurisdiction for the purposes of:
(i) subsection 4 (1) of the Act,
in relation to the definition of overseas child order; and
(ii) sections 70M and 70N of the Act;
and
(b) each country, or part of a country, set out
in Schedule 2 as a reciprocating jurisdiction is declared to be a prescribed
overseas jurisdiction for the purposes of:
(i) subsection 4 (1) of the Act, in
relation to the definition of overseas maintenance agreement; and
(ii) paragraph 89 (b) of the Act.
14A Prescribed
maximum period — sentence or order (Act s 70NFC (6),
112AG (6))
For the definitions of maximum period
in subsections 70NFC (6) and112AG (6) of the Act, 200 hours is prescribed in
relation to each State and Territory.
15 Institution
etc of proceedings by persons holding certain offices
(1) For the purposes of sections 69D and 89A and
paragraph
125 (1) (f) of the Act, each of the following offices under a law of a State or
of a Territory is specified:
(a) Collector of Maintenance;
(b) Deputy Collector of Maintenance;
(c) Assistant Collector of Maintenance.
(2) A person for the time being holding an
office referred to in subregulation (1) is authorized, in his or her
discretion, to institute, continue or prosecute proceedings with respect to the
maintenance of a party to a marriage or of a child, on behalf of that party or
child.
(3) For the purposes of paragraph 125 (1) (f) of
the Act, each person for the time being holding an office referred to in
subregulation (1), and each officer of a court of summary jurisdiction of a
State or Territory, is a person entitled, in his or her discretion, to
institute, continue or prosecute proceedings, on behalf of the person entitled
to moneys payable under child maintenance order under Part VII of the Act, or a
maintenance order under Part VIII of the Act, for the purpose of enforcing
payment of those moneys.
15AA Third party expenses (Act s 90AJ)
(1) For subsection 90AJ (4) of the Act, this
regulation provides for matters relating to the expenses of a third party in
relation to a marriage in situations where the court has not made an order
under subsection 90AJ (2) in relation to those expenses.
(2) A third party in
relation to a marriage may charge reasonable fees to cover the reasonable
expenses of the third party incurred as a necessary result of an order made or
an injunction granted, in accordance with Part VIIIAA of the Act, in relation
to the marriage.
(3) Without limiting subregulation (2), the fees may
cover the reasonable expenses incurred by the third party in complying with the
order or injunction.
Examples
Expenses incurred for any of the following matters could
be covered in the fees charged by the third party:
· legal and
registration fees
· valuation fees
· government
charges and duties
· searching,
obtaining and producing documents
· postage,
delivery, transport or other transmission of documents
· communications
with the parties to the marriage or another person.
(4) Each of the parties to the marriage is separately
liable to pay to the third party half of the total amount of the fees charged.
(5) Jurisdiction is conferred on a court having
jurisdiction under the Act:
(a) to decide whether fees charged by a third
party under subregulation (2) are reasonable; and
(b) to make an order in relation to the collection
or recovery of such reasonable fees.
15AB De
facto relationships — prescribed laws
For
paragraph 90SB (d) of the Act, the laws mentioned in the following table
are prescribed.
|
Item
|
Law
|
|
1
|
Relationships Register Act 2010
(NSW)
|
|
2
|
Relationships Act 2008 (Vic)
|
|
3
|
Relationships Act
2003 (Tas)
|
|
4
|
Civil Partnerships
Act 2008 (ACT)
|
15A Leave
to appeal — prescribed decrees (Act s 94AA)
(1) For items 1 to 5 of the table in subsection
94AA (1) of the Act, a prescribed decree is an interlocutory decree (other
than a decree in relation to a child welfare matter).
(2) In this regulation:
child welfare matter
means a matter relating to:
(a) the person or persons with whom a child is
to live; or
(b) the person or persons with whom the child is
to spend time or communicate; or
(c) any other aspect of parental responsibility,
within the meaning of Part VII of the Act, for a child.
16 Deferral
of fees
(1) Subject to subregulation (2), all or part of a fee
mentioned in these Regulations may be deferred by a registrar or an authorised
officer, subject to any conditions determined by the registrar or authorised
officer.
(2) The registrar or authorised officer may defer the
whole or part of a fee if:
(a) the registrar or authorised officer
considers that:
(i) for a filing fee — the need
to file the document is so urgent that it overrides the requirement to pay the
filing fee at the time of filing; or
(ii) it would, having regard to the
financial circumstances of the person liable to pay the fee, be oppressive or
otherwise unreasonable to require payment in accordance with subregulation
11 (3), (3A) or (4); or
(b) for a setting-down fee — the date of the
hearing is more than 6 months after the day on which the proceeding is set down
for hearing.
(3) If payment of a fee has been deferred under this
regulation, the fee must be paid within:
(a) 30 days after the date of deferral; or
(b) another period specified in writing by the
registrar or authorised officer.
Note Regulation 16A provides for the
review of a decision of a registrar or an authorised officer.
16A Review
by Administrative Appeals Tribunal
(1) A person may apply under the Administrative
Appeals Tribunal Act 1975 to the Administrative Appeals Tribunal for review
of a decision of a registrar or an authorised officer under regulation 11A, 11B
or 16.
(2) If a registrar or an authorised
officer makes a decision under regulation 11A refusing to waive a fee, under
regulation 11B refusing to reduce a fee or under regulation 16 refusing to
defer a fee, the registrar or authorised officer must, within 28 days, give the
applicant written notice of:
(a) the decision; and
(b) the applicant’s right, under subsection 28
(1) of the Administrative Appeals Tribunal Act 1975, to request a
statement setting out the findings on material questions of fact, referring to
the evidence or other material on which those findings were based, and the
reasons for the decision.
(3) Failure to give notice of the matter
set out in paragraph (2) (b) does not affect the validity of the decision.
(4) In this regulation, registrar
does not include the registrar of a court of summary jurisdiction.
17 Registration of decrees
(1) A decree (other than a divorce order or a
decree of nullity of marriage) may be registered in any court having jurisdiction
under the Act by filing a sealed copy of the decree in that court.
(2) For the
purposes of subregulation (1), a decree may be filed:
(a) by a party to the proceedings in which the
decree was made;
(b) by a child entitled to benefit under the decree;
(c) by an officer of the court;
(d) by an officer, authority or person entitled
under paragraph 125 (1) (f) of the Act to take proceedings for the enforcement
of the decree; or
(e) with the leave of the court, by any other
person.
(3) A decree filed and registered under
subregulation (1) shall be numbered in accordance with the applicable Rules of
Court.
18 Interstate
enforcement of affiliation and similar orders
(1) This regulation applies to orders to which
section 109 of the Act applies.
(2) A reference in this regulation to an order
made by a court shall be read as including a reference to an order made by
another court on an appeal in connection with proceedings that originated in
the first‑mentioned court.
(3) For the purposes of this regulation, a
person working in a place, whether temporarily or permanently, shall be deemed
to be resident in that place as well as in the place in which he or she is in
fact resident.
(4) Where an order to which this
regulation applies is still in force and it appears that the person against
whom the order has been made is resident in, or proceeding to, a State or
Territory, other than the State or Territory in which the order was made, the
registrar of the court in the State or Territory in which the order was made
may, of his or her own motion, or on the application of a person for whose
benefit the order was made, send to a court having jurisdiction under the Act
in that other State or Territory:
(a) 3 certified copies of the order;
(b) a certificate setting out the amounts payable
and remaining unpaid under the order;
(c) such information and material (if any) as
the registrar possesses for ascertaining the identity and whereabouts of the
person against whom the order has been made; and
(d) a request in writing that the order be made
enforceable in that State or Territory.
(5) Where the registrar of a court
receives the documents referred to in subregulation (4), the registrar of that
court shall, if there are reasonable grounds for believing that the person
against whom the order has been made is resident in or proceeding to the area
over which the court has jurisdiction, register the order by filing in the
court a certified copy of the order and certificate and noting the fact and
date of the registration on that certified copy.
(6) An order registered under
subregulation (5) is, until the registration is cancelled, enforceable in the
court in which the certified copy of the order is filed both with respect to
any moneys or arrears presently payable under the order and with respect to
amounts becoming due under the order after it is so registered as if it were an
order made under the Act.
(7) Upon
registration under subregulation (5) of an order, the registrar of the court
shall:
(a) notify the registrar of the requesting court
of the registration; and
(b) cause a
certified copy of the order to be served upon the person against whom the order
has been made, together with a notice of registration of the order in the court
specifying:
(i) the amount, if any, (including
arrears) due under the order; and
(ii) the person, authority or court to
whom or to which money payable under the order is to be paid.
(8) Service of the
documents may be effected by:
(a) delivering the documents to the person personally;
or
(b) sending the documents by prepaid post to the
person at the person’s last known address; or
(c) posting, faxing or delivering the documents
to the person at the person’s address for service within the meaning of the
applicable Rules of Court.
(8A) Documents served under paragraph 8 (b) must be
accompanied by a form of acknowledgment of service for completion by the person
served.
(9) Where an order has been registered in a court
in accordance with this regulation and there are reasonable grounds for
believing that the person against whom the order has been made is no longer
resident in the State or Territory in which the order has been registered but
is or is about to be resident in another State or Territory, the registrar of
the court in which the order has been registered shall forthwith notify the
registrar of the court in which the order was made accordingly and shall give
to that registrar such information as the registrar of the first‑mentioned
court possesses concerning the whereabouts and intended movements of that
person.
(10) Where:
(a) an order has been registered in accordance
with this regulation; and
(b) the registrar of a court receives from the
requesting court a request in writing that the order be no longer enforced;
the registrar shall cancel the registration by noting the fact and
date of the cancellation on the certified copy of the order filed in the court.
(11) Upon the cancellation of the registration of
an order:
(a) the order ceases to be enforceable by the
court in which it has been registered;
(b) the order remains unenforceable by that court
unless and until it is again registered in that court; and
(c) every warrant or other process arising out
of the registration of the order ceases to have force or effect.
(12) Where:
(a) an order to which this regulation applies
made by a court in a State or Territory was, before the commencement of the
Act, registered in a court in another State or Territory (being a court that
has jurisdiction under the Act); and
(b) the registration had not been cancelled
before the commencement of this subregulation;
subregulations (6), (9), (10) and (11) apply in relation to that
order as if it were an order registered in the last‑mentioned court in
accordance with this regulation.
19 Operation
of State and Territory laws — prescribed laws (Act s 114AB)
For section 114AB of the Act, the following are
prescribed laws:
(a) the Crimes (Domestic and Personal
Violence) Act 2007 (NSW);
(b) the Family Violence Protection Act 2008
(Vic);
(c) the Domestic and Family Violence
Protection Act 1989 (Qld) and the Peace and Good Behaviour Act 1982 (Qld);
(d) Parts 1 to 6 of the Restraining Orders Act
1997 (WA);
(e) the Domestic Violence Act 1994 (SA);
(f) the Family Violence Act 2004 (Tas)
and Part XA of the Justices Act 1959 (Tas);
(g) the Domestic Violence and Protection
Orders Act 2008 (ACT);
(h) the Domestic and Family Violence Act
2007 (NT);
(i) the Domestic Violence Act 1995 (NI).
20 Priority
of attachment orders
For the purposes of the Maintenance Orders
(Commonwealth Officers) Act 1966, an order made under the applicable Rules
of Court for the attachment of moneys payable by the Commonwealth, a State, a
Territory or the Administration of a Territory or by an authority of the Commonwealth,
of a State or of a Territory (other than moneys as to which it is provided by
any law of the Commonwealth, of a State or of a Territory that they are not
liable to attachment) shall be regarded as having been made under this
regulation and shall have the same force and effect as an order made under
the Third Schedule to the repealed Act.
21 Conversion
of currency
(1) If the Child Support Registrar has
calculated the amount in Australian currency (the Australian amount)
that is equivalent to an amount expressed in a currency of an overseas country
in a document to which this regulation applies, the calculation done by the
Child Support Registrar also applies for these Regulations.
(2) If the Child Support Registrar has not done the
calculation mentioned in subregulation (1), the calculation must be done
in the way set out in this regulation.
(3) The Australian amount is calculated by using the
telegraphic transfer rate of exchange prevailing on the day on which the order,
agreement or liability relevant to the document becomes enforceable in
Australia.
(4) If the
Secretary calculates the Australian amount for a document to which this
regulation applies, the Secretary must endorse on the document the rate of
exchange used for the calculation.
(5) This regulation applies to the following documents:
(a) an overseas maintenance order (including a
provisional order);
(b) an overseas maintenance agreement;
(c) a document about an overseas maintenance
entry liability for Division 2 in Part III;
(d) a certificate or notice, originating in an
overseas jurisdiction, about an overseas maintenance order or agreement.
Part IIAAA Protected names and symbols
21AAA Protected names (Act s 9A)
For the definition of protected
name in subsection 9A (4) of the Act, each of the names specified
in Schedule 10 is prescribed.
21AAB Protected symbols (Act s 9A)
(1) Each symbol whose design is set out
in Schedule 11 is a protected symbol
for the purposes of the definition of that term in subsection
9A (4) of the Act.
(2) A symbol mentioned in subregulation
(1) does not cease to be a protected symbol by reason only of the symbol being
expressed in a colour, combination of colours, font or size different from that
set out in Schedule 11.
Part IIAA Automatic
variation of fees
21AA Biennial
increases
A fee mentioned in Schedule 1AA (other than a fee
mentioned in item 15) is increased in accordance with this Part on each
biennial anniversary of 1 July 2010.
21AB Calculation
of increase
(1) In this regulation:
fee means a fee mentioned in Schedule 1AA (other
than the fee mentioned in item 15).
CPI number means the All Groups Consumer
Price Index number (being the weighted average of the 8 Australian capital
cities) published by the Australian Statistician.
relevant period means any of the following
periods:
(a) the 2 year period commencing on 1 July 2010;
(b) after that period — each 2 year period
commencing on a biennial anniversary of 1 July 2010.
(2) If, in a relevant period, the latest
CPI number is greater than the earlier CPI number, a fee is taken to increase,
on 1 July immediately following the end of the period, in accordance with the
formula:
where:
earlier CPI number is the CPI number for the
last March quarter before the beginning of the relevant period; and
fee is the fee in force at the end of the
relevant period; and
latest CPI number is the CPI number for the
last March quarter before the end of the relevant period.
(3) If, apart from
this subregulation, the amount of a fee increased under subregulation (2) would
be an amount of dollars and cents, the amount is to be rounded to the nearest
whole dollar and, if the amount to be rounded is 50 cents, rounded down.
(4) Subject to subregulation (5), if at any time,
whether before or after the commencement of this regulation, the Australian
Statistician publishes for a particular March quarter a CPI number in
substitution for an index number previously published by the Australian
Statistician for that quarter, the publication of the later index number is to
be disregarded for the purposes of this regulation.
(5) If, at any time, whether before or
after the commencement of this regulation, the Australian Statistician changes
the reference base for the Consumer Price Index, then, for the purposes of the
application of this regulation after the change is made, regard shall be had
only to numbers published in terms of the new reference base.
Part IIAB Service
under the Hague Service Convention
Division 1 Preliminary
Note 1 This Part forms part of a
scheme to implement Australia’s obligations under
the Hague Service Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters. Under the Convention,
the Attorney-General’s Department of the Commonwealth is designated as the
Central Authority (under Article 2 of the Convention) and certain courts and
government departments are, for certain purposes, designated as ‘other ‘ or
‘additional ‘ authorities (under Article 18 of the Convention).
Note 2 This Part provides (in Division 2) for service in overseas Convention
countries of local judicial documents (documents that relate to proceedings in
the court) and (in Division 3) for default judgment in proceedings in the court
after service overseas of such a document.
Note 3 The Attorney-General’s Department of the Commonwealth maintains a copy of
the Convention, a list of all Convention countries, details of declarations and
objections made under the Convention by each of those countries and the names
and addresses of the Central and other authorities of each of those countries.
A copy of the Convention can be found at http://www.hcch.net.
21AC Definitions
for Part IIAB
In this Part:
additional authority, for a Convention
country, means an authority that is:
(a) for the time being designated by the
country, under Article 18 of the Hague Service Convention, to be an
authority (other than the Central Authority) for the country; and
(b) competent to receive requests for service
abroad emanating from Australia.
applicant, for
a request for service abroad, means the person on whose behalf service is
requested.
Note The term applicant may
have a different meaning in other provisions of these Regulations.
Central Authority, for a Convention country,
means an authority that is for the time being designated by that country, under
Article 2 of the Hague Service Convention, to be the Central Authority for that
country.
certificate of service means a certificate of
service that has been completed for the purposes of Article 6 of the Hague
Service Convention.
certifying authority, for a Convention
country, means the Central Authority for the country or some other authority
that is for the time being designated by the country, under Article 6 of the Hague
Service Convention, to complete certificates of service in the form annexed to
the Hague Service Convention.
civil proceedings means any judicial
proceedings in relation to civil or commercial matters.
Convention country means a country, other
than Australia, that is a party to the Hague Service Convention.
defendant, for a request for service abroad
of an initiating process, means the person on whom the initiating process is
requested to be served.
foreign judicial document means a judicial
document that originates in a Convention country and relates to civil
proceedings in a court of that country.
forwarding authority means the Registrar.
initiating process means any document by
which proceedings (including proceedings on any cross-claim or third party
notice) are commenced.
local judicial document means a judicial
document that relates to civil proceedings in the court.
request for service abroad means a request
for service in a Convention country of a local judicial document mentioned in
subregulation 21AF (1).
21AD Provisions
of this Part to prevail
The provisions of this Part prevail to the extent
of any inconsistency between those provisions and any other provisions of these
Regulations.
Division 2 Service abroad of local judicial documents
21AE Application
of Division
(1) Subject to subregulation (2), this Division
applies to service in a Convention country of a local judicial document.
(2) This Division does not apply if service of the
document is effected, without application of any compulsion, by an Australian
diplomatic or consular agent mentioned in Article 8 of the Hague Service
Convention.
21AF Application
for request for service abroad
(1) A person may apply to the Registrar, in the
Registrar’s capacity as a forwarding authority, for a request for service in a
Convention country of a local judicial document.
(2) The application must be accompanied by 3 copies of
each of the following documents:
(a) a draft request for service abroad, which
must be in accordance with Part 1 of Form 1A in Schedule 1;
(b) the document to be served;
(c) a summary of the document to be served,
which must be in accordance with Form 1B in Schedule 1;
(d) if, under Article 5 of the Hague Service
Convention, the Central Authority or any additional authority of the country to
which the request is addressed requires the document to be served to be written
in, or translated into, an official language of that country, a translation
into that language or 1 of the official languages of both the document to be
served and the summary of the document to be served.
(3) The application must
contain a written undertaking to the court, signed by the legal practitioner on
the record for the applicant in the proceedings to which the local judicial
document relates or, if there is no legal practitioner on the record for the
applicant in the proceedings, by the applicant:
(a) to be personally liable for all costs that
are incurred:
(i) by the employment of a person to
serve the documents to be served, being a person who is qualified to do so
under the law of the Convention country in which the documents are to be
served; or
(ii) by the use of any particular
method of service that has been requested by the applicant for the service of
the documents to be served; and
(b) to pay the amount of those costs to the
Registrar within 28 days after receipt from the Registrar of a notice
specifying the amount of those costs under subregulation 21AH (3);
and
(c) to give such security for those costs as the
Registrar may require.
(4) The draft request for service abroad:
(a) must be completed (except for signature) by
the applicant; and
(b) must state whether, if the time fixed for
entering an appearance in the proceedings to which the local judicial document
relates expires before service is effected, the applicant wants service to be
attempted after the expiry of that time; and
(c) must be addressed to the Central Authority,
or to an additional authority, for the Convention country in which the person
is to be served; and
(d) may state that the applicant requires a
certificate of service that is completed by an additional authority to be
countersigned by the Central Authority.
(5) Any translation required under paragraph (2) (d)
must bear a certificate (in both English and the language used in the
translation) signed by the translator stating:
(a) that the translation is an accurate
translation of the document to be served; and
(b) the translator’s full name and address and
his or her qualifications for making the translation.
21AG How
application to be dealt with
(1) If satisfied that the
application and its accompanying documents comply with regulation 21AF, the
Registrar:
(a) must sign the request for service abroad;
and
(b) must forward 2 copies of the relevant
documents:
(i) if the applicant has asked for the
request to be forwarded to a nominated additional authority for the Convention
country in which service of the document is to be effected — to the
nominated additional authority; or
(ii) in any other case — to the
Central Authority for the Convention country in which service of the document
is to be effected.
(2) The relevant documents mentioned in paragraph (1) (b)
are the following:
(a) the request for service abroad (duly
signed);
(b) the document to be served;
(c) the summary of the document to be served;
(d) if required under paragraph 21AF (2) (d),
a translation into the relevant language of each of the documents mentioned in paragraphs
(b) and (c).
(3) If not satisfied that the application or any of its
accompanying documents complies with regulation 21AF, the Registrar must inform
the applicant of the respects in which the application or document fails to
comply.
21AH Procedure
on receipt of certificate of service
(1) Subject to subregulation (5), on receipt of a
certificate of service in due form in relation to a local judicial document to
which a request for service abroad relates, the Registrar:
(a) must arrange for the original certificate to
be filed in the proceedings to which the document relates; and
(b) must send a copy of the certificate to:
(i) the legal practitioner on the
record for the applicant in the proceedings; or
(ii) if there is no legal practitioner
on the record for the applicant in the proceedings — the applicant.
(2) For the purposes of subregulation (1), a
certificate of service is in due form if:
(a) it is in accordance with Part 2 of Form 1A
in Schedule 1; and
(b) it has been completed by a certifying
authority for the Convention country in which service was requested; and
(c) if the applicant requires a certificate of
service that is completed by an additional authority to be countersigned by the
Central Authority — it has been countersigned.
(3) On receipt of a statement of costs in due form in
relation to the service of a local judicial document mentioned in subregulation (1),
the Registrar must send to the legal practitioner or applicant who gave the
undertaking mentioned in subregulation 21AF (3) a notice specifying
the amount of those costs.
(4) For the purposes of subregulation (3), a
statement of costs is in due form if:
(a) it relates only to costs of a kind mentioned
in paragraph 21AF (3) (a); and
(b) it has been completed by a certifying
authority for the Convention country in which service was requested.
(5) Subregulation (1) does not apply unless:
(a) adequate security to cover the costs
mentioned in subregulation (3) has been given under paragraph 21AF (3) (c);
or
(b) to the extent to which the security so given
is inadequate to cover those costs, an amount equal to the amount by which
those costs exceed the security so given has been paid to the Registrar.
21AI Payment
of costs
(1) On receipt of a notice under subregulation 21AH (3)
in relation to the costs of service, the legal practitioner or applicant, as
the case may be, must pay to the Registrar the amount specified in the notice
as the amount of the costs.
(2) If the legal practitioner or applicant fails to pay
that amount within 28 days after receiving the notice:
(a) except by leave of the court, the applicant
may not take any further step in the proceedings to which the local judicial
document relates until the costs are paid to the Registrar; and
(b) the Registrar may take such steps as are
appropriate to enforce the undertaking for payment of the costs.
21AJ Evidence
of service
A certificate of service in relation to a local
judicial document (being a certificate in due form, within the meaning of subregulation 21AH (2))
that certifies that service of the document was effected on a specified date
is, in the absence of any evidence to the contrary, sufficient proof that:
(a) service of the document was effected by the
method specified in the certificate on that date; and
(b) if that method of service was requested by
the applicant, that method is compatible with the law in force in the
Convention country in which service was effected.
Division 3 Default judgment following service abroad of initiating
process
21AK Application
of Division
This Division applies to civil proceedings for
which an initiating process has been forwarded following a request for service
abroad to the Central Authority (or to an additional authority) for a
Convention country.
21AL Restriction
on power to enter default judgment if certificate of service filed
(1) This regulation applies if:
(a) a certificate of service of initiating
process has been filed in the proceedings (being a certificate in due form,
within the meaning of subregulation 21AH (2)) that states that
service has been duly effected; and
(b) the defendant has not appeared or filed a
notice of address for service.
(2) In circumstances to which this regulation applies,
default judgment may not be given against the defendant unless the court is
satisfied that:
(a) the initiating process was served on the
defendant:
(i) by a method of service prescribed
by the internal law of the Convention country for the service of documents in
domestic proceedings on persons who are within its territory; or
(ii) if the applicant requested a
particular method of service (being a method under which the document was
actually delivered to the defendant or to his or her residence) and that method
is compatible with the law in force in the country, by that method; or
(iii) if the applicant did not request a
particular method of service, in circumstances where the defendant accepted the
document voluntarily; and
(b) the initiating process was served in
sufficient time to enable the defendant to enter an appearance in the
proceedings.
(3) In paragraph (2) (b), sufficient
time means:
(a) 42 days from the date specified in the
certificate of service in relation to the initiating process as the date on
which service of the process was effected; or
(b) such lesser time as the court considers, in
the circumstances, to be a sufficient time to enable the defendant to enter an
appearance in the proceedings.
21AM Restriction
on power to enter default judgment if certificate of service not filed
(1) This regulation applies if:
(a) a certificate of service of initiating
process has not been filed in the proceedings; or
(b) a certificate of service of initiating
process has been filed in the proceedings (being a certificate in due form,
within the meaning of subregulation 21AH (2)) that states that
service has not been effected;
and the defendant has not appeared or filed a notice of address for
service.
(2) If this regulation applies, default judgment may
not be given against the defendant unless the court is satisfied that:
(a) the initiating process was forwarded to the
Central Authority, or to an additional authority, for the Convention country in
which service of the initiating process was requested; and
(b) a period that is adequate in the
circumstances (being a period of not less than 6 months) has elapsed since the
date on which initiating process was so forwarded; and
(c) every reasonable effort has been made:
(i) to obtain a certificate of service
from the relevant certifying authority; or
(ii) to effect service of the
initiating process;
as the case requires.
21AN Setting
aside judgment in default of appearance
(1) This regulation applies if default judgment has been
entered against the defendant in proceedings to which this Division applies.
(2) If this regulation applies, the court may set aside
the judgment on the application of the defendant if it is satisfied that the
defendant:
(a) without any fault on the defendant’s part,
did not have knowledge of the initiating process in sufficient time to defend
the proceedings; and
(b) has a prima facie defence to the proceedings
on the merits.
(3) An application to have a judgment set aside under
this regulation may be filed:
(a) at any time within 12 months after the date
on which the judgment was given; or
(b) after the expiry of that 12-month period,
within such time after the defendant acquires knowledge of the judgment as the court
considers reasonable in the circumstances.
(4) Nothing in this regulation affects any other power
of the court to set aside or vary a judgment.
Part IIAC Service
in countries that are parties to conventions other than the Hague Service
Convention
21AO Application
of Part
This Part applies to the service of a document in a
convention country subject to the provisions of the convention.
21AP Definitions
for Part IIAC
In this Part:
convention means a convention (other than the
Hague Service Convention), that is in force for Australia, about legal
proceedings in civil and commercial matters.
convention country means a country that is a
party to a convention (other than the Hague Service Convention), that is in
force for Australia, about legal proceedings in civil and commercial matters.
21AQ Service
in accordance with convention
If the convention provides that a document may be
served in a convention country only in accordance with the convention, the
document must be served in accordance with this Part.
21AR Request
for service
(1) A party to proceedings may request service of a
document relating to the proceedings on a person in a convention country by:
(a) filing a request for service of the document
in accordance with Forms 1A and 1B in Schedule 1; and
(b) giving to the Registrar of the court in which
the proceedings are pending the following documents:
(i) the document to be served;
(ii) a translation of the document into
the language of the convention country;
(iii) copies of the document to be
served and the translation;
(iv) any further copies of the document
and translation required by the convention.
(2) The Registrar must seal the documents mentioned in
paragraph (1) (b) with the seal of the court and give them to the
Secretary for transmission to the convention country for service.
(3) For subparagraph (1) (b) (ii), the
translation must include a certificate, in the language of the convention
country, by the person who made the translation, certifying that it is a
translation of the document of which it purports to be a translation.
21AS Certificate
of service
(1) A certificate certifying that a document has been
served on a person on a date specified in the certificate is evidence of the
matters stated in the certificate if:
(a) it is made by a judicial authority in a
convention country; and
(b) it is received by the Registrar in accordance
with the convention.
(2) If the document must
be served by delivering it personally to the person, the certificate must
state:
(a) the means by which the person who served the
document identified the person served; or
(b) how the document came to the notice of the
person on whom it was to be served.
Part IIA Parentage
testing procedures and reports
Division 1 General
21A Application
of Part
This Part applies to a parentage testing procedure
that is required to be carried out on a person under a parentage testing order
made by the court under subsection 69W (1) of the Act.
21B Interpretation
In this Part, unless the contrary intention
appears:
bodily sample is not limited to a sample of
blood.
donor means the person required to provide a
bodily sample for the purposes of a parentage testing procedure.
HLA means human leucocyte antigen.
NATA means the National Association of
Testing Authorities, Australia.
nominated reporter means the person nominated
by a laboratory to prepare a report relating to the information obtained as a
result of carrying out a parentage testing procedure at that laboratory.
report means a report in accordance with
regulation 21M.
sample means a sample taken from a donor for
the purposes of a parentage testing procedure.
sampler means a person who takes a bodily
sample from a donor for the purposes of a parentage testing procedure.
testing means the implementation, or any part
of the implementation, of a parentage testing procedure.
21C Parentage
testing procedures
For the purposes of the definition of parentage
testing procedure in subsection 4 (1) of the Act, the following
medical procedures are prescribed:
(a) red cell antigen blood grouping;
(b) red cell enzyme blood grouping;
(c) HLA tissue typing;
(d) testing for serum markers;
(e) DNA typing.
21D Compliance
with Regulations
A parentage testing procedure is taken to be
carried out in accordance with these Regulations if:
(a) it is carried out:
(i) in compliance with Division 2; and
(ii) at a laboratory that is accredited
by NATA for
the purpose of carrying out parentage testing procedures; and
(iii) in accordance with standards of
practice that entitle the laboratory to be so accredited; and
(b) it is supplemented by a report under Division
3.
Division 2 Collection, storage and testing of samples
21E Samplers
A person must not take a bodily sample from a donor
for the purposes of a parentage testing procedure unless:
(a) the person is a registered medical
practitioner; or
(b) the person is employed by a hospital, a
pathology practice, a parentage testing practice or a registered medical
practitioner for the purpose of taking a bodily sample from a donor.
21F Provision
of information by donor — Form 2
(1) A sampler must not take a bodily sample from
a donor unless the donor or, if appropriate, a person described in
subregulation (3), has:
(a) immediately before the sampler takes the
bodily sample, completed an affidavit in accordance with Form 2 in Schedule 1,
to which is attached a recent photograph of the donor named in the affidavit;
and
(b) either:
(i) provided to the sampler a recent
photograph of the donor, measuring approximately 45 millimetres by 35
millimetres, that shows a full face view of the donor’s head and the donor’s
shoulders against a plain background; or
(ii) made a written arrangement with
the sampler for a photograph of that kind to be taken.
(2) The photograph required by paragraph (1) (b) is in
addition to the photograph that is required to be attached to Form 2.
(3) If the donor is a child under the age
of 18 years, or a person who is suffering from a mental disability, the
affidavit referred to in paragraph (1) (a) may be completed only by:
(a) in the case of a child under the age of 18
years — a person who is responsible for the long‑term care, welfare and
development of the child; or
(b) in the case of a person who is suffering from
a mental disability:
(i) a trustee or manager in relation
to the person under a law of the State or Territory whose laws apply to the
person; or
(ii) a person who is responsible for
the care, welfare and development of the person suffering from a mental
disability.
21G Collection
of blood samples
(1) A sampler may take a sample of blood
from a donor only with a needle or syringe that:
(a) has not been used for any purpose; and
(b) has been sterilised; and
(c) is disposable.
(2) Before taking a sample of blood from a donor,
the sampler must ensure that the area of the donor’s skin into which the needle
is to be inserted to withdraw the blood has been cleaned with an antiseptic.
21H Collection of bodily samples for DNA typing
(1) This regulation applies to the taking
of a bodily sample (except a sample of blood) from a donor for the purposes of
a parentage testing procedure that is DNA typing.
(2) A sampler must not take a bodily
sample from a donor with a swab unless the swab:
(a) has not been used for any purpose; and
(b) has been sterilised.
(3) If the bodily sample to be taken from a donor
is a skin scraping or a hair root, the implement used by the sampler to take
the sample must have been sterilised before use.
21I Container to be sealed and labelled
(1) If a bodily sample is taken from a donor, the
sampler must ensure that:
(a) the sample is placed in a container:
(i) immediately after it is taken; and
(ii) in the presence of the donor; and
(b) the container has not previously been used
for any purpose; and
(c) the container is sealed in a way that, if it
were opened after being sealed, that fact would be evident on inspection of the
container; and
(d) the container is labelled in a way that:
(i) if the label, or any part of the
label, were removed; or
(ii) if writing on the label were
impaired by alteration or erasure;
the removal of the label, or the
impairment, would be evident on inspection of the container; and
(e) the particulars on the label are inscribed
in ink and include:
(i) the full name of the donor; and
(ii) the date of birth and the sex of
the donor; and
(iii) the date and time at which the
sample was taken; and
(f) when paragraph (e) is complied with —
the sampler and the donor sign the label, in ink.
(2) If the donor is a child under the age of 18
years:
(a) the procedure specified in paragraph (1) (a)
must be completed in the presence of the person who is responsible for the long‑term
care, welfare and development of the child; and
(b) the procedure specified in paragraph (1) (f)
is taken to be satisfied only if the person who is responsible for the long‑term
care, welfare and development of the child signs the label.
(3) If the donor is a person who is
suffering from a mental disability:
(a) the procedure specified in paragraph (1) (a)
must be completed in the presence of:
(i) a trustee or manager in relation
to the person under a law of the State or Territory whose laws apply to the
person; or
(ii) a person who is responsible for
the care, welfare and development of the person suffering from a mental
disability; and
(b) the procedure specified in paragraph (1) (f)
is taken to be complied with only if the label is signed:
(i) by a trustee or manager in
relation to the person under a law of the State or Territory whose laws apply
to the person; or
(ii) by a person who is responsible for
the care, welfare and development of the person suffering from a mental
disability.
21J Statement by sampler — Form 4
After taking a bodily sample from a donor, the
sampler must:
(a) complete a statement in accordance with Form
4 in Schedule 1; and
(b) affix the photograph of the donor referred to
in paragraph 21F (1) (b) to the statement; and
(c) sign his or her name partly on the
photograph and partly on the statement in a way that, if the photograph were
later removed from the statement, the removal would be evident from inspection
of the statement.
21K Packing and storage requirements
(1) A bodily sample must be packed, stored
and transported to a laboratory for testing in a manner that:
(a) will preserve the integrity of the sample;
and
(b) ensures that the testing of the sample will
produce the same results as would have been obtained if the sample had been
tested immediately after collection.
(2) The sampler must ensure that the
following documents are sent to the laboratory with the sample:
(a) the affidavit completed under paragraph 21F
(1) (a);
(b) the statement completed under regulation 21J.
21L Testing of bodily samples
(1) A laboratory to which a bodily sample
has been sent for testing must ensure that the testing is completed:
(a) if the proposed procedure is red cell
antigen blood grouping, red cell enzyme blood grouping or testing for serum
markers — within 6 days after the sample is taken; or
(b) if the proposed procedure is HLA tissue
typing — within 3 days after the sample is taken; or
(c) if the proposed procedure is DNA
typing — within a reasonable time after the sample is taken.
(2) If the proposed procedure is red cell
enzyme blood grouping or testing for serum markers, paragraph (1) (a) is
complied with if a dried sample of the bodily sample to be tested is prepared
within 6 days after the sample is taken from the donor.
Division 3 Reports
21M Reports — Form 5
(1) For the purposes of paragraph 69ZB (b)
of the Act, a report must be prepared, in accordance with this regulation,
relating to the information obtained as a result of carrying out a parentage
testing procedure.
(2) The report must be in accordance with Form 5
in Schedule 1.
(3) Part I of the report must be completed
by the nominated reporter identified in the report.
(4) Part II of the report must be completed by:
(a) the person who carried out the parentage
testing procedure; or
(b) the person under whose supervision the
parentage testing procedure was carried out.
(5) A report completed otherwise than in
accordance with this regulation is taken to be of no effect.
Division 4 Miscellaneous
21N Notification of accredited laboratories and
nominated reporters
(1) NATA must prepare, for each financial
year:
(a) a list of any laboratories that are
accredited by NATA to carry out parentage testing procedures; and
(b) for each accredited laboratory — a
nominated reporter.
(2) Immediately before the beginning of
each financial year, NATA must give a copy of the list to:
(a) the Attorney‑General; and
(b) the Chief Executive Officer of the Family
Court of Australia; and
(c) the Registrar of the Family Court of Western
Australia; and
(d) the Chief Executive Officer of the Federal
Magistrates Court.
(3) The Attorney‑General must publish the
list in a manner determined by the Attorney‑General.
(4) If NATA amends the list during the
year to which it applies, it must give written notice of the amendment to each
person referred to in subregulation (2).
(5) If NATA gives notice under
subregulation (4), the Attorney‑General must publish a revised list in a manner
determined by the Attorney‑General.
Part III Overseas
orders
Division 1 Overseas child orders
23 Registration of overseas child orders
(1) Subregulation (1A) applies if:
(a) the Secretary receives:
(i) from a prescribed overseas
jurisdiction a certified copy of an overseas child order that was made in that
jurisdiction; and
(ii) a certificate signed by an officer
of a court or by some other authority in that jurisdiction relating to the
order and containing a statement that the order is, at the date of the
certificate, enforceable in that jurisdiction; and
(b) there are
reasonable grounds for believing that any of the following persons is
ordinarily resident in, present in, or proceeding to, Australia:
(i) the child who is the subject of
the order;
(ii) a parent of that child;
(iii) a person having the right to have
the child live with him or her, or the right of custody of or access to the
child, or the right to spend time or communicate with the child.
(1A) The Secretary must send
the documents mentioned in paragraph (1) (a) to:
(a) a registrar of the Family Court; or
(b) the registrar of a State Family Court; or
(c) the Registrar of a Supreme Court of a State
or Territory.
(2) When the registrar of a court receives
from the Secretary the documents referred to in subregulation (1), the
registrar shall register the order by filing in the court a certified copy of
the order and the certificate relating to the order and noting the fact and the
date of the registration on the certified copy.
(3) Where an overseas child order has been
registered in accordance with subregulation (2), the order may, on the application
of the registrar of a court or a person interested in the order (including the
child who is the subject of the order), be registered concurrently in any other
court having jurisdiction under the Act.
(4) A certificate by a court that the
order has been registered in that court in accordance with subregulation (2)
shall be sufficient evidence to enable a concurrent registration to be made.
(5) An overseas child order registered in
accordance with this regulation is enforceable throughout Australia until the
registration (including a concurrent registration) has been cancelled.
(6) Where it appears to a court that the
documents referred to in subregulation (1) have been received by the court
other than from the Secretary, the court may, if all other requirements of
subregulation (1) are satisfied, register the order.
(7) Where a court exercising jurisdiction
under section 70J of the Act substantially varies the order, the registrar of
the court shall forthwith forward to the court or to the appropriate authority
in the prescribed overseas jurisdiction:
(a) 3 certified copies of the order of the court
and the reasons for the order;
(b) a copy of the depositions; and
(c) such further material as the court directs.
(8) This regulation does not prevent a court that has
jurisdiction under the Act from receiving evidence of an order made in an
overseas jurisdiction (whether or not the jurisdiction is a prescribed overseas
jurisdiction), being an order that:
(a) deals with the person with whom a child is
supposed to live, spend time or communicate; or
(b) provides for a person to have custody of, or
access to, a child.
24 Transmission
of orders to overseas jurisdiction
(1) This regulation applies if:
(a) a State child order, or a parenting order
other than a child maintenance order, is made by a court in Australia in
relation to a child who is under 18; and
(b) the order may be enforced in a prescribed
overseas jurisdiction under provisions corresponding to Subdivision C of
Division 13 of Part VII of the Act.
(2) If the registrar of the court in which the order was
made, registered or last varied, receives a written request from a person
mentioned in subregulation (3) to send the order to the prescribed
overseas jurisdiction for registration and enforcement in that jurisdiction,
the registrar must send the documents mentioned in subregulation (4) to the
appropriate court or authority in the prescribed overseas jurisdiction.
(3) For subregulation (2), a request may be made by
a person:
(a) with whom the child is supposed to live, spend
time or communicate under the order; or
(b) who has a right to custody of, or access to,
the child under the order.
(4) For subregulation (2), the documents are as
follows:
(a) 3 certified copies of the order;
(b) a certificate signed by the registrar stating
that the order is, at the date of the certificate, enforceable in Australia;
(c) any information and material the registrar
holds that may assist in identifying and locating the child or any other person
who is subject to the order;
(d) a request in writing that the order be made
enforceable in the prescribed overseas jurisdiction.
(5) If:
(a) the order is registered in a court in the prescribed
overseas jurisdiction; and
(b) a court in
that jurisdiction makes an order under a law corresponding to section 70J of
the Act (the overseas order);
a court having jurisdiction under the Act may treat the overseas order
as an overseas child order for the purposes of exercising jurisdiction under
that section.
(6) If a court exercises jurisdiction under section
70J of the Act in relation to a child who is the subject of the overseas order,
the registrar of the court must send to the court in the prescribed overseas
jurisdiction:
(a) 3 certified copies of any order made by the
court and the reasons for the order; and
(b) such further material as the court directs.
(7) Nothing in this regulation prevents a
person having a right of custody of or access to a child, or a right to spend
time or communicate with the child, under the order from:
(a) obtaining certified copies of the order; or
(b) applying to a court in an overseas
jurisdiction (whether or not it is a prescribed overseas jurisdiction) for
registration and enforcement of the order in that jurisdiction.
(8) In this regulation:
custody, in relation to a child, includes:
(a) guardianship of the child; and
(b) responsibility for the long‑term or day‑to‑day
care, welfare and development of the child; and
(c) responsibility as the person or persons with
whom the child is to live.
overseas child order has the meaning given by
section 70F of the Act.
Division 2 Maintenance
24A Definitions
for Division 2
In this Division:
maintenance order
means:
(a) a maintenance order within the meaning of
section 110 of the Act; and
(b) an order made under section 67D or 67E of the
Act.
overseas maintenance
entry liability means an overseas maintenance entry liability included
in the Child Support Register under section 25A of the Child Support
(Registration and Collection) Act 1988.
reciprocating jurisdiction has the same
meaning as in section 110 of the Act.
registered maintenance liability means a
registrable maintenance liability under section 18A of the Child Support
(Registration and Collection) Act 1988.
25 Reciprocating jurisdictions
Each of the jurisdictions specified in Schedule 2
is declared to be a reciprocating jurisdiction for the purposes of section 110
of the Act.
28 Dealing with provisional overseas
maintenance orders
(1) This regulation applies if:
(a) a maintenance order has been made in a
reciprocating jurisdiction; and
(b) the order has no effect under the law of that
jurisdiction unless and until it is confirmed by a court outside that
jurisdiction; and
(c) the Secretary has received:
(i) a certified copy of the order; and
(ii) a
copy of the depositions of the witnesses in the proceedings in which the order
was made; and
(iii) a statement of the grounds on
which the order could have been opposed if the person against whom the order
was sought (the respondent) had appeared at the hearing; and
(d) there are reasonable grounds for believing
that:
(i) the respondent is ordinarily
resident in, is present in, or is proceeding to, Australia; and
(ii) the order will have effect under
the law of the overseas jurisdiction if it is confirmed by a court having
jurisdiction under the Act.
(2) The Secretary must make an application calling upon
the respondent to show cause why that order should not be confirmed.
Note For application, see
subregulation 3 (1).
(3) The Secretary must serve a copy of the application
on the respondent.
Note Service is dealt with by the
applicable Rules of Court.
28A Hearings about applications about
provisional overseas maintenance orders
(1) This regulation explains what may happen on
the hearing of an application under subregulation 28 (2).
(2) It is open to the respondent to raise
any ground of opposition that the respondent could have raised in the original
proceedings or any ground of opposition that the respondent could have raised
if the proceedings leading to the making of the provisional overseas order had
been heard in Australia.
(3) The statement mentioned in subparagraph
28 (1) (c) (iii) is conclusive evidence of the grounds of
opposition that could have been raised in the original proceedings.
(4) A court must not
determine the application if an application could properly be made at that
time, under the Child
Support (Assessment) Act 1989, read with the Child Support (Registration
and Collection) Act 1988, for administrative assessment of child support
(within the meaning of the Child Support (Assessment) Act 1989) by a
person seeking payment of child support for the child from the respondent.
(5) Subregulation (4) has effect whether or not an
application for administrative assessment of child support for the child has in
fact been made.
(6) The court may:
(a) confirm the provisional order (either with
or without modification); or
(b) discharge the provisional order; or
(c) adjourn the proceedings, and remit the
provisional order to the court that made it with a request that that court take
further evidence and further consider its provisional order.
28B Making of orders about provisional overseas
maintenance orders
(1) This regulation is about orders made
under subregulation 28A (6).
(2) An order confirming a provisional order may specify:
(a) the time or times by which the money payable
under the order is to be paid; and
(b) the person, authority or court to whom or to
which that money is to be paid; and
(c) where necessary, the means by which that
money must be paid or disbursed.
(3) A provisional order that is confirmed
(whether with or without modification) is enforceable in Australia, as so
confirmed, and has effect in Australia as if it were an order made under the
Act.
(4) If the court adjourns the proceedings,
the court may make a temporary order for periodic payments by the respondent.
(5) The Secretary must notify an officer
of the court or other authority in the overseas jurisdiction of a decision of
the court confirming or discharging an order.
28C Dealing with United States petitions
(1) This regulation applies if:
(a) a petition is filed in a court in a State or
Territory of the United States of America seeking a support order against a
person claimed in the petition to have a duty of support; and
(b) that court gives a certificate to the effect
that the petition sets out facts from which it may be determined that the
person owes a duty of support; and
(c) the Secretary has received certified copies
of the petition and the certificate, together with a copy of the provisions of
the law of the State or Territory to which the petition and certificate relate;
and
(d) there are reasonable grounds for believing
that the person is ordinarily resident in, present in, or proceeding to,
Australia.
(2) The Secretary must make an application calling on
the person claimed in the petition to owe a duty of support to show cause why
an order in the same terms as the order sought in the petition should not be
made.
Note For application, see
subregulation 3 (1).
(3) The Secretary must serve a copy of the application
on the person.
Note Service is dealt with by the
applicable Rules of Court.
(4) In this regulation, a reference to a
duty of support is a reference to a duty of support within the meaning of the
law under which the relevant petition is filed in a State or Territory of the
United States of America.
28D Hearing
of applications based on United States petitions
(1) This regulation explains what may happen on
the hearing of an application under subregulation 28C (2).
(2) It is open to the respondent to raise any
ground of opposition that the respondent:
(a) could have raised to the petition in the
relevant court in the United States of America; or
(b) could raise in proceedings in relation to the
provision of maintenance in a court having jurisdiction under the Act in
Australia.
(3) A court must not determine the application if an
application could properly be made, at that time, under the Child
Support (Assessment) Act 1989, read with the Child Support (Registration
and Collection) Act 1988, for administrative assessment of child support
(within the meaning of the Child Support (Assessment) Act 1989) by a
person seeking payment of child support for the child from the respondent.
(4) Subregulation (3) has effect whether or not an
application for administrative assessment of child support for the child has in
fact been made.
(5) The court may:
(a) make an order for the provision of
maintenance in the terms of the order sought in the petition (with or without
modification); or
(b) refuse to make an order; or
(c) adjourn the proceedings and remit the
petition and certificate to the court in which the petition was originally
filed with a request that that court take further evidence and further consider
the certifying of the petition.
(6) In this regulation:
certificate means a certificate mentioned in
paragraph 28C (1) (b).
28E Effect
of orders about United States petitions
(1) An order that is made under
regulation 28D may specify:
(a) the time or times by which the money payable
under the order is to be paid; and
(b) the person, authority or court to whom or to
which that money is to be paid; and
(c) where necessary, the means by which that
money must be paid.
(2) If the court adjourns the proceedings
under paragraph 28D (5) (c), the court may make a temporary order for periodic
payments by the respondent.
(3) As soon as practicable after the court makes
or refuses to make an order under this regulation, the Secretary must give
notice of the decision to the court in which the petition was filed or other
authority in the United States of America which caused the petition to be sent
to the Secretary.
(4) In this
regulation:
petition means a petition mentioned in
paragraph 28C (1) (a).
29 Power to make provisional order against
person in reciprocating jurisdiction
(1) If a court is satisfied that a
respondent to an application for
a maintenance order is resident in, or on the way to, a reciprocating
jurisdiction, the court may make an order in the absence of the respondent.
(2) Subregulation (1) applies even if
the respondent has not been served with the application and has not consented
to the order.
(3) The court can make any order that it could have made
under subregulation (1) if the application had been served on the
respondent and the respondent had failed to appear at the hearing of the
application.
(4) A court must not make
an order under subregulation (1) if
an application could properly be made, at that time, under
the Child Support (Assessment) Act 1989, read with the Child Support
(Registration and Collection) Act 1988, for administrative assessment of
child support (within the meaning of the Child Support (Assessment) Act 1989)
by a person seeking payment of child support for the child from the respondent.
(5) Subregulation (4) has effect whether or not an
application for administrative assessment of child support for the child has in
fact been made.
(6) An order under subregulation (1) is:
(a) provisional; and
(b) of no effect:
(i) unless it is expressed to be
provisional; and
(ii) unless and until confirmed (either
with or without modification) by a competent court in a reciprocating
jurisdiction or a jurisdiction with restricted reciprocity in which the
respondent is resident at the time of confirmation.
29A Dealing with provisional order against
person in reciprocating jurisdiction
(1) This regulation applies if a court
makes an order under subregulation 29 (1).
(2) The registrar of the court must send to the
Secretary:
(a) a copy of the depositions of the witnesses;
and
(b) 3 certified copies of the order; and
(c) a statement of the grounds on which the
making of the order could have been opposed if the respondent had appeared at
the hearing; and
(d) the information and material (if any) which
the registrar has for working out the identity and whereabouts of the
respondent.
(3) The Secretary must,
on receipt of the documents and information mentioned in subregulation (2),
send them to a court in the jurisdiction in which the respondent is resident or
to which the respondent is proceeding, with a request in writing that
proceedings be started for the confirmation and enforcement of the provisional
order.
29B Taking of further evidence
(1) If a court in a reciprocating jurisdiction
remits an order sent to it under subregulation 29A (3) to the court
in which the order was made for the taking of further evidence, the court must
take the evidence, and must cause the depositions of the witnesses to be sent
to the court in the reciprocating jurisdiction.
(2) Before taking the evidence, notice must be given to
such persons and in such manner as the court thinks fit.
(3) If, on the taking of further evidence,
it appears that the order ought not to have been made, the court may revoke the
order or may make a fresh provisional order under subregulation 29 (1).
(4) A court that takes evidence because of
a request made under subregulation (1) may, for subregulation (3),
have regard to the evidence given in that other court.
29C Confirmation of provisional order against
person in reciprocating jurisdiction
(1) This regulation applies if a court in
a reciprocating jurisdiction in which the respondent is resident for the time
being confirms (either with or without modification) an order made under
regulation 29.
(2) The order has effect in Australia as so confirmed.
(3) In proceedings arising out of or relating to
the order, it must be presumed, unless the contrary is proved, that the
respondent was resident in the overseas jurisdiction at the time the order was
confirmed.
30 Proceedings
for enforcement of overseas maintenance entry liabilities
(1) This regulation is about enforcement proceedings for
an overseas maintenance entry liability.
(2) Proceedings may be taken as if the liability were an
order made under Part VII or VIII of the Act.
(3) The Act, these Regulations and the applicable Rules
of Court, so far as they are applicable, and with such modifications as are
necessary, apply in relation to the proceedings.
(4) Proceedings may be taken:
(a) by the person who would be entitled to take
proceedings if the liability were an order under Part VII or VIII of the Act,
as mentioned in subregulation (2); or
(b) by the Secretary, on behalf of the person.
31 Cancellation
of registration in reciprocating jurisdiction
(1) Where:
(a) a maintenance order made in Australia is,
under the law of a reciprocating jurisdiction or a jurisdiction with restricted
reciprocity, enforceable in that jurisdiction; and
(b) the court in which the order was made is
satisfied that there are reasonable grounds for believing that the person
against whom the order was made is not resident in, or proceeding to, that
reciprocating jurisdiction, or it appears to the court that there is some good
reason why the order should no longer be enforceable in that jurisdiction;
the court may direct that steps be taken to cancel the registration
of the order in that jurisdiction.
(2) Where a court directs under subregulation (1)
that steps be taken to cancel the registration of an order in a jurisdiction,
the registrar of that court shall send to an appropriate authority in that
jurisdiction a request in writing that the order be no longer enforceable in
that jurisdiction.
(3) Where a court directs under
subregulation (1) that steps be taken to cancel the registration of an order in
a jurisdiction, the order shall cease to be enforceable in that jurisdiction
for the purposes of these Regulations.
32 Cancellation of registration of overseas
maintenance orders
(1) Where:
(a) an overseas maintenance order is registered
or confirmed under these Regulations; and
(b) the court in which the order is registered or
confirmed receives a request in writing made by the court that made the order
or some other competent authority in the overseas jurisdiction that the order
be made no longer enforceable in Australia;
the first‑mentioned court shall direct its registrar to cancel the
registration of the order by noting the fact and date of the cancellation on
the certified copy of the order filed in the court.
(2) Upon the cancellation of the
registration of an overseas maintenance order, the order ceases to be
enforceable in Australia.
(3) Where
the registrar of a court cancels the registration of an overseas maintenance
order in pursuance of a request in writing having been received from a court or
authority referred to in paragraph (1) (b), the registrar shall cause notice in
writing of the fact that the registration has been cancelled, and of the date
of the cancellation, to be given to the person who was required to make
payments under the order.
(4) In this regulation:
registered means registered before
1 July 2000.
34 Cancellation of registration of overseas
maintenance agreements
(1) Where:
(a) an overseas maintenance agreement is
registered under these Regulations; and
(b) the court in which the agreement is
registered receives a request in writing from:
(i) the parties to the agreement; or
(ii) the court or other authority in
the prescribed overseas jurisdiction an officer of which signed the certificate
for the agreement mentioned in paragraph 33 (2) (b) as in force before
1 July 2000;
that the agreement be no longer enforceable
in Australia;
the first‑mentioned court shall direct its registrar to cancel the
registration of the agreement by noting the fact and date of cancellation on
the certified copy of the agreement filed in the court.
(2) Upon the cancellation of the registration of
an overseas maintenance agreement under subregulation (1), the agreement ceases
to be enforceable in Australia.
(3) Where the registrar of a court cancels the
registration of an overseas maintenance agreement in pursuance of a request in
writing having been received from a court or authority referred to in
subparagraph (1) (b) (ii), the registrar shall cause notice in writing of the
fact that the registration has been cancelled, and of the date of the
cancellation, to be given to the person who was required to make payments under
the agreement.
(4) In this regulation:
registered means registered before
1 July 2000.
36 Party
in Australia may apply to vary etc overseas maintenance order, agreeement or
liability
(1) This regulation
applies to:
(a) an
overseas maintenance order or agreement registered in a court before
1 July 2000; and
(b) an
overseas maintenance entry liability or a registered maintenance liability.
(2) Application may
be made to a court having jurisdiction under the Act for an order discharging,
suspending, reviving or varying an order, agreement or liability to which this
regulation applies.
(3) An application
may be made by:
(a) the
person for whose benefit the order or agreement was made, or for whose benefit
the liability was created; or
(b) the
person against whom the order was made or the person who is liable to make
payments because of the agreement or the liability; or
(c) the
Secretary, on behalf of a person mentioned in paragraph (a) or (b).
(4) The law to be
applied to determination of an application is the law in force in Australia
under the Act.
37 Discharge
etc of overseas maintenance order or liability made in absence of party
(1) This regulation
applies to an application that is made under subregulation 36 (1) if:
(a) the
applicant is the person against whom an overseas maintenance order was made or
the person who is liable to make payments because of a liability mentioned in
paragraph 36 (1) (b); and
(b) the
applicant did not have notice of the proceedings giving rise to the order or
liability, did not appear in those proceedings and did not consent to the
making of the order or to the creation of the liability; and
(c) the
application is made within 6 months after the applicant was given notice that
the order or liability is enforceable in Australia.
(2) On the hearing
of the application, the applicant may raise any matter that the applicant could
have raised under Part VII or VIII of the Act if the proceedings
giving rise to the order or to the liability had been heard in Australia.
38 Variation
etc orders — status
(1) An order made under regulation 36 is provisional if
the relevant reciprocating jurisdiction is one of the following jurisdictions:
Brunei, Canadian Provinces and Territories
mentioned in Schedule 2, Territory of Christmas Island, Territory of Cocos
(Keeling) Islands, Cook Islands, Cyprus, Fiji, Gibraltar, Hong Kong, India,
Republic of Ireland, Kenya, Malawi, Malaysia, Malta, Nauru, New Zealand, Papua
New Guinea, Sierra Leone, Singapore, South Africa, Sri Lanka, Tanzania, Trinidad
and Tobago, United Kingdom, including the Channel Islands mentioned in
Schedule 2.
(2) Such an order is final if the reciprocal
jurisdiction is any other jurisdiction.
Note For reciprocating jurisdiction,
see regulation 24A.
38A Making
and effect of provisional variation etc orders
(1) This regulation applies if an order mentioned in
subregulation 38 (1) is provisional.
(2) The order is of no effect:
(a) unless it is expressed to be provisional;
and
(b) unless and until it is confirmed (either with
or without modification) by a competent court of the reciprocating jurisdiction
in which the overseas maintenance order affected by the provisional order was
made (the foreign court).
(3) The order may be made even though the
respondent has not been served with the application and has not consented to
the order proposed in the application.
Note For application, see
subregulation 3 (1).
(4) The registrar of the court making the
order must send a certified copy of the order, together with a copy of the
depositions of the witnesses, to the Secretary.
(5) The Secretary must send a certified copy of the
order, together with a copy of the depositions of the witnesses, to the foreign
court.
(6) If the foreign court confirms the
order (with or without modification), the order has effect in Australia as so
confirmed.
38B Taking of further evidence
(1) If the foreign court remits an order
mentioned in subregulation 38 (1) for the taking of further evidence, the court
to which the order has been remitted (the receiving court), after
giving notice under subregulation (3), must take the evidence.
(2) The registrar of the receiving court
must send a copy of the depositions of the witnesses whose evidence is taken
under subregulation (1) to the foreign court.
(3) The receiving court must give notice
of the taking of further evidence to the applicant for the order and to any
other person the court thinks fit.
(4) The notice may be given in such manner
as the court thinks fit.
(5) If, upon taking the further evidence,
it appears to the court that the order ought not to have been made, the court
may revoke the order and may make a new order.
39 Confirmation
of variations made provisionally in reciprocating jurisdiction
(1) This
regulation applies if the Secretary receives:
(a) a certified copy of a provisional order made
by a court in a reciprocating jurisdiction varying, discharging, suspending or
reviving a maintenance order:
(i) made in Australia and enforceable
in that jurisdiction; or
(ii) made in that jurisdiction and
enforceable in Australia; and
(b) a copy of the depositions of the witnesses
who gave evidence at the hearing of the application upon which the provisional
order was made.
(2) The Secretary must apply to a court for an order
confirming the provisional order.
(3) The Secretary must serve a copy of the application
on the respondent.
Note Service is dealt with by the
applicable Rules of Court.
(4) The court may:
(a) confirm the provisional order (with or
without modification); or
(b) discharge the provisional order; or
(c) adjourn the proceedings and remit the
provisional order to the court that made it with a request that the court take
further evidence and further consider its provisional order.
(5) A provisional order that is confirmed under
this regulation (whether with or without modification) has effect in Australia
as if it were an order made by a court having jurisdiction under the Act.
(6) In this regulation, a reference to a
provisional order includes a reference to a provisional variation of:
(a) an Australian maintenance agreement; or
(b) an overseas maintenance agreement.
Part IIIB Parentage
39B Extension
of provisions of Act
(1) Subdivisions D (except subsection 69U (3))
and E of Division 12 of Part VII of the Act apply, subject to this regulation,
to proceedings for the purposes of an international agreement or arrangement
with a reciprocating jurisdiction or a jurisdiction mentioned in Schedule 4.
(2) For subregulation (1), each reciprocating
jurisdiction and each jurisdiction mentioned in Schedule 4 is a prescribed
overseas jurisdiction.
(3) Matters mentioned in this regulation are taken to be
matters arising under the Act for the purposes of the application of section 69H
of the Act in relation to those matters.
(4) Despite subsections 69S (1) and 69U (3) of the Act,
the presumption of parentage provided for by subsection 69S (1) is taken, for
these Regulations, to be rebuttable under subsection 69U (1) of the Act.
Note Subsection 69U (3) is not
extended by subregulation (1).
39BA Jurisdictions
For subsections 69S (1A) and 69XA (4) of
the Act, a country mentioned in Schedule 4 or 4A is a jurisdiction.
Part IIIC Jurisdiction
of courts and related matters
39C Jurisdiction
of courts
To the extent that subsections 39 (5) and (6)
and section 69H of the Act do not invest the courts of a State or
Territory mentioned in those provisions with federal jurisdiction, or confer
jurisdiction on a federal court mentioned in those provisions, for proceedings
mentioned in Part III or IIIB, the relevant courts are invested with
jurisdiction, or jurisdiction is conferred on them for those proceedings, by
this regulation.
Note Subsection 124A (2) of the
Act authorises the making of regulations conferring jurisdiction on a court or
investing a court with jurisdiction.
39D Convention
countries
For section 117AC of the Act, a country listed in
Schedule 4A is a convention country.
Part IV Convention
on recovery abroad of maintenance
40 Interpretation
of Part IV
(1) In this Part, unless the contrary
intention appears:
Convention means the Convention on the
Recovery Abroad of Maintenance, referred to in section 111 of the Act, a copy
of the English text of which is set out in Schedule 3.
convention country means a country that under
regulation 48 is a convention country.
Receiving Agency has the meaning it has in
the Convention.
Transmitting Agency has the meaning it has in
the Convention.
(2) In this Part, unless the contrary
intention appears:
(a) a reference to payment of money for the
maintenance of a child includes a reference to payment of money for the
education of that child; and
(b) a reference to proceedings under this Part in
a court includes a reference to proceedings on appeal from original proceedings
under this Part.
(3) The purpose of this Part is to give
effect to section 111 of the Act.
45 Immunity of Secretary from orders to pay
costs
The Secretary must not be made subject to any order
to pay costs over the exercise of powers or performance of functions given to
the Secretary under these Regulations.
Note Secretary includes a
person authorised to perform a function: see subregulation 3 (1).
48 Convention
countries
For the purposes of this Part, each of the
following countries is a convention country:
(a) a country specified in Schedule 4;
(b) any other country in respect of which the
Convention has entered into force for Australia.
50 Applications by persons in convention
countries for recovery of maintenance under Commonwealth, State or Territory law
(1) This regulation applies if:
(a) the Secretary receives from a Transmitting
Agency in a convention country an application for:
(i) recovery of maintenance that a
person claims is required, under a law of the Commonwealth or of a State or
Territory, to be paid by another person; or
(ii) variation of an existing order for
maintenance; and
(b) there are no reasonable grounds for believing
that the other person is not subject to the jurisdiction of the Commonwealth or
of a State or Territory.
(2) The Secretary may do anything required to be done on
behalf of the claimant by a Receiving Agency under the Convention to recover
the maintenance.
(3) Things that may be done by the Secretary do not
include registration or enforcement of an order mentioned in, or sought by, the
application.
(4) However, an Australian court may, in proceedings
under this Part, have regard to the application and the record of proceedings
of a court that made any order to which the application relates.
(5) This regulation does not affect the operation of
Part III of these Regulations.
50A Proceedings
on behalf of persons in convention countries for recovery of maintenance
(1) This regulation applies to proceedings
under this Part in a court on behalf of a claimant.
(2) The court must proceed as if the claimant were
before the court.
(3) A court must not make a maintenance order in
proceedings under this Part if an application could properly be made at
that time, under the Child Support (Assessment) Act 1989,
read with the Child Support (Registration and Collection) Act 1988, for
administrative assessment of child support (within the meaning of the Child
Support (Assessment) Act 1989) by a person seeking payment of child support
for the child from the respondent.
(4) Subregulation (3) has effect whether or not an
application for administrative assessment of child support for the child has in
fact been made.
(5) The Secretary may do anything that is required or
authorised to be done by an applicant in proceedings in that court in relation
to maintenance.
(6) In any document to be filed in, or
issued out of, the court, the Secretary may be described as the Secretary of
the Attorney‑ General’s Department acting on behalf of the claimant whose name
must be set out in the document.
50B Return of applications
(1) If, in relation to an application
mentioned in subregulation 50 (1) received from a Transmitting Agency in a
convention country, a summons or other document that requires the other person
mentioned in that subregulation to appear in proceedings under this Part cannot
be served on the other person, the Secretary must send to that Agency a
statement giving whatever information the Secretary has been able to obtain
concerning the whereabouts of that other person and must return the application
to that Agency.
(2) For section 89A of the Act, the office
of Secretary is a prescribed office.
(3) Subregulation (2) does not limit the
functions of the Secretary under this Part.
51 Certain
requests to be made only with leave of court
Notwithstanding any other provision of
these Regulations, in order to prevent proceedings under this Part from being
unduly protracted a respondent must not seek, without leave of the court:
(a) a request for answers to specific questions;
or
(b) a request to make discovery of documents; or
(c) a notice to produce documents; or
(d) a notice to admit facts or documents.
53 Taking of evidence at request of
appropriate authority in convention countries
(1) This regulation applies if the Secretary receives a
request from the appropriate authority to obtain evidence concerning specified
matters about an application under the law of a convention country:
(a) to recover maintenance from another person;
or
(b) to the variation of an order made in that
country for payment of maintenance by another person;
where the person is subject to the jurisdiction of
that country.
(2) The Secretary and any court exercising jurisdiction
under the Act must do anything required to be done under the Convention to
obtain the evidence.
(3) When the evidence is obtained, the Secretary must
send a certified copy of a record of the evidence to the appropriate authority.
(4) If under subregulation (2), the Secretary requests a
court to take evidence for the proceedings mentioned in subregulation (1), the
court must give notice of the time when, and the place where, the evidence is
to be taken to:
(a) the Secretary; and
(b) the person from whom the maintenance is
claimed; and
(c) the appropriate authority.
(5) The notice must be sufficient, in the opinion of the
court, to enable the parties to the proceedings to attend or be represented at
the taking of the evidence.
(6) In this regulation:
appropriate authority, in relation to a
request to obtain evidence for proceedings in a convention country, means:
(a) the Transmitting Agency for that country
under the convention; or
(b) a court in that country; or
(c) if the request is made through the Child
Support Registrar, that Registrar.
54 Obtaining evidence in convention countries
for purposes of proceedings under this Part
(1) In proceedings under this Part in a
court on behalf of a claimant in a convention country, the court may require
the Secretary or an authorized person to request the Transmitting Agency in the
convention country to obtain evidence required for the proceedings.
(2) A requirement by a court under this
regulation shall set out:
(a) the names and addresses of the claimant and
respondent in the proceedings;
(b) the name and address of any person whose evidence
is to be taken; and
(c) the matters concerning which evidence is
required.
(3) The Secretary shall transmit to the
Transmitting Agency in the convention country a request that the Secretary has
been required under this regulation to make and shall request the Agency to
give the Secretary and the respondent in the proceedings notice of the time
when, and place where, the evidence is to be taken in order that the respondent
may attend, or be represented at, the taking of the evidence.
(4) Nothing in this regulation affects the power of a
court to order or request the taking of evidence within or outside Australia.
55 Admissibility
of evidence given in convention countries
In a proceeding under this Part in a court, a
statement contained in a document that purports:
(a) to set out or summarise evidence given in a
proceeding in a court in a convention country and to have been signed by the
person before whom the evidence was given; or
(b) to set out or summarise evidence taken in a
convention country for the purpose of a proceeding under this Part (whether in
response to a request made by the court or otherwise) and to have been signed
by the person before whom the evidence was taken; or
(c) to have been received as evidence in a
proceeding in a court in a convention country and to have been signed by a
judge or other officer of the court;
is admissible as evidence of any fact stated in the document to the
same extent as oral evidence of that fact is admissible in the proceeding,
without proof of the signature of the person purporting to have signed it or of
the official position of that person.
56 Orders
of court in convention countries
In proceedings under this Part in a court, a
document purporting to be an order, or a copy of an order, of a court in a
convention country and to have been signed by a judge or other officer of the
court is admissible as evidence of that order without proof of the signature of
the person purporting to have signed it or of the official position of that
person.
Part 5 Arbitration
67A Definitions for Part 5
In this Part, unless the contrary intention
appears:
arbitration means arbitration under section
13E of the Act or relevant property or financial arbitration.
arbitration agreement means an agreement made
under regulation 67F between the parties to an arbitration.
67B Prescribed requirements for arbitrator
(Act s 10M)
For the definition of arbitrator in
section 10M of the Act, a person meets the requirements for an arbitrator if:
(a) the person is a legal practitioner; and
(b) either:
(i) the person is accredited as a
family law specialist by a State or Territory legal professional body; or
(ii) the person has practised as a
legal practitioner for at least 5 years and at least 25% of the work done by
the person in that time was in relation to family law matters; and
(c) the person has completed specialist
arbitration training conducted by a tertiary institution or a professional
association of arbitrators; and
(d) the person’s name is included in a list, kept
by the Law Council of Australia or by a body nominated by the Law Council of
Australia, of legal practitioners who are prepared to provide arbitration
services under the Act.
67C Matters
that may not be arbitrated
A Part VIII proceeding, a part of a Part VIII
proceeding, or a matter arising in a Part VIII proceeding, with respect to
property to which an approved maintenance agreement under section 87 of the Act
applies, must not be dealt with by arbitration under the Act.
67D Application for referral to arbitration
(Act s 13E)
An application for an order under section 13E of
the Act in relation to a Part VIII proceeding, a part of a Part VIII
proceeding, or a matter arising in a Part VIII proceeding, must be:
(a) in accordance with Form 6; and
(b) made jointly by all parties to the
proceeding; and
(c) accompanied by a financial statement in
accordance with the applicable Rules of Court.
67E Application relating to relevant property
or financial arbitration (Act s 13F)
(1) An application, under section 13F of the Act, for an
order to facilitate the effective conduct of the relevant property or financial
arbitration of a dispute must be in accordance with Form 7.
(2) For the avoidance of doubt, an application may be
made:
(a) by a party to the arbitration; or
(b) jointly by all parties to the arbitration.
67F Arbitration agreement
(1) The parties to an arbitration may make an agreement
in relation to the arbitration (an arbitration agreement).
(2) An arbitration agreement must:
(a) be in writing; and
(b) set out the information mentioned in
subregulation (3) in relation to the arbitration; and
(c) give details of the arrangements agreed by
the parties in relation to the payment of the costs of the arbitration; and
(d) include a statement to the effect that each
party agrees to pay his or her agreed share of the costs of the arbitration
within 28 days, or another specified period agreed by the parties and the
arbitrator, after an award has been made; and
(e) be signed by each party to the arbitration.
(3) For paragraph
(2) (b) the information is as follows:
(a) the name, address and contact details of
each party to the arbitration;
(b) the name of the arbitrator;
(c) the date, time and place at which the
arbitration is to be conducted;
(d) the issues to be dealt with in the
arbitration;
(e) the estimated time needed for the
arbitration;
(f) information about how the arbitration will
be conducted (for example, information about the exchange of documents and
witness statements, scheduling and receiving expert evidence);
(g) the circumstances in which the arbitration
may be suspended or terminated;
(h) the estimated costs of the arbitration,
including the costs of any disbursements that may be incurred in respect of the
arbitration (for example, hire of a venue for the arbitration).
67G Notice of arbitration
(1) This regulation does not apply if the parties to an
arbitration have made an arbitration agreement in relation to the arbitration.
(2) Before conducting an arbitration, the arbitrator must
give to each party to the arbitration a written notice setting out:
(a) the information mentioned in subregulation
67F (3) in relation to the arbitration; and
(b) in relation to the costs of the arbitration,
information explaining the effect of regulation 67H.
(3) The notice must also state that any party to the
arbitration may attend, and be heard at, the arbitration.
(4) The notice must be given at least 28 days before the
arbitration is conducted, unless the parties have agreed on another period of
notice.
67H Costs
of arbitration
(1) The costs of an arbitration are to be shared equally
between the parties to the arbitration unless the parties agree, in writing,
otherwise.
(2) If the parties have not made an arbitration
agreement, each party must inform the arbitrator, in writing, before the
arbitration starts, that he or she agrees to pay his or her equal or agreed
share of the costs of the arbitration, within 28 days, or another period agreed
by the parties and the arbitrator, after an award has been made.
(3) If the parties have
not made an arbitration agreement, and do not comply with subregulation (2),
the arbitrator must:
(a) proceed no further with the arbitration; and
(b) for an arbitration under section 13E of the
Act, refer the matter to the court that ordered the arbitration.
67I Duties of arbitrator
(1) In an arbitration, an arbitrator must determine the
issues in dispute between the parties to the arbitration in accordance with the
Act.
(2) An arbitrator must conduct an arbitration with
procedural fairness (for example, giving each party to the arbitration a
reasonable opportunity to be heard and to respond to anything raised by another
party).
(3) An arbitrator must inform each party, in writing, if
during the arbitration, the arbitrator becomes aware of anything that could
lead to direct or indirect bias in favour of or against any party.
67J Oath
or affirmation by arbitrator
An arbitrator must, before acting in the capacity
of an arbitrator, make an oath or affirmation in the following form:
I [name of arbitrator] do swear by Almighty
God [or solemnly and sincerely affirm and declare] that I will not
disclose to any person any communication or admission made to me in my capacity
as arbitrator, unless I reasonably believe that it is necessary for me to do
so:
(a) to protect a child; or
(b) to prevent or
lessen a serious and imminent threat to:
(i) the life or health of a person; or
(ii) the property of a person; or
(c) to report the
commission, or prevent the likely commission, of an offence involving:
(i) violence or a threat of violence
to a person; or
(ii) intentional damage to property of
a person or a threat of damage to property; or
(d) to enable me to discharge properly my
functions as an arbitrator; or
(e) if a child is separately represented by a
person under an order under section 68L of the Act — to assist the person
to represent the child properly.
67K Suspension
of arbitration — failure to comply with direction
If a party to an arbitration does not comply with a
procedural direction given by the arbitrator, the arbitrator:
(a) may suspend the arbitration; and
(b) if the failure to comply exceeds 28 days,
must, for an arbitration under section 13E of the Act, refer the matter to the
court that ordered the arbitration.
67L Termination
of arbitration — lack of capacity
(1) If an arbitrator considers that a party to an
arbitration does not have the capacity to take part in the arbitration, the
arbitrator must:
(a) terminate the arbitration; and
(b) for an arbitration under section 13E of the
Act, refer the matter to the court that ordered the arbitration.
(2) For subregulation (1), a person who is a party to
an arbitration does not have the capacity to take part in the arbitration if:
(a) the person does not understand the nature
and possible consequences of the arbitration; or
(b) the person is
not capable of:
(i) giving adequate instruction to his
or her representative for the conduct of the arbitration; or
(ii) satisfactorily appearing in person
in the arbitration.
67M Appearance in arbitration
In an arbitration, a party may appear in person, or
be represented by a legal practitioner.
67N Attendance of persons to give evidence
(1) An arbitrator conducting an arbitration may require
a person (whether a party to the arbitration or not):
(a) to attend the arbitration to give evidence;
or
(b) to produce documents; or
(c) to attend the arbitration to give evidence
and produce documents.
(2) A party to an arbitration may apply to the court for
the issue of a subpoena requiring a person (whether a party to the arbitration
or not):
(a) to attend the arbitration to give evidence;
or
(b) to produce documents; or
(c) to attend the arbitration to give evidence
and produce documents.
(3) An application under subregulation (2) must be
made in accordance with the applicable Rules of Court.
Note If a person does not comply with a
requirement under subregulation (1), or a subpoena issued under subregulation
(2), in relation to an arbitration, a court may make such orders as it
considers appropriate to facilitate the effective conduct of the arbitration — see subsection 13E (2) of the Act in
relation to arbitration under section 13E of the Act, and section 13F
of the Act in relation to relevant property and financial arbitration.
67O Application
of rules of evidence
(1) Subregulation (2) applies to an arbitration if all
parties to the arbitration consent to its application.
(2) In conducting an arbitration, an arbitrator is not
bound by the rules of evidence but may inform himself or herself on any matter
in any way that he or she considers appropriate.
67P Making an award
(1) At the end of an arbitration, the arbitrator must
make an award.
(2) The award must include a concise statement setting
out:
(a) the arbitrator’s reasons for making the
award; and
(b) the arbitrator’s findings of fact in the
matter, referring to the evidence on which the findings are based.
(3) The award must:
(a) be mechanically or electronically printed;
and
(b) be contained in a single document.
(4) The arbitrator must:
(a) give a copy of the award to each party to
the award; and
(b) if the award was made in an arbitration under
section 13E of the Act — inform the court that ordered the arbitration
that:
(i) the arbitration has ended; and
(ii) an award has been made in relation
to all, or part, of the proceeding to which the arbitration relates.
67Q Registration of award (Act s 13H)
(1) For section 13H of the Act, an application to
register an award made in an arbitration must be in accordance with Form 8.
(2) The applicant must serve a copy of the application
on each other party to the award.
(3) A party on whom an
application is served may, within 28 days after service, bring to the
attention of the court any reason why the award should not be registered.
Note An example of a way of bringing a
matter to the attention of the court is by filing an affidavit.
(4) If nothing is brought to the court’s attention under
subregulation (3), the court must register the award.
(5) If a party brings a matter to the court’s attention
under subregulation (3), the court must, after giving all parties a
reasonable opportunity to be heard in relation to the matter, determine whether
to register the award.
Note For the effect of registration, see
subsection 13H (2) of the Act.
67R Notice of registration of award
(1) If a court registers an award, the court must give
notice of the registration to each party to the award.
(2) The notice must state:
(a) the date when the award was registered; and
(b) the place where the award was registered.
67S Enforcement of registered awards
A party to a registered award may apply for
enforcement of the award as if the award were an order made under Part VIII of
the Act.
67T Registration of decree affecting registered
award
(1) If a decree is made by a court under section 13J or
13K of the Act in relation to a registered award, the party who registered the
award must apply for registration of the decree in the court in which the award
is registered.
(2) The application must be in accordance with Form 9.
Part VI Repeal
and savings
78 Repeal
of former Family Law Regulations
Statutory Rules 1975 No. 210, 1976 Nos. 97 and 213,
1977 No. 172, 1979 No. 146, 1980 No. 215, 1982 Nos. 244 and 295, 1983 Nos.
243, 273 and 280 and 1984 No. 139 are repealed.
79 Savings —
proceedings instituted before 5 January 1976
Subject to section 9 of the Act, regulation 4 and
the standard Rules of Court, the Matrimonial Causes Rules and the rules,
regulations, practice and procedure of any court having jurisdiction under the
repealed Act as in force immediately before 5 January 1976 continue to apply to
proceedings instituted before 5 January 1976, and the filing and serving of
pleadings including affidavits may be continued as if the repealed Act had
continued in force.
80 Savings
in relation to the former Regulations
(1) Subject to subregulations (4) and (5),
proceedings pending or orders or directions made, appointments made or
authorizations given, documents filed or served, or any other act or thing
done, before the commencement of these Regulations, in accordance with the
former Regulations, shall, if of a kind to which these Regulations or the
standard Rules of Court apply, be treated as if pending, made, given, filed,
served, or done, as the case requires, in accordance with these Regulations or
those Rules, as the case requires.
(2) Subject to subregulations (4) and (5),
an obligation incurred or undertaking given under the former Regulations before
the commencement of these Regulations if of a kind to which these Regulations
or the standard Rules of Court apply shall be treated as if incurred or given
under these Regulations or the standard Rules of Court, as the case requires.
(3) Subject to subregulations (4) and (5), where
a person has, before the commencement of these Regulations, omitted to do any
act or thing in accordance with the former Regulations and the act or thing is
one to which these Regulations apply, the act or thing shall be treated as if omitted
to be done under these Regulations unless subsequently done in accordance with
these Regulations.
(4) These Regulations do not operate to
revive any period of time for the doing of any act or thing, being a period of
time which, under the former Regulations, had expired before the commencement
of these Regulations.
(5) A period of time that commenced under
the former Regulations but had not expired before the commencement of these
Regulations shall, if the matter in respect of which that period has commenced
is a matter to which these Regulations apply, continue as if these Regulations
had not come into operation.
81 Transitional matters in connection with Family
Law Amendment Regulations 2000 (No. 2)
(1) The former Regulations continue in force in relation
to:
(a) pending proceedings; and
(b) acts or things that have been done, or that
may or must be done, in accordance with those Regulations.
(2) An act or thing that may or must be done by the
Controller or an authorised person under Part IV of the former Regulations, as
continued in force, may or must be done by the Secretary.
(3) In this regulation:
former Regulations means the Family Law
Regulations 1984 as in force immediately before 1 July 2000.
pending proceedings means proceedings that were
started in accordance with the former Regulations before 1 July 2000 but were
not completed before that date.
82 Shared
Parental Responsibility Act — end of transition period
For the definition
of transition period in subitem 118 (2) of Schedule 4
to the Shared Parental Responsibility Act, the day prescribed is 30 June 2009.